Free Order - District Court of Delaware - Delaware

Case 1 :04-cv—00349-JJF Document 35-2 Filed 06/30/2005 Page 1 of 2
APS-277 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-2411
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IN RE: CAROLINE P. AYRES—FOUNTAIN jg :2
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Petitioner ` o"
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) J.)?
Submitted Under Rule 21, Fed. R. App. P.
JUNE 16, 2005
Before: SLOVITER, NYGAARD AND FUENTES, Circuit Judges. A
(Filed June 28, 2005)
l
OPINION
PER CURIAM I
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 tiled a complaint in the District Court for the District of
i

Case 1:04-cv—00349-JJF Document 35-2 Filed 06/30/2005 Page 2 of 2
I 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. E _Sp@
LBQ, 759 F.2d 312, 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, 426 U.S. 394, 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. _& In Re Ford Motor Co., 110 F .3d
954, 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. E 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.

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Case 1:04-cv-00349-JJF

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