2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-6-2002

In Re Eastwind Grp

Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4200

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Recommended Citation

"In Re Eastwind Grp " (2002). 2002 Decisions. Paper 556.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/556
 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 01-4200 

 ___________ 

 

 IN RE: EASTWIND GROUP, INC. 

 

 v. 

 

 NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, 

 PENNSYLVANIA, 

 Appellant 

 ___________ 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (Misc. No. 01-200) 

 District Judge: The Honorable Berle M. Schiller 

 ___________ 

 Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 

 July 16, 2002 

 Before: SCIRICA, ALITO, and FUENTES, Circuit Judges 

 (Opinion Filed: September 6, 2002) 

 

 ________________________ 

 OPINION OF THE COURT 

 ________________________ 

FUENTES, Circuit Judge: 

 The National Union Fire Insurance Company of Pittsburgh, Pennsylvania, 

("National Union") appeals the District Court’s Order that vacated its own previous Order 

to withdraw the reference of this case to the Bankruptcy Court. The practical effect of the 

District Court’s Orders was to deny both National Union’s motion to withdraw the 

reference of jurisdiction from the bankruptcy court and its motion for a Stay. For the 

reasons stated below, we find that we lack jurisdiction to hear this appeal. Therefore, we 

dismiss the appeal. 

 Because we write for the benefit of parties who are already familiar with the facts 

of this case, we only address National Union’s legal claims. However, before we can 

review the merits of National Union’s claim, we must first determine whether we have 

appellate jurisdiction over the District Court’s Order. See In re; Professional Insurance 

Management, 285 F.3d 268, 278 (3d Cir. 2002); see also Metro Transportation Co. v. 

North Star Reinsurance Co., 912 F.2d 672, 676 (3d Cir. 1990) ("[w]here counsel has not 

satisfied us that jurisdiction is present, we are obliged to raise that issue on our own 

initiative"). 

 It is clear that we cannot predicate our jurisdiction on 28 U.S.C. 158(d), the 

appeal provision that is generally applicable to bankruptcy cases, because the District 

Court acted pursuant to its original jurisdiction when it denied National Union’s motion 

to withdraw the reference. See In re: Pasquiello, 16 F3d 525, 528 (3d Cir. 1994); 

Allegheny International, Inc. v. Allegheny Ludlum Steel Corp. 920 F.2d 1127, 1131 (3d 
Cir. 1990). Neither can we rely on our traditional jurisdictional base, 28 U.S.C. 1291, 

since "it is well-settled that orders granting or denying motions for withdrawal of 

reference are not final," and therefore such orders are "unreviewable under 28 U.S.C. 

1291." Id. Given this analysis, National Union’s appeal to this Court is cognizable, if at 

all, as a petition for a writ of mandamus under 28 U.S.C. 1651(a). See Id. at 1133 

("The All Writs Act, 28 U.S.C. 1651(a) empowers [this Court] to issue writs in aid of 

[its] jurisdiction."). 

 National Union has not formally sought mandamus relief through the typical 

channel of filing a petition for mandamus under Fed. R. App. P. 21(a). However, they 

correctly assert that this Court has previously construed an appeal from a district court’s 

refusal to withdraw a reference to a bankruptcy court as a petition for mandamus, without 

the formal filing required by Fed. R. App. P. 21(a). See In re; Pasquariello, 16 F.3d at 

528; Allegheny International, 920 F.2d at1132. It is important to note that in each of the 

circumstances in which we had done so, mandamus review was triggered by the 

appellant’s claim that its Seventh Amendment right to a jury trial had been denied. See 

Allegheny International, 920 F.2d at 1133 ("[d]espite courts’ general reluctance to issue 

writs of mandamus, the Supreme Court has stated that it is ’the responsibility of the 

Federal Courts of Appeals to grant mandamus where necessary to protect the 

constitutional right to trial by jury.’"). Because National Union similarly claims that its 

Seventh Amendment right to a trial by jury has been denied, based on its claim that a 

bankruptcy court is not authorized to enter final judgments in "non-core" proceedings, 

we will review its present appeal as a petition for a writ of mandamus. 

 A writ of mandamus is a drastic remedy that a court should grant only in 

extraordinary circumstances in response to an act amounting to a judicial usurpation of 

power. In re: Nwanze, 242 F.3d 521, 524 (3d Cir. 2001). Thus, two central prerequisites 

for issuance of the writ are: (1) that petitioner have no other adequate means to attain the 

desired relief, and (2) that petitioner meet its burden of showing that its right to the writ 

clear and indisputable. Id. Nevertheless, even when these prerequisites are met, issuance 

of the writ is largely discretionary. See In Re; Patenaude, 210 F.3d 135, 141 (3d Cir. 

2000) ("It is within a court’s discretion to refrain from issuing a writ of mandamus even 

when the requirements for mandamus are technically satisfied; the availability of the writ 

does not compel its exercise."). Furthermore, the petitioners have the burden of proving 

that prerequisites for issuance of writ of mandamus are satisfied. Id. 

 National Union has clearly failed to satisfy its burden to obtain mandamus relief. 

They first argue that "cause exist[ed]" to withdraw the reference from the Bankruptcy 

Court because the trustee’s Adversary Complaint raised a "non-core matter" for which the 

Bankruptcy Court lacks the authority to enter a final judgment. App. Br. at 10. However, 

whether "cause existed" for the District Court to withdraw the reference is clearly not the 

question before this Court. Rather, National Union has the burden of proving that its right 

to a writ of mandamus compelling the district court to withdraw the reference is "clear 

and undisputable" and that no other avenues for relief exist. Nwanze 242 F.3d at 524. 

National Union offers no evidence that its claim meets these standards. It is unclear why, 

after having recognized that it would be necessary to convert its appeal to a petition for 

mandamus in order to establish appellate jurisdiction, National Union would utilize a 

significant portion of its brief to argue merely that the District Court had "cause" to 

withdraw the reference. See Exxon Shipping Co. v. Exxon Seaman’s Union 73 F.3d 1287, 

1296 (3d Cir. 1996) (finding that "the term ’cause’ is ambiguous" for the purpose of 

determinating whether "cause existed" in order to trigger a company’s mandatory drug 

testing requirement). 

 Additionally, neither court below has made a determination at this stage of the 

proceedings regarding either the "core/non-core" nature of Eastwind’s adversarial 

complaint nor concerning National Union’s related Seventh Amendment right to a jury 

trial. Rather, in the only reference to any such determination in the record, the 

Bankruptcy Court explicitly refused to reach the first of these issues at this stage of the 

proceedings. See App. at 207 (Order of the Bankruptcy Court, denying National Union’s 

Motion for a Stay). In addition, this case is still in the pretrial stage and may be disposed 

of through any number of pretrial motions or through alternative dispute resolution, which 

National Union itself moved to compel. App. at 230. Therefore, any petition for 

mandamus relief at this stage of the proceedings is unquestionably premature. See 

Allegheny International 920 F.2d at 1134 (refusing to employ the "drastic remedy" of 
mandamus relief, notwithstanding an appellant’s asserted Seventh Amendment right to 

jury trial, because a pending pretrial motion might have disposed of the case). 

 Accordingly, we will dismiss National Union’s appeal for lack of appellate 

jurisdiction. Treating its appeal as a petition for a writ of mandamus, we deny the petition. 

 

_____________________________ 

TO THE CLERK OF THE COURT: 

Kindly file the foregoing Opinion. 

 By the Court, 

 /s/ Julio M. F

 Circuit Judge