In Re: Beazley Ins ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 4, 2009
No. 09-20005 Charles R. Fulbruge III
Clerk
In re: BEAZLEY INSURANCE CO.
Petitioner
Petition for Writ of Mandamus to the United States
District Court for the Southern District of Texas
(08-CV-3340)
Before WIENER, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
The petition for panel rehearing is GRANTED. We withdraw our prior
unpublished opinion 1 and substitute the following opinion:
Beazley Insurance Company (“Beazley”) petitions for a writ of mandamus
directing the district court to remand the instant case to Texas state court and
to vacate the district court’s orders requiring Beazley to mediate before
Bankruptcy Judge Isgur. Determining that mandamus relief is inappropriate
on the discrete facts of this case, we deny relief.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
1
2009 WL 205859 (5th Cir. Jan. 29, 2009) (unpublished).
No. 09-20005
I. FACTS AND PROCEEDINGS
Plaintiffs in the underlying suit, Doctors Hospital 1997, L.P. and
Tidwell/Parkway Property Holdings, L.P. (collectively, the “Hospital”), have a
troubled financial history in which operating expenses now exceed revenues by
approximately $1.5 million per month. To cover the shortfall, the Hospital
borrowed several million dollars from dismissed defendant GE HFS Holdings,
Inc. (“GE HFS”). By the time it filed the instant lawsuit, the Hospital was in
default on its loans from GE HFS and owed GE HFS more than $20 million. GE
HFS refused to lend any additional funds to the Hospital and had called the
outstanding loans.
The Hospital holds an insurance policy from petitioner Beazley that covers
property damage and business-interruption loss at each of the Hospital’s two
facilities, the Tidwell and Parkway campuses. GE HFS is named as an
additional insured on the policy.2 In September 2008, Hurricane Ike damaged
both campuses, with the Parkway location suffering serious damage. The
Hospital elected to close the Parkway campus rather than to repair it and filed
a claim with Beazley for both property-damage and business-interruption losses.
Beazley has to date disbursed at least $2.5 million and, at the time of suit, was
continuing to issue monthly business-interruption payments and to adjust
claims as the Hospital submitted documentation.
GE HFS asserted that it was entitled to receive whatever insurance
proceeds Beazley paid out so that the funds, at GE HFS’s discretion, would pay
down the Hospital’s outstanding debt.
2
General Electric is actually named as the additional insured party rather than the
related entity, GE HFS.
2
No. 09-20005
On November 5, 2008, the Hospital filed its original petition in Texas state
court naming both GE HFS and Beazley as defendants.3 As to GE HFS, the
Hospital asserted breach of fiduciary duty, tortious interference with contract,
breach of contract, and economic distress claims for “GE [HFS]’s egregious
misconduct and blatant attempts to bankrupt” the Hospital. As to Beazley, the
Hospital asserted only a breach of contract claim alleging that Beazley “failed
to timely make all payments required under the Policy.” Later that day, the
state judge granted an ex parte temporary restraining order directing Beazley
to advance $1.5 million to the Hospital; Beazley complied.
On November 10, GE HFS removed the instant case to the District Court
for the Southern District of Texas on the basis of diversity jurisdiction.4 GE HFS
neither sought nor obtained consent to removal from its co-defendant Beazley
because, according to GE HFS, Beazley was a mere nominal party to the suit.
The Hospital proceeded to file an application for preliminary injunction to
(1) prevent GE HFS from collecting insurance proceeds as payment for
outstanding debt and (2) require Beazley to follow the terms of the insurance
policy and to “[i]mmediately fund all business interruption proceeds owed
directly and solely to [the Hospital].” On November 17, the district court held
a hearing at which the Hospital asserted that without injunctive relief, it would
no longer be able to operate. At the hearing, the district court indicated that in
addition to the disputed financial issues, it recognized the community’s interest
3
The previous day, November 4, the Hospital filed an identical suit in state court. GE
HFS removed that suit to the District Court for the Southern District of Texas on November
5. The Hospital voluntarily dismissed that suit only to re-file the identical instant case in
state court later that same day.
