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July 28, 1994



The opinion of the court was delivered by: DAVID N. EDELSTEIN

EDELSTEIN, District Judge:

 This action was originally filed on January 21, 1952, and resulted in a consent decree entered as a final judgment by this Court on January 25, 1956 ("the 1956 Consent Decree"). By letter dated May 20, 1994, the Government requested a conference with the Court in anticipation of a motion by defendant International Business Machines Corporation ("IBM" or "defendant") to terminate the 1956 Consent Decree. On June 7, 1994, the Court held a conference at which time defendant requested permission to file a motion to terminate the 1956 Consent Decree; this motion was filed on June 13, 1994. Defendant also requested permission to move this Court to recuse itself from this case, pursuant to 28 U.S.C. §§ 144 and 455 and the due process clause of the Fifth Amendment. This recusal motion, filed on June 8, 1994, follows approximately twenty-four years of inactivity in this case. *fn1" It also follows three prior, unsuccessful recusal motions brought by IBM in unrelated cases. *fn2"


 28 U.S.C. § 144 states:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

 Section 455(b)(1) provides for recusal when a judge "has a personal bias or prejudice concerning a party." Sections 144 and 455(b)(1) are construed in pari materia, and the test of legal sufficiency of a motion for recusal is the same under both statutes. See Apple v. Jewish Hosp. and Medical Ctr., 829 F.2d 326, 333 (2d Cir. 1987).

 Section 455(a) states that "any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." When construing whether recusal is appropriate under section 455(a), courts are to apply an objective test: "The substantive standard for recusal is whether a reasonable person, knowing all the facts, would conclude that the court's impartiality might reasonably be questioned." United States v. Pitera, 5 F.3d 624, 626 (2d Cir. 1993) (quoting Apple, 829 F.2d at 333), cert. denied, 127 L. Ed. 2d 415, 114 S. Ct. 1103 (1994); see In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1988), cert. denied, 490 U.S. 1102 (1989). Recusal motions are committed to the sound discretion of the district court. United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992).

 A judge is obligated not to recuse himself when grounds for recusal do not exist. See Drexel, 861 F.2d at 1312. "In deciding whether to recuse himself, the trial judge must carefully weigh the policy of promoting public confidence in the judiciary against the possibility that those questioning his impartiality might be seeking to avoid the adverse consequences of his presiding over their case." Id. at 1312; see United States v. Helmsley, 760 F. Supp. 338, 341-42 (S.D.N.Y. 1991). Therefore, recusal is not warranted for "remote, contingent, or speculative" reasons. Drexel, 861 F.2d at 1313. Any other rule would bestow upon litigants the power to force the disqualification of judges who are not to their liking. While litigants are entitled to an impartial judge, they have no right to the judge of their choice. See id. at 1315.

 1. The Current Litigation

 In its motion papers, defendant does not argue that this Court has ever exhibited improper bias in this case, save for one recent incident: During the June 7, 1994 conference the Court withheld permission to file the motion to vacate the 1956 Consent Decree. At that time the Court stated, "I think the first matter is to get rid of any obstacle to my remaining in this matter at all, so go ahead with your motion to recuse." United States v. IBM, Civ. No. 72-344 (S.D.N.Y.), Transcript of June 7, 1994 Hearing ("Transcript"), at 9-10. The Court's express concern (shared by defense counsel, see Transcript, at 10) was that it would be improper to proceed any further in any case in which a party has brought a motion to recuse the judge. See Transcript, at 10. Nonetheless, on June 9, 1994, having reviewed defendant's renewed request contained in a letter dated June 8, 1994, the Court granted IBM permission to file its motion. Notwithstanding the fact that the Court carefully enunciated, on the record, the reasons for each of its actions, defendant describes this incident as "simply another manifestation of his bias and prejudice against IBM," Memorandum of Law in Support of IBM's Motion to Disqualify Judge Edelstein ("Memorandum in Support"), at 28.

 Indeed, it would be difficult for defendant to argue that the Court has exhibited bias or prejudice against IBM during the administration of this case considering that, as the Government aptly points out, this Court has ruled in IBM's favor in all prior proceedings involving the 1956 Consent Decree. On May 2, 1957, this Court entered an order permitting IBM to provide services in connection with United States Air Force contracts that it might otherwise have been prohibited from performing under the 1956 Consent Decree. See United States v. IBM, Civ. No. 72-344 (S.D.N.Y.), Transcript of May 1, 1957 Hearing. On January 14, 1963, when IBM had failed to comply fully with certain divestiture requirements contained in the 1956 Consent Decree, this Court approved an amendment of the 1956 Consent Decree that gave IBM an alternate means of compliance. See United States v. IBM, Civ. No. 72-344 (S.D.N.Y.), Transcript of January 14, 1963 Hearing. On December 29, 1970, this Court granted IBM's request for a modification of the 1956 Consent Decree that allowed IBM to exercise the rights of a secured creditor under the Uniform Commercial Code. See United States v. IBM, Civ. No. 72-344 (S.D.N.Y.) (Stipulation and Order, dated Dec. 29, 1970). In light of this record, the Court's administration of the instant case provides no basis for recusal, and save for the incident discussed above, which simply does not evidence any bias or prejudice against IBM whatsoever, defendant does not even allege that it does.

 Instead, defendant argues that this Court's administration of two other cases provides the basis for this Court's disqualification from this case. The essence of defendant's argument is that this Court should disqualify itself from this case because of bias or prejudice allegedly exhibited in two other cases. In support of this curious proposition, defendant cites Allen-Myland, Inc. v. IBM, No. 88 Civ. 7553 (S.D.N.Y.), in which this Court, once again, ultimately ruled in IBM's favor.

 2. The Allen-Myland Case

 In Allen-Myland, plaintiff sought a declaratory judgment that plaintiff's copying of an IBM microcode and certain IBM technical publications was authorized by the 1956 Consent Decree. IBM filed a motion to dismiss the complaint, and simultaneously filed a motion to disqualify this Court from presiding over that case. This Court denied IBM's recusal motion, and IBM thereafter filed a petition for a writ of mandamus in the Second Circuit. In its petition, IBM sought a writ either to require this Court to recuse itself, or in the alternative, to direct dismissal of the complaint. This Court indicated that it ...

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