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  • In Re: Banks V., 4th Cir. (2005)

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    Simon Banks filed a petition for a writ of mandamus to compel the district court to stay an order denying his motion for removal and remanding the case to state court. The United States Court of Appeals for the Fourth Circuit denied the petition, stating that mandamus is a drastic remedy only used in extraordinary circumstances, and Banks had other means by which the relief could be granted, such as appeal. The court also noted that mandamus may not be used as a substitute for appeal. The court concluded that Banks did not meet the heavy burden of showing he had no other adequate means to obtain relief and that his entitlement to relief was clear and indisputable. Therefore, the court denied Banks' petition for writ of mandamus.

    Original Description:

    Filed: 2005-04-15 Precedential Status: Non-Precedential Docket: 04-7481

    Original Title

    In re: Banks v., 4th Cir. (2005)

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    Simon Banks filed a petition for a writ of mandamus to compel the district court to stay an order denying his motion for removal and remanding the case to state court. The United States Court of Appeals for the Fourth Circuit denied the petition, stating that mandamus is a drastic remedy only used in extraordinary circumstances, and Banks had other means by which the relief could be granted, such as appeal. The court also noted that mandamus may not be used as a substitute for appeal. The court concluded that Banks did not meet the heavy burden of showing he had no other adequate means to obtain relief and that his entitlement to relief was clear and indisputable. Therefore, the court denied Banks' petition for writ of mandamus.

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    7 views2 pages

    In Re: Banks V., 4th Cir. (2005)

    Uploaded by

    Scribd Government Docs
    Simon Banks filed a petition for a writ of mandamus to compel the district court to stay an order denying his motion for removal and remanding the case to state court. The United States Court of Appeals for the Fourth Circuit denied the petition, stating that mandamus is a drastic remedy only used in extraordinary circumstances, and Banks had other means by which the relief could be granted, such as appeal. The court also noted that mandamus may not be used as a substitute for appeal. The court concluded that Banks did not meet the heavy burden of showing he had no other adequate means to obtain relief and that his entitlement to relief was clear and indisputable. Therefore, the court denied Banks' petition for writ of mandamus.

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    of 2

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 04-7481

    In Re: SIMON BANKS,

    Petitioner.

    On Petition for Writ of Mandamus. (CR-04-249-1-MG)

    Submitted:

    March 21, 2005

    Decided:

    April 15, 2005

    Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.

    Petition denied by unpublished per curiam opinion.

    Simon Banks, Petitioner Pro Se.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    Simon Banks petitions this court for a writ of mandamus
    to compel the district court to stay an order denying his motion
    for removal and remanding the case to state court.

    Mandamus is a

    drastic remedy to be used only in extraordinary circumstances. Kerr


    v. United States Dist. Court, 426 U.S. 394, 402 (1976). Mandamus
    relief is available only when there are no other means by which the
    relief sought could be granted, In re Beard, 811 F.2d 818, 826 (4th
    Cir. 1987), and may not be used as a substitute for appeal, In re
    Catawba Indian Tribe, 973 F.2d 1133, 1135 (4th Cir. 1992).

    The

    party seeking mandamus relief bears the heavy burden of showing he


    has no other adequate means to obtain the relief sought and that
    his entitlement to relief is clear and indisputable. Allied Chem.
    Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980).
    petition for writ of mandamus.

    We deny Banks

    We dispense with oral argument

    because the facts and legal contentions are adequately presented in


    the materials before the court and argument would not aid the
    decisional process.

    PETITION DENIED

    - 2 -

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