    Case: 14-30510          Document: 00512884975          Page: 1     Date Filed: 12/30/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                         No. 14-30510                         United States Court of Appeals
                                                                                       Fifth Circuit

                                                                                     FILED
In re: ROLLS ROYCE CORPORATION,                                              December 30, 2014
                                                                                Lyle W. Cayce
                                                     Petitioner                      Clerk




                         Petition for a Writ of Mandamus to the
                          United States District Court for the
                              Western District of Louisiana


Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      This mandamus petition brings the question of who – the parties or the
court – determines in which judicial district a civil action is to proceed. In
Atlantic Marine Construction Company, 1 the Supreme Court held that when
all parties have entered into a forum selection contract, that contract controls,
except in exceptional circumstances, and the district court must transfer the
action to the agreed-upon district. 2 Here, we must address a related issue –
what should a district court do when some, but not all, litigants are subject to
a forum selection clause, and one of the parties to the clause files a motion to
sever and transfer its claims to the forum chosen in the contract.
      Faced with this situation, the district court refused to sever and transfer
the party claiming the benefit of the forum selection clause. We respectfully


      1   Atl. Marine Const. Co., Inc. v. U.S. Dist. Ct. W.D. Tex., 134 S. Ct. 568 (2013).
      2   See id. at 582.
     Case: 14-30510       Document: 00512884975         Page: 2    Date Filed: 12/30/2014



                                      No. 14-30510
disagree, persuaded that on these facts the forum selection contract must be
enforced and GRANT the petition for mandamus.
                                             I.
       The underlying litigation concerns the liability stemming from a
helicopter crash in the Gulf of Mexico. A Bell 407 helicopter owned by
Petroleum Helicopters, Inc. (“PHI”) allegedly suffered a failure of its number
two engine bearing, forcing the pilot to make an emergency landing in the Gulf.
During the landing, the pilot inflated the helicopter’s skid-mounted emergency
pontoon floats, which were designed to keep the helicopter from sinking. While
the pontoon bags worked long enough to allow a safe evacuation of passengers
and crew, one of the pontoons eventually failed, and the helicopter flipped,
rendering the aircraft a total loss.
           PHI brought suit in Louisiana state court against three parties: (1)
Rolls Royce Corporation (“Rolls Royce”), which designed and manufactured the
engine bearing, (2) Apical Industries, Inc. (“Apical”), which designed,
manufactured, and sold the pontoon flotation system, and (3) Offshore
Helicopter Support Services, Inc. (“OHS”), which repaired and reworked the
float system before the crash. The defendants timely removed on the basis of
diversity jurisdiction.
       Once in federal court, Rolls Royce moved to sever PHI’s claims against
the company, and to transfer those claims to the Southern District of Indiana. 3


       3 The motion to sever was filed pursuant to Federal Rule of Civil Procedure (“Rule”)
21 and the motion to transfer was filed pursuant to 28 U.S.C. § 1404(a).
       These motions were the second set of motions filed in this case. Rolls Royce had
originally filed a motion to dismiss under Rule 12(b)(3) or, in the alternative, to transfer
pursuant to 28 U.S.C. § 1404 or § 1406. The district court denied this motion without
prejudice, pending the Supreme Court’s release of its decision in Atlantic Marine, which
resolved a circuit split about whether a transfer motion pursuant to a forum selection clause
ought be brought pursuant to section 1404, section 1406, or Rule 12(b)(3). After Atlantic
Marine ruled that section 1404 was the proper vehicle, 134 S. Ct. at 580, Rolls Royce renewed
its motion – and that motion is the one at issue in this case.
                                             2
     Case: 14-30510       Document: 00512884975         Page: 3     Date Filed: 12/30/2014



                                       No. 14-30510
It relied on a forum selection clause in a warranty to which the engine bearing
was subject, which stated, in relevant part:
       Any controversy or claim arising out of or relating to this Limited
       Warranty or breach thereof shall be litigated only in the Circuit or
       Superior Courts of Marion County, Indiana or of the United States
       District Court for the Southern District of Indiana, Indianapolis
       Division. In connection with the foregoing, the Purchaser consents
       to the jurisdiction and venue of such courts and expressly waives
       any claims or defenses of lack of jurisdiction or proper venue by
       such courts.

Apical and OHS, neither of whom were subject to a forum selection clause,
opposed the severance and transfer, as did PHI.
       The district court denied the motion. 4 First, it determined that the entire
action could not be transferred to Indiana. 5 Second, the court turned to the
issue of whether severance under Federal Rule of Civil Procedure (“Rule”) 21
was warranted. The court articulated five factors that district courts had used
in analyzing a severance motion, and concluded that each weighed against




       4   The district court originally referred this motion to a magistrate judge, who
recommended denying transfer. PHI, Inc. v. Apical Indus., No. 13-CV-00015, 2014 WL
1820717 (W.D. La. Mar. 7, 2014). The district court adopted the magistrate judge’s report,
with only minor clarifications. Petroleum Helicopters, Inc. v. Apical Indus., Inc., No. 13-CV-
0015, 2014 WL 1820859 (W.D. La. May 6, 2014). We refer to both decisions together as “the
district court.”
        5 See PHI, 2014 WL 182, at *2-4. The court could not transfer the case pursuant to 28

