IN RE: RADMAX (2013)

Radmax, Ltd. (“Radmax”), petitions for a writ of mandamus directing the district court to transfer this case from the Marshall Division of the Eastern District of Texas to the Tyler Division of that district.¹ To obtain mandamus relief, Radmax must demonstrate that (1) it has “no other adequate means to attain the relief [it] desires,”² (2) the Tyler Division is a “clearly more convenient” venue than the Marshall Division, and (3) the district court's ruling to the contrary was a “clear abuse of discretion.” In re Volkswagen of Am., Inc. (“Volkswagen II”), 545 F.3d 304, 311 (5th Cir.2008) (en banc). If Radmax makes that showing, and we are satisfied that “the writ is appropriate under the circumstances,” we may exercise our discretion to grant mandamus relief. Id.

The venue transfer statute provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). The § 1404(a) factors apply as much to transfers between divisions of the same district as to transfers from one district to another.³ A motion to transfer venue pursuant to § 1404(a) should be granted if “the movant demonstrates that the transferee venue is clearly more convenient,” taking into consideration (1) “the relative ease of access to sources of proof”; (2) “the availability of compulsory process to secure the attendance of witnesses”; (3) “the cost of attendance for willing witnesses”; (4) “all other practical problems that make trial of a case easy, expeditious and inexpensive”; (5) “the administrative difficulties flowing from court congestion”; (6) “the local interest in having localized interests decided at home”; (7) “the familiarity of the forum with the law that will govern the case”; and (8) “the avoidance of unnecessary problems of conflict of laws [or in] the application of foreign law”.⁴ Volkswagen II, 545 F.3d at 315.

Applying those eight factors, the district court concluded that five were neutral, one was inapplicable, one “weigh[ed] against transfer,” and one weighed “slightly” in favor of a transfer. After “balanc[ing] ․ the relevant factors,” the district court ruled that “Radmax ha[d] not shown that the Tyler Division is clearly more convenient than the Marshall Division” and correspondingly denied the motion to transfer.

We begin by revisiting the district court's analysis of the Gilbert factors. First, the court reasoned that “[a]lthough the events and parties are in the Tyler Division, the Tyler and Marshall Divisions have roughly equal access to sources of proof,” because “there will not be any significant inconvenience to the parties if they had to transport documents or other evidence to Marshall, Texas as compared to the Tyler Division.” Any such inconvenience may well be slight, but, as we clarified in Volkswagen II, the question is relative ease of access, not absolute ease of access. Volkswagen II, 545 F.3d at 316 (“That access to some sources of proof presents a lesser inconvenience now than it might have absent recent developments does not render this factor superfluous.”). Thus, because “[a]ll of the documents and physical evidence” are located in the Tyler Division, this factor “weigh[s] in favor of transfer.” Id.

Second, the district court correctly noted that “[a]ll of the likely witnesses in this case are within the subpoena power of either court.” It thus correctly concluded that “this factor is neutral.”

Third, the district court stated that “[t]he Fifth Circuit has established a threshold of 100 miles when giving substantial weight to [the cost of attendance for witnesses],” and the court reasoned that because “Tyler is well less than 100 miles from Marshall ․ this factor is neutral.”⁵ Previously, we explained that “[w]hen the distance between an existing venue for trial of a matter and a proposed venue under § 1404(a) is more than 100 miles, the factor of inconvenience to witnesses increases in direct relationship to the additional distance to be traveled.” In re Volkswagen AG (“Volkswagen I”), 371 F.3d 201, 204–05 (5th Cir.2004) (per curiam). Indeed, the en banc court reiterated that guidance and characterized it as a 100–mile “threshold” or “rule.” Volkswagen II, 545 F.3d at 317. We did not imply, however, that a transfer within 100 miles does not impose costs on witnesses or that such costs should not be factored into the venue-transfer analysis, but only that this factor has greater significance when the distance is greater than 100 miles.⁶

Fourth, the district court took into account that “transfer will result in delay for all parties” and concluded that “this factor weighs against transfer.” The delay associated with transfer may be relevant “in rare and special circumstances,” In re Horseshoe Entm't, 337 F.3d 429, 435 (5th Cir.2003), and we have found such circumstances present where a “transfer [of] venue would have caused yet another delay in [an already] protracted litigation,” Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir.1989), but we have not elaborated on the circumstances under which delay is “rare and special.” We clarify today that garden-variety delay associated with transfer is not to be taken into consideration when ruling on a § 1404(a) motion to transfer. Were it, delay would militate against transfer in every case.⁷

Fifth, the district court stated that it was “unaware of any administrative difficulties that would arise from transferring or retaining this case,” noting that “[n]either the plaintiff nor the defendant addresse[ed] this factor in detail,” and accordingly concluded that this factor was neutral. Neither party alerts us on appeal to any such potential administrative difficulty, and we agree with the district court that none is apparent.

