Fein v. Bessen, 300 Ga. 25

Background

Frederick J. Fein, an out-of-state attorney admitted pro hac vice for Continental Tire the Americas, was subject to a judicial order limiting his participation after findings he violated the Georgia Rules of Professional Conduct; his pro hac vice admission was not revoked.
Fein sought immediate review; the Court of Appeals dismissed his interlocutory application and later dismissed his direct appeal; certiorari was denied by the Supreme Court of Georgia.
In the underlying Chenault product-liability case, several defendants remained (GMC and Brown Tire) after CTA and others were dismissed following settlement; plaintiffs had filed motions for default against GMC and Brown Tire.
Fein filed a mandamus petition in superior court seeking an order compelling Judge Diane Bessen to rule on the longstanding default motions and enter final judgment so Fein could appeal the restrictions in her order against him.
The superior court granted Judge Bessen’s motion to dismiss Fein’s mandamus petition for failure to state a claim, concluding Fein lacked standing/clear legal right to demand rulings on motions filed by parties he did not represent and that bankruptcy/automatic-stay considerations further precluded relief.
The Supreme Court of Georgia affirmed, holding mandamus was inappropriate because Fein had no clear legal right to the requested relief and lacked standing to compel adjudication of the plaintiffs’ default motions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Fein has standing/clear legal right to mandamus compelling rulings on default motions so he can appeal Judge Bessen’s limitations on his pro hac vice role	Fein: He has a direct, adverse interest in obtaining final judgment so he can pursue appellate review of the order affecting his counsel rights	Bessen: Fein is not a party or counsel for the parties who filed the default motions; only parties (plaintiffs) may obtain default judgments; Fein lacks a legal right to the relief	Held: Fein lacks standing and a clear legal right to mandamus relief; petition dismissed
Whether the 90-day rule OCGA § 15-6-21(b) supports Fein’s mandamus claim	Fein: Judge Bessen’s alleged failure to rule on default motions within 90 days entitles him to mandamus	Bessen: The statutory duty is addressed to the parties/counsel; Fein is neither party nor counsel for the relevant parties	Held: Even if the statute applies to prompt rulings, Fein has no authority to invoke it to obtain relief on behalf of other parties
Whether Ford Motor Co. v. Young controls and gives Fein appellate standing or mandamus relief	Fein: Relies on Ford for standing to challenge restrictions on pro hac vice counsel even where underlying case concluded	Bessen: Ford differs procedurally and does not authorize a separate mandamus action by non-party counsel	Held: Ford does not entitle Fein to the extraordinary remedy of mandamus; factual/procedural differences distinguish it
Whether bankruptcy/automatic stay prevented Judge Bessen from entering the requested orders	Fein: Argued bankruptcy did not preclude dismissal of GMC or actions against non-debtor defendants	Bessen: Bankruptcy petition imposed an automatic stay that limited court action as to the debtor; superior court relied on stay to deny relief	Held: Court did not need to resolve stay issue because lack of standing alone foreclosed mandamus; superior court’s alternative stay reasoning supported dismissal

Key Cases Cited

Sherman v. Fulton County Bd. of Assessors, 288 Ga. 88 (procedural standard: de novo review of 12(b)(6) dismissal and favorable construction of pleadings)
Ford Motor Co. v. Young, 322 Ga. App. 348 (Court of Appeals standing to appeal revocation of pro hac vice admissions after underlying case concluded)
Fein v. Chenault, 330 Ga. App. 222 (direct appeal dismissal addressing finality and reviewability of judge’s order)
Clayton County Bd. of Commrs. v. Murphy, 297 Ga. 763 (mandamus is extraordinary; requires clear legal right)
Voyles v. McKinney, 283 Ga. 169 (mandamus for gross abuse of discretion/extraordinary circumstances)
Water Visions Intl. v. Tippett Clepper Assoc., 293 Ga. App. 285 (mandamus may remedy violation of OCGA § 15-6-21(b))
Brissey v. Ellison, 272 Ga. 38 (standing as citizen/resident/taxpayer requires showing; limits on invoking public-duty mandamus)