Brian Timm v. ( 2018 )

ALD-253 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-2331
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IN RE: BRIAN ERIC TIMM,
Petitioner
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On a Petition for Writ of Mandamus from the
United States District Court for the District of New Jersey
(Related to D.N.J. Civ. No. 3-18-cv-09769)
District Judge: Honorable Michael A. Shipp
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Submitted Pursuant to Rule 21, Fed. R. App. P.
June 28, 2018
Before: MCKEE, VANASKIE and SCIRICA, Circuit Judges
(Opinion filed: October 18, 2018)
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OPINION*
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PER CURIAM
Brian Eric Timm, proceeding pro se, has filed a petition for a writ of mandamus
seeking review of an order of the United States District Court for the District of New
Jersey denying his motion for a preliminary injunction. For the reasons that follow, we
will deny the petition.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Timm filed a complaint in District Court challenging the validity of a New Jersey
state court’s final judgment in a foreclosure action against him and the underlying
mortgage and note. He also challenged the lawfulness of the Sheriff’s Sale of his
property and his scheduled eviction. As relief, Timm sought money damages, an order
declaring the mortgage and note null and void, and an order restoring title to the property
to him. Timm then filed a motion for a preliminary injunction seeking to enjoin the
Sheriff from evicting him and to enjoin all foreclosures in the state.
The District Court denied the motion on the ground that the requested relief is
barred by the Rooker-Feldman1 doctrine to the extent it stemmed from the state court
foreclosure proceedings and, to the extent not barred, on the ground that Timm had not
shown that he was entitled to relief. Timm’s complaint has yet to be adjudicated. His
present mandamus petition asks us to review the District Court’s order denying
preliminary injunctive relief and to compel the District Court to issue an injunction.
Timm has also filed a motion to stay his eviction pending the outcome of his petition,
which was temporarily granted.
“Traditionally, the writ of mandamus has been used to ‘confine an inferior court to
a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority
when it is its duty to do so.’” In re Chambers Dev. Co., Inc., 148 F.3d 214, 223 (3d Cir.
1998) (citations omitted). “The writ is a drastic remedy that ‘is seldom issued and its use
1
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983).
2
is discouraged.’” Id. A petitioner must show that he has no other adequate means to
attain the desired relief and that his right to the issuance of the writ is clear and
indisputable. Id. A writ should not be issued where an ordinary appeal is available. Id.
Timm has not shown that he has no other adequate means to attain his desired
relief. Timm states that the order denying a preliminary injunction is not a final,
appealable order, but such an order is appealable pursuant to 28 U.S.C. § 1292(a)(1). See
Reilly v. City of Harrisburg, 858 F.3d 173, 176 (3d Cir. 2017); Cohen v. Board of Tr. of
the Univ. of Med. and Dentistry of New Jersey, 867 F.2d 1455, 1464 (3d Cir. 1989) (en
banc).
Accordingly, we will deny the petition for a writ of mandamus.2
The temporary grant of Timm’s motion to stay his eviction pending the disposition of his
2
mandamus petition is vacated and his motion for a stay is denied as moot.
3