Duplan Corporation v. Deering Milliken, Inc.

Decision Date12 June 1975
Docket Number70-295,68-705,70-391,71-126,70-677,71-87 to 71-102,70-968,70-14,71-115,70-628,70-386,70-250,70-385,Civ. A. No. 71-306,69-777,69-1096,70-358,70-493,70-683,71-127 and 71-283.,70-622,70-189
Citation400 F. Supp. 497
CourtU.S. District Court — District of South Carolina
PartiesThe DUPLAN CORPORATION, Plaintiff, v. DEERING MILLIKEN, INC., et al., Defendants. DEERING MILLIKEN RESEARCH CORPORATION, Plaintiff, v. The DUPLAN CORPORATION and Burlington Industries, Inc., Defendants. The DUPLAN CORPORATION et al., Plaintiffs on the Counterclaim, v. DEERING MILLIKEN RESEARCH CORPORATION, Defendant on the Counterclaim, and Deering Milliken, Inc., et al., Additional Defendants on the Counterclaim.




Leatherwood, Walker, Todd & Mann, Fletcher C. Mann, Greenville, S. C., Parrott, Bell, Seltzer, Park & Gibson, Charles B. Park, III, Charlotte, N. C., Wilkie, Farr & Gallagher, David L. Foster, New York City, for The Duplan Corp., The Schwarzenbach-Huber Co., Jonathan Logan, Inc., Frank Ix & Sons Virginia Corp., Lawrence Texturing Corp., and United Merchants & Manufacturers, Inc.

Haynsworth, Perry, Bryant, Marion & Johnstone, O. G. Calhoun, Greenville, S. C., Cushman, Darby & Cushman, William K. West, Jr., Washington, D. C., for Burlington Industries, Inc., Madison Throwing Co., Leon Ferenbach, Inc., and National Spinning Company, Inc.

Perrin, Perrin & Mann, Edward P. Perrin, Spartanburg, S. C., David Rabin, Smith, Moore, Smith, Schell & Hunter, McNeill Smith, Greensboro, N. C., for Texfi Industries, Inc., Blanchard Yarn Co., Reliable Silk Dyeing Co., Spring-Tex, Inc., Hemmerich Industries, Inc., Texelastic Corp., Dixie Yarns, Inc., and Olympia Mills, Inc.

Butler, Means, Evins & Browne, Thomas A. Evins, Spartanburg, S. C., Burns, McDonald, Bradford, Erwin & Few, Howard L. Burns, Greenwood, S. C., Paul Weiss, Rifkind, Wharton & Garrison, Jay Greenfield, Morgan, Finnegan, Durham & Pine, Granville M. Pine, New York City, for Deering Milliken Research Corp., Deering Milliken, Inc., Moulinage et Retorderie de Chavanoz.

Ward, Howell & Barnes, Rufus M. Ward, Spartanburg, S. C., Brumbaugh, Graves, Donohue & Raymond, Granville M. Brumbaugh, Sr., New York City, for Ateliers Roannais de Constructions Textiles.

Robinson, McFadden & Moore, T. T. Moore, Columbia, S. C., Cooke & Cooke, Arthur O. Cooke, Greensboro, N. C., for ARCT, Inc.


HEMPHILL, District Judge.

This is a consolidated patent-antitrust case, spawned from efforts of Deering Milliken, Inc., to collect royalties on certain patents licensed to Duplan, Burlington, Inc. and others. Over forty causes of action matured in an uncoordinated but connected series of law suits among the various litigants, grouped on one side or another according to common interests. Issues of validity, infringement, fraud, antitrust, monopoly and others (minor) run throughout the cases which were consolidated for disposition by a Panel on Multi-District Litigation, and finally assigned to South Carolina. Those opposing Deering Milliken, Inc., and associates, are generally called "throwsters" because of the nature of their textile production.

This order is published as a decision on a recusal motion made by Simon H. Rifkind, Esquire, of the law firm of Paul, Weiss, Rifkind, Wharton and Garrison of New York City. The motion, alleging bias and prejudice of the trial judge, is made pursuant to and in attempted compliance with 28 U.S.C. § 144, 28 U.S.C. § 455 (as amended by P.L. 93-512, 88 Stat. 1609, December 5, 1974), and Canon 3C of the American Bar Association's Code of Judicial Conduct. Because of the substantive and procedural errors of the movant, discussed infra, the issue presented is not whether this court is required by law to recuse itself; rather, this matter raises the question of whether this or any court can allow itself to be coerced by a powerful but dissatisfied law firm.1

