DLD-091                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-4497
                                      ___________

                             IN RE: JAY L. THOMAS,
                                            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. 2-11-cv-03904)
                      ____________________________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                   January 20, 2012


              Before: AMBRO, JORDAN and VANASKIE, Circuit Judges

                            (Opinion filed: January 26, 2012)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

       Jay Thomas, proceeding pro se, has filed a petition for a writ of mandamus asking

this Court to compel United States District Judge William J. Martini to “refile” an

amended complaint in a civil action Thomas filed in the United States District Court for

the District of New Jersey. For the reasons that follow, we will deny the petition.

       Thomas filed a complaint in District Court against Fairleigh Dickinson University

claiming violations of state law. Thomas alleged that the District Court had diversity
jurisdiction to entertain the complaint, but in an order entered July 27, 2011, the District

Court dismissed the complaint for lack of subject matter jurisdiction because there was

not complete diversity of the parties. Thomas did not file an appeal.

       Over four months later, Thomas filed the present mandamus petition seeking to

compel Judge Martini to “refile” an amended complaint. Although the mandamus

petition is somewhat unclear, it appears from the attachments that Thomas sent to Judge

Martini’s chambers a copy of an amended complaint against Fairleigh Dickinson

University. Thomas’ amended complaint is dated October 6, 2011, but the document is

date-stamped received in chambers on December 5, 2011. There is no indication that this

document was submitted to the Clerk for filing. 1

       The writ of mandamus traditionally “has been used ‘to confine an inferior court to

a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority

when it is its duty to do so.’” In re Patenaude, 

, 140 (3d Cir. 2000) (citations

omitted). “The writ is a drastic remedy that ‘is seldom issued and its use is

discouraged.’” 

A petitioner must show that he has no other

adequate means to attain the desired relief and that the right to a writ is clear and

indisputable. 

       Thomas has not made such a showing. Thomas seeks an order directing the

District Court to file an amended complaint in a case that has been closed for over five


1
 Thomas did file another copy of his mandamus petition, without attaching the amended
complaint, in District Court on December 5, 2011.
                                           2
months. To the extent Thomas disagreed with the District Court’s dismissal of his

complaint without having had an opportunity to amend it, he should have filed a timely

appeal or motion for reconsideration, mandamus is not an available remedy. Thomas has

not shown a clear and indisputable right to a writ or that he has no other means to attain

relief.

          Accordingly, we will deny the petition for a writ of mandamus.




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