DISH Network Corporation et al v. Arch Specialty Insurance Company et al
Filing
164
USCA ORDER filed on 8/2/12 denying petition for writ of mandamus. Denying Dish's motion for stay. (lswsl, )
Appellate Case: 12-1231
Document: 01018890814
Date Filed: 08/02/2012
Page: 1
FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
EALS
FOR THE TENTH CIRCUIT
August 2, 2012
Elisabeth A. Shumaker
Clerk of Court
In re:
DISH NETWORK CORPORATION;
DISH NETWORK, LLC,
No. 12-1231
(D.C. No. 1:09-CV-00447-JLK-MEH)
(D. Colo.)
Petitioners.
ORDER
Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.
Petitioners DISH Network Corp. and DISH Network, LLC (“Dish”), have
requested a writ of mandamus and a stay of the district court proceedings pending
resolution of the mandamus petition. Dish asserts that the district court has failed to
comply with the mandate of the prior appeal of this case and has abused its discretion
in its conduct of pretrial proceedings following this court’s remand. See DISH
Network Corp. v. Arch Specialty Insurance Co., 659 F.3d 1010, 1028 (10th Cir.
2011) (Dish I). Dish contends that Dish I requires the various insurers named as
defendants in the underlying litigation to provide a defense for Dish in litigation filed
by RAKTL in California. On remand, however, the district court has permitted the
insurers to file motions for summary judgment on issues not raised in Dish I and to
pursue discovery on those issues. Dish maintains that permitting the motions and
discovery is a gross abuse of discretion.
Appellate Case: 12-1231
Document: 01018890814
Date Filed: 08/02/2012
Page: 2
The insurers have responded to the mandamus petition. They argue that
because Dish I did not address their alternate defenses of a broadcast/telecast
exclusion and a challenge to the insured status of a plaintiff, the district court is
within its discretion to permit them to request summary judgment on those defenses
and to pursue related discovery. They point out that the district court has recognized
Dish I’s rejection of their advertising-injury defense and is proceeding accordingly.
Mandamus is a “drastic remedy, and is to be invoked only in extraordinary
circumstances.” In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1186 (10th Cir.
2009) (internal quotation marks omitted). It is not a substitute for appeal. Weston v.
Mann (In re Weston), 18 F.3d 860, 864 (10th Cir. 1994).
For mandamus to issue, there must be a clear right to the relief sought, a
plainly defined and peremptory duty on the part of [the district court] to
do the action in question, and no other adequate remedy available.
Petitioner must also show that [its] right to the writ is clear and
indisputable.
Johnson v. Rogers, 917 F.2d 1283, 1285 (10th Cir. 1990) (citation omitted) (internal
quotation marks omitted). Further, this court “will grant a writ only when the district
court has acted wholly without jurisdiction or so clearly abused its discretion as to
constitute usurpation of power.” In re Cooper Tire & Rubber Co., 568 F.3d at 1186
(internal quotation marks omitted).
We determine that mandamus is not warranted because Dish’s entitlement to
the issuance of a writ of mandamus is not clear and indisputable. The petition for a
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Appellate Case: 12-1231
Document: 01018890814
Date Filed: 08/02/2012
Page: 3
writ of mandamus is DENIED. Dish’s motion for a stay pending resolution of the
mandamus petition is DENIED as moot.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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