Free Order - District Court of Delaware - Delaware

Case 1 :04-cv-00347-JJF Document 40-2 Filed 06/30/2005 Page 1 of 2
i APS-276 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-2410
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-347) ..S.>?’
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 remand order; (2) rule on her motion to amend her
notice of removal; (3) order the state proceedings stayed; and (4) hold an evidentiary
hearing. Ayres-Fountain had tiled a notice of removal from a state court action tiled
against her by Eastern Savings Bank. The District Court granted Eastern Saving’s motion

in Case 1:04-cv—00347-JJF Document 40-2 Filed 06/30/2005 Page 2 of 2
I ` l to remand.
The writ of mandamus will issue only in extraordinary circumstances. S;
QQ, 759 F.2d 312, 314 (3d Cir. 1985). As a precondition to the issuance ofthe 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).
An order remanding a case to state court is not reviewable on appeal or otherwise unless
the case was removed pursuant to 28 U.S.C. § 1443. 28 U.S.C. § 1447(d).
Here, Ayres—Fountain stated in her notice of removal that the case was being
removed pursuant to 28 U.S.C. §§ 1441 &, 1446. Thus, we may not review the District
Court’s order remanding the case to state court or order the District Court to hold an
evidentiary hearing. 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 ofthe 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?). In her
motion to amend her notice of removal, Ayres-Fountain argued that Eastem Savings was
a Federal Savings Bank. Because the District Court explicitly considered this argument,
we conclude that Ayres-Fountain has no clear and indisputable right to have the District
Court rule on her motion to amend her notice of removal.
For the above reasons, we will deny the petition for a writ of mandamus.

Case 1:04-cv-00347-JJF

Document 40-2

Filed 06/30/2005

Page 1 of 2

Case 1:04-cv-00347-JJF

Document 40-2

Filed 06/30/2005

Page 2 of 2