4
The parties do not dispute the district court’s diversity jurisdiction. The Hospital
consists of two Texas limited partnerships; their principal places of business are in Texas. GE
HFS is a Delaware corporation; its principal place of business is in Maryland. Beazley is a
Connecticut corporation; its principal place of business is in Connecticut.
3
No. 09-20005
in the Hospital’s continued operation. The court ordered the parties to mediate
before Bankruptcy Judge Isgur the following day.
All parties attended that mediation and, on the afternoon of November 18,
Judge Isgur reported to the district court that the Hospital and GE HFS were
progressing toward a resolution that would require GE HFS to release some of
the Beazley insurance proceeds that had been disbursed to GE HFS. Judge
Isgur also advised the court that the Hospital needed an additional $800,000 no
later than the next day. The district court instructed Beazley and GE HFS to
be prepared to pay that amount. The mediation then continued.
The next morning, the district court held a hearing during which, Judge
Isgur notified the court, the Hospital and GE HFS reached a settlement.
According to the terms of the settlement, (1) GE HFS was dismissed with
prejudice from the suit; (2) GE HFS agreed to release $2.2 million to the
Hospital; and (3) the Hospital assigned certain rights to GE HFS to prosecute its
claims against Beazley. The Hospital and Beazley failed to reach a settlement.
At the hearing, Judge Isgur informed the district court that, although the other
parties had mediated in good faith, Beazley “did not negotiate in good faith.”
On the same day, Beazley filed a motion to remand to state court on the
ground that it was not a mere nominal party, but instead had a real stake in the
litigation because the amount of insurance proceeds payable under the policy
was disputed.
On November 24, the Hospital and GE HFS — now participating as the
Hospital’s co-plaintiff rather than as a defendant (the “Plaintiffs”) — filed an
amended complaint in the district court asserting only the breach of contract
claim against Beazley, the sole remaining defendant. The amended complaint
4
No. 09-20005
alleges that Beazley breached the terms of the insurance policy in a variety of
ways that caused substantial losses.5
On December 1, the district court ordered the parties to mediate again
before Judge Isgur during the ensuing 60 to 90 days. Accordingly, the district
court stayed the case and extended all deadlines for an additional 90 days.
Beazley sought to vacate the December 1 order on the ground that Judge Isgur’s
impartiality was questionable; the district court denied that motion.
On December 18, the district court denied Beazley’s motion to remand on
the basis that Beazley’s consent was not required when GE HFS originally
removed the case to federal court.6
On January 9, 2009, Beazley filed the instant petition for writ of
mandamus.7
II. STANDARD OF REVIEW
The All Writs Act authorizes us to “issue all writs necessary or appropriate
in aid of [our] respective jurisdiction[] and agreeable to the usages and principles
of law.”8 The writ of mandamus is, however, a “drastic and extraordinary
remedy reserved for really extraordinary causes.” 9
Because the writ is an extraordinary remedy, the Supreme
Court has established three requirements that must be met before
a writ may issue: (1) “the party seeking issuance of the writ [must]
have no other adequate means to attain the relief he desires — a
5
Beazley filed a motion for more definite statement, which the district court denied.
6
Beazley requested that the district court certify its interlocutory order for appeal
pursuant to 28 U.S.C. § 1292(b). The court declined to do so.
7
Simultaneously with the filing of its petition for writ of mandamus, Beazley filed a
motion for stay in this court seeking temporary relief from mediating before Judge Isgur
pending our decision in the mandamus action. Because we issue our ruling on Beazley’s
petition today, we will deny the motion to stay as moot.
8
28 U.S.C. § 1651(a); see Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004).
9
Cheney, 542 U.S. at 380 (internal quotation marks and citation omitted).
