Third Circuit disposition — 092134np-pdf

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HLD-85 (April 2009) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2134
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IN RE: BURTON F. TUCKER,
Petitioner
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On a Petition for Writ of Mandamus from the
United States District Court for the Middle District of Pennsylvania
(Related to M.D. Pa. Crim. No. 05-cr-00114-YK-1)
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Submitted Pursuant to Rule 21, Fed. R. App. P.
April 30, 2009
Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
(filed: May 19, 2009)
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OPINION
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PER CURIAM.
On April 6, 2009, Burton F. Tucker filed this pro se mandamus petition
pursuant to 28 U.S.C. § 1651, seeking an order that the District Court be compelled to act
upon his pending Rule 60(b) motion. For the reasons that follow, we will deny the
petition without prejudice.
Mandamus is a drastic remedy available only in the most extraordinary of

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circumstances. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.
2005). To demonstrate that mandamus is appropriate, a petitioner must establish that he
has “no other adequate means” to obtain the relief and that he has a “clear and
indisputable” right to issuance of the writ. Madden v. Myers, 102 F.3d 74, 79 (3d Cir.
1996).
As a general rule, the manner in which a court disposes of cases on its
docket is within its discretion. See In re Fine Paper Antitrust Litig., 685 F.2d 810, 817
(3d Cir. 1982). Indeed, given the discretionary nature of docket management, there can
be no “clear and indisputable” right to have the district court handle a case on its docket
in a certain manner. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980).
Nonetheless, mandamus may be warranted where a district court’s delay is
tantamount to a failure to exercise jurisdiction. See Madden, 102 F.3d at 79. This case,
however, does not present such a situation. Tucker filed his motion to dismiss pursuant to
Rule 60(b)(4) on January 16, 2009. The Government filed a brief in opposition to
Tucker’s motion on January 23, and Tucker filed his reply on February 4, 2009. Eight
weeks passed before Tucker filed the instant mandamus petition with this Court. Such a
delay in the disposition of Tucker’s Rule 60(b) motion “does not yet rise to the level of a
denial of due process.” See id. (district court’s delay of four months does not warrant
mandamus relief).
Accordingly, we will deny Tucker’s mandamus petition without prejudice.
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