United States District Court, N.D. Illinois, Eastern Division
Charles R. Norgle District Judge, Sr.
MEMORANDUM OPINION AND ORDER
JEFFREY CUMMINGS UNITED STATES MAGISTRATE JUDGE.
James Stewart has filed a motion for recusal pursuant to 28
U.S.C. §§455(a) and (b)(1). Plaintiff asserts that
this Court has “creat[ed] an avalanche of destruction
to plaintiff's case” by allowing counsel for
defendants LVNV Funding LLC and Resurgent Capital Services to
send ex parte communications and denying plaintiff
access to those communications. Plaintiff further asserts
this Court showed partiality towards counsel for LVNV and
Resurgent by acknowledging him as an “officer of the
court, ” accepting counsel's representation that
defendants do not have an “accounts purchasing
agreement” that plaintiff claims that defendants must
have, and by declining to prepare findings of fact and
conclusions of law when the Court denied plaintiff's
motion to compel the production of the document in question.
Finally, plaintiff contends that this Court is prejudiced
against him because the Court is a lawyer who is protecting
defense counsel (another lawyer) from having to produce
meaningful discovery. Defendants object to plaintiff's
is required under Section 455(a) “only where a
judge's [partiality] might ‘reasonably be
questioned. The inquiry is objective, from the point of view
of a reasonable person with access to all of the
facts.” New York City Development Corp. v.
Hart, 796 F.2d 976, 980 (7th Cir. 1986); Ramirez v.
Elgin Pontiac GMC, Inc., 187 F.Supp.2d 1041, 1044
(N.D.Ill. 2002) (“This inquiry is made based on a
reasonable person standard, as opposed to a hypersensitive or
unduly suspicious person, . . . so as to avoid a system of
preemptory strikes and judge shopping”) (internal
quotation marks and citations omitted). The question under
Section 455(b)(1) “is whether a reasonable person would
be convinced that the judge was biased” and recusal
“is required only if actual bias or prejudice is proved
by compelling evidence.” Brokaw v. Mercer
City, 235 F.3d 1000, 1025 (7th Cir. 2000) (internal
quotation marks omitted). Magistrate judges are obligated not
to recuse themselves without reason just as they are
obligated to recuse themselves if there is a valid reason.
Hart, 796 F.2d at 981; Ramirez, 187
F.Supp.2d at 1044. This Court has discretion in the first
instance to determine whether it should recuse itself.
See, e.g., In re Drexel Burnham Lambert Inc., 861
F.2d 1307, 1312 (2d Cir. 1988).
sequence of events that led to this motion occurred as
follows. By its March 7, 2019 Order [#82], this Court
directed plaintiff to provide all defendants with a letter
clearly outlining what discovery remained at issue, including
discovery disputes raised in his previously filed motions to
compel [#90, 91, 92] and any e-mail correspondence. The March
7 Order further directed the parties to meet and confer
regarding the discovery disputes and for defense counsel to
subsequently provide the Court with copies of defendants'
responses to request to produce, interrogatories, and
requests to admit, along with cover letters outlining what
they had produced to plaintiff and what disputes remained
between themselves and plaintiff. The purpose of the March 7
Order was to facilitate the Court's resolution of the
parties' disputes regarding plaintiff's discovery
requests that were raised by plaintiff's motions to
counsel timely submitted their clients' discovery
responses and cover letters to the Court and the Court held a
lengthy discovery hearing on April 25, 2019 to address
plaintiff's concerns about the discovery he received.
Plaintiff acknowledged during the April 25 hearing that he
had received all the documentation that he had requested from
defendants Experian and Credit Control. 4/25/19 Transcript
[#128], at 4-9. However, there was an extended colloquy
regarding whether LVNV and Resurgent had produced all the
responsive documents that plaintiff believed existed. Defense
counsel represented that the documentation that plaintiff was
seeking did not exist and the Court denied plaintiff's
motion to compel LVNV and Resurgent to produce additional
documentation based upon the Court's reliance on
counsels' representations as officers of the court.
4/25/19 Transcript, at 15-18.
3, 2019, plaintiff filed a “motion to reconsider motion
to compel Resurgent and LVNV to produce the balance of
discovery” [#113]. In his motion, plaintiff renewed his
request for additional discovery from these defendants and
informed the Court for the first time that he had not
received a copy of the cover letter that defendants submitted
to the Court pursuant to the Court's March 7 Order.
