Nebraska Data Centers, LLC v. Khayet

Filing 159

ORDER - Defendant's motion to strike, (Filing No. 155 ), is granted and his motion for reconsideration, (Filing No. 154 ), is stricken. Defendant's motion for reconsideration and for recusal, (Filing No. 156 ), is denied. Ordered by Magistrate Judge Cheryl R. Zwart. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NEBRASKA DATA CENTERS, LLC,
Plaintiff,

8:17CV369

vs.
ORDER
LEO KHAYET,
Defendant.
Defendant has moved for reconsideration of my prior orders and for recusal.
(Filing No. 156).
As to Defendant’s motion to recuse, pursuant to 28 U.S.C. § 455(a), “Any . . .
judge . . . of the United States shall disqualify [her]self in any proceeding in which [her]
impartiality might reasonably be questioned.” Every judicial officer must satisfy herself
that she is actually unbiased toward the parties in each case and that her impartiality is
not reasonably subject to question.
The judge presiding over a case is in the best position to appreciate the
implications of those matters alleged in a recusal motion. "In deciding
whether to recuse [her]self, the trial judge must carefully weigh the policy
of promoting public confidence in the judiciary against the possibility that
those questioning his impartiality might be seeking to avoid the adverse
consequences of [her] presiding over their case.
In re Kansas Public Employees Retirement System, 85 F.3d 1353, 1358 (8th Cir. 1996)
(quoting In re Drexel, 861 F.2d 1307, 1312 (2d Cir. 1988). See also United States v.
Balistrieri, 779 F.2d 1191, 1202-03 (7th Cir. 1985) (decisions with respect to
disqualification should be made by the judge sitting in the case, and not by another
judge.) “[T]he recusal inquiry must be made from the perspective of a reasonable
observer who is informed of all the surrounding facts and circumstances.” Cheney v.
U.S. Dist. Court for Dist. of Columbia, 541 U.S. 913, 924 (2004); O'Bannon v. Union
Pac. R.R. Co., 169 F.3d 1088, 1091 (8th Cir.1999); Lunde v. Helms, 29 F.3d 367, 370
(8th Cir. 1994). “A party introducing a motion to recuse carries a heavy burden of proof;
a judge is presumed to be impartial and the party seeking disqualification bears the

substantial burden of proving otherwise.” Fletcher v. Conoco Pipe Line Co., 323 F.3d
661, 664 (8th Cir. 2003).
Defendant requests my recusal because he does not agree with my
interpretation of the law, facts, and rules applicable to the proceedings before me.
Opinions formed by the judge on the basis of facts introduced or events occurring in the
course of proceedings may provide a proper ground for appeal, but almost never
constitute a valid basis for recusal. Liteky v. United States, 510 U.S. 540, 555 (1994).
Defendant further asks that I reconsider the rulings in Filings 141, 150, and 152.
Judge Smith Camp has denied Defendant’s objections to these rulings for failing to file a
supporting brief, and as such, those rulings are now affirmed. Moreover, a motion for
reconsideration should be denied absent “(1) a showing of manifest error in the prior
ruling; or (2) a showing of new facts or legal authority, neither of which could have been
brought to the court's attention earlier with reasonable diligence.” Activision TV, Inc. v.
Bruning, 8:13CV215, 2014 WL 1350278, at *1 (D. Neb. Apr. 4, 2014) (collecting cases).

Defendant’s motion fails to meet this threshold standard for reconsideration. It
will be denied.
Accordingly,
IT IS ORDERED:
1)

Defendant’s motion to strike, (Filing No. 155), is granted and his motion for
reconsideration, (Filing No. 154), is stricken.

2)

Defendant’s motion for reconsideration and for recusal, (Filing No. 156), is
denied.

Dated this 14th day of May, 2018.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

2