                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-28-2005

In re:Ayres-Fountain
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2410




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Recommended Citation
"In re:Ayres-Fountain " (2005). 2005 Decisions. Paper 950.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/950


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APS-276                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-2410
                                   ________________

                      IN RE: CAROLINE P. AYRES-FOUNTAIN

                                                Petitioner

                       ____________________________________

                      On a Petition for Writ of Mandamus from the
                 United States District Court for the District of Delaware
                         (Related to D. Del. Civ. No. 04-cv-347)
                     _____________________________________

                        Submitted Under Rule 21, Fed. R. App. P.
                                    JUNE 16, 2005

          Before: SLOVITER, NYGAARD AND FUENTES, Circuit Judges.

                                   (Filed June 28, 2005)


                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Caroline P. Ayres-Fountain has filed a mandamus petition requesting that we order

the District Court to (1) vacate its remand order; (2) rule on her motion to amend her

notice of removal; (3) order the state proceedings stayed; and (4) hold an evidentiary

hearing. Ayres-Fountain had filed a notice of removal from a state court action filed

against her by Eastern Savings Bank. The District Court granted Eastern Saving’s motion
to remand.

       The writ of mandamus will issue only in extraordinary circumstances. See Sporck

v. Peil, 759 F.2d 312, 314 (3d Cir. 1985). As a precondition to the issuance of the writ,

the petitioner must establish that there is no alternative remedy or other adequate means to

obtain the desired relief, and the petitioner must demonstrate a clear and indisputable

right to the relief sought. Kerr v. United States District Court, 426 U.S. 394, 403 (1976).

An order remanding a case to state court is not reviewable on appeal or otherwise unless

the case was removed pursuant to 28 U.S.C. § 1443. 28 U.S.C. § 1447(d).

       Here, Ayres-Fountain stated in her notice of removal that the case was being

removed pursuant to 28 U.S.C. §§ 1441 & 1446. Thus, we may not review the District

Court’s order remanding the case to state court or order the District Court to hold an

evidentiary hearing. With respect to her request that we order the District Court to stay

the state court proceedings, that request is barred by the Anti-Injunction Act. See 28

U.S.C. § 2283 (“A court of the United States may not grant an injunction to stay

proceedings in a State court except as expressly authorized by Act of Congress, or where

necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”). In her

motion to amend her notice of removal, Ayres-Fountain argued that Eastern Savings was

a Federal Savings Bank. Because the District Court explicitly considered this argument,

we conclude that Ayres-Fountain has no clear and indisputable right to have the District

Court rule on her motion to amend her notice of removal.

       For the above reasons, we will deny the petition for a writ of mandamus.
