move for a writ, "the argument is waived, and we give it no further consideration." Id.
In this case, NP moved for recusal on April 4, 1994, about three weeks into the trial, and this Court denied the motion. NP failed to move for a writ of mandamus. Therefore, NP waived the matter, and this Court gives it no further consideration, except to note that NP, likely realizing that it waived the matter, does not defend it in its reply brief.
Next, 3i argues that this Court did not need to recuse itself because of personal bias or prejudice toward a party, 28 U.S.C. § 455(b) ("§ 455(b)"), because, again, NP waived its rights in the matter. 3i asserts that "SCA does not correctly state the current 7th Circuit law." Def.'s Resp. at 35; see SCA Servs., Inc. v. Morgan, 557 F.2d 110 (7th Cir. 1977). Moreover, NP "must acknowledge that the circumstances of this case are even more difficult to overcome than those set forth and reviewed by Judge Posner in Union Carbide." Id.; see Union Carbide Corp. v. U.S. Cutting Serv., Inc., 782 F.2d 710 (7th Cir. 1986). Here, the Court obtained an express waiver from the parties with respect to the appearance in the case of Winston and Strawn after the disqualification of Phil Koenig and his firm." Id. NP's practice is transparent: Assuming that the trial was proceeding in a manner favorable to [NP], then a motion would not be filed. It was obvious that by April 4, 1994, [NP] was concerned about its case and did not agree with the Court's disposition of several important issues." Id. at 36.
Section 455(b) provides in relevant part that any justice, judge or magistrate of the United States "shall also disqualify himself in the following circumstances: (5) He . . . or a person within the third degree of relationship . . . (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding." Section 455(e) provides in relevant part that "no justice, judge, or magistrate shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b)."
This Court does not pursue on the issue of waiver. First, given the language of § 455(e), there is little basis for waiving one's rights under § 455(b), particularly because to a great extent they are not the party's rights but, rather, the judiciary's rights in maintaining its own integrity. And second, although the SCA court's vitality on the issue of waiver is uncertain in the wake of subsequent Seventh Circuit common law, U.S. v. Murphy, 768 F.2d 1518, 1539 (7th Cir. 1985), U.S. v. Balistrieri, 779 F.2d 1191, 1202-03 (7th Cir. 1985), Union Carbide, 782 F.2d at 716, that uncertainty more concerns its holding on § 455(a) than on § 455(b). Cf. Schurz v. Fed. Communications Comm'n, 982 F.2d 1057, 1060 (7th Cir. 1992) (chambers opinion) (reasoning broadly and perhaps clouding the § 455(a)-(b) distinction). Even in the wake of Schurz, "it is certainly arguable that the requirement of a timely filing of a motion for disqualification is not firmly established in this circuit." Id. at 1060. Because the requirement is not firmly established and because this Court does not need to base its decision on the requirement, this Court does not pursue the issue.
This court notes, however, that if it did pursue the issue it would find that NP's motion for disqualification was untimely and that, to the extent that it could, NP waived its rights. NP moved to disqualify 3i's initial counsel, Phil Koenig, and this Court granted its motion. So 3i brought in its replacement counsel, Winston and Strawn, and when it did this Court made plain to NP that this judge's daughter is a salary partner there. This Court made plain that fact on more than one occasion, and NP assured this Court that it was no problem, leading this Court to go forward with that assurance. Then in the middle of trial NP moved for recusal, likely, as 3i argues, because NP believed that the trial was not proceeding as it hoped. This Court could not abide that stunt; no court should abide it. It is precisely "the heads-I-win-tail-you-lose" litigating position that the Schurz court prohibited. Id. at 1060 (writing that the "requirement of timeliness 'prohibits the knowing concealment of an ethical issue for strategic purposes'"). Even though the waiver issue is not dispositive, it is compelling.
The merits are compelling as well, and this Court holds that § 455(b) is inapplicable. As this judge discussed with the parties in open court on more than one occasion, this judge's daughter is a salary, not an equity, partner at Winston, and this judge's daughter performed no work on this case and did not represent 3i in any legal matter. This judge knows of no interest that his daughter may have, or may have had, that could be substantially affected by the outcome of this proceeding. Therefore, this judge will not recuse himself.
In reaching this decision, this judge stands with a broad, deep and uniform body of authority. See U.S. ex rel. Weinberger v. Equifax, 557 F.2d 456, 463 (5th Cir. 1977), cert. denied, 434 U.S. 1035, 54 L. Ed. 2d 782, 98 S. Ct. 768 (1978) (relative's salary interest as an associate insufficient to require recusal); Wilmington Towing Co., Inc, v. Cape Fear Towing Co., Inc., 624 F. Supp. 1210, 1211 (E.D.N.C. 1986) (same, summer associate); Miller Indus., Inc. v. Caterpillar Tractor Co., 516 F. Supp. 84, 86 (S.D. Ala. 1980) (same, of counsel); Keene Corp. v. Rogers, 863 S.W.2d 168, 172 (Tex. Ct. App. 1993) (same); see also U.S. v. Tierney, 947 F.2d 854, 865 (8th Cir. 1991); Welch v. Bd. of Directors of Wildwood Golf Club, 918 F. Supp. 134, 1996 WL 115433, *4 (W.D. Pa. Mar. 5, 1996); Regional Sales Agency, Inc. v. Reichert, 830 P.2d 252, 258 (Utah 1992); Reilly v. S.E. Pa. Transp. Auth., 330 Pa. Super. 420, 479 A.2d 973, 982 (Pa. Super. Ct. 1984); and cf. In re Nat'l Union Fire Insur. Co., 839 F.2d 1226 (7th Cir. 1988); Stewart v. GNP Commodities, Inc., 1992 U.S. Dist. LEXIS 7139, 1992 WL 121545, *2 (N.D. Ill. May 26, 1992). This judge also stands with the ethical authority. Letter from the Committee on Code of Conduct of the Judicial Conference of the United States of March 27, 1996 (citing A.B.A. Model Code of Judicial Conduct (1990) Canon 3E(1)(d)(iii)) (available from this Court upon request).
To be sure, this case is distinguishable from those cited above, but the distinguishing features are immaterial. Most obviously, this case is distinguishable in that this judge's daughter is a salary partner instead of a salary summer associate, associate, or of counsel. But that is immaterial because the courts reason based on forms of income rather than forms of title. On the other hand, they also reason based on forms of indirect interest such as the derivation of value from the enhancement of a law firm's reputation, and one could speculate that the interest is greater for partners, whether salary or equity, than for others. But even if that speculation is correct, "this interest is simply too insubstantial to require disqualification." Tierney, 947 F.2d at 865.
Therefore, this judge correctly denied NP's motion for recusal.
Therefore, this Court denies NP's motion for a new trial on its patent claim, and this Court denies NP's motion for judgment as a matter of law and its alternative motion for a new trial on 3i's antitrust counterclaim.
June 19, 1996
BRIAN BARNETT DUFF, JUDGE
UNITED STATES DISTRICT COURT
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