Erich Specht v. Harry Leinenweber ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2823
In re E RICH S PECHT, doing business as
Android Data Corporation, and
T HE A NDROID’S D UNGEON INCORPORATED ,
Petitioners.
Petition for a Writ of Mandamus
to the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09 C 2572—Harry D. Leinenweber, Judge.
S UBMITTED A UGUST 23, 2010—D ECIDED S EPTEMBER 8, 2010
Before EASTERBROOK, Chief Judge, and KANNE and
HAMILTON, Circuit Judges.
E ASTERBROOK, Chief Judge. In 1999 Erich Specht
started a home business, which he called Android Data
Corporation. It offered website hosting services. Specht
registered “Android Data” as a federal trademark for
his business, which folded in 2002. Specht allowed his
registration for the domain name “androiddata.com” to
lapse, and the corporation was dissolved under state
law. Specht did not use the mark again until 2009—when,
2 No. 10-2823
having learned about Google’s Android operating system
for mobile phones, he registered the domain name
“android-data.com”, attempted to resurrect the corpora-
tion by sending backdated reports and fees to the Illinois
Secretary of State, and filed suit against Google and
47 other defendants for trademark infringement.
AT&T Mobility offers mobile phone service. Some
devices with the Android operating system are sold by
AT&T or used on its network. Specht did not include
AT&T among the 48 defendants. Had he done so, the
case would not have been assigned to Judge Leinenweber,
whose wife (Lynn Martin) is a member of AT&T’s board
of directors. The court’s automated conflict-checking
system prevents any assignment of litigation by or
against AT&T to Judge Leinenweber in light of 28
U.S.C. §455(b)(5)(i), which disqualifies any judge whose
spouse (or other relative within the third degree) is “a
party to the proceeding, or an officer, director, or trustee
of a party”. Judge Leinenweber and Lynn Martin also
own stock in AT&T, a further disqualification under
§455(b)(4).
After the suit had been pending for about a year—and
at the close of discovery—Specht proposed to amend
his complaint to add AT&T Mobility and three other
wireless carriers (T-Mobile, Sprint, and Verizon) as de-
fendants 49 to 52. Judge Leinenweber recognized that, if
he granted this motion, he would be disqualified from
proceeding further. He denied the motion, however, and
also declined to recuse himself. This led Specht to file
a petition for a writ of mandamus, contending that it
No. 10-2823 3
creates an appearance of impropriety, and thus requires
recusal under §455(a), for a judge to act on a motion
that, if granted, would require recusal under §455(b).
Specht contends that if the motion did not disqualify
the judge automatically, it should have been assigned to
a different judge. A petition for mandamus is the right
way to obtain review by this court of arguments under
§455(a). United States v. Balistrieri, 779 F.2d 1191, 1205
(7th Cir. 1985); United States v. Boyd, 208 F.3d 638, 645
(7th Cir. 2000), remanded on a unrelated issue, 531 U.S.
1135 (2001). We asked both Google and AT&T Mobility
to respond to the petition; they have done so. We also
invited Judge Leinenweber to respond. See Fed. R. App.
P. 21(b)(4). He declined.
Section 455(b)(5)(i) does not disqualify Judge
Leinenweber. Like §455(f), it applies only to the
relation between a judge and a party. AT&T Mobility
is not a “party” to this case. Nor does §455(b)(4) require
the judge’s recusal. It deals with situations in which
the judge or family member “has a financial interest in
the subject matter of the controversy or a party to the
proceeding, or any other interest that could be substan-
tially affected by the outcome of the proceeding”. AT&T
Mobility is not a “party,” and it would not be possible
to say that either Judge Leinenweber or Lynn Martin has
a “financial interest” in the controversy. Google rather
than AT&T is responsible for the choice of name. If
Specht prevails, Google will either change the name or
strike a deal to license “Android” from Specht; AT&T
is indifferent. Google does not charge either wireless
providers or handset makers any fee for using the
4 No. 10-2823
Android operating system, and no one suggests that the
outcome of this litigation could lead it to change that
policy. Nor is there any realistic chance that the suit
could lead to financial liability for AT&T or any other
wireless service provider. Not only Google but also
the handset makers have agreed to indemnify wireless
providers for any losses that stem from Google’s choices.
Specht contends that Lynn Martin’s reputation could be
“substantially affected” (§455(b)(5)(iii)) independent of
AT&T’s financial interests. Yet the only effect would be
favorable to Martin: having seen to it that AT&T is pro-
tected by indemnification, AT&T Mobility’s board of
directors comes off well.
Section 455(a) is another matter. Judge Leinenweber
had a choice: Grant the motion to add AT&T, then step
aside, or deny the motion and continue presiding. Forget
indemnification for a moment and suppose that granting
the motion could have exposed AT&T Mobility to a
loss. Then, by denying the motion, the judge would
have protected AT&T from exposure to damages—con-
ferring a financial benefit on it even though, by hypoth-
esis, §455(b) prevents the judge from making any ruling
in which AT&T has a financial interest. Google contends
that Specht’s motion to add AT&T was made only in
the hope of disqualifying the judge. But the require-
ments of §455(b) apply to weak claims as well as strong
ones; §455(b) prevents a judge with a financial interest,
or with a relative on a litigant’s board, from deciding
whether the claim is meritorious. Denying a motion to
add a party does not technically violate §455(b) yet,
because it has the same effect as granting the motion
No. 10-2823 5
and then dismissing the suit on the merits, it creates an
appearance problem under §455(a). See Liljeberg v.
Health Services Acquisition Corp., 486 U.S. 847 (1988).
