Kelley Mala v.

DLD-040 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-3960
___________
IN RE: KELLEY MALA,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
District Court of the Virgin Islands
(Related to D.V.I. Civ. No. 07-cv-00085)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
November 18, 2010
Before: BARRY, FISHER AND STAPLETON, Circuit Judges
(Opinion filed: December 29, 2010 )
_________
OPINION
_________
PER CURIAM
Kelley Mala seeks a writ of mandamus compelling the District Court of the Virgin
Islands to, inter alia, vacate the order transferring his case to the United States District
Court for the District of Puerto Rico. For the reasons that follow, we will deny the
petition.
I.
On May 30, 2007, petitioner Kelley Mala filed a civil complaint in the District
1
Court of the Virgin Islands. On September 14, 2010, the District Court, upon motion of
the defendants, ordered petitioner Kelley Mala’s suit transferred to the United States
District Court for the District of Puerto Rico. Mala did not appeal. On September 29,
Mala filed a motion asking the District Court to reconsider the order transferring the case
and alter, amend, or correct the order pursuant to Fed. R. Civ. P. 60(b)(1). He also filed a
motion to alter, amend, or correct under Rule 59(e). The District Court has not issued a
ruling on either motion. Mala now asks that we issue a writ of mandamus compelling the
District Court to vacate the transfer order pursuant to 28 U.S.C. § 1391(e).
A writ of mandamus is a “drastic remedy” that should only be granted in
“extraordinary circumstances.” In re Nwanze, 242 F.3d 521, 524 (3d Cir. 2001). The
petitioner must have no other adequate means to obtain the relief desired and the
petitioner must show a “clear and indisputable” right to the writ. See Kerr v. United
States District Court, 426 U.S. 394, 403 (1976). Mandamus is the appropriate
mechanism to seek review of an allegedly improper transfer order. See Sunbelt Corp. v.
Noble, Denton & Assocs., Inc., 5 F.3d 28, 30 (3d Cir. 1993).
Mala cannot demonstrate a clear and indisputable right to the writ. The District
Court’s decision to transfer the complaint to the District of Puerto Rico did not amount to
a “judicial usurpation of power.” In re Nwanze, 242 F.3d at 524. The District Court
transferred Mala’s complaint because the defendants reside in different states, a
substantial part of the events giving rise to the complaint occurred in Puerto Rico, the
witnesses and documents related to the claims are in Puerto Rico, and only one of the
2
defendants (named in the amended complaint) resides in the judicial district of the Virgin
Islands. See 28 U.S.C. § 1391(b); see also 28 U.S.C. § 1406(a). Inasmuch as venue
appears to be proper in the District Court for the District of Puerto Rico, Mala cannot
show a clear and indisputable right to the writ.
Accordingly, Mala has not met his burden of showing that his right to issuance of
the writ is “clear and indisputable.” As a result, we shall deny his mandamus petition.
3