During the July 11, 2019 hearing on plaintiff's motion,
the Court indicated that it had presumed - - even though it
did not expressly order - - that defense counsel would
provide their cover letters to plaintiff and that any
unclarity in this respect was the Court's responsibility.
7/11/19 Transcript [#129], at 2-3. Counsel for Resurgent and
LVNV provided plaintiff with a copy of their cover letter in
open court (7/11/19 Transcript, at 12-13), and there was
another extended colloquy regarding the adequacy of Resurgent
and LVNV's response to plaintiff's requests for
production. Plaintiff once more insisted that defendants
produce their “accounts purchasing agreement, ”
defense counsel once more insisted that such a document did
not exist within his clients' files, and this Court once
more accepted defense counsel's representation regarding
the non-existence of the document. 7/11/19 Transcript, at
7-8, 19-32. The Court did, however, grant plaintiff's
motion to reconsider in part by ordering Resurgent and LVNV
to produce additional documents in response to
plaintiff's request for production no. 6 [#116]. The
hearing ended with plaintiff thanking the Court for its
patience. 7/11/19 Transcript, at 35.
the above facts, there is no basis for recusal under either
Section 455(a) or Section 455(b)(1) for the following
reasons. First, plaintiff has received all documentation that
counsel for Resurgent and LVNV submitted to the Court and he
identified no actual prejudice that he suffered due to the
inadvertent delay in his receipt of counsel's cover
letter. To the contrary, the Court conducted two lengthy
hearings dedicated to plaintiff's discovery issues,
plaintiff has received hundreds of pages of documents in
response to his production requests to these defendants, and
the Court granted in part plaintiff's motion to
reconsider to require defendants to produce additional
this Court was entitled to rely on defense counsel's
representations regarding the documentation possessed by
their clients. As officers of the court, counsel have a duty
to respect the system of justice and to set forth “a
fair and accurate presentation of the facts and law.”
See, e.g., Fuery v. City of Chicago, 900 F.3d 450,
454 (7th Cir. 2018) (recognizing “a trial judge's
faith that she can rely upon the lawyers before her -
officers of the court - to set forth a fair and accurate
presentation of the facts and law”); Wagner v.
Williford, 804 F.2d 1012, 1017 (7th Cir. 1986)
(“While attorneys are advocates, they are also officers
of the court. Their duty to their clients cannot override
their duty to respect the system of justice”). For this
reason, the Seventh Circuit has repeatedly held that courts
are entitled to rely “on the statement of an officer of
the court.” Stafford v. Mesnik, 63 F.3d 1445,
1449 (7th Cir. 1995); Briggs v. Marshall, 93 F.3d
355, 359 (7th Cir. 1996) (“We take him at his word
given that he is an officer of the court”).
the Court was not required to prepare findings of fact and
conclusions of law to document its denial of plaintiff's
motions to compel and for reconsideration. Federal Rule of
Civil Procedure 52(a)(3) itself makes this clear.
Fed.R.Civ.P. 52(a)(3); see also Jewel Tea Co. v.
Kraus, 204 F.2d 549, 550 (7th Cir. 1953) (“Rule
52(a) provides that findings are unnecessary on
motions”). Moreover, this Court was not required - as
plaintiff asserts - to compel Resurgent and LVNV to produce
an “asset purchase agreement” because such a
document “does not exist” within defendants'
files. Acosta v. JY Harvesting, Inc., No.
17-CV-1225-CAB-WVG, 2017 WL 3237654, at *3 (S.D.Cal. Aug. 10,
the fact that this Court ruled against plaintiff with respect
to an aspect of his document production request does not
establish “prejudice.” As the Seventh Circuit has
made clear, plaintiff “must prove actual bias by
compelling evidence, . . . and ‘judicial rulings alone
almost never constitute a valid basis for a bias or
partiality motion.'” Reed v. Lawrence
Chevrolet, Inc., 14 Fed.Appx. 679, 687-88 (7th Cir.
2001), quoting Liteky v. United States, 510 U.S.
540, 555 (1994) (citation omitted); Montgomery v. Village
of Posen, 711 Fed.Appx. 343, 345-46 (7th Cir. 2018).
of the above reasons, plaintiffs motion for ...