Janet Francis v. Joint Force Headquarters National Guard

ALD-299 and ALD-300 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2903
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JANET FRANCIS,
Appellant
v.
JOINT FORCE HEADQUARTERS NATIONAL GUARD;
KATHEY MCCREADY EO; LTC LAWLOR, IG;
MAJOR GENERAL REITH, TAG; GENERAL CARLINI;
COL GUARENO; LTC SCHEPENS; COL STEPHEN HINES, Chief of Staff-Col;
MS. EVELSIZER, Chief-National Guard Bureau - NGB-EO;
DONALD BALLARD, NGB Counselor; DEPARTMENT OF ARMY;
MAJOR BEALE; WO CONELY; COL KENT MILLIKEN;
MAJOR PERRON; COL THOMAS SULLIVAN
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 05-cv-04882)
District Judge: Honorable Jerome B. Simandle
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
___________
No. 08-4791
___________
IN RE: JANET FRANCIS,
Petitioner

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____________________________________
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. 05-cv-04882)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
August 27, 2009
Before: SLOVITER, FUENTES and JORDAN, Circuit Judges
(Opinion filed: September 23, 2009)
_________
OPINION
_________
PER CURIAM
Janet Francis, proceeding pro se, appeals from the decisions of the District Court
dismissing her complaint and denying her motion for reconsideration. Because the appeal
does not present a substantial question, we will summarily affirm. See 3d Cir. LAR 27.4;
3d Cir. IOP 10.6. Also before the Court is Francis’ petition for writ of mandamus, which
we will deny for the reasons discussed below.
I
The complex factual and procedural background of this case is exhaustively
recounted in the District Court’s opinion of March 19, 2009. (Doc. No. 143 at 2-14).
Briefly, Francis is a former employee of the New Jersey Army National Guard. In 2005,
she filed a complaint in the District Court, in which she set forth as claims for relief,
without further elaboration:

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Denied ... the right to Freedom of Information Act (FOIA), Reprisal,
Harassment, discrimination, not given an equal employment opportunity,
retaliation, wasn’t given a hearing for the adverse action against me, Breach
of contract, defamation of character, denied promotion, didn’t complete the
procedures outlined in NGR 600-22/ANGI 36-3, didn’t meet time frame to
investigate complaint, wasn’t given military duties, tampering with federal
investigation of complaint, unauthorized officer filed documents.
(Doc. No. 2 at 1).
The District Court dismissed the complaint under the doctrine of intramilitary
immunity. Francis appealed, and we affirmed in part and vacated in part, holding that the
intramilitary immunity doctrine did not bar her claims for injunctive relief. (C.A. No. 06-
4246, opinion entered on September 7, 2007). We noted, however, that the District Court
might consider on remand whether Francis’ complaint satisfied the requirements of
Federal Rule of Civil Procedure 8. Id. at 3-4.
On remand, the District Court granted the Defendants’ motion under Federal Rule
of Civil Procedure 12(e) for a more definite statement. Francis, incorrectly interpreting
our opinion to mean that her complaint sufficiently stated a claim for relief, refused to
comply with the District Court order. Over the next five months, the District Court, sua
sponte, attempted to clarify the significance of our opinion and afforded Francis three
additional opportunities to file a second amended complaint responsive to its concerns.
Each time, Francis expressly refused, citing our opinion in C.A. No. 06-4246. In
addition, Francis filed a petition for writ of mandamus while the District Court action was
pending.

