In Re Volkswagen of America, Inc. , 223 F. App'x 305 ( 2007 )

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FILED
FOR THE FIFTH CIRCUIT February 13, 2007
Charles R. Fulbruge III
No. 07-40058 Clerk
In Re: VOLKSWAGEN OF AMERICA INC, a New Jersey Corporation;
VOLKSWAGEN AG, a foreign corporation organized under the laws of
Germany
Petitioners
Petition for Writ of Mandamus to the United States
District Court for the Eastern District of Texas, Marshall
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Petitioners Volkswagen AG and Volkswagen of America, Inc.
(collectively, “Volkswagen”) seek a writ of mandamus, contending
that the district court abused its discretion in denying
Volkswagen’s motion to transfer venue from the Marshall Division
of the Eastern District of Texas to the Dallas Division of the
Northern District of Texas.
“Mandamus is an extraordinary writ . . . and is not a
substitute for an appeal. We will issue the writ only . . . when
the trial court has exceeded its jurisdiction or has declined to
*
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this opinion should not be published and is not precedent except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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exercise it, or when the trial court has so clearly and
indisputably abused its discretion as to compel prompt
intervention by the appellate court.” In re Chesson, 897 F.2d
156, 159 (5th Cir. 1990). Further, “[t]he district court has
broad discretion in deciding whether to order a [venue]
transfer.” Caldwell v. Palmetto State Sav. Bank, 811 F.2d 916,
919 (5th Cir. 1987).
Although Volkswagen argues that this case “presents a
virtual replay” of a case in which the writ was issued to correct
errors in a district court’s venue transfer analysis, In re
Volkswagen AG, 371 F.3d 201 (5th Cir. 2004), that case is
distinct. First, the district court in In re Volkswagen
improperly failed to consider the convenience of parties and
witnesses to the defendants’ third-party claims. Id. at 204-05.
By contrast, the court here did not exclude the convenience of
any party or witness from its consideration. Second, the
approximately 400 miles that the parties and witnesses in In re
Volkswagen would have had to travel to reach the plaintiffs’
chosen venue is far greater than the roughly 150 miles involved
here. Third, the court in In re Volkswagen determined that the
third-party defendant would be inconvenienced by having to travel
that distance, id., whereas the third-party defendant in this
case has stated that maintenance of the action in the Marshall
Division of the Eastern District of Texas is not inconvenient.
Finally, the In re Volkswagen court erred by considering the
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convenience of counsel, id. at 206, which is not a proper factor
in the venue transfer analysis and was not considered in this
case.
The district court here did not clearly and indisputably
abuse its discretion in denying Volkswagen’s motion to transfer
venue, and we are thus unwilling to substitute our own balancing
of the transfer factors for that of the district court.
IT IS ORDERED that the petition for writ of mandamus is
DENIED.
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EMILIO M. GARZA, Circuit Judge, dissenting:
Because the Eastern District of Texas has no 28 U.S.C. §
1404(a) connection or relationship with the circumstances of
these claims, I respectfully dissent. A transfer of venue is
proper when a set of private and public interest factors weigh in
favor of transfer. In re Volkswagen, 371 F.3d 201, 203 (2004);
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n. 6 (1981). Even
though the district judge considered the proper factors, he still
abused his discretion in balancing them. See id. The only
connection between this case and the Eastern District of Texas is
plaintiffs’ choice to file there; all other factors relevant to
transfer of venue weigh overwhelmingly in favor of the Northern
District of Texas. See In re Horseshoe Entm’t, 337 F.3d 429, 435 (5th Cir. 2003)
(“[T]he factors favoring transfer substantially out weigh the single factor of the place where
plaintiff chose to file the suit”); see also Volkswagen, 371 F.3d at 203. Moreover, the fact that
parties and witnesses will travel 150 miles to litigate their claims does not weigh against transfer.
See Volkswagen, 371 F.3d at 204-05 (“When 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.”).
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