United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 21, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-60470
_____________________
In Re: FRANCES ELAINE HOOD,
Petitioner.
_________________________________________________________________
Petition for Writ of Mandamus to the
United States District Court
for the Southern District of Mississippi
USDC No. 3:02-CV-405
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.
PER CURIAM:*
Frances Elaine Hood has requested a writ of mandamus to
require the district judge to enter an opinion and judgment in her
civil action against Sears Roebuck and Company. Sears does not
oppose Hood’s request for mandamus. On June 13, 2005, the district
court judge advised the Clerk’s Office of this court that a ruling
would be entered by the end of that week. The district judge has
failed to act on this case in any manner, notwithstanding his
representation to the office of the Clerk of this court. However,
he had his secretary call the Clerk’s Office at 3:05 p.m. today and
she made the representation that he would rule by Friday of this
week (June 24).
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
The district court’s docket sheet reflects the following
procedural history leading up to the instant petition. Sears
removed this case to federal court on April 24, 2002. Hood filed
a motion to remand on May 2, 2002. The district court did not rule
on the motion to remand until March 31, 2003, when it denied the
motion.
Sears filed a motion for summary judgment on September 30,
2004. Hood responded to the motion on October 27, 2004. The
district court conducted a status conference and hearing on the
motion for summary judgment on November 10, 2004. At the status
conference, it set the case for trial on November 29, 2004. On
November 12, the district court entered an order denying Sears’s
motion for summary judgment.
A minute entry on the docket sheet dated December 1, 2004,
states that the court conducted a pretrial conference on November
22, 2004 (the confusion of the dates is unexplained), and that the
court dismissed Sears from the case and indicated that a final
judgment “will be entered”. In her petition for writ of mandamus,
Hood states that the district judge ordered Sears to prepare a
proposed opinion and order and submit it to him on Monday, November
29, 2004. According to Hood, Sears submitted a preliminary opinion
and order to the judge on November 29, 2004, and requested an
additional day to provide a more complete document. Sears sent
another proposed opinion and order to the judge on November 30,
2004.
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On December 2, 2004, Hood filed a motion to attach a
transcript of the bench opinion to the order of dismissal. Hood
asserted in that motion that the proposed opinion prepared by Sears
included grounds not addressed in the judge’s ruling from the bench
at the status conference.
On January 25, 2005, Hood’s counsel sent a letter to the
district judge asking the court to “[p]lease let us know when we
can expect to have the Findings of Fact and Conclusions of Law and
an Order of Dismissal.”
Approximately two and one-half months later, on April 15,
2005, Hood filed a motion for entry of a final order. In that
motion, Hood noted that it had been 112 days since the court’s
ruling from the bench granting summary judgment in favor of Sears.
Hood asked the court to expedite the progress of the litigation by
entering an opinion and final order consistent with its bench
opinion.
In her petition for writ of mandamus, Hood asserts that she is
suffering stress and emotional injury due to the long delay and to
the lack of dispatch of the trial judge’s rulings. She seeks a
writ ordering “a direct appeal of all issues or directing the
District Court Judge to enter a Final Opinion and Order on the
summary judgment”. Alternatively, she requests a settlement
conference.
A writ of mandamus is an extraordinary remedy that “is
appropriate only when the trial court has exceeded its jurisdiction
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or has declined to exercise it, or when the trial court has so
clearly and indisputably abused its discretion as to compel prompt
intervention by the appellate court.” In re: United States, 397
F.3d 274, 282 (5th Cir. 2005) (internal quotation marks and
citations omitted). Three requirements must be satisfied “before
a writ will issue: (1) the party seeking issuance of the writ
[must] have no other adequate means to attain the relief he
desires; (2) the petitioner must satisfy the burden of showing that
[her] right to issuance of the writ is clear and indisputable; and
(3) even if the first two prerequisites have been met, the issuing
court, in the exercise of its discretion, must be satisfied that
the writ is appropriate under the circumstances.” Id. (internal
quotation marks and citations omitted).
Hood has satisfied these requirements. She has no other
adequate means to attain the relief she seeks: Despite her efforts
to obtain an appealable final order, the district judge has not
entered an order, even after having promised this court that it
would do so by the end of last week. She has also satisfied her
burden of showing that her right to issuance of the writ is clear
and indisputable. On November 22, 2004, the district court granted
summary judgment for Sears in a ruling from the bench, and stated
that a final judgment would be entered. Seven months have now
passed with no action by the district judge, despite repeated
respectful requests by Hood’s counsel. In the exercise of our
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discretion, we are satisfied that the writ is appropriate under
these circumstances.
This matter, however, is held in abeyance trusting the
district judge’s representation that he will address the matters
referred to in the petition for writ of mandamus by the end of this
week, Friday, June 24. If he fails to act, the court will further
consider the petition.
SO ORDERED.
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