5
No. 09-20005
condition designed to ensure that the writ will not be used as a
substitute for the regular appeals process”; (2) “the petitioner must
satisfy the burden of showing that [his] right to issuance of the writ
is clear and indisputable”; and (3) “even if the first two prerequisites
have been met, the issuing court, in the exercise of its discretion,
must be satisfied that the writ is appropriate under the
circumstances. . . . These hurdles, however demanding, are not
insuperable.” 10
We address in turn each of Beazley’s putative bases for mandamus relief.
III. District Court’s Denial of Remand
A. No Other Adequate Means to Attain Relief
Beazley contends that our recent en banc decision in In re Volkswagen
lends sufficient support to conclude that it has no other adequate means to
attain relief.11 We agree.
In In re Volkswagen, following the district court’s denial of a defendant’s
28 U.S.C. § 1404(a) motion to transfer venue, the petitioner sought a writ of
mandamus directing the district court to transfer the case.12 As in the instant
case,13 interlocutory review of the district court’s order was unavailable.14 We
said:
10
In re Volkswagen of Am., Inc., 545 F.3d 304, 311 (5th Cir. 2008) (en banc) (quoting
Cheney, 542 U.S. at 380–81).
11
Id. at 318–19.
12
Id. at 307–08.
13
See Aaaron v. Nat’l Union Fire Ins. Co. of Pittsburgh, 876 F.2d 1157, 1160 (5th Cir.
1989) (“A district court’s denial of a motion to remand is not a final order, and it therefore is
not reviewable on [interlocutory] appeal.”).
14
In re Volkswagen, 545 F.3d at 319. In the instant case, the district court declined
to grant certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). In In re
Volkswagen, the denial of transfer was an order ineligible for interlocutory review under
section 1292(b). Id. Any distinction between the two situations is immaterial to our inquiry
as the effect on the petitioner in both cases was the same — unavailability of an interlocutory
appeal.
6
No. 09-20005
As Judge Posner has noted, 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 witnesses, parties and other — will already have
been done by the time the case is tried and appealed, and the
prejudice suffered cannot be put back in the bottle. 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.15
We recognize that, technically, the district court’s denial of Beazley’s motion to
remand will be reviewable on appeal pursuant to 28 U.S.C. § 1291.16 Yet, venue
transfer orders like the one in In re Volkswagen are also reviewable on appeal.17
Our decision in In re Volkswagen thus forecloses this fact from being
determinative.18 For the purpose of our inquiry today, the Plaintiffs set forth no
rationale for distinguishing a denial of a motion to transfer venue from denial
of a motion to remand to state court. Beazley has no adequate means of relief
other than the extraordinary writ it now seeks.19
B. Clear and Indisputable Right to the Issuance of the Writ
15
Id. at 318–19 (quoting In re Nat’l Presto Indus., Inc., 347 F.3d 662, 663 (7th Cir.
2003)) (emphasis added).
16
See, e.g., Gillis v. Louisiana, 294 F.3d 755, 758 (5th Cir. 2002).
17
See, e.g., Broussard v. State Farm Fire & Cas. Co., 523 F.3d 618, 631 (5th Cir. 2008).
18
545 F.3d at 318–19. But see In re Briscoe, 448 F.3d 201, 215 (3d Cir. 2006)
(concluding that “an appeal after final judgment is not an illusory or ineffectual means
through which petitioners can pursue their arguments for a remand to state court”).
19
We have previously noted the problematic nature of appellate review of denials of
remand. See McAteer v. Silverleaf Resorts, Inc., 514 F.3d 411, 416 (5th Cir. 2008) (“[I]f subject
matter jurisdiction is . . . established and a case remains in the federal court system for a
significant length of time or reaches a verdict on the merits, considerations of finality and
economy may result in affirming a judgment [on appeal] despite the improper removal.” (citing
Caterpillar Inc. v. Lewis, 519 U.S. 61, 75 (1996)).
