In Re: Toronto-Dominion Bank ( 2023 )

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 14, 2023
No. 22-20648
Lyle W. Cayce
Clerk
In re: Toronto-Dominion Bank,
Petitioner,
consolidated with
_____________
No. 23-20033
_____________
In re: Toronto-Dominion Bank; Independent Bank,
formerly known as Bank of Houston; HSBC Bank,
P.L.C.,
Petitioners.
Petitions for Writs of Mandamus
to the United States District Court
for the Southern District of Texas
USDC No. 4:22-CV-800
PUBLISHED ORDER
Before Higginbotham, Duncan, and Wilson, Circuit Judges.
Per Curiam:
No. 22-20648
“A writ of mandamus is ‘a drastic and extraordinary remedy reserved
for really extraordinary causes,’” justified only by “a showing of ‘exceptional
circumstances amounting to a judicial usurpation of power’ or ‘a clear abuse
of discretion.’” 1 By the same token, “[a] stay is an ‘intrusion into the
ordinary processes of administration and judicial review,’ and accordingly ‘is
not a matter of right, even if irreparable injury might otherwise result to the
appellant.’” 2 Both carry heavy burdens, particularly on the eve of trial.
This case is, at minimum, complex, featuring myriad fact-specific
issues litigated over the course of nearly a decade and a half through multiple
courts. Halting the litigation’s momentum mere days before trial is set to
begin would require indisputable clarity as to its necessity. Here, no such
need is evident; assisted by able briefing and a review of the record, we are
unpersuaded that either petition reaches the high demands of mandamus, or
that the movant has satisfied the similar burden of staying the trial.
With the numerous legal issues arising from decisions in the MDL
process and district court, we remind all parties that Rule 49 of the Federal
Rules of Civil Procedure can mitigate risk of reversible error and cabin the
reach of those rulings yet contested, which can best be determined with the
illumination of trial.
The four most powerful words from the lips of a United States District
Judge are simply “Call your first witness,” and the veteran presiding judge
1
In re Depuy Orthopaedics, Inc., 870 F.3d 345, 350 (5th Cir. 2017) (quoting Cheney
v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004)).
2
Nken v. Holder, 556 U.S. 418, 427 (2009) (citations omitted) (first quoting Va.
Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958); and then
quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926)).
2
No. 22-20648
will so state in a few short days. The consolidated petitions for mandamus are
DENIED, and the motion to stay trial proceedings is DENIED.
3