     Case: 11-60173 Document: 00511452604 Page: 1 Date Filed: 04/20/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            April 20, 2011

                                       No. 11-60173                         Lyle W. Cayce
                                                                                 Clerk

In Re: JEFF GIBSON; DOCTOR ROBERT SMITH; BATESVILLE
EMERGENCY PHYSICIANS, P.A.; BATESVILLE EMERGENCY
PHYSICIANS, INCORPORATED; BATESVILLE HOSPITAL
MANAGEMENT, INCORPORATED; PHYSICIANS AND SURGEONS
HOSPITAL GROUP, doing business as Tri-Lakes Medical Center,

                                                   Petitioners


  Petition for Writ of Mandamus to the United States District Court for the
                Northern District of Mississippi, Delta Division
                         (2:08-CV-81 & 2:08-CV-82)


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       The Petitioners are defendants in consolidated cases that were filed in the
Delta Division of the Northern District of Mississippi, which contains no
operational federal courthouse. Judge Pepper, whose duty station is in the
Greenville Division, set the trial there. The Petitioners seek a writ of mandamus
directing Judge Pepper to transfer the trial from Greenville to Oxford, which is
in the Western Division. For the reasons set forth below, we deny the writ.
                             Facts and Procedural History




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 11-60173

      We briefly recite the underlying facts: A vehicle driven by Lewis struck
a mail delivery vehicle that was on the sidewalk in front of Darby’s residence in
Sardis (Panola County), Mississippi.     The mail delivery vehicle struck and
injured Darby, and Lewis was killed in the collision. Lewis’s estate sued the
Batesville (Panola County), Mississippi hospital and emergency room physicians
and nurses (“the medical providers”), alleging that they failed to warn Lewis
that he should not drive after taking the medications that they had administered
to him. Darby sued the Postal Service under the Federal Tort Claims Act, and
also sued the medical providers for failing to warn Lewis not to drive. The suits
were filed in the Northern District of Mississippi.
      Panola County, where all of the alleged events occurred, is located in the
Delta Division of the Northern District of Mississippi. See 28 U.S.C. § 104(a)(3).
Both of the consolidated cases were filed in the Delta Division. The statute
provides that “[c]ourt for the Delta Division shall be held at Clarksdale and
Cleveland.” Id. However, there is no operational federal courthouse in either
of those towns, or for that matter anywhere in the Delta Division.
      The cases were assigned to Judge Pepper in accordance with a standing
order governing the division of cases among the judges of the Northern District
of Mississippi.   Judge Pepper’s duty station is the federal courthouse in
Greenville, which is in the Greenville Division of the Northern District of
Mississippi. See 28 U.S.C. § 104(a)(4). On December 30, 2009, pursuant to the
custom and policy of the judges in the Northern District of Mississippi to try
cases at their duty stations, Judge Pepper set the cases for trial in Greenville.
      Approximately six months later, in July 2010, the Petitioners (the medical
providers) filed a motion to transfer the trial from Greenville to Oxford, which
is in the Western Division of the Northern District of Mississippi. See 28 U.S.C.
§ 104(a)(2). Judge Pepper has not yet ruled on that motion. The Petitioners



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nevertheless filed a petition for a writ of mandamus in this court. They ask this
court to direct Judge Pepper to set the cases for trial in Oxford.
      The Petitioners argue that Oxford, rather than Greenville, is the proper
venue for the trial of a case filed in the Delta Division. They contend that Judge
Pepper exceeded his authority and abused his discretion under 28 U.S.C. §
1404(a) by transferring the location of the trial from Oxford to Greenville, over
the objection of the Petitioners, without also transferring venue. They maintain
that Judge Pepper ignored the convenience of the parties and witnesses and the
interests of justice, all of which weigh heavily in favor of trial in Oxford.
According to the Petitioners, the majority of the parties, witnesses and sources
of proof are located in Batesville and Sardis, which are less than 40 miles from
Oxford, while Greenville is more than 100 miles from Batesville and Sardis. The
Petitioners contend that a trial in Greenville will result in increased expense and
inconvenience for all of the parties. They also complain that, because of the jury
selection plan for the Northern District of Mississippi, which         puts Panola
County in the Western Division, no resident of Batesville or Sardis will ever
have the opportunity to serve as a juror in this litigation if the cases are tried in
the Greenville Division.
      The Plaintiffs and Judge Pepper have filed responses opposing mandamus.
The Plaintiffs argue that Judge Pepper’s setting of the trial in Greenville is an
appropriate exercise of discretion in this unusual situation where the statutorily
designated courthouse for the division in which the case is filed has been closed.
According to the Plaintiffs, the question is not the propriety of transfer of the
trial location from Oxford to Greenville, because the case was never set for trial
in Oxford. Instead, the question is whether the Petitioners have shown that the
trial should be moved from Greenville to Oxford, and they have not.             The
Plaintiffs state that their choice of venue is the Delta Division, for which trial
should be held in Clarksdale. Alternatively, the Plaintiffs prefer that the trial

