In Re: Herman, No. 7:2022cv05624 - Document 24 (S.D.N.Y. 2022)

Court Description: ORDER denying 23 Motion re: 23 MOTION for an Order of Mandamus directing the Hon. Cecilia Morris, U.S.B.J., sitting in Poughkeepsie, New York to either sign or reject a proposed Order to Show Cause submitted by Ms. Kathleen Herman on or around 9/20/22. The Court is in receipt of pro se Appellant-Debtor's petition for a Writ of Mandamus directing the Honorable Cecilia Morris, the Bankruptcy Court Judge who presided over the underlying bankruptcy, to either sign or reject her proposed Order to Show Cause to stay her bankruptcy pending appeal. (ECF No. 23 ("Writ of Mandamus Petition").) As indicated by this Court's two previous orders, a party seeking a stay pending appeal must file such application init ially in the Bankruptcy Court. Fed R. Bankr. P. 8007(a)(1). (See ECF Nos. 15 and 18). Appellant-Debtor states that a clerk at the Bankruptcy Court represented that Judge Morris "did not sign [the Order to Show Cause] because the case was appea led and [the Bankruptcy Court had no jurisdiction," and that "[v]ia her clerk, she is still adamant that she will not act." (Id. 6, 7.) The Court DENIES the petition for a Writ of Mandamus. The federal district courts have jurisdict ion over "any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the Petitioner." 28 U.S.C. § 1361. Mandamus relief is a drastic remedy that should b e used only in extraordinary circumstances. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980). To obtain mandamus relief, a petitioner must show that: "(1) no other adequate means [exist] to attain the relief [s]he desires, (2) the party's right to... the [relief] is clear and indisputable, and (3) the [relief] is appropriate under the circumstances." Mortimer v. Chapman, No. 21-CV-0877 (LLS), 2021 WL 467129, at *2 (S.D.N.Y. Feb. 5, 2021), appeal dismissed (May 28, 2021). Here, Appellant-Debtor has not satisfied the elements for obtaining mandamus relief. Appellant-Debtor has not pleaded any facts or provided any arguments showing that she has a clear and indisputable" right to have this Court mandate th e Bankruptcy Court to decide on the Order to Show Cause. The Bankruptcy Court's decisions regarding the management of its docket are discretionary. See In re Fletcher Intern. Ltd., 536 B.R. 551, 557 (S.D.N.Y. 2015). Moreover, with respect to an actual grant of stay, "the decision to grant or deny a stay pending appeal is within the discretion of the bankruptcy court. Regan v. Hon, No. 3:20-CV-00846 (BKS), 2021 WL 466535, at *3 (N.D.N.Y. Feb. 9, 2021). The Clerk of the Court is kin dly directed to terminate the motion at ECF No. 23. The Clerk of the Court is also kindly directed to mail a copy of this order to pro se Appellant-Debtor, and to show service on the docket. (Signed by Judge Nelson Stephen Roman on 10/12/2022) (ate)