U.S.C. § 1404(a) because that section allows transfer only to a district in which the action
could have been brought, or where all parties consent. The court assumed that the Indiana
district court would lack personal jurisdiction over OHS, and so the action could not have
been originally brought in that district. See Hoffman v. Blaski, 363 U.S. 335, 343-44 (1960).
Furthermore, only Rolls Royce consented to transfer. PHI, 2014 WL 1820717, at *4.
        Nor could the court transfer the case pursuant to 28 U.S.C. § 1406(a), since that
statute allows transfer only when the action was brought “in the wrong division or district,”
28 U.S.C. § 1406(a), and here, the Western District of Louisiana was the proper district. PHI,
2014 WL 1820717, at *4.
                                              3
     Case: 14-30510       Document: 00512884975         Page: 4    Date Filed: 12/30/2014



                                      No. 14-30510
severance. 6 As a result, there was no basis for a transfer. 7 Finally, the district
court considered whether the Supreme Court’s decision in Atlantic Marine
mandated transfer. It held that it did not. The district court determined that
key difference between this case and Atlantic Marine was that not all parties
to the litigation had signed a forum selection contract.                Reading Atlantic
Marine to mandate severance and transfer of the party to the contract, the
district court reasoned, “would not further the Supreme Court’s stated goal in
Atlantic Marine of not disrupting the expectations of parties who bargained for
litigation in a particular forum but would, instead, potentially inconvenience
and prejudice parties having absolutely no relationship to a forum-selection
clause they had no part in conferring.” 8
       Following the denial of its severance-and-transfer motion, Rolls Royce
petitioned this court for mandamus relief. 9
                                             II.
       A writ of mandamus is an “extraordinary remedy,” 10 and may only issue
if three criteria are met:
       First, the party seeking issuance of the writ [must] have no other
       adequate means to attain the relief he desires, a condition
       designed to ensure that the writ will not be used as a substitute
       for the regular appeals process. Second, the petitioner must satisfy
       the burden of showing that [his] right to issuance of the writ is
       clear and indisputable. Third, even if the first two prerequisites
       have been met, the issuing court, in the exercise of its discretion,


       6 PHI, 2014 WL 1820717, at *5 (“Numerous district courts in the Fifth Circuit have
held that the following factors should be considered when deciding whether a claim should
be severed under Rule 21: (1) whether the claims arose out of the same transaction or
occurrence, (2) whether the claims present common questions of law or fact, (3) whether
settlement or judicial economy would be promoted, (4) whether prejudice would be averted
by severance, and (5) whether different witnesses and documentary proof are required.”).
       7 See id. at *7.
       8 Id. at *10.
       9 It did not seek certification for an interlocutory appeal under 28 U.S.C. § 1292(b).
       10 Will v. United States, 389 U.S. 90, 95 (1967).

                                             4
     Case: 14-30510        Document: 00512884975          Page: 5     Date Filed: 12/30/2014



                                        No. 14-30510
       must be satisfied that the writ is appropriate under the
       circumstances. 11

“These hurdles, however demanding, are not insuperable.” 12 We consider each
in turn.
                                               A.
       First, Rolls Royce must show that mandamus is its exclusive vehicle to
seek relief. It does. Our court, in accord with our sister circuits, has held
“mandamus is an appropriate means of testing a district court’s [section]
1404(a) ruling.” 13 Other means for review are unavailable. Rolls Royce cannot
appeal an adverse final judgment under 28 U.S.C. § 1391, because it “would
not been able to show that it would have won the case,” had the action been
litigated in its desired forum. 14 While the Supreme Court has crafted a narrow
exception to the final order doctrine, termed the “collateral order doctrine” or
“Cohen exception,” 15 we have previously held that transfer orders do not fall
within the scope of this doctrine. 16 Nor can Rolls Royce bring an interlocutory
appeal under 28 U.S.C. § 1292(b), as our circuit precedent forecloses reviews of
transfer orders under that statute. 17 Apical and OHS argue otherwise, saying
that certification is available, because the district court’s order contained a


       11  Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367, 380-81 (2004)
(alterations in original) (citations and internal quotation marks omitted).
       12 In re Volkswagen of Am., Inc., 545 F.3d 304, 311 (5th Cir. 2008) (en banc) (quoting

Cheney, 542 U.S. at 381).
       13 Id. at 309.
       14 Id. at 319 (quoting In re Nat’l Presto Indus, Inc., 347 F.3d 662, 663 (7th Cir. 2003)).
       15 Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). “To fall within

Cohen’s collateral order doctrine, an ‘order must (1) conclusively determine the disputed
question, (2) resolve an important issue completely separate from the merits of the action,
and (3) be effectively unreviewable on appeal from a final judgment.” Henry v. Lake Charles
Am. Press, L.L.C., 566 F.3d 164, 171 (5th Cir. 2009) (quoting Coopers & Lybrand v. Livesay,
437 U.S. 463, 468 (1978)).
       16 See Brinar v. Williamson, 245 F.3d 515, 517 (5th Cir. 2001).
       17 See Volkswagen. 545 F.3d at 319 (citing Garner v. Wolfinbarger, 433 F.2d 117, 120

(5th Cir. 1970)).
                                               5
     Case: 14-30510       Document: 00512884975          Page: 6     Date Filed: 12/30/2014



