In Re Robert B. Munn; Marcia L. Munn, Petitioners, 891 F.2d 291 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 891 F.2d 291 (6th Cir. 1989)

Dec. 11, 1989

Before BOYCE F. MARTIN, Jr., NATHANIEL R. JONES and RALPH B. GUY, Jr., Circuit Judges.


The petitioners have appealed an order of the district court affirming the bankruptcy court's order imposing $87,566.33 in attorney fees as sanctions upon the petitioners under Rule 11, Fed. R. Civ. P. That appeal is docketed with this Court as Case No. 89-1771. After that appeal was taken, the defendant in that action moved in the district court for an order setting an appeal cost bond under Rule 7, Fed. R. App. P. The district court granted the motion and, on August 17, 1989, ordered the petitioners to post a cash or surety bond in the amount of $10,000.00.

The petitioners now seek a writ of mandamus directing the district court to vacate the order of August 17 and to permit the petitioners to pursue their appeal without the necessity of posting a bond under Rule 7. In response, the district court has submitted a copy of its docket sheet.

The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations where the petitioner can show a clear and indisputable right to the relief sought. Will v. Calvert Fire Insurance Co., 437 U.S. 655, 661-62 (1978); Kerr v. United States District Court, 426 U.S. 394, 402-03 (1976). It cannot be used to control a district court in the exercise of discretionary duties. In re: Post-Newsweek Stations, 722 F.2d 325, 329 (6th Cir. 1983); City of Cleveland v. Krupansky, 619 F.2d 576, 578 (6th Cir.) (per curiam), cert. denied, 449 U.S. 834 (1980). Under Rule 7, the decision as to the need for a bond and the amount thereof are left to the discretion of the district court. 9 MOORE'S FEDERAL PRACTICE 207.04 at 7-8 (1989). A mandamus petition, therefore, is not an appropriate means to gain review of the district court's August 17 order.

It therefore is ORDERED that the petition for a writ of mandamus is denied. This order is without prejudice to the petitioners' challenging the August 17 order should that issue arise as part of appellate proceedings in Case No. 89-1771.