7
No. 09-20005
1. Legal Standard
i. Mandamus Standard
A petitioner may show “that its right to issuance of the writ is ‘clear and
indisputable’ by demonstrating that there has been a ‘usurpation of judicial
power’ or a ‘clear abuse of discretion.’” 20 In In re Volkswagen, we focused on
“clear abuse of discretion” because we were reviewing a district court’s denial of
a motion to transfer venue that, on appeal, would have been subject to review for
mere, not clear, abuse of discretion.21 In the instant case, however, we consider
a legal question — the district court’s denial of Beazley’s motion to remand —
that, on appeal, we would review de novo.22 Given this distinction, we may not
here review for clear abuse of discretion; it is illogical to review under that
standard a ruling on a legal issue for which the district court may not exercise
discretion in the first place.23 Even in a mandamus proceeding, we must review
de novo the district court’s interpretations of law.24 Yet, mandamus remains an
extraordinary remedy, and “[m]erely showing that the district court erred is
20
In re Volkswagen, 545 F.3d 304, 311 (quoting In re U.S. Dep’t of Homeland Sec., 459
F.3d 565, 571 (5th Cir. 2006) (Dennis, J., concurring)).
21
See id. at 309–10 (discussing clear abuse of discretion); see also Broussard v. State
Farm Fire & Cas. Co., 523 F.3d 618, 631 (5th Cir. 2008) (reviewing, on appeal, for abuse of
discretion a decision on a motion to transfer venue).
22
See Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1117 (5th Cir. 1998).
23
Even though we distinguish between the possible standards of review, we “must be
careful . . . [not] to be misled by labels such as ‘abuse of discretion’ and ‘want of power’ into
interlocutory review of nonappealable orders on the mere ground that they may be erroneous.”
In re Volkswagen, 545 F.3d at 309 (quoting Will v. United States, 389 U.S. 90, 98 n.6 (1967))
(quotation marks omitted).
24
In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007) (per curiam); In re Am. Airlines,
Inc., 972 F.2d 605, 609 (5th Cir. 1992); In re Dresser Indus., Inc., 972 F.2d 540, 543 (5th Cir.
1992).
8
No. 09-20005
insufficient to obtain . . . relief.” 25 Accordingly, we shall grant relief only if
Beazley demonstrates that the district court “clearly and indisputably erred.”26
ii. Legal Standard: Remand to State Court
Pursuant to 28 U.S.C. § 1447(c), a party may, within thirty days of
removal of a case from state court, file a motion to remand the case on the basis
of any defect other than lack of subject-matter jurisdiction.27 The purported
defect in the instant case is that Beazley’s consent was a necessary condition of
removal, but was not sought when its then co-defendant GE HFS filed the notice
of removal. We have previously explained:
All defendants who are properly joined and served must join
in the removal petition, and . . . failure to do so renders the petition
defective. There is an exception to this general rule, however.
“Nominal” or “formal” parties need not join in the removal petition.
To establish that non-removing parties are nominal parties, the
removing party must show . . . that there is no possibility that the
plaintiff would be able to establish a cause of action against the
non-removing defendants in state court.28
In determining whether a party is nominal, a court asks “whether, in the
absence of the [party], the Court can enter a final judgment consistent with
equity and good conscience, which would not be in any way unfair or
25
In re Avantel, S.A., 343 F.3d 311, 317 (5th Cir. 2003); see also Bankers Life & Cas.
Co. v. Holland, 346 U.S. 379, 383 (1953) (“The supplementary review power conferred on the
courts by Congress in the All Writs Act is meant to be used only in the exceptional case . . . .”).
26
In re Avantel, 343 F.3d at 317 (stating that the petitioner “must show not only that
the district court erred, but that it clearly and indisputably erred”); In re Occidental Petrol.
Corp., 217 F.3d 293, 295 (5th Cir. 2000) (same).
27
If the court lacks subject-matter jurisdiction at any time before final judgment, it
must remand the case. 28 U.S.C. § 1447(c). In the instant case, the district court indisputably
has diversity jurisdiction irrespective of any error in removal procedure. See Johnson v.
Helmerich & Payne, Inc., 892 F.2d 422, 423 (5th Cir. 1990) (“The failure of all the defendants
to join in the removal petition is not a jurisdictional defect.”).
