Benjamin Cunningham v.

ALD-111 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT ___________

No. 23-1158 ___________

IN RE: BENJAMIN CUNNINGHAM

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-19823) ____________________________________

Submitted Pursuant to Rule 21, Fed. R. App. P. March 23, 2023

Before: HARDIMAN, RESTREPO, and BIBAS, Circuit Judges (Opinion filed: April 13, 2023) _________

OPINION * _________

PER CURIAM

In 2019, pro se petitioner Benjamin Cunningham filed a complaint in the United States District Court for the District of New Jersey. Defendant the City of New York filed a motion to dismiss Cunningham’s claims, or in the alternative, to transfer venue. The District Court granted the alternative relief requested by the motion, determining that New Jersey was an improper venue for Cunningham’s Amended Complaint. Pursuant to 28 U.S.C. § 1406(a), the District Court transferred venue to the United States District Court for the Southern District of New York, which has since entered judgment in favor of Defendants. 1 Cunningham appealed the transfer of venue to this Court, and we dismissed his appeal for lack of jurisdiction. 2 Cunningham now petitions this Court for a writ of mandamus directing the District Court to vacate its order transferring his complaint.

Although mandamus may be used to challenge a § 1406(a) transfer order, relief is generally not available unless the order is not only erroneous but amounts to “an unauthorized exercise of judicial power.” Carteret Sav. Bank, F.A. v. Shusan, 919 F.2d 225, 233 (3d Cir. 1990); see Gulf Research & Dev. Co. v. Leahy, 193 F.2d 302, 304-05 (3d Cir. 1951) (explaining that mandamus should not be used as a substitute for appeal and is typically not available for § 1406(a) transfer orders unless there are exceptional circumstances). Cunningham has not demonstrated that the District Court’s venue transfer was erroneous, much less that it amounts to an unauthorized exercise of judicial power. Moreover, even where mandamus relief might otherwise be appropriate, the transferor circuit loses mandamus jurisdiction when, as here, “the transferee court proceeds with the transferred case[.]” In re U.S., 273 F.3d 380, 384 (3d Cir. 2001). 3

Accordingly, we will deny the mandamus petition.

the transferred action.