Opinion
No. 07-72899.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed April 30, 2008.
Stephen Yagman, Esq., Yagman Yagman Reichmann, Venice Beach, CA, for Petitioner.
No Appearance for Respondent.
Travers D. Wood, Esq., White Case, LLP, Los Angeles, CA, for Other Party Time Warner Cable, A Corporation Real Party In Interest.
On Petition for Writ of Mandamus to the United States District Court for the Central District of California. D.C. No. CV-07-01797-VBF.
Before: KOZINSKI, Chief Judge, O'SCANNLAIN, and W. FLETCHER, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
K. Clark petitions for a writ of mandamus arising from the district court's decision to dismiss her complaint against Time Warner Cable ("TWC") on the grounds that her claim against TWC under 47 U.S.C. § 258(a) warranted a referral to the Federal Communications Commission in the first instance.
In a concurrently filed opinion, we address Clark's direct appeal from the district court's decision. See Clark v. Time Warner Cable, 523 F.3d 1110 (9th Cir. 2008).
Clark's mandamus petition seeks precisely the same relief as her appeal — a reversal of the district court's decision, and a remand that requires the district court to consider the merits of her § 258(a) claim. This court will not "engage in extraordinary review by mandamus . . . when it can exercise the same review by a contemporaneous ordinary appeal." Calderon v. U.S. Dist. Court, 137 F.3d 1420, 1421 (9th Cir. 1998) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 8 n. 6, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)).
Accordingly, Clark's petition for mandamus is
DENIED.