                                       No. 14-30510
cognizable “controlling question of law.” 18 We have, though, squarely rejected
this conclusion, holding that “[t]he Congressional policy against piecemeal
appeals, as expressed in the final judgment rule, to which [section] 1292(b) is
a narrow exception, is eroded by permitting review of exercise of the judge’s
discretion under [section] 1404(a) as a ‘controlling question of law.’” 19
       There is one complication - the district court did not rule on a transfer
motion, but a joint transfer and severance motion. While we have previously
held that the denial of a standalone Rule 21 severance motion can be
challenged through an appeal of a final judgment, 20 we believe that the
combination of transfer and severance inquiries dictates a different response.
As the Federal Circuit, addressing whether mandamus was available to review
the denial of a transfer and severance motion, concluded:
       With regard to the ‘no other means’ requirement, there is no
       meaningful distinction between a petitioner’s seeking review of an
       order denying transfer because the district court clearly abused its
       discretion in applying the [section] 1404(a) factors and a
       petitioner’s seeking review of an order denying a motion to transfer
       because the district court clearly abused its discretion by not
       severing the claims as a predicate to determining whether to
       transfer. In either case, a defendant would not have an adequate
       remedy for an improper failure to transfer or sever . . . . 21

We agree.       Because the transfer order is unreviewable except through
mandamus, and because the severance inquiry is, as will be discussed later,
inextricably linked to the transfer analysis, we conclude that there are no other
means for review of the district court’s order but through mandamus.


       18  28 U.S.C. § 1292(b).
       19  Garner, 433 F.2d at 120 (citing 28 U.S.C. § 1292(b)). Our court, sitting en banc,
reaffirmed this conclusion in Volkswagen. 545 F.3d at 319.
        20 See United States v. O’Neill, 709 F.2d 361, 371-72 (5th Cir. 1983); see also Amie v.

City of Jennings, 217 F. App’x 338, 338-39 (5th Cir. 2007) (unpublished). These decisions do
not discuss the potential of mandamus review under such circumstances.
        21 In re EMC Corp., 677 F.3d 1351, 1354-55 (Fed. Cir. 2012)

                                              6
    Case: 14-30510       Document: 00512884975           Page: 7     Date Filed: 12/30/2014



                                      No. 14-30510
                                             B.
      We turn now to whether Rolls Royce’s right to mandamus relief is “clear
and indisputable.” 22 We look to whether there has been a “clear abuse of
discretion,” which, under our circuit precedent, includes situations where the
district court “relies on erroneous conclusions of law” which “produce a patently
erroneous result.” 23
      We conclude that, in this instance, the district court erred in refusing to
transfer Rolls Royce in accordance with its forum selection clause and in light
of the Supreme Court’s decision in Atlantic Marine. This said, we do not read
Atlantic Marine to mandate severance and transfer of a party bearing a forum
selection clause in all multiparty cases, regardless of countervailing
considerations of judicial economy.
                                              1.
      By the light of Atlantic Marine, 24 we analyze a transfer motion brought
by a party seeking to enforce a forum-selection cause pursuant to 28 U.S.C. §
1404. 25 Section 1404, in turn, provides that “[f]or 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.” 26
      We begin with the purpose of section 1404, by which Congress granted
to the federal district court the power to allocate cases and controversies among
federal district courts. The Supreme Court made plain that this grant of
authority was intended to afford a powerful tool to bring forth efficient judicial
case management among the various federal courts. The statute “should be


      22 Volkswagen, 545 F.3d at 311.
      23 Id. at 310.
      24 Atl. Marine Const. Co., Inc. v. U.S. Dist. Ct. W.D. Tex., 134 S. Ct. 568 (2013).
      25 Id. at 579-80.
      26 28 U.S.C. § 1404(a).

                                              7
     Case: 14-30510        Document: 00512884975           Page: 8      Date Filed: 12/30/2014



                                         No. 14-30510
regarded as a federal judicial housekeeping measure, dealing with the
placement of litigation in the federal courts and generally intended, on the
basis of convenience and fairness, simply to authorize a change of
courtrooms.” 27 These factors, in turn, are measured across two dimensions:
the interests of the litigants, and the interests of the public and judicial system
writ large. 28
       Animating the former are considerations governing the cost and ease of
litigation. 29 Animating the latter are a broader set of concerns, ranging from
the interest in having a case involving local disputes and local law resolved by
a local court, 30 to facilitating judicial economy and avoiding duplicitous
litigation. 31     This inquiry necessarily requires the district court to
“balance a number of case-specific factors,” and the Supreme Court has


       27  Van Dusen v. Barrack, 376 U.S. 612, 636-37 (1964).
       28  See Atl. Marine, 134 S. Ct. at 581; see also Wright & Miller, Fed. Prac. & Proc. §
3854 (4th ed. 2014) (“[I]t has long been clear that the interest of justice is a factor (albeit an
amorphous and somewhat subjective one) to be considered on its own and that is very
important.”).
        29 See, e.g., Atl. Marine, 134 S. Ct. at 581 n.6 (“Factors relating to the parties’ private

interests include ‘relative cost of access to sources of proof; availability of compulsory process
for attendance of unwilling, and the cost of obtaining attendance of willing witnesses . . . and
all other practical problems that make trial of a case easy, expeditious and inexpensive.”)
(quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)).
        30 See id. (“Public-interest factors may include ‘the administrative difficulties flowing

