In Re: Radmax, Limited

HIGGINSON, Circuit Judges. PER CURIAM: Radmax, (“Radmax”), Ltd. peti . tions for a writ of mandamus directing the district court to transfer this case from the Marshall Division of the Eastern District Tyler Texas to the Division of that relief, district.1 To obtain mandamus Rad- (1) max must demonstrate that it has “no other adequate means to attain the relief (2) desires,”2 Tyler [it] Division is a “clearly more convenient” venue than the (3) Division, Marshall ruling to contrary awas “clear abuse of discretion.” In re Volkswagen of Am., II”), Inc. (“Volkswagen (5th Cir.2008) (en banc). If Radmax Berkeley, Sara M. Thompson, Coe, showing, makes that and we are satisfied Irons, L.L.P., Austin, TX, & Cousins Mi- that “the writ appropriate is under the Yanof, chael Alan Esq., Attorney, Thomp- circumstances,” may exercise our dis son, Coe, Irons, L.L.P., Dallas, Cousins & grant cretion to mandamus relief. Id. TX, for Petitioner. Hommel, Jr., TX, Tyler, William Sam The venue transfer statute pro for Erin North. vides: “For the of parties convenience

witnesses, in justice, the interest of a dis trict any civil action to any other district or division where it petitions petitioner Mandamus from the adequate Marshall Di- [A] "would not have an strangers are vision no to the federal courts of remedy improper for an failure to transfer appeals. generally See 17 James Wm. Moore by way appeal the case anof from an ad- et 111.61, § at 111- al„ Moore's Federal Practice judgment petition- verse final because [the (3d ed.2013) (col- 202 to 111-204 & nn. 9-11 would not able er] to show that it would cases). lecting Day City But see La have won the case had it been tried in a Lumberton, Tex., 2:011-CV-237, convenient [venue].” And the harm —in- at *3 2012 U.S. Dist. LEXIS witnesses, parties convenience to and oth- 19, 2012) at *6-*12 (Gilstrap, Mar. already by er[s] have been done —will J.) (granting motion for intra-district transfer appealed, time the case is tried and and the stating, Marshall Division and "Transfer prejudice put suffered cannot be back in the appropriate operative where none of the Thus, bottle. the writ is not here used as a facts plaintiff's occurred in the division [of appeal, appeal substitute for an as an choice] and where partic- the division had no provide remedy patently no for a erroneous ular local interest in the outcome of the failure to transfer venue. case.”). Am., ("Volkswagen In re Inc. II”), (5th Cir.2008) (en requirement 2. This mandamus is satisfied in 318-19 banc). the motion-to-transfer context: First, “[although court reasoned that any brought or to have been might Tyler in the parties con are parties all have the events and to which or division 1404(a). Division, § Divisions Tyler and Marshall 28 U.S.C. sented.” 1404(a) much to trans to apply roughly equal as access sources factors have of the same any sig- divisions “there will not be fers between proof,” to anothe from one district they to transfers if parties to the nificant inconvenience pursuant transfer venue A motion to r.3 documents or other evi- transport had to if mov- granted “the should be Marshall, compared Texas as dence to ven that the transferee ant demonstrates inconven- Tyler Any such Division.” convenient,” taking into clearly more ue but, we clari- slight, well be ience (1) of ac “the relative ease consideration II, question is rela- Volkswagen fied (2) “the avail proof’; to sources of cess access, not ease of ease of absolute tive to secure ability compulsory process of F.3d at 316 Volkswagen access. (3) witnesses”; “the cost of of attendance (“That proof access to some sources (4) witnesses”; “all willing attendance for now than a lesser inconvenience presents that make trial of practical problems other developments