In re Level 3 Communications, Inc. Securities Litigation

Filing 69

USCA ORDER Denying Petition for Writ of Mandamus filed by Southeastern Pennsylvania Transportation Authority, Dennis Eldo and Douglas B. Nedrey. USCA case no. 09-1242. (bjrsl, )

Case: 09-1242

Document: 01018095925

Date Filed: U n i t e d States Court 1 Appeals 07/08/2009 Page: of T e n t h Circuit

FILED

J u l y 8, 2009
U N I T E D STATES COURT OF APPEALSl i s a b e t h A. Shumaker E F O R THE TENTH CIRCUIT
C l e r k of Court

I n re: S O U T H E A S T E R N PENNSYLVANIA T R A N S P O R T A T I O N AUTHORITY; D E N N I S ELKO; DOUGLAS B. NEDRY, Petitioners. N o . 09-1242 ( D . C . No. 1:09-CV-00200-PAB-CBS) ( D . Colo.)

ORDER B e f o r e BRISCOE, GORSUCH, and HOLMES, Circuit Judges. S o u t h e a s t e r n Pennsylvania Transportation Authority, Dennis Elko, and D o u g l a s B. Nedry ask this court to direct the district court to appoint the Level 3 P l a i n t i f f s Group as lead plaintiff or, alternatively, recognize Mr. Nedry as the p r e s u mp t i v e l y most adequate lead plaintiff in a proposed class action against Level 3 Communications, Inc. See Private Securities Litigation Reform Act of 1 9 9 5 , 15 U.S.C. § 78u-4(a)(3)(B) (setting forth procedure for appointment of lead plaintiff). "[A] writ of mandamus is a drastic remedy, and is to be invoked only in e x t r a o r d i n a r y circumstances." In re Antrobus, 519 F.3d 1123, 1124 (10th Cir. 2 0 0 8 ) (quotation omitted). It "is used only to confine an inferior court to a lawful e x e r c i s e of its prescribed jurisdiction or to compel it to exercise its authority

Case: 09-1242

Document: 01018095925

Date Filed: 07/08/2009

Page: 2

w h e n it is its duty to do so." In re Cooper Tire & Rubber Co. No. 07-4264, 2009 W L 1594002, *4 (10th Cir. June 9, 2009) (quotation omitted). "Only exceptional c i r c u ms t a n c e s , amounting to a judicial usurpation of power, will justify the i n v o c a t i o n of this extraordinary remedy." Id. (quotation omitted). "Three c o n d i t i o n s must be met before a writ of mandamus may issue": (1) "the party s e e k i n g issuance of the writ must have no other adequate means to attain the r e l i e f he desires"; (2) "the petitioner must demonstrate that his right to the writ is c l e a r and indisputable"; and (3) "the issuing court, in the exercise of its d i s c r e t i o n , must be satisfied that the writ is appropriate under the circumstances." Id. (citations and quotations omitted). As a general proposition, petitioners' request may be an appropriate issue t o raise on mandamus. See Christensen v. United States Dist. Court, 844 F.2d 6 9 4 , 697 & n.5 (9th Cir. 1988). After a review of the parties' filings, however, w e decline to grant mandamus relief in this case. Petitioners have not d e mo n s t r a t e d that they had a clear and indisputable right to appointment as lead p l a i n t i f f or that the district court had a clear duty to rule in their favor. The petition for a writ of mandamus is DENIED. E n t e r e d for the Court,

E L I S A B E T H A. SHUMAKER, Clerk

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