Sixth, the district court found that “the Tyler Division has more local interest in this case than the Marshall Division” but concluded that “this factor weighs only slightly in favor of a transfer” in light of “the greater deference available to the Court when considering intra-district transfers.” The deference referred to is respect for “the plaintiffs' choice of venue.” Volkswagen II, 545 F.3d at 315. A leading treatise takes the position, however, that “the traditional deference given to plaintiff's choice of forum ․ is less” for intra-district transfers.” 17 Moore et al., supra note 1, § 111.21[2], at 111–155. We need not announce a general standard governing intra-district transfers in all situations; it is enough to note that in this case the local interest factor weighs solidly in favor of transfer.

Seventh, the district court correctly stated that “[b]oth the Tyler Division and Marshall Division are equally capable of applying the relevant law” and concluded that “[t]his factor is neutral.” Eighth, the district court properly reasoned that a transfer would not present a conflict of law or require the application of foreign law, and it concluded that this factor had no bearing on its transfer analysis.

In summary, the district court correctly labeled four factors as neutral, incorrectly labeled two as neutral that weigh in favor of transfer, labeled one as weighing against transfer that is neutral, and labeled one as weighing slightly in favor of transfer that, we find, weighs solidly in favor of transfer. Reweighing those factors, we conclude that Radmax discharged its burden of showing that the Tyler Division is clearly more convenient than the Marshall Division and that transfer is therefore warranted.⁸

Having resolved that the district court's ruling was incorrect, we next assess whether it was a “clear abuse of discretion” based on “extraordinary errors” leading to “a patently erroneous result .”⁹ We previously have granted writs of mandamus to correct erroneous denials of motions to transfer venue. E.g., Volkswagen II, 545 F.3d 304; Volkswagen I, 371 F.3d 201; In re Horseshoe Entm't, 337 F.3d 429. Radmax points out, and we agree, that those cases share striking similarities to this one.¹⁰

The main guidance from the en banc court in Volkswagen II, as it informs this case, is that the district court should have been fully aware of the inadvisability of denying transfer where only the plaintiff's choice weighs in favor of denying transfer¹¹ and where the case has no connection to the transferor forum and virtually all of the events and witnesses regarding the case—here, indeed all of those events, facts, witnesses, and other sources of proof—are in the transferee forum.¹² In Volkswagen II, 545 F.3d at 318, we classified as an “extraordinary error[ ]” the “fact that not a single relevant factor favors the [plaintiffs'] chosen venue.” Nothing in VolkswagenII even remotely hints that our evaluation of the facts there was limited to interdistrict transfers or to situations in which the venues were more than 100 miles apart.

The facts and circumstances of this case are wholly grounded in the transferee forum (the Tyler Division), which is a clearly more convenient venue, and this case has no connection to the Marshall Division. Under Volkswagen, a writ of mandamus is therefore compelled.

The petition for writ of mandamus and Radmax's motion for stay of proceedings in the district court are GRANTED.

I agree with the majority that the Gilbert factors, weighed properly, favor transfer in this case. But because I disagree that the district court's contrary ruling was a “clear abuse of discretion” based on “extraordinary errors” leading to “a patently erroneous result,” In re Volkswagen of Am., Inc. (“Volkswagen II”), 545 F.3d 304, 309, 318 (5th Cir.2008) (en banc), I respectfully dissent from the majority's grant of mandamus relief. In my view, this case differs meaningfully from Volkswagen II in several respects.

First, the proposed venue in Volkswagen II was 155 miles from the parties, witnesses, and evidence. Id. at 317. By contrast, the parties, witnesses, and evidence in this case are only 60 miles from the current venue. This adjusts the analysis with respect to three of the eight Gilbert factors: it brings the witnesses within the court's automatic subpoena power under Federal Rule of Civil Procedure 45; it lessens the concern regarding “the cost of attendance for willing witnesses”; and it similarly mitigates “other practical problems” associated with trial at a distant venue. In Volkswagen II, we found relevant that the non-party witnesses were “outside the Eastern District's subpoena power for deposition under Fed.R.Civ.P. 45(c)(3)(A)(ii),” so that “trial subpoenas for these witnesses to travel more than 100 miles would be subject to motions to quash under Fed.R.Civ.P. 45(c)(3).” Id. at 316 (quoting In re Volkswagen AG (“Volkswagen I”), 371 F.3d 201, 205 n. 4 (5th Cir.2004) (per curiam)). That concern is not present here. We noted also that “[w]itnesses not only suffer monetary costs, but also the personal costs associated with being away from work, family, and community.” Id. That concern is present here, but to a lesser degree. An hour's drive is an inconvenience, but it interferes less with a witness's job, family life, and community engagement. As we recognized in Volkswagen I,

