Opinion
No. 04 CV 08934 (CSH).
February 10, 2005
MEMORANDUM AND ORDER
This Order is issued to correct a procedural error made in a prior order in this case. On November 11, 2004, the Ad Hoc Committee of Tort Victims (the "Ad Hoc Committee") filed a petition for writ of mandamus in this Court, to which the Unsecured Creditors Committee ("the Unsecured Creditors Committee") joined on November 17, 2004. The Unsecured Creditors Committee then filed a separate notice of appeal under 28 U.S.C. § 158(a), on November 23, 2004, appealing an Order of Judge Prudence Carter Beatty which denied the Unsecured Committee's prior motion to that Judge Beatty recuse herself. Though Judge Beatty made an oral ruling denying that motion on November 1, 2004, she did not issue a final written order until November 18, 2004, a date which was prior to the Unsecured Committee's filing of its Notice of Appeal, but after the Ad Hoc Committee filed its petition for mandamus.
In a memorandum and order dated December 1, 2004 (the "December 1st Order"), I held that the Unsecured Committee's notice of appeal subsumed the Ad Hoc Committee's mandamus petition, and that therefore the adverse parties needn't submit papers in opposition to the mandamus. As fate would have it, the Quigley Company, Inc., along with Pfizer Inc., had already filed their papers in opposition to the mandamus, on November 30, 2004. However, those papers had not reached my Chambers by the time of my December 1st Order.
More importantly, the December 1st Order was in error because a writ of mandamus is decided on different standards of law than a notice of appeal. As I held in my most recent opinion, a motion to appeal a bankruptcy judge's denial of recusal is an interlocutory appeal, which in this circuit is governed by 28 U.S.C. § 1292(b). I held that this Court had no jurisdiction over the Unsecured Creditor's interlocutory appeal because Judge Beatty's Order did not involve "a controlling question of law as to which there is substantial ground for difference of opinion," a requirement found in § 1292(b). However, it is clear that this Court has original jurisdiction over the Ad Hoc Committee's petition for writ of mandamus, according to the caselaw of this and other circuits. See Rosen v. Sugarman, 357 F.2d 794, 796-97 (2d Cir. 1966) (holding that the court had broad power to consider and issue writs of mandamus) (citing cases); Tese-Milner v. Holland, No. 97-CV-4904(JG), 1997 WL 1048898, *2 (E.D.N.Y. Nov. 26, 1997) ("[T]he petitioner correctly used a writ of mandamus as the vehicle to present the instant motion."); In re Antar, 71 F.3d 97, 101 (3d Cir. 1995) ("We have jurisdiction over a Petition for Writ of Mandamus under the authority conferred upon us by the All Writs Act, 28 U.S.C. § 1651(a)."). Though (as a general principle and intimating no view in this case) the criteria for obtaining mandamus relief may be difficult to satisfy, petitioners nevertheless should have an opportunity to present their case before this Court.
Pursuant to Local Civil Rule 6.1(b)(3), reply affidavits and memoranda of law shall be served five business days after service of memoranda and affidavits in opposition of a motion. In accordance with the spirit of that rule, the Ad Hoc Committee shall, if so advised, file and serve a reply brief in response to the adverse parties' memorandum in opposition to the mandamus petition on or before February 17, 2005 — five business days after the filing of this present Order. The Ad Hoc Committee's petition shall be considered fully ripe after that date, and the matter sub judice.
It is SO ORDERED.