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4
In March 2009, the District Court dismissed Francis’ complaint. She filed a
motion for reconsideration, which the District Court also denied, followed by this appeal.
We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We have authority to
issue writs of mandamus under the All Writs Act. See 28 U.S.C. § 1651(a); In re
Kensington Int’l Ltd., 353 F.3d 211, 219 (3d Cir. 2003).
II
In dismissing Francis’ complaint, the District Court reasoned that she failed to
comply with multiple orders to file a second amended complaint responsive to the Rule
12(e) order. We review a dismissal for failure to comply for abuse of discretion. See
Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002). The District Court’s discretion
is guided by the factors listed in Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868
(3d Cir. 1984). These include: (1) the extent of the party’s personal responsibility; (2)
the prejudice to the adversary caused by the party’s failure to comply; (3) a history of
dilatoriness; (4) whether the party’s conduct is willful or in bad faith; (5) the effectiveness
of available sanctions other than dismissal; and (6) the meritoriousness of the claim or
defense. See id.
At the outset, we note that Francis’ interpretation of our opinion in her earlier
appeal – i.e., that the District Court’s incorrect decision concerning her injunctive relief
claims as they relate to the doctrine of intramilitary immunity, read in light of our
suggestion that the District Court review her complaint for compliance with Rule 8,

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somehow suggests the overall adequacy of her complaint – is plainly incorrect.
Proceeding from a correct understanding of our prior opinion, the District Court
conducted a detailed analysis of the Poulis factors as they apply to Francis’ case. For all
the reasons given by the District Court in its thorough and well-reasoned opinion, we
agree that dismissal was appropriate. See District Court Op., 15-24. Francis’ repeated
refusal to explain at all the basis of her claims left the District Court with little choice but
dismissal. Certainly, we see no abuse of discretion in the District Court’s decision. See
Emerson, 296 F.3d at 191.
III
We turn next to the denial of Francis’ motion for reconsideration. To prevail on a
motion for reconsideration, a litigant must demonstrate: “(1) an intervening change in the
controlling law; (2) the availability of new evidence . . .; or (3) the need to correct a clear
error of law or fact or to prevent manifest injustice.” Max’s Seafood Cafe ex rel. Lou-
Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). We review the denial of a
motion to reconsider for abuse of discretion. See Caver v. Trenton, 420 F.3d 243, 258
(3d Cir. 2005). Here, in denying reconsideration, the District Court correctly explained
that neither the filing of Francis’ mandamus petition nor her earlier interlocutory appeal
precluded continuing with the case. Thus, the District Court did not abuse its discretion
in denying Francis’ motion for reconsideration.

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Mandamus is an “extraordinary remedy” that we have discretion to award only when1
a petitioner demonstrates, among other things, a “clear and indisputable” right to relief.
In re Pressman-Gutman Co., 459 F.3d 383, 398-99 (3d Cir. 2006).
6
IV
Francis also filed a petition for writ of mandamus, asking this Court to compel her
reinstatement and to force Judge Simandle and Magistrate Judge Donio to recuse
themselves. Before we could rule on the mandamus petition, however, we obtained
jurisdiction over her appeal. Because it inures to her benefit, we might well review her
arguments under our appellate jurisdiction, rather than our less forgiving mandamus
authority. See, e.g., In re Richards, 213 F.3d 773, 779 (3d Cir. 2000) (holding that1
mandamus will not lie when a direct appeal is available); United States v. RMI Co., 599
F.2d 1183, 1187 (3d Cir. 1979) (“where, as here, the order which is the subject matter of
the petition is, under the governing case law, reviewable as . . . final, there are no finality
considerations militating against treating a petition for mandamus as the equivalent of a
notice of appeal”). Under any standard, however, her arguments fail.
First, we may pass quickly by her request that we compel her reinstatement. We
will not, of course, countenance her failure to submit an acceptable complaint to the
District Court by giving her the ultimate relief she sought. Nor has Francis demonstrated
that Judge Simandle and Magistrate Judge Donio should have recused. Francis’
unhappiness with the judges’ rulings is insufficient to require recusal, see Liteky v.
United States, 510 U.S. 540, 555 (1994) (“judicial rulings alone almost never constitute a

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valid basis for a bias or partiality motion”), and her attempt to tie unsubstantiated
improper acts by non-judicial actors to the District Court is unpersuasive.
Accordingly, we will affirm the decision of the District Court and deny Francis’
petition for mandamus.

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