                                                                             FILED
                           NOT FOR PUBLICATION                               MAR 21 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


In re: THOMAS F. WHITE,                         No. 13-73079

ESTATE FOR THOMAS F. WHITE,                     D.C. No. 3:03-cv-04035-CRB

             Petitioner,
                                                MEMORANDUM*
        v.

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF
CALIFORNIA, SAN FRANCISCO,

             Respondent,

JOSE ROE, I-IV, minors, by James M.
Wagstaffe, their Guardian ad Litem;
CARLOS ROE, I-XVIII,

             Real Parties in Interest.

                  Appeal from the United States District Court
                      for the Northern District of California
                Charles R. Breyer, Senior District Judge, Presiding

                      Argued and Submitted March 11, 2014
                           San Francisco, California

Before: THOMAS, FISHER and BERZON, Circuit Judges.


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The Estate of Thomas F. White (the White Estate) seeks a “writ of mandate

and/or prohibition, and request for emergency stay” directing the district court to

vacate its order denying White’s motion to stay payments from the trust fund

established in this case and to enter a new order granting his motion.1 The White

Estate further requests a companion writ staying further payments from the trust

pending completion of post-judgment discovery and adjudication of its motion to

vacate the underlying judgment.

      The White Estate fails to demonstrate that the district court clearly erred by

denying the motion for a stay of payments, and therefore the extraordinary remedy

of mandamus is unwarranted. See Burlington N. & Santa Fe Ry. Co. v. U.S. Dist.

Court for Dist. of Mont., 408 F.3d 1142, 1146 (9th Cir. 2005) (holding that the

absence of clear error is dispositive). In light of the investigation and reports from

Special Master Garcia and Trustee Smith, the district court did not clearly err by

concluding that the White Estate’s new submissions were not convincing evidence

of “an unconscionable plan or scheme which is designed to improperly influence

the court in its decision.” Latshaw v. Trainer Wortham & Co., 452 F.3d 1097,



      1
       After this petition was filed, Thomas White died, and the Estate of
Thomas F. White was substituted in his place. For ease of reference, we refer to
the White Estate throughout this order.

                                          2
1104 (9th Cir. 2006) (quoting Abatti v. Comm’r, 859 F.2d 115, 118 (9th Cir.

1988)) (internal quotation marks omitted). Moreover, the district court acted

within its discretion in finding that the potential harm to the plaintiffs that would

result from staying further payments outweighs the potential harm to the White

Estate of maintaining the current distribution schedule.

      Even assuming clear error, mandamus is inappropriate because the district

court’s decision to deny a stay does not present an “oft repeated error or manifest[]

a persistent disregard of the federal rules,” nor does it “raise[] new and important

problems or issues of first impression.” Perry v. Schwarzenegger, 591 F.3d 1126,

1136 (9th Cir. 2009) (citing Bauman v. United States District Court, 557 F.2d 650,

654-55 (9th Cir. 1977)).

      The White Estate’s remaining contentions are without merit.

      PETITION DENIED.




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