ALD-096 NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 19-1246 

___________ 

In re: CHITA ALIPERIO; EMILE HERIVEAUX, 

 Petitioners 

____________________________________ 

On a Petition for Writ of Mandamus from the 

United States District Court for the District of New Jersey 

(Related to Civ. Nos. 2-16-cv-01008 & 2-18-cv-13148) 

____________________________________ 

Submitted Pursuant to Rule 21, Fed. R. App. P. 

February 7, 2019 

Before: MCKEE, SHWARTZ and BIBAS, Circuit Judges 

(Opinion filed: February 28, 2019) 

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OPINION*

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PER CURIAM 

 Pro se petitioners Chita Aliperio and Emile Heriveaux seek a writ of mandamus to 

compel the District Court to take various actions in their cases. For the reasons set forth 

below, we will deny the petition. 

                                                            

*

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent. 
2

 Petitioners seek mandamus relief with respect to two actions they have instituted 

in the District Court. In the first action, the petitioners alleged that several defendants 

violated the Racketeer Influenced and Corrupt Organizations Act (RICO) in the course of 

assigning their mortgage, using it in credit-default-swap contracts, collecting payments 

on it, and instituting foreclosure proceedings (hereafter, “the RICO action”). See D.C. 

Civ. A. No. 16-cv-1008. They requested entry of default, which the Clerk refused to 

enter because the defendants had “made an appearance and there are Motions to Dismiss 

pending.” June 16, 2016 text order. In December 2016, the District Court dismissed the 

complaint, and, after the Court denied the petitioners’ motion to vacate the judgment, the 

petitioners filed a notice of appeal to this Court. That appeal is currently pending. See 

C.A. No. 17-2393. 

 In the second action, the petitioners alleged that several defendants violated the 

Fair Debt Collection Practices Act (FDCPA) in their communications with the petitioners 

concerning their mortgage (hereafter, “the FDCPA action”). See D.C. Civ. A. No. 18-cv13148. The petitioners sought entry of default, which the Court denied, explaining that 

the defendants had filed their answer “shortly after the deadline to answer expired” and 

that “the Third Circuit has a preference for cases being decided on the merits.” January 

15, 2019 text order. That action remains ongoing in the District Court. 

 The petitioners now seek a writ of mandamus. They ask us to (a) strike the 

motions to dismiss and enter default in the RICO action, and (b) strike the answer, enter 

default, and then stay the FDCPA action. 
3

 Mandamus is a drastic remedy that is granted in only extraordinary cases. In re 

Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). To demonstrate that 

mandamus is appropriate, petitioners must establish that they have “no other adequate 

means” to obtain the relief requested, and that they have a “clear and indisputable” right 

to issuance of the writ. Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996). Mandamus 

may not be used as a substitute for appeal. See In re Diet Drugs Prods. Liab. Litig., 418 

F.3d at 378-79. 

 Mandamus is not appropriate here. The petitioners can obtain appellate review of 

the orders denying entry of default on direct appeal. See In re Kensington Int’l Ltd., 353 

F.3d 211, 219 (3d Cir. 2003) (“If, in effect, an appeal will lie, mandamus will not.”); see 

also Dimond Rigging Co. v. BDP Int’l, Inc., -- F.3d ---, 2019 WL 321862, at *9 (6th Cir. 

Jan. 25, 2019) (“The district court dismissed [plaintiff’s] case, and therefore the denial of 

the motion of default is reviewable along with the order of dismissal.”). Likewise, to the 

extent that the petitioners allege that an improper party filed a motion to dismiss in the 

RICO action, they actually have raised that argument in their brief in C.A. No. 17-2393, 

so it is unnecessary to resort to mandamus. 

 We will thus deny the mandamus petition. To the extent that anything in the 

petitioners’ mandamus petition can be construed as a motion seeking additional relief, it 

is denied.