* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 6 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

In re: WESCO DISTRIBUTION, INC.,

Petitioner.

CHAMPION INDUSTRIES, INC., n/k/a VARITEL, L.L.C., a Colorado LLC, Plaintiff-Appellee,

v. WESCO DISTRIBUTION, INC.,

Defendant-Appellant. No. 02-1491 (D.C. No. 02-N-1042 (MJW))

(D. Colo.)

No. 02-1496 (D.C. No. 02-N-1042 (MJW))

(D. Colo.)

ORDER AND JUDGMENT *

Before BRISCOE , Circuit Judge, BRORBY , Senior Circuit Judge, and MURPHY , Circuit Judge.-2-

This matter is before the court on Champion Industr ies, Inc.’s (Champion) motion to dismiss Wesco Distribution, Inc.’s (Wesco ) appeal for lack of appellate jurisdiction (No. 02-1496) and on Wesco’s petition for a writ of mandamus (No. 02-1491). Wesco appeals from the magistrate j udge’s order denying Wesco’s motion to extend deadlines for dispositive motions and for a protective order and granting Champion’s motion to compel disc overy. Alternatively, Wesco’s mandamus petition requests this court to di rect the United States District Court for the District of Colorado to rule on Wesco ’s (1) motion to dismiss; (2) motion to compel arbitration and stay the proce edings; (3) objection to the magistrate judge’s denial of Wesco’s renewed motionfor a protective order; and (4) motion for argument on the motion to compel arb itration. All of these filings are currently pending in district court case No. 02 -N-1042. Finally, Wesco has requested this court to stay proceedings in the dis trict court pending resolution of its appeal and/or its petition for writ of mandamus

. No. 02-1496 Only “final decisions” are appealable under 28 U.S. C. § 1291. “Pretrial discovery orders are ordinarily not appealable as f inal orders under 28 U.S.C. § 1291.” Graham v. Gray , 827 F.2d 679, 681 (10th Cir. 1987) (citing FTC v. Alaska Land Leasing, Inc. , 778 F.2d 577, 578 (10th Cir. 1985)). Wesco has n ot provided an applicable exception to this general ru le, nor are we aware of such-3-

an exception. Accordingly, we lack jurisdiction to hear an appeal over this clearly interlocutory order. Without appellate jur isdiction, we must deny Wesco’s motion for a stay pending appeal. See Desktop Direct, Inc. v. Digital Equip. Corp. , 993 F.2d 755, 760 (10th Cir. 1993). No. 02-1491 Alternatively, Wesco requests a writ of mandamus. Mandamus is a drastic remedy, which is to be used only in extraordinary circumstances. Allied Chem. Corp. v. Daiflon, Inc. , 449 U.S. 33, 34 (1980). As this court has stated , mandamus “will issue only in those exceptional case s where the [district] court has acted wholly without jurisdiction or so clearlyabused its discretion as to constitute a judicial usurpation of power.” Kaiser Steel Corp. v. Frates (In re Kaiser Steel Corp.) , 911 F.2d 380, 387 (10th Cir. 1990). “Although th e party seeking issuance of a writ of mandamus has a heavy burden of showing that the conditions are clearly met, the issuance of the wri t is a matter of the issuing court’s discretion.” Marathon Oil Co. v. Lujan , 937 F.2d 498, 500 (10th Cir. 1991) (citing Kerr v. United States Dist. Court , 426 U.S. 394, 403 (1976)). Finally, mandamus “is not a substitute for an appea l, and it is not a vehicle to relieve persons of the consequences of their previo us decision not to pursue available procedures and remedies.” Weston v. Mann (In re Weston) , 18 F.3d 860, 864 (10th Cir. 1994).-4-

This court considers the following five nonconclusi ve guidelines to assist in determining the propriety of granting mandamus r elief: First, the party seeking the writ has no other adequate me ans to secure the relief desired. Second, the petitioning party will be damaged or prejudiced in a way not correctable on appeal. Third, the district court’s order constitutes an abuse of discretion . . . . Fourth, the district court’s order represents an often repe ated error and manifests a persistent disregard of federal rules. Fifth, the district court’s order raises new and important problems or issues of law of the first impression. Pacificare of Okla., Inc. v. Burrage , 59 F.3d 151, 153 (10th Cir. 1995) (quotations and citations omitted). We have reviewed Wesco’s petition under the above l egal principles and we conclude that Wesco has not sufficiently demonstrated that it is entitled to the writ. While not the exclusive basis for our de termination, we note that by failing to object to the magistrate judge’s order, Wesco lost an opportunity to apprise the district court of the pending arbitrati on motions, and to request the court to rule on those motions expeditiously and be fore further discovery. Because we deny Wesco’s petition for writ of mandamus, its request for a stay pending disposition of the petition is moot.-5-

Accordingly, Champion’s motion to dismiss Wesco’s appeal is GRANTED and the appeal is DISMISSED for lack of appellate j urisdiction. The petition for writ of mandamus is DENIED. Wesco’s motions to stay the district court proceedings and any other outstanding motions are D ENIED.

ENTERED FOR THE COURT PER CURIAM