SUE E. MYERSCOUGH, District Judge.
This cause is before the Court on Plaintiff's Objections (d/e 250) to three orders entered by United States Magistrate Judge Byron G. Cudmore (
Plaintiff has requested oral argument on her objections. This request is denied. The issues have been fully briefed, and Plaintiff has had an ample opportunity to present her claims.
A magistrate judge may hear and determine matters that are not dispositive of a claim or defense.
Judge Cudmore's rulings on Plaintiff's motion for recusal and motion seeking a protective order were rulings on nondispostive matters and will be reviewed under the clearly erroneous or contrary to law standard of review.
Whether the ruling on the motion for an order to show cause is a dispositive or nondispositive motion is unclear.
In January 2012, Plaintiff filed a Motion seeking the recusal of Judge Cudmore (d/e 209). On March 1, 2012, Judge Cudmore entered an Opinion denying the Motion (d/e 228). Judge Cudmore first noted that Plaintiff could not bring her Motion under 28 U.S.C. § 144
Judge Cudmore found (1) Plaintiff failed to present evidence that circumstances existed that would cause a well-informed, thoughtful observer to question his impartiality (28 U.S.C. § 455(a)); and (2) Plaintiff (a) failed to present evidence of some matter unrelated to rulings or comments made in this case or a previous case that demonstrated bias or prejudice and (b) the rulings and possible expressions of personal opinion in this case or a prior proceeding did not provide a basis for recusal (28 U.S.C. § 455(b)). Plaintiff objects to Judge Cudmore's decision on a number of grounds.
First, Plaintiff objects to Judge Cudmore's refusal to consider her motion pursuant to 28 U.S.C. § 144. However, Judge Cudmore did not err. Courts have construed § 144 as preventing a
Second, Plaintiff objects on the ground that Judge Cudmore used "irrelevant information to render [the] opinion such as the decision in case 08-cv-3159[.]" (Objection, p. 4). However, Plaintiff raised Case No. 08-3159 (Plaintiff's previous lawsuit against AT&T Mobility Inc. (AT&T)) as a basis for her belief that Judge Cudmore should recuse himself.
Plaintiff also objects to the Opinion by pointing to alleged evidence of prejudice or bias, including Judge Cudmore's (1) exercising control over a third party in Case No. 08-3159 despite repeatedly stating in this case that he had no authority over AT&T and its employees when Plaintiff sought to force compliance of those parties; (2) striking at least three of Plaintiff's filings; and (3) allowing a stay of discovery. The Court denies Plaintiff's objections.
Judicial rulings and comments made during the course of a case are generally not a basis for disqualification.
Finally, Plaintiff states that Magistrate Judge Charles H. Evans was originally the magistrate judge in the case and asks that he be reassigned. This Court advises Plaintiff that Judge Evans retired in October 2011.
Because Judge Cudmore's decision was neither contrary to law nor clearly erroneous, Plaintiff's objections are denied.
On January 23, 2012, Plaintiff filed a Motion for Protection Order for a Witness, Motion for Leave to File Document Under Seal (d/e 208). In the Motion, Plaintiff asked that she be permitted to file a witness's affidavit under seal to protect the witness's identity because the witness feared retaliation by Defendants, Sedgwick, and AT&T Mobility. The affidavit, which is in the court record filed under seal and unavailable to Defendants, contains the affiant's name. Plaintiff does not want to disclose the identity of the affiant or the contents of the affidavit to Defendants.
On March 2, 2012, Judge Cudmore entered an Opinion denying Plaintiff's Motion.
Specifically, Judge Cudmore found that information may sometimes be shielded from the public through a protective order, but if used at trial, such evidence is provided to all the parties. Judge Cudmore also noted that privileged information may be withheld from an opposing party, but such information cannot be used at trial unless the privilege is waived and the evidence is made available to all parties.
Plaintiff objects to Judge Cudmore's Opinion on the ground that Plaintiff disclosed the identity of the person who provided the affidavit in her Rule 26(a) disclosures. Plaintiff also asserts that she should be allowed to withhold the identity of the affiant because:
Objections (d/e 250), p. 10.
Defendants, in their response, assert the fact that:
Defendants also object to Plaintiff's arguments regarding Attorney Warner and Maylena Thorton because those arguments were not raised in the Motion and cannot be raised now.
Plaintiff is asking that she be allowed to submit evidence in the form of an affidavit to this Court without disclosing to Defendants the identity of the affiant or the information contained in the affidavit. Judge Cudmore's denial of this request was neither contrary to law nor clearly erroneous.
Federal Rule of Civil Procedure 26(c) provides that a "court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]" Fed. R. Civ. P. 26(c). Plaintiff failed to demonstrate good cause for allowing her to present evidence to this Court that would not be disclosed to Defendants.
On January 26, 2012, Plaintiff filed a Motion for an Order to Show Cause (d/e 211). In the Motion, Plaintiff requested the Court issue an order to show cause why: (1) Attorney Warner should not be held in contempt for his failure to communicate with Plaintiff and breaching his duties to his clients and as an officer of the Court; (2) Attorney Warner and AT&T should not be held in contempt for their violation of a court order to preserve evidence in case No. 08-3159; (3) Attorney Warner and Gaye Ann Pusch should not be held in contempt for failing to respond to discovery; and (4) Attorney Warner and Christopher Meyers should not be held in contempt for failing to respond to discovery.
On March 2, 2012, Judge Cudmore entered an Opinion (d/e 230) granting in part and denying in part Plaintiff's Motion. Specifically, Judge Cudmore found that Pusch and Meyers were subject to the jurisdiction of the Court, had notice of Plaintiff's Motion, and failed to respond. Therefore, the Court issued an order to show cause directing Pusch and Meyers to appear in person or by their attorney to show cause why they should not be held in contempt of court. Judge Cudmore denied Plaintiff's remaining requests, finding (1) AT&T had not entered an appearance in the case and was not subject to the personal jurisdiction of the Court; (2) Plaintiff failed to set forth facts indicating how Attorney Warner violated an order of the Court or committed a contemptuous act in the presence of the Court; and (3) because Case No. 08-3159 was closed, the Court could not properly consider an alleged violation of an order in that case.
Plaintiff objects to Judge Cudmore's ruling but fails to identify the basis for her objection. This Court need only review
This Court notes that a very liberal reading of Plaintiff's Objections (d/e 250) suggests that Plaintiff may be objecting on the basis that Judge Cudmore found that the Court did not have personal jurisdiction over AT&T. This Court notes that Attorney Warner entered his appearance on behalf of AT&T, Pusch, Meyers, and Nancy (Wells) Vansyoc.
However, Plaintiff sought a contempt finding against AT&T for violation of a court order to preserve documents in Case No. 08-3159. Even applying a
Therefore, this Court denies Plaintiff's objection to Judge Cudmore's Opinion (d/e 230).
For the reasons stated, Plaintiff's Objections (d/e 250) to Judge Cudmore's Opinions (d/e 228, 229, 230), are DENIED.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith." 28 U.S.C. § 144.