ALD-096 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 19-1246 ___________

In re: CHITA ALIPERIO; EMILE HERIVEAUX, Petitioners ____________________________________

On a Petition for Writ of Mandamus from the United States District Court for the District of New Jersey (Related to Civ. Nos. 2-16-cv-01008 & 2-18-cv-13148) ____________________________________

Submitted Pursuant to Rule 21, Fed. R. App. P. February 7, 2019

Before: MCKEE, SHWARTZ and BIBAS, Circuit Judges

(Opinion filed: February 28, 2019) _________

OPINION* _________

PER CURIAM

Pro se petitioners Chita Aliperio and Emile Heriveaux seek a writ of mandamus to

compel the District Court to take various actions in their cases. For the reasons set forth

below, we will deny the petition.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Petitioners seek mandamus relief with respect to two actions they have instituted

in the District Court. In the first action, the petitioners alleged that several defendants

violated the Racketeer Influenced and Corrupt Organizations Act (RICO) in the course of

assigning their mortgage, using it in credit-default-swap contracts, collecting payments

on it, and instituting foreclosure proceedings (hereafter, “the RICO action”). See D.C.

Civ. A. No. 16-cv-1008. They requested entry of default, which the Clerk refused to

enter because the defendants had “made an appearance and there are Motions to Dismiss

pending.” June 16, 2016 text order. In December 2016, the District Court dismissed the

complaint, and, after the Court denied the petitioners’ motion to vacate the judgment, the

petitioners filed a notice of appeal to this Court. That appeal is currently pending. See

C.A. No. 17-2393.

In the second action, the petitioners alleged that several defendants violated the

Fair Debt Collection Practices Act (FDCPA) in their communications with the petitioners

concerning their mortgage (hereafter, “the FDCPA action”). See D.C. Civ. A. No. 18-cv-

13148. The petitioners sought entry of default, which the Court denied, explaining that

the defendants had filed their answer “shortly after the deadline to answer expired” and

that “the Third Circuit has a preference for cases being decided on the merits.” January

15, 2019 text order. That action remains ongoing in the District Court.

The petitioners now seek a writ of mandamus. They ask us to (a) strike the

motions to dismiss and enter default in the RICO action, and (b) strike the answer, enter

default, and then stay the FDCPA action.

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Mandamus is a drastic remedy that is granted in only extraordinary cases. In re

Diet Drugs Prods. Liab. Litig.,

, 378 (3d Cir. 2005). To demonstrate that

mandamus is appropriate, petitioners must establish that they have “no other adequate

means” to obtain the relief requested, and that they have a “clear and indisputable” right

to issuance of the writ. Madden v. Myers,

(3d Cir. 1996). Mandamus

may not be used as a substitute for appeal. See In re Diet Drugs Prods. Liab. Litig., 418

F.3d at 378-79.

Mandamus is not appropriate here. The petitioners can obtain appellate review of

the orders denying entry of default on direct appeal. See In re Kensington Int’l Ltd.,

(3d Cir. 2003) (“If, in effect, an appeal will lie, mandamus will not.”); see

also Dimond Rigging Co. v. BDP Int’l, Inc., -- F.3d ---,

, at *9 (6th Cir.

Jan. 25, 2019) (“The district court dismissed [plaintiff’s] case, and therefore the denial of

the motion of default is reviewable along with the order of dismissal.”). Likewise, to the

extent that the petitioners allege that an improper party filed a motion to dismiss in the

RICO action, they actually have raised that argument in their brief in C.A. No. 17-2393,

so it is unnecessary to resort to mandamus.

We will thus deny the mandamus petition. To the extent that anything in the

petitioners’ mandamus petition can be construed as a motion seeking additional relief, it

is denied.

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