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be held in Greenville. They note that geographically, Greenville, as Clarksdale,
is in the Delta region of the state, while Oxford is not. They also have presented
evidence that the demographics of the Greenville Division are more similar to
the demographics of the Delta Division than those of the Western Division.
      Judge Pepper states in his response (which was approved by all of the
judges in the Northern District of Mississippi) that the policy of the Northern
District judges to try cases at their duty stations conforms with the civil venue
provision of 28 U.S.C. § 1391(b) — that venue is proper in any district in which
a defendant resides, in which a substantial part of the events or omissions giving
rise to the claim occurred, or in which any defendant may be found. Judge
Pepper takes the position that section 1404(a) has no application here, because
the case was initially set for trial in Greenville, not transferred there, and that
Volkswagen does not apply to a district court’s exercise of discretion in an intra-
district context. He says that he did not act in reliance on § 1404 but that, even
if it applies, Petitioners bear the burden of showing that the convenience of the
parties and witnesses and the interest of justice strongly favor transfer.
           Northern District of Mississippi Policy & Standing Order
      Since 1999, a series of standing orders have governed the allocation of civil
cases filed in the Northern District of Mississippi. The current standing order
allocates half of the cases filed in a particular division to the resident active
district judge, and the remaining cases are divided among the other judges in the
Northern District. It is the policy of all of the judges in the Northern District to
try cases at their duty stations.
      Chief Judge Mills explained the reasons for the policy in Johnson v. Lewis,
645 F. Supp. 2d 578 (N.D. Miss. 2009). Those reasons are summarized as
follows:
      (1) Prevention of judge-shopping. Prior to its repeal in 1988, the divisional
venue statute, 28 U.S.C. § 1393, had limited plaintiffs in multi-divisional

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districts to filing suit in the division where the defendant resided. After that
statute was repealed, plaintiffs were free to file suit in any division in a district.
Chief Judge Mills stated that the judges of the Northern District sought to avoid
the perception that different forms of justice would be available to litigants,
depending upon the division in which a suit was filed, and to avoid a perception
that any particular division was a “fiefdom” of sorts, in which the idiosyncrasies
and preferences of one judge come to dominate the local litigation practice. 645
F. Supp. 2d at 582.
      (2) Avoidance of delays that would inconvenience litigants and slow the
administration of justice because of court congestion and the lack of available
courtrooms for judges conducting proceedings away from their duty stations.
      (3)    Avoidance of the administrative inconvenience and inability of the
judges to manage their dockets efficiently if they were required to maintain a
near-constant state of preparation to travel to various trials on their calendars.
      (4) Development of a jurisprudence applicable to the district as a whole
      (5) Lack of operational courthouses in the Delta Division. Chief Judge
Mills noted that the places specified in the statute for court to be held in cases
filed in the Delta Division, Cleveland and Clarksdale, had no operational
courthouses. Thus, of necessity, cases filed in the Delta Division could not be
tried in the locations specified by the statute.
      Judge Pepper cited another reason in his response to the petition for writ
of mandamus: the cost to taxpayers for judges and their staffs to travel away
from their duty stations to conduct trials.
      Chief Judge Mills acknowledged that this approach regrettably results in
some litigants and some witnesses having to travel longer distances than they
would have to travel if a particular district judge only heard cases in his or her
own division. However, he explained that it was the view of all of the Northern



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District judges that the quality and uniformity of justice is more important than
the driving distance some litigants might face in reaching those courtrooms.
      Chief Judge Mills pointed out that the district’s adoption of divisional
venue practices would not leave civil litigants unprotected, because a strong
showing of prejudice would make an intra-district transfer necessary and
appropriate. That is the same standard that this court has applied in criminal
cases. See United States v. Duncan, 919 F.2d 981, 985 (5th Cir. 1990). Chief
Judge Mills stated that he could “discern no unfairness to civil litigants by
applying the Duncan standard to the civil docket, since a criminal defendant
facing trial for his personal freedom faces much higher stakes than any civil
litigant.” 645 F. Supp. 2d at 583. Furthermore, Judge Mills stated that a strong
showing of prejudice was not the sole basis for a divisional transfer: “On a case-
by-case basis each court should determine if facts specific to a particular matter
counsel for a transfer. In so deciding the judges in the district would likely
consider the factors specified in In re Volkswagen as well as other factors such
as the timeliness of the request for relief.”    645 F. Supp. 2d at 584 n.7.
Unfortunately, the Petitioners in this case did not give Judge Pepper a chance
to consider whether they had made such a showing.          Instead, they sought
mandamus relief before he had ruled on their motion to transfer.
                            Standard for Mandamus
      A writ of mandamus “is an appropriate remedy for exceptional
circumstances amounting to a judicial usurpation of power or a clear abuse of
discretion.” In re Volkswagen of America, Inc., 545 F.3d 304, 309 (5th Cir. 2008)
(en banc) (internal quotation marks and citation omitted). Three requirements
must be satisfied before a writ of mandamus may be issued: (1) the petitioner
must have no other adequate means to obtain the relief requested; (2) the
petitioner must show a clear and indisputable right to the relief requested; and



