     Case: 13-40462        Document: 00512279185          Page: 1     Date Filed: 06/18/2013




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

                                                                               FILED
                                                                             June 18, 2013
                                        No. 13-40462
                                                                             Lyle W. Cayce
                                                                                  Clerk

In re: RADMAX, LIMITED,

               Petitioner.




                           Petition for a Writ of Mandamus
                          to the United States District Court
                           for the Eastern District of Texas




Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:


       Radmax, Ltd. (“Radmax”), petitions for a writ of mandamus directing the
district court to transfer this case from the Marshall Division of the Eastern Dis-
trict 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


       1
         Mandamus petitions from the Marshall Division are no strangers to the federal courts
of appeals. See generally 17 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 111.61,
at 111-202 to 111-204 & nn. 9–11 (3d ed. 2013) (collecting cases). But see La Day v. City of
Lumberton, Tex., No. 2:011-CV-237, 2012 U.S. Dist. LEXIS 36431, at *6–*12 (E.D. Tex.
Mar. 19, 2012) (Gilstrap, J.) (granting motion for intra-district transfer from Marshall Division
and stating, “Transfer is appropriate where none of the operative facts occurred in the division
[of plaintiff’s choice] and where the division had no particular local interest in the outcome of
the case.”).
     Case: 13-40462        Document: 00512279185           Page: 2      Date Filed: 06/18/2013



                                         No. 13-40462

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 exer-
cise 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 dis-
trict 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 dis-
trict 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



       2
           This mandamus requirement is satisfied in the motion-to-transfer context:

       [A] petitioner “would not have an adequate remedy for an improper failure to
       transfer the case by way of an appeal from an adverse final judgment because
       [the petitioner] would not be able to show that it would have won the case had
       it been tried in a convenient [venue].” And the harm—inconvenience to wit-
       nesses, parties and other[s]—will already have been done by the time the case
       is tried and appealed, and the prejudice suffered cannot be put back in the bot-
       tle. Thus, the writ is not here used as a substitute for an appeal, as an appeal
       will provide no remedy for a patently erroneous failure to transfer venue.
In re Volkswagen of Am., Inc. (“Volkswagen II”), 545 F.3d 304, 318–19 (5th Cir. 2008) (en banc).
       3
         17 MOORE ET AL., supra note 1, § 111.21[2], at 111-154 to 111-155 (3d ed. 2013) (“[A]
transfer to another division in the same district will be granted if it is more convenient for the
parties and witnesses and is in the interest of justice.”) (citing, inter alia, Weber v. Coney, 642
F.2d 91, 93 (5th Cir. Unit A March 1981) (per curiam)).

                                                2
    Case: 13-40462          Document: 00512279185          Page: 3     Date Filed: 06/18/2013



                                         No. 13-40462

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 com-
pared 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 devel-
opments does not render this factor superfluous.”). Thus, because “[a]ll of the doc-
uments 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 con-
cluded that “this factor is neutral.”


      4
          Collectively, the “Gilbert factors,” see Gulf Oil Corp. v. Gilbert, 330 U.S. 501.

                                                3
     Case: 13-40462         Document: 00512279185         Page: 4    Date Filed: 06/18/2013



                                        No. 13-40462

       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 pro-
posed 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 trav-
eled.” 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 char-
acterized 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 circum-
stances,” 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


       5
           The distance is about sixty-two miles.
       6
          In its respectful response to the mandamus petitionSSa response we specifically
invited, see Federal Rule of Appellate Procedure 21(b)(4)SSthe district court opined that “it is
anticipated that [the requirement for obtaining mandamus] will rarely be satisfied in any case
involving a requested intra-district transfer between divisions within 100 miles of each other.”
Although we appreciate the court’s conscientious effort to rule correctly, its evaluation of the
100-mile factor, and of certain other factors that we have examined, is off the mark.

                                                4
     Case: 13-40462       Document: 00512279185         Page: 5     Date Filed: 06/18/2013



                                       No. 13-40462

garden-variety delay associated with transfer is not to be taken into considera-
tion 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 dis-
trict 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 trans-
fers.” 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 rea-
soned that a transfer would not present a conflict of law or require the applica-
tion of foreign law, and it concluded that this factor had no bearing on its trans-


       7
         We note that Radmax moved for change of venue promptlySSthree weeks after being
served with process. The district court ruled on the transfer motion 7½ months later, by which
time a trial setting has been established.

                                              5
     Case: 13-40462        Document: 00512279185           Page: 6     Date Filed: 06/18/2013



                                        No. 13-40462

fer 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 inadvisa-
bility 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



       8
        We do not suggestSSnor has this court heldSSthat a raw counting of the factors in each
side, weighing each the same and deciding transfer only on the resulting “score,” is the proper
methodology.
       9
         Volkswagen II, 545 F.3d at 309, 318; see also id. at 312 (“[W]e stress[ that ]in no case
will we replace a district court’s exercise of discretion with our own; we review only for clear
abuses of discretion that produce patently erroneous results.”).
       10
          E.g., id. at 315 (noting that “nothing [] ties this case to the Marshall Division except
plaintiffs’ choice of venue”).
       11
         In Volkswagen II, id. at 309, we noted that “the district court gave undue weight to
the plaintiffs’ choice of venue.”