That appearance problem could, and should, have
been solved by referring to another judge the motion
to add AT&T Mobility as a party. If a judge with
no interest in the outcome denied the motion, then
Judge Leinenweber could resume his role. The norm in
this circuit is for the judge already assigned to the case
to address any motion for recusal, and that practice is
a sound one. Most motions for recusal can be resolved
quickly and accurately by the assigned judge, without
the delay and expense that would be occasioned by
a routine referral to a different judge. What Judge
Leinenweber should have referred is not the motion for
his disqualification, but the motion to add AT&T as a
defendant, because the order denying that motion
itself conferred a benefit on AT&T (for it saved AT&T
the legal fees required to mount a defense, even if
AT&T is not at any material risk of an adverse judg-
ment). This is how the district judge handled the motion
to add a party in In re Kansas Public Employees Retirement
System, 85 F.3d 1353, 1361–62 (8th Cir. 1996). We have
not found a clean holding that this procedure is re-
quired, but that does not prevent adopting the sen-
sible approach as an initial matter.
Specht contends that just filing the motion to add
AT&T Mobility as a party required Judge Leinenweber’s
permanent removal from the suit. That step would
not implement §455(a), however. If another judge
6 No. 10-2823
denied the motion, there would be neither actual impro-
priety, nor an appearance of impropriety, in Judge
Leinenweber’s further participation. A reasonable, well-
informed observer (the applicable criterion, see In re
Sherwin-Williams Co., 607 F.3d 474, 477 (7th Cir. 2010))
would not perceive a problem. Moreover, there is a
powerful reason why filing such a motion should not
itself require recusal. Litigants are not entitled to
pick their judges. Unlike some state systems, the fed-
eral judiciary does not permit a litigant to object to
the initially assigned judge and require the substitution
of another. Maintaining the original, random selection
promotes both the fact and the appearance of impar-
tiality. See, e.g., In re National Union Fire Insurance Co.,
839 F.2d 1226 (7th Cir. 1988); New York City Housing
Development Corp. v. Hart, 796 F.2d 976 (7th Cir. 1986).
If all a litigant had to do to eject a judge from the
case—perhaps after the judge had made some rulings
unfavorable to the litigant, as Judge Leinenweber has
made rulings unfavorable to Specht—was to propose
adding a new party known to require the judge’s
recusal, then litigants could play games with judicial
assignments. Every federal judge is recused in some
situations: a judge may have a child who works for a
corporation or law firm, or own stock in some corpora-
tion, or have a pension from a job before joining the
bench. A litigant wanting to manipulate the assignment
could consult the judge’s recusal list and file a motion
to add as a party an entity on that list. By Specht’s
lights that motion, no matter how insubstantial, would
disqualify the judge. But courts do not allow such easy
No. 10-2823 7
manipulation—either by proposing to add defendants,
or by suing the judge and then contending that he
must step aside. See Ronwin v. State Bar of Arizona, 686
F.2d 692, 701 (9th Cir. 1981); Nottingham v. Acting Judges
of District Court, 2006 U.S. Dist. L EXIS 30141 (S.D. Ind.
Mar. 24, 2006). We hold that filing a motion to add a
party does not itself disqualify a judge. The grant of
such a motion might do so; the motion itself does not.
Judge Leinenweber should not have acted on the
motion to add AT&T Mobility as a defendant. This
does not lead to a writ of mandamus, however. There is
no point in directing the judge to transfer the motion to
one of his colleagues if the outcome of that process is
foreordained—so clear, indeed, that it would be an
abuse of discretion for any other judge to grant the
motion. The three members of this panel have no
interest in the litigation and can resolve the dispute
immediately. It would indeed be an abuse of discretion
to grant the motion. Discovery has closed; granting the
motion would unduly prolong the litigation. It is not as
if Specht learned only through discovery that AT&T,
Sprint, T-Mobile, and Verizon sell phones that use the
Android operating system; this information is widely
advertised. The wireless providers could have been
named as parties from the outset. But that would not
have served a good purpose, nor would adding extra
defendants be helpful now. Google, not AT&T or any
other wireless carrier, chose the name “Android” for the
operating system. If Specht is entitled to any remedy
(a subject on which we express no view), damages and
equitable relief against Google will be fully effective to
8 No. 10-2823
vindicate Specht’s rights. There is no reason why this
suit needs additional defendants. It began with 47 defen-
dants too many (raising the question whether Specht
chose the list of defendants to induce unwarranted pay-
ments in settlement); there is no reason why it should
proceed with 51 defendants too many.
This means that Judge Leinenweber’s failure to refer
the motion to another judge was inconsequential. There
is no reason why he cannot bring this litigation to a
conclusion in the district court.
One final subject. Google and AT&T Mobility have
asked us to keep confidential the language of their in-
demnity agreement and some other documents. Other
participants in the wireless communication business
might be able to obtain some negotiating advantage
by knowing the agreement’s terms. Google and AT&T
do not contend, however, that the terms are trade se-
crets. Documents that affect the disposition of federal
litigation are presumptively open to public view, even if
the litigants strongly prefer secrecy, unless a statute, rule,
or privilege justifies confidentiality. See, e.g., Baxter
International, Inc. v. Abbott Laboratories, 297 F.3d 544(7th Cir. 2002); Union Oil Co. of California v. Leavell, 220
F.3d 562 (7th Cir. 2000). Because the motions to seal do
not contend that the standards of Baxter and Union Oil
have been satisfied, they are denied. If Google and
AT&T wanted to keep the documents’ terms secret, they
should not have proffered them in response to Specht’s
motion.
No. 10-2823 9
The motions to seal are denied. The petition for a writ
of mandamus is denied.
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