Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-28-2005

In re:Ayres-Fountain
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2411




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Recommended Citation
"In re:Ayres-Fountain " (2005). 2005 Decisions. Paper 949.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/949


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APS-277                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       NO. 05-2411
                                    ________________

                       IN RE: CAROLINE P. AYRES-FOUNTAIN

                                                 Petitioner

                       ____________________________________

                      On a Petition for Writ of Mandamus from the
                 United States District Court for the District of Delaware
                         (Related to D. Del. Civ. No. 04-cv-349)
                     _____________________________________

                        Submitted Under Rule 21, Fed. R. App. P.
                                    JUNE 16, 2005

          Before: SLOVITER, NYGAARD AND FUENTES, Circuit Judges.

                                   (Filed June 28, 2005)


                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Caroline P. Ayres-Fountain has filed a mandamus petition requesting that we order

the District Court to (1) vacate its order dismissing her complaint; (2) rule on her motion

to amend; (3) order the state court proceedings stayed; and (4) hold an evidentiary

hearing. Ayres-Fountain filed a complaint in the District Court for the District of
Delaware alleging fraud by Eastern Savings Bank and seeking recission of a mortgage

note. The District Court granted Eastern Savings’s motion to dismiss. Ayres-Fountain

filed a notice of appeal which was docketed at C.A. No. 05-2418.

       The writ of mandamus will issue only in extraordinary circumstances. See Sporck

v. Peil, 

, 314 (3d Cir. 1985). As a precondition to the issuance of the writ,

the petitioner must establish that there is no alternative remedy or other adequate means to

obtain the desired relief, and the petitioner must demonstrate a clear and indisputable

right to the relief sought. Kerr v. United States District Court, 

, 403 (1976).

A writ is not a substitute for an appeal; only if a direct appeal is unavailable will the court

determine whether a writ of mandamus will issue. See In Re Ford Motor Co., 

, 957 (1997).

       With respect to her request that we order the District Court to stay the state court

proceedings, that request is barred by the Anti-Injunction Act. See 28 U.S.C. § 2283 (“A

court of the United States may not grant an injunction to stay proceedings in a State court

except as expressly authorized by Act of Congress, or where necessary in aid of its

jurisdiction, or to protect or effectuate its judgments.”) With respect to her requests that

we order the District Court to vacate its order, rule on her motion to amend, and hold an

evidentiary hearing, mandamus relief is not warranted because a direct appeal is

available.

       For the above reasons, we will deny the petition for a writ of mandamus.