[t]he task of scheduling fact witnesses so as to minimize the time when they are removed from their regular work or home responsibilities gets increasingly difficult and complicated when the travel time from their home or work site to the court facility is five or six hours one-way as opposed to 30 minutes or an hour.

371 F.3d at 205. Accordingly, the conclusion that this case should have been transferred, even if correct, does not follow ineluctably from Volkswagen II. See Volkswagen II, 545 F.3d at 312 n. 7 (“If the facts and circumstances are rationally capable of providing reasons for what the district court has done, its judgment based on those reasons will not be reviewed.” (quoting McGraw–Edison Co. v. Van Pelt, 350 F.2d 361, 363 (8th Cir.1965))).

Second, Volkswagen II involved inter-district transfer. Before today, we had not explored the distinction between intra-district and inter-district transfer, or taken a position on whether district courts enjoy the same degree of deference in both situations. District courts in this circuit have expressed divergent viewpoints on these matters.¹ Additionally, “[t]here is disagreement about whether the § 1404(a) factors apply to intradistrict-transfer motions.”² In re Marquette Transp. Co. Gulf–Inland, LLC, No. Civ. A. H–12–0623, 2012 WL 2375981, at *1 n. 1 (S.D.Tex.Jun.21, 2012). The majority persuasively fills these doctrinal gaps with citations to Moore's Federal Practice; that treatise may prove convincing, but it is not binding law. As noted above, there is an absence of circuit precedent pertaining to intra-district transfer, and, acting in the interstices, district courts have reached different conclusions. “This ambiguity provides another reason why the right is unclear for purposes of the writ of mandamus.” In re Pasquariello, 16 F.3d 525, 531 (3d Cir.1994). Just as error is not ordinarily considered “plain” when we “have not previously addressed an issue ․ [e]ven where the argument requires only extending authoritative precedent,” United States v. Evans, 587 F.3d 667, 671 (5th Cir.2009) (internal quotation marks omitted), abuse of discretion is not considered “clear” when we have not spoken on an issue and there is conceptual space for reasonable jurists to disagree, see DeGeorge v. U.S. Dist. Court for Cent. Dist. of Cal., 219 F.3d 930, 936–40 (9th Cir.2000) (denying mandamus petition because the district court faced a “difficult” issue that was “a question of first impression” that had divided lower courts); In re Reyes, 814 F.2d 168, 172 (5th Cir.1987) (Jones, J., dissenting) (“At the very least, it is imprudent to mandamus the district court in an area of ‘doubtful law.” ’).

Third, our court voiced concern in Volkswagen II that the district court “ignored our precedents.” 545 F.3d at 309. That concern does not exist here. The district court's opinion highlighted our precedents and included a discussion of each Gilbert factor. See In re Ramu Corp., 903 F.2d 312, 318 (5th Cir.1990) (concluding “that this matter is one of those extraordinary cases in which mandamus may be considered” in part because the district court, in a one sentence opinion, made no findings and cited no law). Several of the district court's findings that the majority corrects pertain to factors about which we had not, until today, elaborated guidance.³ In my view, the district court has demonstrated an experienced grasp of the context-specific considerations involved with intra-district transfer. See, e.g., La Day v. City of Lumberton, Tex., No. 2:011–CV–237 (JRG), 2012 WL 928352, at *4 (E.D.Tex. Mar.19, 2012) (granting motion for intra-district transfer); id. (“As in all transfer decisions, each set of facts is unique and must be decided on a case by-case basis.”). In denying this motion to transfer, the district judge adhered to similar rulings by other district courts in this circuit denying motions to transfer where the parties, witnesses, and evidence were fewer than 100 miles from the existing venue.⁴ These insights support my view that the transfer ruling in this case was not a “judicial usurpation of power” triggering mandamus rescission. Volkswagen II, 545 F.3d at 309 (“[M]andamus is an appropriate remedy for ‘exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion.’ ”).

I respectfully dissent.

PER CURIAM: