A judge should not hear a motion to add a party if he would have to disqualify himself if the party were added.
But he need not recuse himself from the entire case; instead, the judge need only refer the motion to another judge.
Erich Specht filed suit against Google and 47 other defendants for trademark infringement in Illinois federal court, and the case was assigned to Judge Harry D. Leinenweber.
After the suit had been pending for more than a year, Specht moved to amend the complaint to add AT&T Mobility and three other wireless carriers.
Because Leinenweber’s wife is a member of AT&T’s board of directors, cases involving AT&T are automatically assigned to other judges in the district.
Nevertheless, he heard the motion to add AT&T Mobility as a party, and denied it. Specht petitioned for mandamus, but the Seventh Circuit denied it in an opinion by Judge Frank H. Easterbrook.
The court agreed that Judge Leinenweber should not have heard the motion, but reviewing the merits nonetheless, affirmed the motion’s denial.
The court first held that recusal was not required pursuant to either 28 U.S.C. 455(b)(5)(i), or 455(b)(4), because they apply only to relations between a judge and a party, and AT&T Mobility is not a party.
However, the court found that the motion did create a problem under sec. 455(a), because it created an appearance of bias.
The court concluded, “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 court added that the mere filing of the motion to add AT&T Mobility did not require Judge Leinenweber’s recusal. Should the assigned judge deny a motion to add a party, there would be neither actual impropriety nor an appearance of one in returning the case to the original judge.
The court further found that requiring reassignment of a case based only on a motion to add a party would invite parties to manipulate judicial assignment.
But, although the court found that Judge Leinenweber should have let another judge decide the motion to add AT&T Mobility as a party, it denied Specht’s petition for a writ of mandamus.
The court said it was unnecessary to remand the case to a colleague of Leinenweber, because it found it would be an abuse of discretion for any judge to grant the motion.
Besides the fact that discovery has already closed, the court added, “There is no reason why this suit needs additional defendants. It began with 47 defendants too many (raising the question whether Specht chose the list of defendants to induce unwarranted payments in settlement); there is no reason why it should proceed with 51 defendants too many.”
What the court held
Issues: Should a judge hear a motion to add a party, when he would have to disqualify himself if the party were added?
Holdings: No. The motion to add the party should be assigned to another judge who does not have any conflict of interest.