Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-6-2006

In Re: Robert Porter
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3705




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Recommended Citation
"In Re: Robert Porter " (2006). 2006 Decisions. Paper 477.
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DPS-317                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       NO. 06-3705
                                    ________________

                            IN RE: ROBERT R. PORTER,
                                                 Petitioner
                       ____________________________________

                      On Petition for a Writ of Mandamus from the
                           United States District Court for the
                            Western District of Pennsylvania
                       (Related to W.D. Pa. Civ. No. 04-cv-01736)
                      _____________________________________

                        Submitted Under Rule 21, Fed. R. App. P.
                                   August 24, 2006

   Before: FUENTES, VAN ANTWERPEN AND CHAGARES, CIRCUIT JUDGES

                                (Filed: September 6, 2006)

                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Robert Porter has filed a mandamus petition pursuant to 28 U.S.C. § 1651, seeking

to compel the District Court for the Western District of Pennsylvania to issue an order

directing the assigned Magistrate Judge to rule on his motion for default judgment filed

pursuant to Fed. R. Civ. P. 72. Porter further requests that the District Court be ordered to

allow him to proceed in forma pauperis.
       Addressing Porter’s requests in reverse order, we note our confusion with respect

to petitioner’s request that the District Court be ordered to grant him in forma pauperis

status. The District Court granted petitioner such status for purposes of the underlying

civil action in an order entered on January 18, 2006, and the Clerk of this Court granted

his request of leave to proceed with this mandamus petition in forma pauperis by order

filed August 11, 2006. Accordingly, it is obvious that the instant request is unnecessary

and/or moot.

       Mandamus relief with respect to the remainder of the request set forth in Porter’s

petition is likewise unwarranted. It appears that Porter’s amended complaint was filed in

the District Court on December 22, 2005. In an order entered on January 18, 2006, the

Magistrate Judge to whom this case was assigned directed that the amended complaint be

served on the named defendant. Defendant was to respond to Porter’s amended

complaint no later than March 27, 2006. Defendant’s answer to the amended complaint,

however, was not filed until March 31, 2006. On that same date, Porter filed a

“Declaration for Entry of Default” against the defendant. The Magistrate Judge thereafter

ordered the defendant to file a response to Porter’s motion for default. That response was

timely filed in the District Court on April 13, 2006, followed by petitioner’s response on

April 24, 2006. The motion for default remains pending at this time.

       The writ of mandamus is an extraordinary remedy. To justify the Court’s use of

this remedy, a petitioner must demonstrate that he has a clear and indisputable right to

issuance of the writ. Kerr v. United States District Court, 

, 403 (1976);

                                             2
DeMasi v. Weiss, 

, 117 (3d Cir. 1982). Although an appellate court may

issue a writ of mandamus on the ground that undue delay is tantamount to a failure to

exercise jurisdiction, Madden v. Myers, 

, 79 (3rd Cir. 1996), the manner in

which a court controls its docket is discretionary. In re Fine Paper Antitrust Litigation,

, 817 (3d Cir. 1982), cert. denied, 

(1983). While Porter’s

motion for default has been pending in the District Court for approximately five months

and is ripe for a ruling, we cannot conclude that the extent of delay in this case rises to the

level of a denial of due process. See Madden v. 

. We are confident

that the Magistrate Judge will issue a decision in a timely fashion.

       To the extent that Porter has included in his petition arguments in support of his

alleged entitlement to the entry of default judgment against defendant, such arguments

should be presented to the District Court in the first instance and then on appeal to this

Court after entry of a final order by the District Court should an adverse ruling be issued.

       For the foregoing reasons, the petition for a writ of mandamus will be denied.




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