In Re: Wesco Distrib v. ( 2003 )


Menu:
  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JAN 6 2003
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    In re:
    WESCO DISTRIBUTION, INC.,
    No. 02-1491
    Petitioner.                     (D.C. No. 02-N-1042 (MJW))
    (D. Colo.)
    CHAMPION INDUSTRIES, INC.,
    n/k/a VARITEL, L.L.C., a Colorado
    LLC,
    Plaintiff-Appellee,
    v.                                                 No. 02-1496
    (D.C. No. 02-N-1042 (MJW))
    WESCO DISTRIBUTION, INC.,                           (D. Colo.)
    Defendant-Appellant.
    ORDER AND JUDGMENT         *
    Before BRISCOE , Circuit Judge, BRORBY , Senior Circuit Judge, and
    MURPHY , Circuit Judge.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    This matter is before the court on Champion Industries, Inc.’s (Champion)
    motion to dismiss Wesco Distribution, Inc.’s (Wesco) appeal for lack of appellate
    jurisdiction (No. 02-1496) and on Wesco’s petition for a writ of mandamus
    (No. 02-1491). Wesco appeals from the magistrate judge’s order denying
    Wesco’s motion to extend deadlines for dispositive motions and for a protective
    order and granting Champion’s motion to compel discovery. Alternatively,
    Wesco’s mandamus petition requests this court to direct the United States District
    Court for the District of Colorado to rule on Wesco’s (1) motion to dismiss;
    (2) motion to compel arbitration and stay the proceedings; (3) objection to the
    magistrate judge’s denial of Wesco’s renewed motion for a protective order; and
    (4) motion for argument on the motion to compel arbitration. All of these filings
    are currently pending in district court case No. 02-N-1042. Finally, Wesco has
    requested this court to stay proceedings in the district court pending resolution of
    its appeal and/or its petition for writ of mandamus.
    No. 02-1496
    Only “final decisions” are appealable under 
    28 U.S.C. § 1291
    . “Pretrial
    discovery orders are ordinarily not appealable as final orders under 
    28 U.S.C. § 1291
    .” Graham v. Gray , 
    827 F.2d 679
    , 681 (10th Cir. 1987) (citing     FTC v.
    Alaska Land Leasing, Inc. , 
    778 F.2d 577
    , 578 (10th Cir. 1985)). Wesco has not
    provided an applicable exception to this general rule, nor are we aware of such
    -2-
    an exception. Accordingly, we lack jurisdiction to hear an appeal over this
    clearly interlocutory order. Without appellate jurisdiction, we must deny Wesco’s
    motion for a stay pending appeal.     See Desktop Direct, Inc. v. Digital Equip.
    Corp. , 
    993 F.2d 755
    , 760 (10th Cir. 1993).
    No. 02-1491
    Alternatively, Wesco requests a writ of mandamus. Mandamus is a drastic
    remedy, which is to be used only in extraordinary circumstances.           Allied Chem.
    Corp. v. Daiflon, Inc. , 
    449 U.S. 33
    , 34 (1980). As this court has stated,
    mandamus “will issue only in those exceptional cases where the [district] court
    has acted wholly without jurisdiction or so clearly abused its discretion as to
    constitute a judicial usurpation of power.”         Kaiser Steel Corp. v. Frates (In re
    Kaiser Steel Corp.) , 
    911 F.2d 380
    , 387 (10th Cir. 1990). “Although the party
    seeking issuance of a writ of mandamus has a heavy burden of showing that the
    conditions are clearly met, the issuance of the writ is a matter of the issuing
    court’s discretion.”   Marathon Oil Co. v. Lujan , 
    937 F.2d 498
    , 500 (10th Cir.
    1991) (citing Kerr v. United States Dist. Court        , 
    426 U.S. 394
    , 403 (1976)).
    Finally, mandamus “is not a substitute for an appeal, and it is not a vehicle to
    relieve persons of the consequences of their previous decision not to pursue
    available procedures and remedies.”      Weston v. Mann (In re Weston)       , 
    18 F.3d 860
    ,
    864 (10th Cir. 1994).
    -3-
    This court considers the following five nonconclusive guidelines to assist
    in determining the propriety of granting mandamus relief:
    First, the party seeking the writ has no other adequate means to
    secure the relief desired. Second, the petitioning party will be
    damaged or prejudiced in a way not correctable on appeal.          Third, the
    district court’s order constitutes an abuse of discretion . . . .    Fourth,
    the district court’s order represents an often repeated error and
    manifests a persistent disregard of federal rules.      Fifth, the district
    court’s order raises new and important problems or issues of law of
    the first impression.
    Pacificare of Okla., Inc. v. Burrage   , 
    59 F.3d 151
    , 153 (10th Cir. 1995)
    (quotations and citations omitted).
    We have reviewed Wesco’s petition under the above legal principles and
    we conclude that Wesco has not sufficiently demonstrated that it is entitled to
    the writ. While not the exclusive basis for our determination, we note that by
    failing to object to the magistrate judge’s order, Wesco lost an opportunity to
    apprise the district court of the pending arbitration motions, and to request the
    court to rule on those motions expeditiously and before further discovery.
    Because we deny Wesco’s petition for writ of mandamus, its request for a stay
    pending disposition of the petition is moot.
    -4-
    Accordingly, Champion’s motion to dismiss Wesco’s appeal is GRANTED
    and the appeal is DISMISSED for lack of appellate jurisdiction. The petition for
    writ of mandamus is DENIED. Wesco’s motions to stay the district court
    proceedings and any other outstanding motions are DENIED.
    ENTERED FOR THE COURT
    PER CURIAM
    -5-