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(3) the court, in its discretion, must be satisfied that issuance of the writ is
appropriate under the circumstances. Id. at 311.
      The Petitioners cannot show that they have no other adequate means to
obtain the requested relief, because they sought mandamus relief without
waiting for Judge Pepper to rule on their motion to transfer. As long as that
motion remains pending, there is a possibility that Judge Pepper will grant the
motion and transfer the trial setting from Greenville to Oxford. Mandamus
could be denied for this reason alone.
      The Petitioners argue that the district court lacks the authority to transfer
the location of the trial to another division, over the objection of Petitioners,
without transferring the venue of the entire action in accordance with the
standards applicable to transfers of venue under 28 U.S.C. § 1404.
      Section 1404 authorizes a court to transfer a case or a proceeding within
a case. It provides, in relevant part:
            (a) 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.

             (b) Upon motion, consent or stipulation of all parties, any
      action, suit or proceeding of a civil nature or any motion or hearing
      thereof, may be transferred, in the discretion of the court, from the
      division in which pending to any other division in the same district.
      Transfer of proceeding in rem brought by or on behalf of the United
      States may be transferred under this section without the consent of
      the United States where all other parties request transfer.

            (c) A district court may order any civil action to be tried at
      any place within the division in which it is pending.

28 U.S.C. § 1404.
      Subsection (a) authorizes the court to transfer venue of the entire action
for the convenience of the parties and witnesses, in the interest of justice.
Subsections (b) and (c) authorize the district court to transfer the location of

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proceedings, including trial, without also transferring venue of the entire action.
Subsection (b), by its terms, applies only when all of the parties consent.
      The Petitioners contend that the district court’s local practice is
inconsistent with § 1404. They contend further that, even if the Northern
District has properly adopted a practice of allowing district judges to try cases
at their duty stations, such a practice is invalid, because it is inconsistent with
28 U.S.C. §§ 104 and 1404. The Petitioners argue that the district court relied
on facts not relevant under Volkswagen, including the convenience of the court.
      The Petitioners have not demonstrated a usurpation of judicial power or
a clear abuse of discretion by the district court. Consequently, they cannot
establish that they have a clear and indisputable right to issuance of the writ.
The district court did not transfer the trial of these cases from Oxford to
Greenville; they were never set for trial in Oxford. Accordingly, the district court
did not act in a manner inconsistent with 28 U.S.C. § 1404(b), which authorizes
intra-district transfers of proceedings only when all of the parties consent or
agree. Although the trial setting in Greenville violates the statutory directive
that court for Delta Division cases is to be held at Clarksdale or Cleveland, there
is no operational federal courthouse at either of those locations. A writ of
mandamus will issue to correct only a clear abuse of discretion, Volkswagen, 545
F.3d at 309-10, and under these facts there is no clear abuse of discretion.
      The Petitioners’ reliance on this court’s grant of mandamus in In re:
Koppers Inc., No. 09-60127 (5th Cir. April 3, 2009), is misplaced. The order
granting mandamus in Koppers states only that “It is ordered that the petition
for writ of mandamus is granted.” It is difficult to see how that order creates
any binding precedent that must be followed under the facts of this case.
Moreover, Koppers is distinguishable; the plaintiffs in that case filed suit in the
Western Division (Oxford), and thus had a statutory right to have the case tried
in Oxford rather than Greenville. See 28 U.S.C. § 104(a)(2) (stating that “[c]ourt

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for the western division shall be held at Oxford”). Here, the plaintiffs filed suit
in the Delta Division, and they have no statutory right to have this case tried in
Oxford.
                                   Conclusion
      Even assuming that the Petitioners have satisfied the first two
requirements for issuance of a writ of mandamus, the issuance of the writ is not
appropriate under these circumstances. Accordingly, for the reasons we have
stated herein, the district court did not clearly abuse its discretion or reach a
patently erroneous result, and the petition for a writ of mandamus is
                                                                        DENIED.




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