from court congestion; the local interest in having localized controversies decided at home;
[and] the interest in having the trial of a diversity case in a forum that is at home with the
law.”) (quoting Piper Aircraft, 454 U.S. at 241 n.6) (brackets in original).
        The Atlantic Marine court was careful to note that these factors are illustrative, not
exhaustive. We have held the same. See In re Volkswagen of Am., Inc., 545 F.3d 304, 315
(5th Cir. 2008) (en banc) (holding that the Piper Aircraft factors “are not necessarily
exhaustive or exclusive”); Action Indus. Inc. v. U.S. Fid. & Guar. Co., 384 F.3d 337, 340 (5th
Cir. 2004) (holding that no single Piper Aircraft factor “can be said to be of dispositive
weight”).
        31 See, e.g., Cont’l Grain Co. v. The FBL-585, 364 U.S. 19, 26 (1960) (“To permit a

situation in which two cases involving precisely the same issues are simultaneous pending
in different District Courts leads to the wastefulness of time, energy and money that [section]
1404 was designed to prevent.”); In re Volkswagen of Am., Inc., 566 F.3d 1349, 1351 (Fed. Cir.
2009) (highlighting the importance of judicial economy when determining a section 1404
transfer).
                                                8
     Case: 14-30510       Document: 00512884975          Page: 9     Date Filed: 12/30/2014



                                       No. 14-30510
cautioned that a section 1404 transfer inquiry requires an “individualized,
case-by-case consideration of convenience and fairness.” 32
       When the parties hold a valid forum selection clause, Atlantic Marine
alters the normal section 1404 analysis. As is most relevant here, the district
court cannot independently weight the parties’ private interests, but must
deem such interests to weigh in favor of the preselected forum, the parties
having struck that balance by their selection contract. 33 Accordingly, only the
public-interests may weigh against transfer, and “[b]ecause those factors will
rarely defeat a transfer motion, the practical result is that the forum-selection
clauses should control except in unusual cases.” 34
                                                  2.
       For cases where all parties signed a forum selection contract, the
analysis is easy: except in a truly exceptional case, the contract controls. But
not so where, as here, not all parties to the lawsuit have entered into a forum
selection agreement.          The petitioner urges, as does our colleague in
concurrence, that the analysis – and the result – follow pari passu with Atlantic
Marine. With respect, we believe the answer is more complicated.
                                                  a.
       In terms of the party who signed the agreement, Atlantic Marine is clear
– the court cannot consider private-interest factors that counsel against


       32 Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting, second, Van Dusen v.
Barrack, 376 U.S. 612, 622 (1964)).
       33 See Atl. Marine, 134 S. Ct. at 582 (“When parties agree to a forum-selection clause,

they waive the right to challenge the preselected forum as inconvenient or less convenient
for themselves or their witnesses, or for their pursuit of the litigation. A court accordingly
must deem the private-interest factors to weigh entirely in favor of the preselected forum.”).
       34 Id. The Court held that the presence of a forum-selection clause wrought two

additional changes to the section 1404 analysis: first, that “the plaintiff’s choice of forum
merits no weight,” and, second, that “when a party bound by a forum-selection clause flouts
its contractual obligation and files suit in a different forum, a [section] 1404(a) transfer of
venue will not carry with it the original venue’s choice-of-law rules – a factor that in some
circumstances may affect public-interest considerations.” Id. at 581-82.
                                              9
    Case: 14-30510         Document: 00512884975           Page: 10     Date Filed: 12/30/2014



                                         No. 14-30510
transfer to the agreed-upon forum. But the analysis differs when there are
parties who have not entered into any forum-selection contract. First, Atlantic
Marine was premised on the fact that the parties had agreed in advance where
their private litigation interests lie, and the reviewing court had no cause to
disturb those expectations. 35 A litigant not party to such a contract did not, of
course, make any such advance agreements and their private interests must
still be considered by the district court. 36 As such, the section 1404 analysis,
modified by Atlantic Marine, might point in the direction of one judicial district
for the forum-selection clause parties, and in another direction for the parties
without a preexisting agreement.
       A properly conducted section 1404 inquiry may well require a district
court to send different parties to pursue the same suit in different districts,
implicating concerns attending parallel lawsuits not present in Atlantic
Marine. While Atlantic Marine noted that public factors, standing alone, were
unlikely to defeat a transfer motion, 37 the Supreme Court has also noted that
section 1404 was designed to minimize the waste of judicial resources of
parallel litigation of a dispute. 38           The tension between these centrifugal


       35  See id. at 582 (“When the parties agree to a forum-selection clause, they waive the
right to challenge the pre-selected forum . . . .”).
        36 Atlantic Marine is premised on the idea that a forum selection clause is a contract

between two parties, and that that contract must be honored. See, e.g., id. at 581-82
(concluding that “the plaintiff’s choice of forum merits no weight,” and that the private
interests are not relevant because “[w]hen parties agree to a forum selection clause, they
waive the right to challenge the preselected forum”) (emphasis added). The Court is silent
with respect to situations where, as here, there are third-party externalities at play –
specifically the presence of objecting defendants who have not signed any forum selection
agreement.
        37 Id. at 582.
        38 See Cont’l Grain Co. v. The FBL-585, 34 U.S. 19, 26 (1960); see also U.S.O. v. Mizuho

Holding Co., 547 F.3d 749, 750 (7th Cir. 2008) (holding, in the forum non conveniens context,
that parallel litigation concerns justified dismissing a case filed in a domestic court, as
“[t]here is no reason for identical suits to be proceeding in different courts”); Coady v. Ashcraft
& Gerel, 223 F.3d 1, 10-11 (1st Cir. 2000) (concluding that the goal of avoiding parallel
litigation justified transferring all cases to a single judicial district).
                                               10
    Case: 14-30510        Document: 00512884975          Page: 11     Date Filed: 12/30/2014



