In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2823

In re ERICH SPECHT, doing business as

Android Data Corporation, and

THE ANDROID’S DUNGEON 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.

SUBMITTED AUGUST 23, 2010—DECIDED SEPTEMBER 8, 2010

Before EASTERBROOK, Chief Judge, and KANNE and

HAMILTON, Circuit Judges.

EASTERBROOK, 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 corporation 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 defendants 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 substantially 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 protected 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—conferring a financial benefit on it even though, by hypothesis, §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 requirements 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 judgment). 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 required, but that does not prevent adopting the sensible 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 impropriety, nor an appearance of impropriety, in Judge

Leinenweber’s further participation. A reasonable, wellinformed 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 federal 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 impartiality. 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 corporation, 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. LEXIS 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 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.

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 indemnity 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 secrets. 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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