                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-2009

In Re: Burton F. Tuc
Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2134




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Recommended Citation
"In Re: Burton F. Tuc " (2009). 2009 Decisions. Paper 1350.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1350


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HLD-85        (April 2009)                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 09-2134
                                      ___________

                            IN RE: BURTON F. TUCKER,
                                                 Petitioner
                       ____________________________________

                      On a Petition for Writ of Mandamus from the
           United States District Court for the Middle District of Pennsylvania
                  (Related to M.D. Pa. Crim. No. 05-cr-00114-YK-1)

                       ____________________________________

                    Submitted Pursuant to Rule 21, Fed. R. App. P.
                                   April 30, 2009
           Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges

                                  (filed: May 19, 2009)
                                        _________

                                       OPINION
                                       _________

PER CURIAM.

              On April 6, 2009, Burton F. Tucker filed this pro se mandamus petition

pursuant to 28 U.S.C. § 1651, seeking an order that the District Court be compelled to act

upon his pending Rule 60(b) motion. For the reasons that follow, we will deny the

petition without prejudice.

              Mandamus is a drastic remedy available only in the most extraordinary of

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circumstances. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.

2005). To demonstrate that mandamus is appropriate, a petitioner must establish that he

has “no other adequate means” to obtain the relief and that he has a “clear and

indisputable” right to issuance of the writ. Madden v. Myers, 102 F.3d 74, 79 (3d Cir.

1996).

              As a general rule, the manner in which a court disposes of cases on its

docket is within its discretion. See In re Fine Paper Antitrust Litig., 685 F.2d 810, 817

(3d Cir. 1982). Indeed, given the discretionary nature of docket management, there can

be no “clear and indisputable” right to have the district court handle a case on its docket

in a certain manner. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980).

              Nonetheless, mandamus may be warranted where a district court’s delay is

tantamount to a failure to exercise jurisdiction. See Madden, 102 F.3d at 79. This case,

however, does not present such a situation. Tucker filed his motion to dismiss pursuant to

Rule 60(b)(4) on January 16, 2009. The Government filed a brief in opposition to

Tucker’s motion on January 23, and Tucker filed his reply on February 4, 2009. Eight

weeks passed before Tucker filed the instant mandamus petition with this Court. Such a

delay in the disposition of Tucker’s Rule 60(b) motion “does not yet rise to the level of a

denial of due process.” See id. (district court’s delay of four months does not warrant

mandamus relief).

              Accordingly, we will deny Tucker’s mandamus petition without prejudice.




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