                                       No. 14-30510
considerations suggests that the need – rooted in the valued public interest in
judicial economy – to pursue the same claims in a single action in a single court
can trump a forum-selection clause.
                                                   b.
       There is more. To transfer the claims of the forum-clause defendant, the
district court would first have to sever those claims from the claims of the non-
forum clause defendants, which remain in the original district.                            The
petitioner’s answer is that Atlantic Marine vitiates the traditional severance
analysis in multiparty cases. This is not so clear.
       A district court has wide discretion to sever a claim against a party into
separate cases, 39 in vindication of public and private factors. 40 Though we have
not squarely addressed the issue, our jurisprudence suggests that the
severance inquiry is different – and more focused on judicial efficiency – when
it is combined with a section 1404 motion to transfer than when the severed
case would remain in the original judicial district. In Liaw Su Teng v. Skaarup
Shipping Corporation, 41 addressing the situation where a court could transfer



       39  See Applewhite v. Reichold Chems., Inc., 67 F.3d 571, 574 (5th Cir. 1995); Burnet v.
United Gas Pipeline Co., 15 F.3d 500, 505 (5th Cir. 1994).
        40 While our circuit has not formally adopted a severance test, our district courts have

settled on a standard which accords with that used in other circuits. See, e.g., Paragon Office
Servs., LLC v. UnitedHealthcare Ins. Co., Inc., No. 3:11-CV-2205-D, 2012 WL 4442368, at *1
(N.D. Tex. Sept. 26, 2012) (defining Rule 21 factors as “(1) whether the claims arise out of the
same transaction or occurrence; (2) whether the claims present some common questions of
law or fact; (3) whether settlement of the claims or judicial economy would be facilitated; (4)
whether prejudice would be avoided if severance were granted; and (5) whether different
witnesses and documentary proof are required for the separate claims.”) (quoting Morris v.
Northrop Grumman Corp., 37 F. Supp. 2d. 55, 580 (S.D.N.Y. 1999)); see also Wright & Miller,
Fed. Prac & Proc. § 1689 (3d ed. 2004) (“Even when venue is proper to all defendants, the
court may sever a claim against a party and transfer it to a more convenient forum or sever
an unrelated claim and give it separate treatment when doing so would be in the interest of
some or all of the parties. On the other hand, severance will be refused if the court believes
that it only will result in delay, inconvenience, or added expense.”).
        41 743 F.2d 1140 (5th Cir. 1984), overruled on other grounds, In re Air Crash Disaster

Near New Orleans, La. on July 9, 1982, 821 F.2d 1147 (5th Cir. 1987).
                                              11
    Case: 14-30510        Document: 00512884975          Page: 12     Date Filed: 12/30/2014



                                       No. 14-30510
some but not all parties, 42 we suggested that when considering a severance-
and-transfer motion, the inquiry collapsed into an inquiry into the relative
merits of convenience versus judicial economy. We held that when addressing
a severance-and-transfer request:
       [T]he court must weigh carefully whether the inconvenience of
       splitting the suit outweighs the advantages to be gained from the
       partial transfer. It should not sever if the defendant over whom
       jurisdiction is retained is so involved in the controversy to be
       transferred that partial transfer would require the same issue to
       be litigated in two cases. That being the situation here, the district
       court should not have severed the claims if there were any
       alternative.      Manifestly, the plaintiffs will suffer some
       inconvenience if they are forced to litigate their claims in two
       courts, half the world apart from each other, with not only the
       consequent added expense and inconvenience but also the possible
       detriment of inconsistent results. A single forum is also most
       suitable for determining possible counter- and cross-claims. The
       public also has an interest in facilitating a speedy and less-
       expensive determination in one forum of all of the issues arising
       out of one episode. 43


       Several of our sister circuits have also collapsed the severance-and-
transfer analysis into a single inquiry into judicial economy. In White v. ABVO
Engineering Corporation, 44 the Third Circuit held that a severance motion is
distinct from, and precedes, a transfer motion, but that “[b]efore effecting such
a severance, a judge should weigh the convenience to the parties requesting
transfer against the potential inefficiency of litigating the same facts in two




       42 At the time, as per Hoffman v. Blaski, 363 U.S. 335, 343-44 (1960), a court could
transfer an action only to a judicial district in which the court could have properly exercised
personal jurisdiction and venue over the defendant. Under the current version of section
1404, a federal district court may now transfer a case to any “district or division to which all
parties have consented.” 28 U.S.C. § 1404(a).
       43 Liaw Su Teng, 743 F.2d at 1148-49.
       44 199 F.3d 140 (3d Cir. 1999).

                                              12
   Case: 14-30510       Document: 00512884975         Page: 13     Date Filed: 12/30/2014



                                     No. 14-30510
separate forums.” 45     The court did note that the analytical question was
essentially whether “the interests of judicial economy dictated . . . a severance
and transfer.” 46    The Second Circuit has similarly held that “where the
administration of justice would be materially advanced by severance and
transfer, a district court may properly sever the claims against one or more
defendants for the purpose of permitting the transfer of the action against the
other defendants.” 47 While judicial economy is not the sole consideration for a
district court facing a severance-and-transfer motion, it retains a cardinal role.
      It is true that Atlantic Marine does not speak directly to the issue of
severance. Yet, its principal conclusion that a reviewing court cannot consider
the private interests of a party who entered into a forum selection clause
remains relevant to a severance-and-transfer inquiry. 48 We are persuaded
that the severance-and-transfer inquiry in situations where some but not all
parties have entered into a forum selection clause ought go as follows: First,
pursuant to Atlantic Marine, the private factors of the parties who have signed
a forum agreement must, as matter of law, cut in favor of severance and
transfer to the contracted for forum. Second, the district court must consider
the private factors of the parties who have not signed a forum selection
agreement as it would under a Rule 21 severance and section 1404 transfer
analysis.    Finally, it must ask whether this preliminary weighing is
outweighed by the judicial economy considerations of having all claims
determined in a single lawsuit. In so determining, the district court should
consider whether there are procedural mechanisms that can reduce the costs
of severance, such as common pre-trial procedures, video depositions,



      45 Id. at 144.
      46 Id. at 145.
      47 Wyndham Assoc. v. Bintliff, 398 F.2d 614, 618 (2d. Cir. 1968).
      48 Atl. Marine Const. Co., 134 S. Ct. at 582.

                                            13
    Case: 14-30510        Document: 00512884975           Page: 14      Date Filed: 12/30/2014



                                        No. 14-30510
stipulations, etc. Such practices could echo those used by judges in cases
managed pursuant to multidistrict litigation statutes. 49
       This is necessarily a fact-sensitive analysis, and while we agree that
Atlantic Marine informs the analysis, we cannot conclude that it categorically
requires severance-and-transfer in all situations.                  By failing to properly
consider the impact of Atlantic Marine in considering the severance and
transfer motion, we conclude that the district court erred in its construction of
law, and thus mandamus is appropriate. 50
                                                    c.
       We recognize that that a large percentage of the federal judiciary’s
business is conducted through the use of the multidistrict litigation process. 51
Strictly speaking, Atlantic Marine does not implicate transfer decisions by the
Panel on Multidistrict Litigation. Those decisions are made pursuant to 28
U.S.C. § 1407, while Atlantic Marine, by its terms, only speaks to transfer
motions brought under section 1404(a). 52 Nonetheless, because Congress set
similar considerations to guide treatment of transfer motions in both
contexts, 53 we believe that Atlantic Marine’s reasoning informs MDL practice.
       Whether a case is to be transferred to an MDL docket is not our decision
to make. 54 We note, however, that judicial economy is of significant concern to



       49   See, e.g., Sean J. Griffith & Alexandra D. Lahav, The Market for Preclusion in
Merger Litigation, 66 Vand. L. Rev. 1053, 1134 (2013).
         50 See In re Volkswagen of Am., Inc., 545 F.3d 304, 310 n.4 (5th Cir. 2008) (en banc).
         51  See U.S. Judicial Panel on Multidistrict Litigation: Pending MDLS,
http://www.jpml.uscourts.gov/pending-mdls-0 (reporting that, as of December 15, 2014,
127,105 pending district court cases have been consolidated into 289 MDL dockets).
         52 See Atl. Marine Const. Co., 134 S. Ct. at 579.
         53 Compare 28 U.S.C. § 1404(a) (a district court may transfer a case “[f]or the

convenience of parties and witnesses, in the interest of justice”), with 28 U.S.C. § 1407(a) (the
multidistrict panel may transfer cases “for the convenience of parties and witnesses and [if
it] will promote the just and efficient conduct of such actions”).
         54 See 28 U.S.C. § 1407(a) (judicial panel on multidistrict litigation is responsible for

transferring cases to a consolidated multidistrict panel).
                                               14
    Case: 14-30510       Document: 00512884975          Page: 15     Date Filed: 12/30/2014



                                       No. 14-30510
a MDL transfer decision and often parallels private interests – more so than
for the mine-run transfer – and so while Atlantic Marine may counsel against
such consolidation in a marginal case, its independent force is much dissipated
in the world of MDL.
                                                   d.
       Our concurring colleague posits that we have misconstrued Atlantic
Marine. We must respectfully disagree. In our view, as we said earlier, the
Supreme Court’s central teaching in Atlantic Marine is that when parties
contractually agree on a choice of forum clause, that agreement dictates the
result of any “private factor” inquiry under a transfer, or as here, severance
motion. At the same time, the Supreme Court made plain that public interest
factors are to be considered when present. In day-to-day operation the public
interest factors will seldom impede enforcement. Atlantic Marine signifies that
of the universe of federal multiple-party, multiple-district civil cases, few will
be affected by this decision. A significant percentage of multi-party cases,
representing about 40 percent of the federal civil case load, are managed
through MDL dockets. 55          These cases are to be transferred back to their
original forum for trial; a right only reinforced by the presence of a contracted-




       55 A word about how we calculated this statistic. According to the Judicial Panel on
Multidistrict Litigation, as of September 30, 2014, there were 127,704 civil actions currently
pending and assigned to an MDL docket. See U.S. Judicial Panel on Multidistrict Litigation,
Statistical      Analysis     of    Multidistrict    Litigation,    Fiscal     Year,      2014,
http://www.jpml.uscourts.gov/sites/jpml/files/JPML_Statistical_Analysis_of_Multidistrict_L
itigation-2014_0.pdf. As per the Administrative Office of the U.S. Courts, as of June 30, 2014,
the last time period for which data was available, there were 334,141 civil cases pending in
the federal district courts, of which 287,801 were private civil actions. See Table C-1,
Statistical            Tables         for           the           Federal           Judiciary,
http://www.uscourts.gov/uscourts/Statistics/StatisticalTablesForTheFederalJudiciary/2014/j
une/C01Jun14.pdf. Assuming that the pending MDL case load was similar in June 2014 and
September 2014, MDL cases would represent approximately 38% of all civil cases and 44% of
all private civil cases.
                                              15
    Case: 14-30510       Document: 00512884975          Page: 16     Date Filed: 12/30/2014



                                       No. 14-30510
for forum. 56 The choice of law implicit in that contract would also be assured. 57
The multi-party cases not in need of MDL management by definition present
a much weaker call upon the public interest. And, as here, careful pre-trial
management will allow the district courts to sever and transfer the contracting
litigant while minimizing prejudice to the remaining parties.                   Nor do we
suggest that merely joining a party to the suit will defeat a severance motion
pursuant to a valid forum contract – certainly not when joined in a transparent
effort to defeat the transfer. Our district judges are best situated to balance
the competing interests and prudently exercise their judgment in determining
how the business of the federal courts is to be allocated, giving the contracted-
for choice of forum its due. Such management is indeed their hallmark.
                                                  C.
       Here, the district court erred in not considering Rolls Royce’s forum-
selection clause when conducting its severance-and-transfer analysis. 58
Moreover, there is no evidence in the record indicating special administrative
difficulties with severance, or that the interests of the defendants not privy to
the clause would be significantly threatened. It remains that such interests
can be secured by the hand of an experienced federal trial judge with such
devices as common discovery among separated cases and sequencing of any
dispositive motions or trials.         As we recognized in Volkswagen “writs of




       56 See 28 U.S.C. § 1407(a) (“Each action so transferred shall be remanded by the panel
at or before the conclusion of such pretrial proceedings to the district from which it was
transferred . . . .”).
       57 See In re Air Disaster at Ramstein Air Base, Germany, on 8/29/90, 81 F.3d 570, 576

(5th Cir. 1996) (“When a transferee court presides over several diversity actions consolidated
under the multidistrict rules, the choice of law rules of each jurisdiction in which the
transferred actions were originally filed must be applied.”).
       58 See Phi, Inc. v. Apical Indus., Inc., No. 6:13-CV-00015, 2014 WL 1820717, at *5-6

(W.D. La. Mar. 7, 2014).
                                             16
    Case: 14-30510       Document: 00512884975           Page: 17    Date Filed: 12/30/2014



                                       No. 14-30510
mandamus are supervisory in nature and are particularly appropriate when
the issues also have an importance beyond the immediate case.” 59
                                                  III.
       The mandamus petition is GRANTED. The judgment of the district
court is REVERSED and this case is REMANDED with instructions to sever
and transfer the claims against Rolls Royce.




       59 Volkswagen, 545 F.3d at 319 (“Because venue transfer decisions are rarely reviewed,
the district courts have developed their own tests, and they have applied these tests with too
little regard for consistency of outcomes.”).
                                             17
    Case: 14-30510        Document: 00512884975          Page: 18      Date Filed: 12/30/2014



                                        No. 14-30510
JONES, Circuit Judge, specially concurring:
       Although I agree that mandamus was warranted in this matter, I
respectfully cannot subscribe to the majority’s limiting the scope of Atlantic
Marine to two-party disputes (or, as the majority somewhat misleadingly puts
it, disputes where “all parties” have signed a contract with a forum selection
clause). Atlantic Marine Construction Co., Inc. v. U.S. Dist. Court, ___ U.S.
___, 134 S. Ct. 568 (2013). This the majority accomplishes by holding, in a case
where one of three defendants has had a longstanding forum selection
agreement with the plaintiff, that the defendant’s motion to seek severance
(Fed. R. Civ. P. 21) reintegrates “private interest” factors into a district court’s
decision whether to enforce the clause. Atlantic Marine cannot be so cabined,
in my view or in the view of numerous other courts whose decisions are not
even cited by the majority opinion. 1
       The Supreme Court spoke at length in Atlantic Marine about the
importance of enforcing valid forum-selection clauses. It explained that these
provisions represent “the parties’ agreement as to the most proper forum,” and


       1 Since Atlantic Marine, numerous district courts have ruled on motions to transfer in
multi-defendant cases subject to a forum-selection clause, and none has deployed Rule 21 to
thwart transfer. 14-30510. See, e.g., Carmouche Ins., Inc., v. Astonish Results, L.L.C., No. 14-
cv-00061, 2014 WL 2740464, at *6-7 (M.D. La., June 17, 2014) (explaining that Rule 21
factors including inconvenience and prejudice to party opposing severance are irrelevant
under Atlantic Marine); Valspar Corp. v. E.I. DuPont de Nemours & Co., No. 13-cv-3214, 2014
WL 1607584 (D. Minn. Apr. 21, 2014), at *2-3 (same); Excentus Corp. v. Giant Eagle, Inc.,
No. 13-cv-178, 2014 WL 923520 (W.D. Pa. Mar. 10, 2014), *at 10 (same); 1-Stop Fin. Serv.
Centers of Am., LLC v. Astonish Results, LLC, No. 13-cv-961, 2014 WL 279669 (W.D. Tex.
Jan. 23, 2014), at *10 (same); Monje v. Spin Master, Inc., No. 09-cv-1713, 2013 WL 6498073,
at *4 (D.Ariz. Dec. 11, 2013) (noting that in these circumstances, “[s]everance is a necessary
precursor to . . . transfer, and it is justified by the same reason [s]”). Moreover, the district
courts that have not enforced forum-selection clauses in multi-defendant cases have not done
so on the basis of Rule 21. In re TFT-LCD (Flat Panel) Antitrust Litig., MDL No. 1827, 2014
WL 1477748 (N.D. Cal. Apr. 14, 2014), at *2 (determining that public-interest considerations
weighed against transfer); Aquila v. Fleetwood, R.V., Inc., No. 12-cv-3281, 2014 WL 1379648
(E.D.N.Y. Mar. 27, 2014), at *4-5 (same).
                                                  18
    Case: 14-30510       Document: 00512884975          Page: 19     Date Filed: 12/30/2014