28
Farias v. Bexar County Bd. of Trustees for Mental Health Mental Retardation Servs.,
925 F.2d 866, 871 (5th Cir. 1991) (internal quotation marks and citations omitted).
9
No. 09-20005
inequitable.” 29 Additionally, a party is nominal if its role is restricted to that of
a “depositary or stakeholder,” 30 e.g., one “who has possession of the funds which
are the subject of litigation [and] . . . must often be joined purely as a means of
facilitating collection.” 31 The test is not dependant on how the plaintiff labels its
complaint, but rather on the practical effect of a judgment on a given
defendant.32 Equity is the major concern in this inquiry.33 “The question of
whether a named defendant is a nominal party depends on the facts in each
case.” 34 And, we look to whether a party was nominal at the time of removal
rather than considering any subsequent events.35
2. Beazley Fails to Establish Clear and Indisputable Right to
Relief
In the instant case, the district court held that GE HFS properly removed
the case because Beazley was a nominal party — a mere depositary or
stakeholder — at the time of removal. The court determined that only after
29
Louisiana v. Union Oil Co. of Calif., 458 F.3d 364, 366–67 (5th Cir. 2006) (quoting
Acosta v. Master Maint. & Constr. Inc., 452 F.3d 373, 379 (5th Cir. 2006)) (quotation marks
omitted); see Farias, 925 F.2d at 871 (quoting Tri-Cities Newspapers, Inc. v. Tri-Cities Printing
Pressmen & Assistants’ Local 349, Int’l Printing Pressmen & Assistants’ Union of N. Am., 427
F.2d 325, 327 (5th Cir. 1970)).
30
Union Oil Co., 458 F.3d at 367 (citing Tri-Cities, 427 F.2d at 327); Tri-Cities, 427
F.2d at 327 (“The test of whether or not a named defendant is a nominal party is if his role in
the law suit is that of a depositary or stakeholder . . . .” (citation omitted)).
31
S.E.C. v. Cherif, 933 F.2d 403, 414 (7th Cir. 1991); see BLACKS LAW DICTIONARY 1440
(8th ed. 2004) (A “stakeholder” is “[a] disinterested third party who holds money or property,
the right to which is disputed between two or more other parties.”).
32
See Union Oil Co., 458 F.3d at 367 (“We take practical considerations into account
in making this determination.”).
33
Farias, 925 F.2d at 871.
34
Tri-Cities, 427 F.2d at 327.
35
See, e.g., In re Shell Oil Co., 932 F.2d 1518, 1522–23 (5th Cir. 1991).
10
No. 09-20005
removal did Beazley become a real party in interest. To support its conclusion,
the district court relied on exchanges that occurred during the November 17,
2008 preliminary injunction hearing. Specifically, the court noted that
“Beazley’s counsel stated that ‘Beazley is really not a part of this dispute’ going
on right now between the parties and that he ‘believe[s] that Beazley is not a
real party in interest; and therefore, . . . should not have been brought into the
matter.’” The court also relied on counsel’s statement:
Clearly, the dispute between the hospital and GE [HFS] over the
$2.1 million in receivable payments that were made and whatever
financing agreement GE [HFS] has with the hospital on the pledge
of receivables, . . . has nothing to do with us. We have no control
over it. In fact, I don’t have any knowledge of it except what we’ve
heard here today.
Beazley contends that the district court misconstrued these statements or took
them out of context. Beazley now urges the interpretation that these statements
did not refer to its interest in the overall lawsuit, but rather to Beazley’s interest
in the portion of the dispute that was the focus of the preliminary injunction
hearing — whether the amount of insurance proceeds due at that time was
payable solely to the Hospital or whether GE HFS was to be a payee. On this
issue, Beazley concedes it was a mere bystander. But, Beazley maintains that
although it has no interest in which party receives the proceeds, it has always
disputed the amount of proceeds that would be paid.36 Perhaps more damaging,
and less susceptible to mis-interpretation, than any of the statements cited by
the district court, is a statement from a December 3, 2008 hearing. There,
counsel for Beazley represented to the court that “We went to the mediation
36
Counsel for Beazley asserts that the “going on right now” part of his statement
“Beazley is really not a part of the dispute that’s going on right now,” demonstrates that he
was only referring to which party should receive the insurance proceeds. More difficult to
explain away, however, is the statement, “Beazley is not a real party in interest; and therefore,
. . . should not have been brought into the matter.”
