CLD-007 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 20-2923 ___________

IN RE: JOHN W. FINK, Petitioner ____________________________________

On a Petition for Writ of Mandamus from the United States District Court for the District of New Jersey (Related to D.N.J. Civ. No. 2-19-cv-09374) ____________________________________

Submitted Pursuant to Rule 21, Fed. R. App. P. October 8, 2020

Before: RESTREPO, MATEY and SCIRICA, Circuit Judges

(Opinion filed: October 26, 2020) _________

OPINION* _________

PER CURIAM

John W. Fink petitions for a writ of mandamus directing the District Judge

presiding over this civil action to disqualify himself. 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. In 2012, Fink filed suit against a lawyer and law firm who represented him in

previous litigation. The District Court entered summary judgment for the defendants in

that action, and we affirmed. See Fink v. Kirchner,

(3d Cir.), cert.

denied,

(2018). After unsuccessfully seeking relief from our ruling in this

Court and the United States Supreme Court, Fink filed the civil action at issue here. He

named as defendants the same lawyer and law firm as well as the District Judge who

presided over his previous action and the three judges of our Court who decided his

previous appeal.

The District Court, through a different District Judge, dismissed Fink’s amended

complaint with prejudice and later denied his motion for reconsideration. Fink did not

appeal and instead filed with the District Court what he called an “amended motion to

declare void/vacate” those rulings (among others). That motion remains pending.1 Fink

later filed a motion asking the District Judge presiding over this proceeding to disqualify

himself. (ECF No. 62.) That motion remains pending as well.

Fink now has filed a mandamus petition with our Court seeking an order directing

the District Judge to disqualify himself. Mandamus is an extraordinary remedy that we

have the discretion to grant only when, inter alia, the petitioner has no other adequate

means of obtaining the relief sought. See In re Kensington Int’l Ltd.,

(3d Cir. 2003). “[T]hat standard cannot be met” when a mandamus petitioner

seeks the District Judge’s disqualification and when “a motion seeking the district judge’s

1 We express no opinion on whether that motion or any of Fink’s other filings in the District Court trigger the provisions of Fed. R. App. P. 4(a)(4). 2 disqualification—the same relief sought in the mandamus petition[]—is pending in the

district court”.

. Such is the case here. We do not understand Fink to be

seeking an order directing the District Judge to rule on his disqualification motion. To

the extent that Fink’s petition can be construed to request such relief, such relief is not

warranted because his disqualification motion has been pending only since August 2020.

Cf. Madden v. Myers,

(3d Cir. 1996). We are confident that the District

Judge will rule on that motion in due course.

For these reasons, we will deny Fink’s mandamus petition.2

2 We do not reach the merits of Fink’s request for disqualification for the reason explained above, but we note that Fink appears to rely largely on the District Judge’s rulings against him and that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States,

(1994). Nevertheless, our denial of Fink’s petition is without prejudice to his ability to file another mandamus petition (with another filing fee) if the District Judge denies his disqualification motion. 3