Benjamin Cunningham v.

ALD-111 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 23-1158
___________
IN RE: BENJAMIN CUNNINGHAM
Petitioner
____________________________________
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. 2:19-cv-19823)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
March 23, 2023
Before: HARDIMAN, RESTREPO, and BIBAS, Circuit Judges
(Opinion filed: April 13, 2023)
_________
OPINION *
_________
PER CURIAM
In 2019, pro se petitioner Benjamin Cunningham filed a complaint in the United
States District Court for the District of New Jersey. Defendant the City of New York
filed a motion to dismiss Cunningham’s claims, or in the alternative, to transfer venue.
The District Court granted the alternative relief requested by the motion, determining that
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
New Jersey was an improper venue for Cunningham’s Amended Complaint. Pursuant to
28 U.S.C. § 1406(a), the District Court transferred venue to the United States District
Court for the Southern District of New York, which has since entered judgment in favor
of Defendants. 1 Cunningham appealed the transfer of venue to this Court, and we
dismissed his appeal for lack of jurisdiction. 2 Cunningham now petitions this Court for a
writ of mandamus directing the District Court to vacate its order transferring his
complaint.
Although mandamus may be used to challenge a § 1406(a) transfer order, relief is
generally not available unless the order is not only erroneous but amounts to “an
unauthorized exercise of judicial power.” Carteret Sav. Bank, F.A. v. Shusan, 919 F.2d
225, 233 (3d Cir. 1990); see Gulf Research & Dev. Co. v. Leahy, 193 F.2d 302, 304-05
(3d Cir. 1951) (explaining that mandamus should not be used as a substitute for appeal
and is typically not available for § 1406(a) transfer orders unless there are exceptional
circumstances). Cunningham has not demonstrated that the District Court’s venue
transfer was erroneous, much less that it amounts to an unauthorized exercise of judicial
power. Moreover, even where mandamus relief might otherwise be appropriate, the
transferor circuit loses mandamus jurisdiction when, as here, “the transferee court
proceeds with the transferred case[.]” In re U.S., 273 F.3d 380, 384 (3d Cir. 2001). 3
1
Cunningham v. Port Authority of New York/New Jersey Agency et al., ECF 1:22-cv-
06236 (S.D.N.Y September 28, 2022).
2
Cunningham v. Port Authority of New York/New Jersey Agency et al., No. 22-2344 (3d
Cir. January 18, 2023).
3
While we have not yet defined at what point the transferee court “proceeds” with the
case, it surely encompasses a situation where, as here, the transferee court has disposed of
Accordingly, we will deny the mandamus petition.
the transferred action.