DLD-019 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-2723 ___________

IN RE: NICHOLAS KYLE MARTINO, 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. 1:23-mc-00011) ____________________________________

Submitted Pursuant to Rule 21, Fed. R. App. P. October 26, 2023

Before: JORDAN, PORTER, and PHIPPS, Circuit Judges

(Opinion filed: November 3, 2023) _________

OPINION* _________

PER CURIAM

Pro se petitioner Nicholas Kyle Martino seeks a writ of mandamus to compel the

District Court to rule on a petition and a motion he filed. For the reasons that follow, we

will deny the mandamus 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 August 2022, the District Court approved several search warrants submitted by

the Government in support of an ongoing criminal investigation into Martino. The

warrants were sealed due to the nature of the investigation and were executed later that

month. Martino has not been charged with any crime in connection with this

investigation and several seized items have not yet been returned to him.

In April 2023, Martino initiated a civil action in the District Court with a petition

to unseal the documents underlying the search warrants. He then filed a replevin motion

seeking the return of his seized property, and a motion seeking to refer that motion to a

District Judge. After the Government responded, the District Court entered an order on

September 14, 2023, in which it: (1) granted Martino’s request to refer his motion for

replevin to a District Judge; (2) directed the District Court Clerk to file a copy of the

motion for replevin for resolution in a related district court case; and (3) denied the

motion for replevin as moot in this case. Those related proceedings remain ongoing. It

appears that Martino’s petition to unseal documents was referred to a Magistrate Judge in

June 2023 and is currently pending.

Martino filed a mandamus petition in this Court on September 20, 2023, seeking a

ruling on his motion to unseal documents and his motion to refer his motion for replevin

to a District Judge. The petition was dated September 12, 2023 — two days before the

District Court entered its order addressing the latter motion. He alleges that the District

2 Court has delayed ruling on his filings and seeks this Court’s intervention with obtaining

a decision on both motions.

A writ of mandamus is a “drastic remedy” that may be granted only in

“extraordinary circumstances in response to an act amounting to a judicial usurpation of

power.” In re Diet Drugs Prods. Liab. Litig.,

, 378 (3d Cir. 2005) (citation

omitted). “[M]atters of docket control . . . are committed to the sound discretion of the

district court.” In re Fine Paper Antitrust Litig.,

(3d Cir. 1982)

(citation omitted). However, a writ of mandamus may be warranted where a district

court’s “undue delay is tantamount to a failure to exercise jurisdiction.” See Madden v.

Myers,

(3d Cir. 1996).

Martino’s request for a ruling on his motion to refer his motion for replevin to a

District Judge is moot; the District Court granted his motion and proceedings are

continuing in a separate matter on his underlying request for replevin. As for his petition

to unseal, the case is moving forward in the District Court. Because only a few months

have passed since the petition was referred to a Magistrate Judge and the District Court

recently addressed several other pending motions in the case, the extraordinary remedy of

mandamus relief is not warranted at this time. We have full confidence that the District

Court will rule on Martino’s petition without undue delay.

Accordingly, we will deny Martino’s mandamus petition.

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