Jeffrey Schirripa v.

BLD-022 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 15-3405
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IN RE: JEFFREY NATHAN SCHIRRIPA,
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.C. Civil No. 2-15-cv-03649)
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Submitted Pursuant to Rule 21, Fed. R. App. P.
October 22, 2015
Before: FUENTES, KRAUSE and SCIRICA, Circuit Judges
(Opinion filed: November 3, 2015)
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OPINION*
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PER CURIAM
Petitioner Jeffrey Nathan Schirripa, filed this petition for a writ of mandamus
seeking an order directing the United States District Court for the District of New Jersey
to rule on a motion for relief from final judgment which was filed pursuant to Federal
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Rule of Civil Procedure 60 on July 20, 2015.1 For the following reasons, we will deny
the petition.
A writ of mandamus is a drastic remedy that is invoked only in extraordinary
situations. See Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976). To limit the use of
the writ to such extraordinary circumstances, a petitioner must show: (1) both a clear and
indisputable right to the writ, and (2) that he has no other adequate means to obtain the
relief desired. See Haines v. Liggett Group Inc., 975 F.2d 81, 89 (3d Cir. 1992) (citing
Kerr, 426 U.S. at 403).
Although a district court retains discretion over the manner in which it controls its
docket, see In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982), an
appellate court may issue a writ of mandamus when an “undue delay is tantamount to a
failure to exercise jurisdiction[.]” Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996),
superseded in part on other grounds by 3d Cir. L.A.R. 24.1(c). Here, there is no basis for
granting the petition for a writ of mandamus on the basis of undue delay. While
Schirripa argues that his motion for relief from judgment has been “unreasonably
neglected/delayed” by the District Court’s “inability (or unwillingness)” to rule on the
motion despite a “clear and undisputable obligation” to do so, we note that Schirripa’s
motion was filed approximately three months ago. We do not hesitate to conclude that
1
Schirripa asserts that his motion for relief from judgment was filed on June 25,
2015, but was “misplaced” by the District Court Clerk and was not docketed until July
20, 2015.
2
this period of time does not rise to the level of undue delay.2 We see no reason to believe
that the District Court will not adjudicate the motion in due course. Thus, we conclude
that there is no basis here for an extraordinary remedy.
Because our intervention is not warranted, we will deny the petition for a writ of
mandamus
2
Even if we were to consider Schirripa’s motion as filed on June 25, 2015, the date
he alleges, rather than the date the motion was docketed, this apparent four-month period
of time still does not constitute undue delay warranting our intervention.
3