Burns v. First National Bank of Omaha et al

Filing 33

MEMORANDUM AND ORDER - The Objection to Magistrate Judge Cheryl R. Zwart's Order, ECF No. 32 , is overruled. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

KEVIN E. BURNS,
Plaintiff,

8:17CV289

vs.
FIRST NATIONAL BANK OF OMAHA,

MEMORANDUM
AND ORDER

Defendant.

This matter is before the Court on the Objection to Magistrate Judge Cheryl R.
Zwart’s Order, ECF No. 32, denying pro se Plaintiff Kevin Burns’s Motion to Compel
Discovery, ECF No. 24. In Burns’s objection, he also continues1 to argue that Magistrate
Judge Zwart should recuse herself from this case.
When a party objects to a magistrate judge’s order on a nondispositive pretrial
matter, a district court may set aside any part of the order shown to be clearly erroneous
or contrary to law. Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). “A finding is clearly
erroneous when although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.”
Chase v. Comm’r of Internal Revenue, 926 F.2d 737, 740 (8th Cir. 1991) (internal
quotation marks omitted). “An order is contrary to law if it fails to apply or misapplies
relevant statutes, case law, or rules of procedure.” Haviland v. Catholic Health InitiativesIowa, Corp., 692 F. Supp. 2d 1040 (S.D. Iowa 2010).

Judge Zwart denied Burns’s earlier Motion to Disqualify, ECF No. 22, and the undersigned Judge
overruled his Objection to that denial, ECF No. 30.
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Magistrate Judge Zwart found that Defendant First National Bank of Omaha
already produced much of the evidence Burns requested in his Motion to Compel. She
also found that the rest of the evidence either did not exist or was not relevant to Burns’s
claims. Burns failed to demonstrate that any part of the Order was clearly erroneous or
contrary to law under Fed. R. Civ. P. 72(a). Further, this Court has already denied his
first request to have Magistrate Judge Zwart recused and he has raised nothing in his
second request that warrants recusal.
Accordingly,
IT IS ORDERED:

The Objection to Magistrate Judge Cheryl R. Zwart’s Order,

ECF No. 32, is overruled.

Dated this 29th day of June, 2018.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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