2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-13-2012

In Re: Jay Thomas

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-4352

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Recommended Citation

"In Re: Jay Thomas " (2012). 2012 Decisions. Paper 1291.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/1291
CLD-092 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-4352

___________

IN RE: JAY L. THOMAS,

Petitioner

____________________________________

Petition for Writ of Mandamus from the

United States District Court for the District of New Jersey

(Related to D.N.J. Civil 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 Court granted Nova Southeastern’s motions to dismiss the 
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complaint and a proposed amended complaint. Thomas appealed. On November 9, 

2011, while his appeal was pending, Thomas filed an amended complaint against Nova 

Southeastern in District Court. Thomas later notified counsel for Nova Southeastern that 

he would be filing a motion for default judgment. 

Nova Southeastern submitted a letter to the District Court asserting, among other 

things, that Thomas’ amended complaint is a nullity because he was not afforded 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 Madamus[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 because Thomas’ appeal of the 

July 27, 2011, order remained pending. The District Court also treated 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 jurisdiction 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.
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(citations omitted). 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. Although the District Court has dismissed Thomas’ application for a default 

judgment, Thomas is able to appeal that ruling. Mandamus 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.