recent might have absent easy, expeditious inexpensive”; and a case superfluous.”). not render this factor does (5) flowing difficulties “the administrative Thus, documents “[a]ll (6) “the local in congestion”; from court Tyler in the evidence” are located physical interests decided having terest in localized Division, “weights] factor in favor of this (7) home”; the forum familiarity “the at transfer.” Id. case”; govern the law that will with Second, correctly not- the district court (8) unnecessary “the avoidance likely this ed that of the witnesses “[a]ll in] of conflict of laws problems [or subpoena power are within the case application foreign law”.4 correctly concluded either court.” It thus II, 545 F.3d at 315. neutral.” that “this factor is factors, eight those the district Applying neutral, one concluded that five were Third, court stated against inapplicable, “weighted] one Fifth Circuit has established “[t]he transfer,” weighed “slightly” and one giving sub threshold of 100 miles when ... “balancing] After favor of a transfer. of attendance weight to cost stantial factors,” the district court the relevant witnesses],” reasoned and the court shown that ruled that “Radmax ha[d] than 100 “Tyler that because is well less clearly more conve- Tyler Division is factor is neu miles from Marshall.... this cor- nient than the Marshall Division” and 5 Previously, explained that tral.” the motion to trans- respondingly denied existing an the distance between “[w]hen fer. proposed for trial of a matter and a venue is, than 100 under more revisiting the venue begin by We dis miles, to wit- the factor of inconvenience analysis of the factors. trict court’s Gilbert factors,” 1, [2], Collectively, see supra the "Gilbert 111.21 17 Moore et note al., Gulf (3d 2013) ("[A] Gilbert, Corp. ed. trans 67 S.Ct. 111-154 to 111-155 Oil v. 330 U.S. fer to division in the same district another 91 L.Ed. 1055. granted if it is more convenient for parties and witnesses and is in interest sixty-two miles. 5. The distance is about alia, justice.”) (citing, Coney, inter Weber Cir. Unit A March curiam)). (per increases in direct relationship nesses culties that would arise from transferring the additional distance to be traveled.” In case,” or retaining noting this that “[n]ei- I”), (“Volkswagen AG 371 ther the plaintiff nor the defendant ad- (5th Cir.2004) 204-05 cu- (per detail,” this factor in dresse[ed] and ac- riam). Indeed, the en banc court reiterat cordingly concluded that this factor was guidance ed and characterized it as a party neutral. Neither alerts on appeal us 100-mile “threshold” or “rule.” Volks any potential such administrative diffi- 545 F.3d at 317. We did not culty, agree and we with the district court however, that imply, a transfer within 100 that apparent. none is impose miles does not costs on witnesses Sixth, the district court found that “the or that such costs should not be factored Tyler Division has more local interest into the analysis, only venue-transfer but this case than the Marshall Division” but this greater significance factor has concluded that “this weighs factor only greater when the distance is than 100 slightly in favor of a transfer” in light of miles.6 greater “the deference available to the Fourth, the district court took Court considering when intra-district into account that “transfer will result transfers.” The deference referred to is delay parties” for all and concluded that respect for plaintiffs’ “the choice of venue.” weighs against “this factor transfer.” The Volkswagen 545 F.3d at A leading delay associated with transfer be rele treatise position, however, takes the that circumstances,” vant “in rare special and “the traditional given plain- deference Entm’t, In re Horseshoe tiffs choice of forum ... is less” for “intra- (5th Cir.2003), and we have found such district al., transfers.” supra MooRe et present circumstances where a “transfer 111.21[2], note at 111-155. We need venue yet [of] would have caused another general announce a govern- standard delay in already] protracted [an litigation,” ing intra-district situations; transfers in all Co., Peteet v. Dow Chem. it enough is to note that in this case the (5th Cir.1989), but we have not elabo local weighs interest factor solidly in favor rated on the circumstances under which of transfer. delay is “rare special.” and clarify We today garden-variety delay that associated Seventh, the district correctly court stat- with transfer is not to be taken into con ed that Tyler “[b]oth Division and sideration ruling when on a mo Marshall equally capable Division are it, tion to transfer. delay Were would applying the relevant law” and concluded against every militate transfer case.7 that Eighth, “[t]his factor is neutral.” Fifth, the district court stated that properly court reasoned that a any was “unaware of administrative diffi- present transfer would not a conflict of law respectful response examined, In its to the mandamus other factors that we have is off the invited, petition response specifically we mark. —a Appellate see Federal Rule of Procedure 21(b)(4) opined district court that "it is —the change 7. We note that Radmax moved for anticipated requirement that for obtain- promptly being venue weeks after —three ing rarely any mandamus] be satisfied in process. served with The district court ruled involving requested case a intra-district trans- later, on by the transfer motion months 7íá fer between divisions within 100 miles of each setting which time a trial has been estab- Although appreciate other.” we the court's lished. correctly, conscientious effort to rule its eval- factor, uation of the 100-mile and of certain no law, has connection fer11 and where case foreign application require or virtually all of forum and transferor had no this factor that and it concluded regarding the and witnesses the events analysis. transfer bearing on its events, here, those indeed all of case— correctly summary, the In facts, witnesses, sources of and other neutral, incorrectly as four factors labeled in the forum.12 transferee proof—are in favor weigh as neutral two labeled we classi transfer, weighing as one labeled “extraordinary error[ ]” an fied as neutral, la transfer against single relevant factor fa “fact that not favor weighing slightly in beled one Noth venue.” [plaintiffs’] vors chosen find, solidly in that, weighs transfer remotely II hints even ing in fac Reweighing those of transfer. favor was the facts there evaluation of our discharged tors, that Radmax we conclude transfers or to situ to interdistrict limited Tyler Divi showing that the its burden more than the venues were which ations convenient than clearly more sion is apart. 100 miles and that Marshall Division of this case warranted.8 and circumstances therefore facts the transferee fo- wholly grounded are resolved that the Having Division), (the clearly is a Tyler which rum incorrect, we next as ruling was venue, this case has convenient more dis a “clear abuse sess whether it Division. to the Marshall no connection “extraordinary errors” based on cretion” of mandamus is Volkswagen, writ Under erroneous result.”9 leading patently to “a compelled. therefore man granted of have writs previously We mandamus and for of petition writ mo of to correct erroneous denials damus stay proceedings motion for Radmax’s Volkswagen E.g., venue. to transfer tions court are GRANTED. district the I, II, 304; Volkswagen 371 F.3d 545 F.3d Entm’t, 201; In re Horseshoe HIGGINSON, Judge, dissenting: Circuit out, agree, points Radmax we