                                           No. 14-30510
that giving them effect protects the “legitimate expectations” of the parties and
“furthers vital interests of the justice system.” 134 S. Ct. at 581. “When parties
have contracted in advance to litigate disputes in a particular forum,” the
Court continued, “courts should not unnecessarily disrupt the parties’ settled
expectations.” Id. at 584. Although Atlantic Marine was a two-party case, the
Court’s opinion is explicitly premised on the importance of upholding the
legitimate expectations of the parties to a forum-selection clause. The Court
thus holds that “private interest” factors 2 relevant to a 28 U.S.C. § 1404(a)
transfer motion cannot defeat a valid forum-selection clause, nor is it even
likely that “public interest” factors 3 can militate against transfer. 134 S. Ct.
at 582.
       The majority here deviate from Atlantic Marine because two of the
defendants were not parties to the forum-selection clause and because Fed. R.
Civ. P. 21, authorizing severance, must be applied to effectuate the clause.
Rule 21 involves essentially the same “private interest” factors that the Court
rejected in Atlantic Marine. 4



       2   Private interest factors include “relative ease of access to sources of proof;
availability of compulsory process for attendance of unwilling, and the cost of obtaining
attendance of willing, witnesses; possibility of view of premises, if view would be appropriate
to the action; and all other practical problems that make trial of a case easy, expeditious and
inexpensive.” Piper Aircraft Co. v. Reyna, 454 U.S. 235, 241, n.6, 102 S. Ct. 252, 70 L.Ed. 2d
419 (1981) (internal quotation marks omitted).

       3 Public interest factors include “the administrative difficulties flowing from court
congestion; the local interest in having localized controversies decided at home; [and] the
interest in having the trial of a diversity case in a forum that is at home with the law.” Id.
at 581 n.6 (quoting Piper Aircraft v. Reyna, 454 U.S. 235, 241 n.6, 102 S. Ct. 252, 258 n.6
(1981).

       4The Rule 21 factors include “(1) whether the claims arose out of the same transaction
or occurrence, (2) whether the claims present common questions of law or fact, (3) whether
settlement or judicial economy would be promoted, (4) whether prejudice would be averted
by severance, and (5) whether different witnesses and documentary proof are required.”
PHI, Inc., 2014 US Dist. LEXIS 63352, at*15.
                                                 19
    Case: 14-30510       Document: 00512884975        Page: 20     Date Filed: 12/30/2014



                                         No. 14-30510
       Yet, according to the majority’s new three-factor test (if I understand it
correctly), after allowing Atlantic Marine to “cut in favor” of one defendant’s
severance/transfer to the agreed forum, a court may permit the “private
interest factors” of the non-forum selection clause defendants to overcome that
clause in favor of “the judicial economy considerations of having all claims
determined in a single forum.” 5 The majority concludes that Atlantic Marine
cannot “categorically” require severance-and-transfer in all cases. Sadly, the
party who negotiated for a specific forum in which to resolve its disputes with
a plaintiff is back at square one if the plaintiff joined another defendant. 6
       While I understand the complications that could arise in multiparty
litigation where one, or even more than one, forum-selection clause exists, I
find it hard to believe that the unanimous Supreme Court might not have been
equally percipient. Simple two-party disputes are near a vanishing breed of
litigation. It seems highly unlikely that the Supreme Court granted certiorari
and awarded the extraordinary relief of mandamus simply to proclaim that a
forum selection clause must prevail only when one party sues one other party.
The Court is not naive about the nature of litigation today. Further, the
Court’s reasoning emphasizes the “settled expectations” of parties who have
agreed to a forum selection clause. When private parties have chosen ex ante
to protect themselves by selecting a forum, this is no different from their
selection of arbitration for dispute resolution. Arbitration clauses, of course,
cannot be rendered unenforceable in multiparty litigation.                   Finally, the
majority’s view sacrifices the clarity of Atlantic Marine to easy manipulation,



       5 Because the majority indiscriminately refer to both types of defendants in terms of
“private interest” factors, I interpret the holding as best I can.

       6A defendant unfortunate enough to be involved in a case sent to the Judicial Panel
on Multidistrict Litigation is even behind square one, according to the majority’s totally
impertinent dicta, which have no place in this case.
                                                20
   Case: 14-30510     Document: 00512884975     Page: 21   Date Filed: 12/30/2014



                                    No. 14-30510
because, if it is correct, any clever party to a lawsuit can readily join another
party or individual in an attempt to avoid the forum selection clause.
        For these reasons, I believe the majority have erroneously and
confusingly diminished the scope of Atlantic Marine. I concur in the judgment
only.




                                          21
