Clark v. United States District Court

276 F. App'x 591

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 30, 2008
• Docket: No. 07-72899
• Status: Published

Opinion

MEMORANDUM

**

K. Clark petitions for a writ of mandamus arising from the district court’s decision to dismiss her complaint against Time Warner Cable (“TWC”) on the grounds that her claim against TWC under 47 U.S.C. § 258(a) warranted a referral to the Federal Communications Commission in the first instance.¹

Clark’s mandamus petition seeks precisely the same relief as her appeal — a reversal of the district court’s decision, and a remand that requires the district court to consider the merits of her § 258(a) claim. This court will not “engage in extraordinary review by mandamus ... when it can exercise the same review by a contemporaneous ordinary appeal.” Calderon v. U.S. Dist. Court, 137 F.3d 1420, 1421 (9th Cir.1998) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 8 n. 6, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)).

Accordingly, Clark’s petition for mandamus is

DENIED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . In a concurrently filed opinion, we address Clark's direct appeal from the district court’s decision. See Clark v. Time Warner Cable, 523 F.3d 1110 (9th Cir.2008).