                                                6
     Case: 13-40462      Document: 00512279185         Page: 7    Date Filed: 06/18/2013



                                     No. 13-40462

and virtually all of the events and witnesses regarding the caseSShere, indeed
all of those events, facts, witnesses, and other sources of proofSSare in the trans-
feree forum.12 In Volkswagen II, 545 F.3d at 318, we classified as an “extraor-
dinary error[]” the “fact that not a single relevant factor favors the [plaintiffs’]
chosen venue.” Nothing in VolkswagenII even remotely hints that our evalua-
tion 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 trans-
feree 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 pro-
ceedings in the district court are GRANTED.




       12
         In La Day, this same district judge made the wise decision that transfer was obvi-
ously compelled. See supra note 1.

                                            7
    Case: 13-40462     Document: 00512279185      Page: 8    Date Filed: 06/18/2013



                                  No. 13-40462

HIGGINSON, Circuit Judge, dissenting:
      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


                                         8
     Case: 13-40462         Document: 00512279185           Page: 9     Date Filed: 06/18/2013



                                         No. 13-40462

       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


       1
         Compare Liles v. TH Healthcare, Ltd., No. 2:11-cv-528-JRG, 2012 WL 3930616, at *6
(E.D. Tex. Sept. 10, 2012) (Gilstrap, J.) (“[C]ourts in this district view 1404(a) motions for
intra-district transfer of venue with heightened caution.”); Madden v. City of Will Point, Tex.,
No. 2:09-CV-250 (TJW), 2009 WL 5061837, at *3 (E.D. Tex. Dec. 15, 2009) (Ward, J.) (opining
that “greater deference [is] available to [district courts] when considering intra-district
transfers”), and Rios v. Scott, No. 1:02-CV-136, WL 32075775, at *4 (E.D. Tex. Jul. 13, 2002)
(Hines, M.J.) (“[T]rial courts should entertain Section 1404(a) motions for intra-district change
of venue with caution, and should not grant the requested relief unless the balancing of
convenience and public interest factors results in a firm conclusion that the proposed new
venue is decidedly more convenient and in the interest of justice.”), with Cantrell v. City of
Murphy, No. 6:09-cv-225, 2010 WL 786591, at *2 (E.D. Tex. Mar. 1, 2010) (Schneider, J.) (“The
§ 1404(a) analysis remains the same regardless of whether the party moves for an
inter-district or intra-district transfer.”).
       2
          See Carolei v. Texas Mesquite Connection, No. 3:11-CV-2811-L (BH), 2012 WL 3599460,
at *1 n.3 (N.D. Tex. Aug. 6, 2012) (“One district court in this circuit has questioned whether the
§ 1404(a) factors apply to intradistrict transfers, but the Fifth Circuit has not yet ruled on this
issue.”) (citation omitted); Johnson v. Lewis, 645 F. Supp. 2d 578, 583 (N.D. Miss. 2009) (opining
that “the Duncan standard should apply to purely divisional transfer issues in this district, since
[Volkswagen II] involved a transfer outside of a particular judicial district and is thus factually
distinguishable,” but expressing that Volkswagen II “might be applicable to a purely
                                                                                      (continued...)

                                                 9
    Case: 13-40462        Document: 00512279185          Page: 10      Date Filed: 06/18/2013



                                        No. 13-40462

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



       2
         (...continued)
intra-district transfer in a district which had not adopted its own divisional venue practices”);
ADS Sec. L.P. v. Advanced Detection Sec. Servs., Inc., No. A-09-CA-773 LY, 2010 WL 1170976,
at *2 n.2 (W.D. Tex. Mar. 23, 2010) (disagreeing with that position).

                                               10
    Case: 13-40462        Document: 00512279185           Page: 11      Date Filed: 06/18/2013



                                        No. 13-40462

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”


       3
          For example, we had not before ruled, but clarified today, that “[t]he § 1404(a) factors
apply as much to transfers between divisions of the same district as to transfers from one
district to another,” and that “garden-variety delay associated with transfer is not to be taken
into consideration when ruling on a § 1404(a) motion to transfer.” I would be especially
sensitive to the district court’s statement that “[t]he Fifth Circuit has established a threshold
of 100 miles when giving substantial weight to [the cost of attendance for witnesses],” and its
corresponding conclusion that because “Tyler is well less than 100 miles from Marshall. . . .
this factor is neutral.” As the majority remarks, we previously 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.” Volkswagen I, 371 F.3d at 204–05. And
our full court reiterated that guidance and characterized it as a 100-mile “threshold” or “rule.”
Volkswagen II, 545 F.3d at 317. I concur that it is unlikely that the full court intended to
imply 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 note that until today we had not
clarified our meaning.
       4
        See, e.g., Guzman v. Hacienda Records & Recording Studio, Inc., No. 6:12-CV-42, 2013
WL 623289 (S.D. Tex. Feb. 19, 2013) (Costa, J.); Hutchings v. MSHC Bonner Street Plaza,
LLC, No. 2:12-CV-00074-JRG-RSP, 2012 WL 3150824 (E.D. Tex. Aug. 2, 2012) (Payne, M.J.);
Moss v. Lockheed Martin Corp., No. 3:10-cv-1659-M, 2011 WL 197624 (N.D. Tex. Jan. 18, 2011)
(Lynn, J.); Madden, 2009 WL 5061837 (Ward, J.); Hovanas v. Am. Eagle Airlines, Inc., No.
3:09-CV-0209-B, 2009 WL 980111 (N.D. Tex. Apr. 8, 2009) (Boyle, J.).


                                               11
    Case: 13-40462    Document: 00512279185       Page: 12   Date Filed: 06/18/2013



                                  No. 13-40462

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.




                                        12
