In Re: Rusmisell v.

Fourth Circuit

In Re: Rusmisell v.

18 F. App'x 63

CourtCourt of Appeals for the Fourth Circuit

DecidedAugust 29, 2001

Docket01-1698

StatusUnpublished

This text of 18 F. App'x 63 (In Re: Rusmisell v.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In Re: Rusmisell v., 18 F. App'x 63 (4th Cir. 2001).

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Opinion

PER CURIAM.

Betty M. and Ann Rusmisell filed this mandamus petition requesting that this court compel the district court to comply with an earlier mandate of this court or, alternatively, “to prohibit the lower court from permitting and assisting the defendants below to re-litigate this issue of attorney fees ex parte and continuing to deny petitioners’ discovery rights [sic].” Additionally, petitioners seek a stay of ongoing district court proceedings.

Mandamus is a drastic remedy to be used only in extraordinary circumstances. Kerr v. United States District Ct., 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). Mandamus relief is only available when there are no other means by which the relief sought could be granted, In re Beard, 811 F.2d 818, 826 (4th Cir.1987), and may not be used as a substitute for appeal. In re Catawba Indian Tribe, 973 F.2d 1133, 1135(4th Cir. 1992). The party seeking mandamus relief carries the heavy burden of showing that he has “no other adequate means to attain the relief he desires” and that his entitle *64 ment to such relief is “clear and indisputable.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980).

Because the petitioners have failed to show that there is not an available remedy or that they are entitled to the requested relief, we deny the petition for mandamus relief and the request for stay. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

PETITION DENIED.

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PER CURIAM.

Betty M. and Ann Rusmisell filed this mandamus petition requesting that this court compel the district court to comply with an earlier mandate of this court or, alternatively, “to prohibit the lower court from permitting and assisting the defendants below to re-litigate this issue of attorney fees ex parte and continuing to deny petitioners’ discovery rights [sic].” Additionally, petitioners seek a stay of ongoing district court proceedings.

Mandamus is a drastic remedy to be used only in extraordinary circumstances. Kerr v. United States District Ct., 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). Mandamus relief is only available when there are no other means by which the relief sought could be granted, In re Beard, 811 F.2d 818, 826 (4th Cir.1987), and may not be used as a substitute for appeal. In re Catawba Indian Tribe, 973 F.2d 1133, 1135(4th Cir. 1992). The party seeking mandamus relief carries the heavy burden of showing that he has “no other adequate means to attain the relief he desires” and that his entitle *64 ment to such relief is “clear and indisputable.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980).

Because the petitioners have failed to show that there is not an available remedy or that they are entitled to the requested relief, we deny the petition for mandamus relief and the request for stay. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

PETITION DENIED.

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18 F. App'x 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rusmisell-v-ca4-2001.

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