The motion herein is based on four grounds. First, it is said that this court, in reviewing in camera "a vast quantity" of privileged documents which are not admissible in evidence, is thereby rendered incapable of excluding acquired information from consideration while deciding the case. Second, the movant contends that this court "has indicated a dislike for Europeans in general and the French in particular." Six specific comments are relied upon to demonstrate the court's "anti-European bias." Third, five comments were listed which allegedly express the court's "strongly negative views about the Patent Office and the patent procurement system . . .," while six listed comments are said to show bias against patent lawyers. Movant claims that such statements "cannot help but affect our clients who are seeking to enforce their patents." Finally, movant complains that the court has criticized movant's "insistence on trial by jury of the patent issues;" it cites four instances of "criticism which causes concern about the likelihood of an impartial trial."2

A recital of the developments leading to this motion is essential.3 On February 26, 1975, this court received a letter, over the signature of Rifkind, which made a "formal request" that this case be assigned to another judge. By notice dated March 3, 1975, a hearing was scheduled for the afternoon of April 1, to discuss the contents of that letter. On March 5, the court issued a "Housekeeping Order" directing all concerned counsel to be present at that hearing. The order further directed that any and all proposed orders were to be filed with the Clerk of Court on or before March 25, 1975; the court specified that the filing requirement was applicable to those "matters for consideration on the afternoon of April 1 recusal matters." On March 22, movant submitted alternative proposed orders pertaining to discretionary withdrawal of this judge. On March 26, movant submitted a memorandum, supporting its proposed orders, which relied exclusively on Canon 3C of the Code of Judicial Conduct and on 28 U.S.C. § 455 (as amended by P.L. 93-512, 88 Stat. 1609, December 5, 1974).

Argument on the "formal request" for withdrawal (not yet made a motion under the provisions of 28 U.S.C. § 144) was heard in Rock Hill, South Carolina, on April 1, 1975. The court began by stating that "I will accept the letter as a motion,"4 but noted that "I have no record before me, such as any supporting affidavits, nor any record before me certified by any associate counsel of the State of South Carolina."5

Attorney Rifkind spoke first. He read his "formal request" into the record. Attributing neither "fault" nor "wrongdoing" to anyone,6 he nevertheless maintained "that the disqualifying actions have been taken and that they have disabled the judge."7 Specifically abstaining from invoking § 144,8 Rifkind instead relied primarily on the Code of Judicial Conduct and on "the comments of the reporters on the new legislation recently enacted as an amendment to Section 455."9

Counsel for the opposition, (hereinafter referred to as the throwsters) effected extensive counter argument, directed primarily toward the movant's failure to comply with the procedural requirements of 28 U.S.C. § 144.10 Counsel also emphasized that all the quotations which allegedly demonstrated the bias and prejudice of the trial judge were taken out of context, causing a distortion of their intended meaning. In reply, Mr. Rifkind, at the "twelfth hour", distributed his § 144 motion, an affidavit of his clients (dated March 20, 1975) and a certificate of good faith (dated March 31, 1975) which had not been signed by any associate counsel from South Carolina.11 The court mentioned the possibility of further hearings on the Section 144 motion, then adjourned the hearing (the afternoon was waning and the New York counsel wished to make the evening plane connections to New York from Charlotte).

In a letter to this court dated April 3, 1975, Attorney Rifkind stated that further hearings on the question of recusal would be "repetitious." In reply, throwster counsel John W. Malley, Esquire, insisted that, since Rifkind chose to delay his motion until the conclusion of the April 1 hearing, counsel was not afforded an opportunity to "argue the legal sufficiency of the supporting affidavits." While this court fails to see how such argument, which had been precluded by Rifkind's choice of tactics, would be repetitious, it has concluded that further argument would not be productive. Accordingly, no further hearings have been scheduled.

On May 1, 1975, the throwsters submitted a memorandum in opposition to the § 144 motion. As a result of argument contained therein, Howard Burns, Esquire, and Thomas Evins, Esquire, both of the bar of the State of South Carolina, signed the certificate of good faith on May 15, 1975, forty-five days after it had been submitted. On May 19, 1975, movant submitted a memorandum in reply to the throwsters' memorandum of May 1, 1975.


1. Is disqualification required by the Code of Judicial Conduct?

2. Is disqualification required by 28 U.S.C. § 455?

3. Is disqualification required by 28 U.S.C. § 144?


1) Disqualification is not required by the Code of Judicial Conduct.

Canon 3C(1)(a) of the Code of Judicial Conduct12 provides:

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. . . .

This court is of the opinion that Canon 3C is intended to be utilized by every judge at the outset of every case as a checklist to assist him in determining whether he should at that point disqualify himself from any participation in the proceedings. Canon 3C(1) lists specific situations which require self-imposed...

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