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November 11, 1975

SPERRY RAND CORPORATION, a Delaware Corporation, Plaintiff
PENTRONIX, INC., a Michigan Corporation, ROBERT W. BEYER, ROBERT A. BRINKER, JAMES MULHOLLAN, Defendants SPERRY RAND CORPORATION, a Delaware Corporation, Plaintiff v. ELECTRONIC MEMORIES & MAGNETICS CORPORATION, a Delaware Corporation, Defendant

The opinion of the court was delivered by: DAVIS


 Affidavits of disqualification pursuant to 28 U.S.C. § 144 have been filed on behalf of the defendants Pentronix, Inc. (Pentronix) and Electronic Memories & Magnetics Corporation (EMM) in these consolidated actions. Each party charges that certain comments and statements made by the Court at a hearing held on July 22, 1975, reveal that I have a personal bias or prejudice against the defendants or in favor of the plaintiff, Sperry Rand Corporation. The affidavits are timely filed, and in form at least, in conformity with the requirements of the statute. *fn1"

  It is not my function, nor would I presume to make findings as to the veracity or credibility of the allegations made. Yet, the Court is obligated to pass on the legal sufficiency of the affidavits presented, since, in the first instance, such affidavits are properly addressed to and ruled upon by the Judge whose disqualification is sought. United States v. Townsend, 478 F.2d 1072 (3d Cir. 1973); United States v. Bell, 351 F.2d 868 (6th Cir. 1965) cert. denied 383 U.S. 947, 86 S. Ct. 1200, 16 L. Ed. 2d 210; Simmons v. United States, 302 F.2d 71 (3d Cir. 1962); Green v. Murphy, 259 F.2d 591 (3d Cir. 1958). Having most carefully reviewed the applicable principles of law, the affidavits themselves, and, in all good conscience scrupulously considered the matter, I am firmly of the opinion that the affidavits are insufficient as a matter of law to require that I recuse myself. I come to this conclusion mindful of the seriousness of the situation to all of the parties to this litigation, as well as to this Court, and to our system of jurisprudence as a whole.

 The charge of bias by both defendants is based solely on certain comments by the Court. In substance, the two affidavits are identical, and for present purposes they will be treated together. Each looks to the same remarks and statements which I made, and each affiant asserts that my comments indicate that I have prejudged crucial factual issues before the presentation of evidence. It must follow, therefore, in the opinion of each party, that my expressed attitudes are the result of a personal bias or prejudice, and that disqualification is mandated. To understand why the affidavits are legally insufficient, it is important first that I set forth a brief history of this long and complex case.

 Sperry Rand commenced the main action on July 10, 1967. Alleging both breach of contract and unfair competition, plaintiff sought damages and injunctive relief against the original defendants for alleged misappropriation of its trade secrets with regard to the design and manufacture of certain electronic devices known as magnetic memory cores. During the course of preliminary hearings, it was learned that the Pentronix facility which was the alleged repository of plaintiff's stolen trade secrets was about to be sold to EMM. On March 5, 1968, I issued a Temporary Restraining Order enjoining the then party defendants "from revealing any part of the process of manufacturing magnetic memory cores, used now or heretofore by Pentronix (and/or equipment ancillary thereto), to any person not now involved in the present action." Hearings continued at length, and subsequently, upon stipulation of the parties, the case was submitted to the Court for determination of a motion for a permanent injunction and other final relief.

 On March 18, 1970, the Court rendered its findings of fact and conclusions of law holding that the defendants had violated plaintiff's trade secrets in all respects alleged. *fn2" Various complications, including an abortive appeal, thereafter ensued. Ultimately, on March 14, 1974, final judgment was entered in favor of the plaintiff. A permanent injunction against the use or revelation of the process of manufacture, the formulations, testing methods, and related equipment used in the design and manufacture of magnetic memory cores was issued, and it was ordered that an accounting of profits derived by the defendants be made and damages for the unlawful appropriation of plaintiff's trade secrets be awarded. The Court's judgment of liability was affirmed by our Court of Appeals on January 7, 1975, and rehearing denied on March 4, 1975. (C.A. No. 74-1506).

 In the course of the initial litigation, Sperry Rand took steps to enforce the Court's March 5, 1968, temporary restraining Order. It first filed, on March 10, 1970, a motion for a contempt judgment against all of the original defendants. On July 2, 1970, it commenced a separate civil action (No. 70-1794) against the defendant Electronic Memories & Magnetics Corporation (EMM), also seeking to have EMM adjudged in contempt for violation of the restraining order. *fn3" Proceedings on the former motion were held in abeyance, and the latter action was formally stayed pending appellate review. *fn4"

 Following affirmance on appeal, the Court took up, among other things, these ancillary contempt proceedings. The matters formally before me were the plaintiff's motion for an order to show cause and contempt judgment in the original action, *fn5" and its motion for summary judgment against EMM. It was at argument on these motions that the Court's alleged bias was manifested. As already noted, the sole basis of the allegations made in each affidavit is my remarks and comments during the course of this proceeding.

 The legal standards to be applied in testing an affidavit filed under § 144 are concisely stated by the Court in United States v. Townsend, supra, 478 F.2d at 1073-74:

"The mere filing of an affidavit under this section does not automatically disqualify a judge. Behr v. Mine Safety Appliances Co., 233 F.2d 371 (C.A. 3), cert. denied, 352 U.S. 942, 77 S. Ct. 264, 1 L. Ed. 2d 237 (1956). Disqualification results only from the filing of a timely and sufficient affidavit. Brotherhood of Locomotive Firemen and Enginemen v. Bangor and Aroostook R. Co., 127 U.S. App. D.C. 23, 380 F.2d 570, cert. denied per curiam, 389 U.S. 327, 88 S. Ct. 437, 19 L. Ed. 2d 560 (1967).
It is the duty of the judge against whom a section 144 affidavit is filed to pass upon the legal sufficiency of the facts alleged. Simmons v. United States, 302 F.2d 71 (C.A. 3, 1962). Neither the truth of the allegations nor the good faith of the pleader may be questioned. Simmons, supra. "[The] section withdraws from the presiding judge a decision upon the truth of the matters alleged." Berger v. United States, 255 U.S. 22, 36, 41 S. Ct. 230, 234, 65 L. Ed. 481 (1921); see Parker Precision Products Co. v. Metropolitan Life Ins. Co., 407 F.2d 1070 (C.A. 3, 1969).
To warrant disqualification the affidavit "must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Berger, supra, 255 U.S. at 33-34, 41 S. Ct. at 233. Clearly, more than mere conclusions are required. Inland Freight Lines v. United States, 202 F.2d 169 (C.A. 10, 1953). Facts including time, place, persons, and circumstances must be set forth. Hodgson v. Liquor Salesmen's Local No. 2 of the State of New York, 444 F.2d 1344 (C.A. 2, 1971)." (Footnote omitted).

 Under the statutory authority, only the allegation of "a personal bias or prejudice" will suffice. "The alleged bias and prejudice to be disqualifying must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 16 L. Ed. 2d 778 (1966). *fn6" "A distinction must be drawn between a judicial determination derived from evidence and lengthy proceedings had before the court, and a determination not so founded upon facts brought forth in court, but based on attitudes and conceptions that have their origins in sources beyond the four corners of the courtroom." In re: Federal Facilities Realty Trust, 140 F. Supp. 522, 526 (N.D.Ill.1956). "The distinction is important, for an allegation of 'personal' bias is a proper basis for ...

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