2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

3-13-2012 

# I n R e: J a y Thom a s
P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 11-4352

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2012

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2012 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" I n R e: J a y Thom as " (2012). 2012 D e cisio n s . P a pe r 1291. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2012/1291

### CLD
- 092 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 1

- 4352

___________ IN RE: JAY L. THOMAS , Petitioner

____________________________________ Petition for Writ of Mandamus from the United States Distric t Court for the District of New Jersey (Related to D.N.J. Civ il No. 2

- 11

- cv - 02089 )

____________________________________ Submitted Pursuant to Rule 21, Fed. R. App. P. January 20, 2012 Before: RENDELL, HARDIMAN and ROTH , Circuit Judges (Opinion filed : March 13, 2012 )

_________ OPINION OF THE COURT

_________ PER CURIAM Jay Thomas, proceeding pro se , has filed a petition for a writ of mandamus asking this Court to direct the Clerk of the United States District Court for the District of New Jersey to enter a default judgment in a civil action Thomas filed in that court . For the reasons that follow, we will deny the petition. Thomas filed a complaint in District Court against Nova Southeastern University. On July 27, 2011, the District Cou rt granted Nova Southeastern’s motion s to dismiss the

### 2 complaint and a proposed amended complaint

. Thomas appealed

. On November 9 , 2011, w hile his appeal was pending, Thomas filed an amended complaint against Nova Southeastern in District Court

. Thomas l ater notified counsel for Nova Southeastern that he would be filing a motion for default judgment. Nova Southeastern submitted a letter to the District Court asser ting, among other things, that Thomas ’ amended complaint is a nullity because he was not af forded leave to file the complaint and his case had not been reopened. Nova Southeastern asked the District Court to deny any request for a default judgment. Thomas then filed in District Court and in this Court a “Petition or Application for Writ of Mad amus[sic] for Default Judgment 28 USC 1651” seeking the entry of a default judgment in connection with the amended complaint

. The District Court treated Thomas’ filing as an application for default judgment and dismissed it for lack of jurisdiction becaus e Thomas’ appeal of the July 27, 2011, order remain ed pending. The District Court also treat ed Thomas’ November 9, 2011, filing as an application for leave to file an amended complaint and dismissed it on the same basis.
We read Thomas’ petition filed in this Court as seeking mandamus relief in the form of an order directing the District Court Clerk to enter a default judgment. The writ of mandamus traditionally “has been used ‘to confine an inferior court to a lawful exercise of its prescribed jurisdi ction or to compel it to exercise its authority when it is its duty to do so.’” In re Patenaude , 210 F.3d 135, 140 (3d Cir. 2000) (citations omitted). “The writ is a drastic remedy that ‘is seldom issued and its use is discouraged.’” Id.

### 3 (citations omit ted). A petitioner must show that he has no other adequate means to attain the desired relief and that the right to a writ is clear and indisputable. Id. at 141. Thomas has not made such a showing. He has other means to attain his desired relief . Altho ugh the District Court has d ismisse d Thomas’ application for a default judgment, Thomas is able to appeal that ruling . M andamus is not a substitute for appeal

. In re Chambers Dev. Co. , Inc. , 148 F.3d 214, 226 (3d Cir. 1998). Accordingly, the petition for a writ of mandamus will be denied.