                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-21-2006

In Re: Burgess
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1860




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Recommended Citation
"In Re: Burgess " (2006). 2006 Decisions. Paper 1229.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1229


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CPS-180                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 06-1860


                            IN RE: REGINALD P. BURGESS,

                                                 Petitioner
                       ____________________________________

                      On a Petition for Writ of Mandamus from the
                        District Court for the District of Delaware
                     (Related to D. Del. Civ. No. 05-cv-00677-GMS)
                      _____________________________________

                        Submitted Under Rule 21, Fed. R. App. P.
                                    March 30, 2006

               Before: BARRY, SMITH AND NYGAARD, Circuit Judges

                                  (Filed: April 21, 2006)


                                         OPINION


PER CURIAM

       Petitioner Reginald Burgess asks this Court for a writ of mandamus to direct the

District Court to rule on his pending mandamus petition. Although he alleges that an

emergency exists with respect to a property located at 1715 S. Victoria Ave., Los

Angeles, California, we find that no emergency exists and that a four-month delay is not

so long as to create a right to the writ. We will deny the request.

                                              1
       The facts and procedural history of this case are complex. Burgess has been the

plaintiff, or at least an interested party, in numerous cases in the California state and

federal courts. He has also filed several suits in the Delaware federal courts. In 2001,

Burgess and his ex-wife, Karen Sparks, served as caretakers for June Williams, who

owned the property at 1715 Victoria Ave. Burgess convinced George Williams, one of

June’s sons, to transfer his property interest in the house to Sparks. See Burgess v.

Williams, No. 04-09129 (C.D. Cal.). Sparks then transferred her interest to Burgess.

Upon June Williams’ death, John Williams, George’s brother, brought a probate action in

the Superior Court of Los Angeles County trying to void the property transfer to Sparks

and Burgess. See No. BC263257 (Cal. Super. Ct.). The Superior Court found George

Williams was incompetent at the time he made the transfer and appointed John Williams

the conservator of the estate. Despite the court order, Burgess did not transfer his interest

in the property to Williams, as the conservator. See In the Matter of the Conservatorship

of George W. Williams, No. BP070275, orders issued Aug.-Sept. 2002 (Cal. Super. Ct.).

       Although the matter continued in state court, Burgess filed a Chapter 7 Bankruptcy

petition in the Bankruptcy Court for the Central District of California, automatically

staying the transfer. See In re Burgess, No. 02-37195 (Bankr. C.D. Cal.). Before the stay

was lifted, Burgess filed a bankruptcy petition under Chapter 11, receiving an additional

stay. See In re Burgess, No. LA 04-28183-ER, slip op. at 4 n.4 (Bankr. C.D. Cal. Oct. 27,

2004). The Bankruptcy Court dismissed the Chapter 11 filing on October 27, 2004,

concluding that the filing was in bad faith. Id. The United States District Court for

                                               2
Central District of California affirmed. See Burgess v. Williams, No. 04-cv-09129-DDP,

slip op. (C.D. Cal. Jan 18, 2005). Burgess appealed to the Court of Appeals for Ninth

Circuit several times, but the Court has not provided Burgess with any of the relief he

seeks. See In re Burgess, 146 Fed. Appx. 921 (9th Cir. Oct. 25, 2005); Williams v.

Burgess, 146 Fed. Appx. 924 (9th Cir. Oct. 25, 2005).

       On July 21, 2005, before the Ninth Circuit ruled on his appeals, Burgess filed a

voluntary petition under Chapter 13 of the Bankruptcy Code in the Bankruptcy Court for

the District of Delaware. The main item of contention was again the distribution of the

property at 1715 S. Victoria Ave. On July 26, 2005, Burgess was evicted from the

property. We are unsure who currently holds possession. On August 3, 2005, Burgess

filed a motion for enforcement of the automatic stay pursuant to 11 U.S.C. § 362. The

appointed Trustee filed a motion for a change of venue back to the Bankruptcy Court for

the Central District of California. The Bankruptcy Court for the District of Delaware

granted the Trustee’s motion on September 8, 2005.

       Almost immediately thereafter, Burgess filed a petition for a writ of mandamus in

the United States District Court for the District of Delaware seeking a ruling preventing

the Bankruptcy Court from transferring the action to California. On December 12, 2005,

Burgess filed an amended motion for the issuance of a writ. The District Court has yet to

act on the petition. He now seeks a writ of mandamus from this Court.

                                            II.

       A writ of mandamus is an extraordinary remedy which should be invoked only in

                                             3
extraordinary situations. See Kerr v. United States Dist. Ct., 426 U.S. 394, 402 (1976).

Burgess must show that he has an indisputable right to the writ and that there exists no

other adequate remedy. See Haines v. Liggett Group Inc., 975 F.2d 81, 89 (3d Cir.

1992).1

       Some delays may be so prejudicial that they warrant mandamus relief, see Madden

v. Myers, 102 F.3d 74, 79 (3d Cir. 1996); Johnson v. Rogers, 917 F.2d 1283, 1285 (10th

Cir. 1990); Jones v. Shell, 572 F.2d 1278, 1280 (8th Cir. 1978). Normally, the four-

month delay would not be so long as to warrant mandamus relief. However, Burgess

alleges that an emergency exists because he will lose his property. We disagree that this

is an emergency for several reasons. First, Burgess has already been evicted, eliminating

the urgency in preventing the taking in the first place, and he does not allege that the

property will be damaged. Second, if the District Court issued a writ reversing the

transfer decision, it would not guarantee that the Bankruptcy Court will enforce the

automatic stay provision. For instance, the Bankruptcy Court might decide that it lacks

jurisdiction over property within the control of a state probate court, see Markham v.

Allen, 326 U.S. 490, 494 (1946), or it could find that one of the exceptions to the

automatic stay applies. See 11 U.S.C. § 362(b). Accordingly, Burgess does not show he

has an indisputable right to writ and his petition for a writ of mandamus will be denied.



  1
     We note that “[m]andamus is . . . the appropriate mechanism for reviewing an
allegedly improper transfer order.” In re United States, 273 F.3d 380, 385 (3d Cir. 2001)
(quotations and citations omitted).

                                              4