429. striking similarities that those cases share majority the the that Gil- agree I with to this one.10 factors, favor trans- weighed properly, bert disagree I But fer this case. from the en banc guidance The main contrary ruling II, that as it this Volkswagen informs court based on was “clear abuse discretion” case, court have is that district should the “a “extraordinary leading pat- to inadvisability of errors” the fully been aware result,” Volkswagen ently In only plaintiffs erroneous denying where the transfer II”), Am., 545 (“Volkswagen denying trans- Inc. weighs choice favor (noting "nothing E.g., [] that id. at 315 ties suggest this court held- We do has 8. 10. —nor except counting of the factors in each Division that a raw this case to Marshall side, deciding venue”). weighing each the same and plaintiffs’ choice “score,” only resulting is the on the methodology. proper II, we noted id. at 11. In weight gave undue "the 309, 318; II, F.3d at see 9. plaintiffs’ choice of venue.” ("[W]e case [that] at stress in no also id. replace exercise of we a district court’s judge Day, this made own; La same In only for 12. our we review discretion with obviously wise decision that transfer produce pat clear abuses discretion results.”). compelled. supra See note ently erroneous (5th Cir.2008) (en 304, 309, banc), here, I but to a degree. lesser An hour’s from respectfully majority’s inconvenience, dissent drive anis but it interferes view, grant my of mandamus relief. less job, family life, with witness’s meaningfully this case differs community engagement. Volks- As recog- II in wagen respects. I, several in Volkswagen nized task of scheduling [t]he fact witnesses so First, proposed venue in Volkswagen as to minimize the they time when are II parties, was 155 miles from the wit- removed regular from their work or nesses, and evidence. Id. at By con- responsibilities home gets increasingly trast, witnesses, parties, and evidence difficult and complicated when the travel only in this case are 60 miles from the time from their home or work site to the adjusts current venue. analysis This court facility is five or six hours one-way respect eight with to three of the Gilbert as opposed to 30 minutes or an hour. it brings factors: the witnesses within the 371 F.3d at 205. subpoena Accordingly, court’s automatic the conclu- power under sion that 45; this case should have Federal Rule of been trans- Civil Procedure ferred, correct, even if does not lessens the concern follow regarding “the cost of ineluctably from Volkswagen II. See witnesses”; attendance for Volks- willing and it (“If 545 F.3d at 312 n. 7 similarly mitigates practical “other prob- facts and rationally circumstances are ca- lems” associated with trial at a distant pable of providing reasons for what the venue. In Volkswagen we found rele- done, district court has judgment its based vant the non-party witnesses were on those reasons will not be reviewed.” “outside the Eastern subpoena District’s (quoting Pelt, McGraw-Edison Co. v. Van power deposition for under Fed.R.Civ.P. Cir.1965))). 45(c)(3)(A)(ii),”so that subpoenas “trial these Second, witnesses to travel more than 100 Volkswagen II involved inter- subject miles would be quash motions to today, transfer. Before we had 45(c)(3).” under Fed.R.Civ.P. explored Id. 316 not the distinction between intra- (“Volks- (quoting In re transfer, AG district and inter-district or taken I”), (5th 201, 371 205 n. 4 position F.3d on whether district enjoy courts Cir.2004) curiam)). (per That concern is degree the same of deference in both situ present not here. We noted also that ations. District in courts this circuit have only monetary “[witnesses not suffer expressed divergent viewpoints on these costs, personal but also the costs associat- Additionally, matters.1 “[t]here is dis being away work, ed with family, 1404(a) agreement § and about whether the community.” present Id. That concern is apply factors to intradistrict-transfer mot Healthcare, Ltd., Compare ("[T]rial Liles v. TH No. courts should entertain Section 1-cv-528-JRG, 3930616, 1404(a) 2:1 2012 WL at *6 change motions for intra-district of (E.D.Tex. 10, 2012) J.) caution, Sept. (Gilstrap, grant venue with and should not ("[C]ourts 1404(a) in this requested district view mo balancing relief unless the of con- tions for public intra-district transfer of venue with venience and interest factors in results caution.”); heightened City Madden proposed v. Will a firm conclusion that the new ven- Point, Tex., (TJW), No. decidedly 2:09-CV-250 2009 WL ue is more convenient and 5061837, (E.D.Tex. 15, 2009) at *3 justice.”), Dec. City interest of with Cantrell v. (Ward, J.) 6:09-cv-225, 786591, (opining "greater Murphy, deference No. 2010 WL 1, (E.D.Tex. 2010) (Schneider, J.) [is] available to [district courts] when consid at *2 Mar. transfers”), ("The ering 1404(a) § intra-district analysis and Rios v. remains the same Scott, 1:02-CV-136, 32075775, regardless No. 2002 WL party of whether the moves for an 13, 2002) (Hines, MJ.) transfer.”). at *4 Jul. inter-district or intra-district