11
No. 09-20005
because of the fact that we felt obligated to do so by Your Honor’s direction. At
the time of the oral presentation before the Court, . . . Beazley was almost a
third party on my term — but it was suggested and ordered by the Court that
we attend a mediation.” 37 The Plaintiffs suggest that either these post-removal
statements should be construed as a waiver of the argument that Beazley was
a real party, or judicial estoppel should now bar the claim because GE HFS
relied on pre-removal representations. In response to the waiver argument,
Beazley directs us to its statement at the preliminary injunction hearing that it
may later move to remand the case.
The district court also cited what it considered Beazley’s representation
that it had been paying the Hospital’s business-interruption expenses and would
continue to do so. Yet, Beazley, relying on, inter alia, a statement made on the
day of removal that it was still adjusting the insurance claim, contends that the
amount of its payments was never undisputed.
Beazley also directs us to the Hospital’s original state court petition which
sets forth an independent breach of contract claim against Beazley and alleges
that it “has failed to timely make all payments required under the Policy.” The
original petition asserts that Beazley’s breach caused the Hospital “substantial
actual, consequential, and special losses.” To this, the Plaintiffs respond by
noting that the original petition did not allege that the amount due under the
policy was at issue; instead the Plaintiffs contend that the original petition
should be read as seeking relief only in the form of release of an undisputed
amount of proceeds.
The Plaintiffs assert, and the district court apparently adopted, the
argument that at the time of removal, Beazley appeared willing to issue a
payment that the Plaintiffs considered to be appropriate under the policy and
37
In that hearing, counsel for Beazley did, however, urge that it had overpaid on the
Hospital’s claim.
12
No. 09-20005
that only after removal did Beazley demonstrate an unwillingness to make
business-interruption payments and contend that it had overpaid on the policy.38
According to the Plaintiffs, they then filed their amended complaint alleging
breach of contract based on these post-removal developments which had caused
Beazley to become a real party.
Based on the foregoing discussion of the parties’ positions and our de novo
review, we are convinced that the district court did not err clearly and
indisputably. The district court confronted what had quickly escalated into a
fact-intensive inquiry into whether Beazley was a nominal party at the time of
GE HFS’s removal. The district court was convinced that, at that instant,
Beazley had done nothing more than “hold the money bag” and await
authoritative instructions regarding to whom the bag should be passed. The
district court very well may have erred in making this determination, but our
discussion confirms that any error made falls well short of the heightened clear
and indisputable standard. Thus, the question of the district court’s putative
error is properly one for appeal, not mandamus.39 Beyond our conclusion that
Beazley has not established a clear and indisputable right to the issuance of the
38
In the Plaintiffs’ view, Beazley did not become a real party until November 17, when
Beazley first asserted in court that it had overpaid on the policy.
39
See, e.g., Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943) (“[Mandamus] may
not appropriately be used merely as a substitute for the appeal procedure prescribed by . . .
statute.”).
The instant case is distinct from some other mandamus cases that, like this case,
involve questions of law reviewed de novo. In those cases, the district court’s error is
unmistakably clear and indisputable. For example, a district court clearly and indisputably
errs when it uses the incorrect legal test. See In re Avantel, S.A., 343 F.3d 311, 318 (5th Cir.
2003) (assessing “whether the district court should have applied the control-group test or the
subject-matter test” of attorney-client privilege); see also In re Dresser Indus., Inc., 972 F.2d
540, 543 (5th Cir. 1992) (district court “erred in holding that its local rules . . . are the ‘sole’
authority governing a motion to disqualify”). In the instant case, however, the district court’s
application of the legal standard for motions to remand exhibits no such clear and indisputable
error.
