Daniel C. Buller v. Kathleen A Jaudzemis

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 24, 1998
• Docket: 98-1439
• Status: Unpublished

Opinion

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________

No. 98-1439 ___________

Daniel C. Buller, Private Citizen; * Marie R. Buller, Private Citizen, * * Appellants, * * v. * * Kathleen A. Jaudzemis, Magistrate * Appeal from the United States Judge; Eileen L. McBride, Attorney; * District Court for the Terrance L. Michael, Attorney; Lyle * District of Nebraska. E. Strom, Judge; Thomas J. * Monaghan, Attorney; Thomas M. * [UNPUBLISHED] Shanahan, Judge; Neal E. Galloway; * Rose M. Haga; Wille Greason, Jr., U.S. * Marshall; David L. Piester, Magistrate * Judge; Roy Smith; William G. * Cambridge, Judge; Pamela K. * Bennett; Laurie M. Barrett, Attorney; * Sally R. Johnson, Attorney; Mark * Hoesing; James L. Engle; Thomas D. * Thalken, Judge, * * Appellees. * ___________

Submitted: June 5, 1998 Filed: June 24, 1998 ___________

Before FAGG, BEAM, and HANSEN, Circuit Judges. ___________ PER CURIAM.

Daniel and Marie Buller appeal the district court&s1 judgment assessing a $2,000 sanction against them pursuant to Federal Rule of Civil Procedure 11. After a review of the record and the parties& submissions on appeal, we believe that the district court did not abuse its discretion in sanctioning the Bullers. See 8th Cir. R. 47B.

This matter arises out of a previous district court case (see Buller v. Jaudzemis, No. 8:CV-96-0047 (D. Neb. Mar. 4, 1997)), filed by the Bullers. Although Chief Judge Cambridge is listed as a party in this action, it is not alleged that he participated in any way in the previous litigation. When Chief Judge Cambridge assigned this case to himself noting that he had "had absolutely nothing to do with the subject matter therein," no party raised the issue of his recusal under 28 U.S.C. § 455 or otherwise. The issue is also not raised on appeal. See United States v. Bauer, 19 F.3d 409, 414 (8th Cir. 1994) (noting that this court has held that claims under section 455 "'will not be considered unless timely made'") (quoted case omitted). If it had been, any failure to recuse was "harmless error" under the circumstances. See Parker v. Connors Steel Co., 855 F.2d 1510, 1527 (11th Cir. 1988).

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

1 The Honorable William G. Cambridge, Chief Judge, United States District Court for the District of Nebraska.

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