292 Cal., F.3d 219 Dist. Court Cent. Co. Dist. Transp. Marquette In re

ions.”2 Cir.2000) (9th (denying manda 930, H-12-0623, 936-40 LLC, A. Civ. Gulf-Inland, No. court the district (S.D.Tex. petition mus because 2375981, 1 Jun. *1 n. at 2012 WL ques “a issue that was a “difficult” faced 2012). fills majority persuasively 21, The that had divided impression” tion of first citations to with gaps doctrinal these 168, courts); F.2d Reyes, 814 In re lower Practice; treatise Federal Moore’s Cir.1987) (Jones, J., (5th dissenting) 172 binding it is not convincing, but may prove (“At least, imprudent very above, an absence there is noted law. As in an area court the district mandamus to intra- pertaining precedent circuit ”). law.’ ‘doubtful in the inter transfer, and, acting district differ have reached stices, courts Third, district concern in Volks court voiced our ambiguity provides “This “ignored ent conclusions. the district wagen II that unclear for why right another reason 545 F.Sd 309. That precedents.” our In mandamus.” the writ of here. purposes does not exist concern (3d 525, Cir. precedents F.3d 531 highlighted 16 our Pasquariello, opinion court’s 1994). ordinarily con not as error is of each Gilbert Just included a discussion previ F.2d Corp., we “have 903 “plain” when In re Ramu sidered factor. See Cir.1990) (concluding where 312, an issue.... “that ously [e]ven addressed extraordinary au only extending requires is one of those argument this matter v. be consid United States mandamus precedent,” cases which thoritative court, (5th Cir.2009) Evans, part ered” omitted), findings made no (internal opinion, abuse marks a one sentence quotation law). Several of “clear” cited no is not considered discretion majority corrects findings that on an issue and court’s spoken have not when we not, had which we to factors about pertain for reasonable conceptual space there is my today, guidance.3 elaborated until DeGeorge v. U.S. disagree, see jurists to Connection, to transfers from one district as Mesquite of the same Carolei v. Texas 2. See another,” (BH), "garden-variety and that district to 3:11-CV-2811-L (N.D.Tex. Aug. is not to delay at *1 n. be associated with ques- ("One has in this circuit ruling district court when on into taken consideration 1404(a) apply factors tioned whether I would to transfer.” motion transfers, Circuit but the Fifth intradistrict especially to the sensitive (citation issue.”) yet this has not ruled on Fifth Circuit has estab "[t]he statement Lewis, omitted); F.Supp.2d Johnson giving when of 100 miles lished a threshold (N.D.Miss.2009) (opining that “the weight to cost of attendance substantial apply purely divi- Duncan standard should witnesses],” corresponding its conclu for district, since issues in this sional transfer "Tyler than is well less that because sion a outside of ['VolkswagenII transfer ] involved this factor is neu miles Marshall.... judicial and is thus factu- particular remarks, previously majority tral.” As expressing distinguishable,” ally but explained distance between “[w]hen pure- Volkswagen "might applicable to a II and a existing trial of matter an venue for in a district which ly intra-district 1404(a) is more than proposed venue under adopted own divisional venue had not its miles, inconvenience to wit factor v. Advanced Detec- practices”); ADS Sec. L.P. relationship to direct nesses increases in LY, Servs., Inc., No. A-09-CA-773 tion Sec. to be traveled.” Volks distance additional (W.D.Tex. Mar. *2 n. 2 WL I, at 204-05. And our full 23, 2010) (disagreeing position). with that guidance and character court reiterated that or "rule.” ruled, "threshold” ized it as a 100-mile example, we not before but had For at 317. I concur that today, factors “[t]he clarified intended unlikely that the full court it is between apply much to transfers divisions view, the district court has demonstrated America, UNITED experienced grasp

an of the STATES of context-specif Plaintiff-Appellee ic considerations involved with intra-dis- See, e.g., Day City trict transfer. La v. Lumberton, Tex., No. 2:011-CV-237 Ever MARTINEZ-FLORES, Alexander (JRG), 2012 WL at *4 Defendant-Appellant. (granting Mar. motion for intra- (“As transfer); id. in all transfer No. 11-41375. decisions, each unique set of facts is United States Court Appeals, basis.”). by-case must be decided on a case Fifth Circuit. transfer, In denying this motion to judge rulings by adhered to similar June other district courts in denying this circuit

motions to parties, transfer where the wit

nesses, and evidence were fewer than 100

miles from the existing venue.4 These in

sights support my view that the transfer

ruling in this “judicial case was not a usur

pation power” triggering mandamus re

scission. 545 F.3d at 309

(“[Mjandamus appropriate is an remedy ‘exceptional amounting circumstances judicial

to a usurpation power or a clear ”).

abuse discretion.’ respectfully

I dissent. LLC, imply 2:12-CV-00074-JRG-RSP, that a transfer within 100 miles does impose costs on witnesses or that such 2012) Aug. (Payne, costs should not be factored into the venue- M.J.); Corp., Moss Lockheed Martin No. analysis, today but note that until 659-M, (N.D.Tex. 3:10-cv-1 2011 WL 197624 meaning. had not clarified our Madden, J.); (Lynn, Jan. 2009 WL (Ward, J.); Eagle v. Am. Havanas See, e.g., v. Hacienda Records & Guzman Inc., Airlines, 3:09-CV-0209-B, No. Studio, Inc., 6:12-CV-42, Recording (N.D.Tex. 8, 2009) J.). Apr. (Boyle, (S.D.Tex. 19, 2013) (Costa, WL 623289 Feb. J.); Plaza, Hutchings v. MSHC Bonner Street

Case Details

Case Name: In Re: Radmax, Limited

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 18, 2013

Citation: 720 F.3d 285

Docket Number: 13-40462

Court Abbreviation: 5th Cir.