13
No. 09-20005
writ, we make no pronouncement one way or the other as to the correctness of
the district court’s ruling.
C. Whether the Writ is Appropriate Under the Circumstances
When examined under the totality of the circumstances of the instant case,
Beazley has failed to demonstrate that its right to the writ is so clear and
indisputable that intervention is necessary. We are unpersuaded that
mandamus would be appropriate.40 As we said in In re Volkswagen, “writs of
mandamus are supervisory in nature and are particularly appropriate when the
issues also have an importance beyond the immediate case.”41 The discrete facts
of this case, viz., the distinct fact-intensive remand analysis that the district
court conducted and which we reviewed de novo, establish that the issue
presented here would be of minimal “importance beyond this case.”42
IV. Mediation Order
Beazley also contends that it is entitled to a writ of mandamus ordering
the district court to vacate its order directing Beazley to mediate before Judge
Isgur. According to Beazley, Judge Isgur violated a federal statute 43 and the
Southern District of Texas’s local rules 44 that prohibit the disclosure of
40
See In re Volkswagen, 545 F.3d 304, 311 (5th Cir. 2008) (en banc) (emphasizing that
even if the other two requirements for relief are met, “‘the issuing court, in the exercise of its
discretion, must be satisfied that the writ is appropriate under the circumstances.’” (quoting
Cheney v. U.S. Dist. Court, 542 U.S. 367, 380–81 (2004))).
41
Id. at 319.
42
Cf. id. at 319.
43
See 28 U.S.C. § 652(d) (“[E]ach district court shall, by local rule . . . provide for the
confidentiality of the alternative dispute resolution processes and to prohibit disclosure of
confidential dispute resolution communications.”).
44
S.D. Tex. Local Rule 16.4I (“All communications made during ADR proceedings
(other than communications concerning scheduling, a final agreement, or ADR provider fees)
are confidential, are protected from disclosure, and may not be disclosed to anyone, including
the Court, by the provider or the parties.”).
14
No. 09-20005
communications made during mediation. Beazley specifically objects to Judge
Isgur’s statement that Beazley “did not negotiate in good faith.” Beazley alleges
that Judge Isgur’s impartiality is questionable and that he should be disqualified
from conducting further mediation in the instant case.45 The Plaintiffs respond
that Judge Isgur violated no rule because the rules protect only the
confidentiality of “communications,” of which Judge Isgur disclosed none. The
Plaintiffs further urge that, under Beazley’s interpretation, — in the absence of
the parties’ consent — a mediator would not even be permitted to report to the
district court on the progress of mediation.
We cannot grant Beazley extraordinary relief on the basis it seeks.
Beazley points to no precedent demonstrating that a court has ever granted a
writ of mandamus to protect a petitioner’s asserted right not to attend non-
binding mediation. This is for good reason. We repeat, a writ of mandamus is
a “drastic and extraordinary remedy reserved for really extraordinary causes”;46
and, there is nothing extraordinary about requiring Beazley to attend mediation
at which it would control its own destiny, viz, any resolution would be voluntary.
Additionally, even if Judge Isgur did err by making an unauthorized disclosure
to the district court, his action was far from that which would compel drastic and
extraordinary relief.
Beazley’s petition on this ground is meritless, and we have no occasion to
venture further into the applicable three-pronged mandamus analysis on this
issue.
V. CONCLUSION
45
See 28 U.S.C. § 455(a) (“Any justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his impartiality might reasonably be
questioned.”); id. § 651(a) (indicating that mediation requires a “neutral third party”); id. § 653
(describing the process for selecting “neutrals”).
46
Cheney, 542 U.S. at 380 (internal quotation marks and citation omitted).
15
No. 09-20005
Beazley has not demonstrated a clear and indisputable right to the
issuance of a writ of mandamus on either of the grounds it advances. We deny
its petition and deny as moot its motion to stay.
MANDAMUS DENIED. STAY DENIED AS MOOT.
16