                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              June 21, 2005
                       FOR THE FIFTH CIRCUIT
                       _____________________             Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-60470
                       _____________________

In Re:   FRANCES ELAINE HOOD,

                    Petitioner.
_________________________________________________________________

               Petition for Writ of Mandamus to the
                   United States District Court
             for the Southern District of Mississippi
                       USDC No. 3:02-CV-405
_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.

PER CURIAM:*

     Frances Elaine Hood has requested a writ of mandamus to

require the district judge to enter an opinion and judgment in her

civil action against Sears Roebuck and Company.     Sears does not

oppose Hood’s request for mandamus. On June 13, 2005, the district

court judge advised the Clerk’s Office of this court that a ruling

would be entered by the end of that week.   The district judge has

failed to act on this case in any manner, notwithstanding his

representation to the office of the Clerk of this court.      However,

he had his secretary call the Clerk’s Office at 3:05 p.m. today and

she made the representation that he would rule by Friday of this

week (June 24).



     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
     The district court’s docket sheet reflects the following

procedural history leading up to the instant petition.         Sears

removed this case to federal court on April 24, 2002.     Hood filed

a motion to remand on May 2, 2002.    The district court did not rule

on the motion to remand until March 31, 2003, when it denied the

motion.

     Sears filed a motion for summary judgment on September 30,

2004.     Hood responded to the motion on October 27, 2004.      The

district court conducted a status conference and hearing on the

motion for summary judgment on November 10, 2004.      At the status

conference, it set the case for trial on November 29, 2004.       On

November 12, the district court entered an order denying Sears’s

motion for summary judgment.

     A minute entry on the docket sheet dated December 1, 2004,

states that the court conducted a pretrial conference on November

22, 2004 (the confusion of the dates is unexplained), and that the

court dismissed Sears from the case and indicated that a final

judgment “will be entered”.    In her petition for writ of mandamus,

Hood states that the district judge ordered Sears to prepare a

proposed opinion and order and submit it to him on Monday, November

29, 2004. According to Hood, Sears submitted a preliminary opinion

and order to the judge on November 29, 2004, and requested an

additional day to provide a more complete document.       Sears sent

another proposed opinion and order to the judge on November 30,

2004.

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     On    December    2,   2004,     Hood    filed   a   motion   to    attach    a

transcript of the bench opinion to the order of dismissal.                      Hood

asserted in that motion that the proposed opinion prepared by Sears

included grounds not addressed in the judge’s ruling from the bench

at the status conference.

     On January 25, 2005, Hood’s counsel sent a letter to the

district judge asking the court to “[p]lease let us know when we

can expect to have the Findings of Fact and Conclusions of Law and

an Order of Dismissal.”

     Approximately two and one-half months later, on April 15,

2005, Hood filed a motion for entry of a final order.                     In that

motion, Hood noted that it had been 112 days since the court’s

ruling from the bench granting summary judgment in favor of Sears.

Hood asked the court to expedite the progress of the litigation by

entering an opinion and final order consistent with its bench

opinion.

     In her petition for writ of mandamus, Hood asserts that she is

suffering stress and emotional injury due to the long delay and to

the lack of dispatch of the trial judge’s rulings.                     She seeks a

writ ordering “a direct appeal of all issues or directing the

District Court Judge to enter a Final Opinion and Order on the

summary    judgment”.       Alternatively,      she   requests     a    settlement

conference.

     A    writ   of   mandamus   is    an    extraordinary    remedy     that    “is

appropriate only when the trial court has exceeded its jurisdiction

                                        3
or has declined to exercise it, or when the trial court has so

clearly and indisputably abused its discretion as to compel prompt

intervention by the appellate court.”        In re: United States, 397

F.3d 274,   282   (5th   Cir.   2005)   (internal    quotation   marks   and

citations omitted).      Three requirements must be satisfied “before

a writ will issue:       (1) the party seeking issuance of the writ

[must] have no other adequate means to attain the relief he

desires; (2) the petitioner must satisfy the burden of showing that

[her] right to issuance of the writ is clear and indisputable; and

(3) even if the first two prerequisites have been met, the issuing

court, in the exercise of its discretion, must be satisfied that

the writ is appropriate under the circumstances.”           Id. (internal

quotation marks and citations omitted).

     Hood has satisfied these requirements.             She has no other

adequate means to attain the relief she seeks:         Despite her efforts

to obtain an appealable final order, the district judge has not

entered an order, even after having promised this court that it

would do so by the end of last week.        She has also satisfied her

burden of showing that her right to issuance of the writ is clear

and indisputable. On November 22, 2004, the district court granted

summary judgment for Sears in a ruling from the bench, and stated

that a final judgment would be entered.             Seven months have now

passed with no action by the district judge, despite repeated

respectful requests by Hood’s counsel.         In the exercise of our



                                    4
discretion, we are satisfied that the writ is appropriate under

these circumstances.

     This   matter,   however,   is   held   in   abeyance   trusting   the

district judge’s representation that he will address the matters

referred to in the petition for writ of mandamus by the end of this

week, Friday, June 24.    If he fails to act, the court will further

consider the petition.

                                                              SO ORDERED.




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