In re Volkswagen of America, Inc.

KING, Circuit Judge,

with whom W. EUGENE DAVIS, WIENER, BENAVIDES, CARL E. STEWART, DENNIS, and PRADO, Circuit Judges, join, dissenting:

In order to grant mandamus here, the majority proceeds by plucking the standard “clear abuse of discretion” out of the narrow context provided by the Supreme Court’s mandamus precedent and then confecting a case — not the case presented to the district court — to satisfy its new standard. Notwithstanding almost two hundred years of Supreme Court precedent to the contrary, the majority utilizes mandamus to effect an interlocutory review of a nonappealable order committed to the district court’s discretion. I respectfully dissent.

Before getting into the majority’s analysis and its flaws, it is important to describe the case actually presented to the district court. The majority notes briefly that this is a products liability case, but its entire opinion proceeds as if this were simply a case in which the victims of a Dallas traffic accident were suing the driver of the offending car. That is not this case. The Singletons’ Volkswagen Golf was indeed *320 hit on its left rear panel by Colin Little, spun around, and slid rear-first into a flatbed trailer parked by the side of the road. Emergency personnel found an unconscious Richard Singleton in his fully reclined passenger seat with Mariana Singleton (who was seated directly behind him) trapped underneath. Mariana later died from the head trauma she received from the seat, and Richard was left paraplegic. The Singletons sued Volkswagen, alleging that the seat adjustment mechanism of Richard’s seat was defectively designed, resulting in a collapse of the seat during the accident. Thus, the case before the district court is first and foremost a products liability, design defect case that will depend heavily on expert testimony from both the plaintiffs and Volkswagen. No claim is made by Volkswagen that any of its experts is Dallas-based, and whether this case is tried in Marshall or Dallas will make little, if any, difference — Volkswagen will be able to get its experts (from Germany or elsewhere) to trial regardless. The Dallas connections with the original accident become relevant if there is a finding of a design defect and the court turns to the third party action by Volkswagen against Colin Little, raising issues of causation and damages. Pretrial discovery and the trial itself will have to address those issues, but they are not the only, or even the primary, focus of this case. Finally, Little, the other party to the accident, has explicitly stated that the Eastern District is not an inconvenient forum for him.

The majority has correctly identified the three requirements for the issuance of a writ: (1) “the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires”; (2) “the petitioner must satisfy the burden of showing that [his] right to issuance of the writ is clear and indisputable”; and (3) “the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 , 124 S.Ct. 2576 , 159 L.Ed.2d 459 (2004) (internal quotation marks and citations omitted). Where we differ is in the application of Cheney’s three requirements. In particular, as I explain below, the majority fundamentally misconstrues Cheney’s second requirement, which strictly limits mandamus to a “clear abuse of discretion or usurpation of judicial power.” See Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 , 74 S.Ct. 145 , 98 L.Ed. 106 (1953) (internal quotation marks omitted); In re U.S. Dep’t of Homeland Sec., 459 F.3d 565, 571 (5th Cir.2006) (Dennis, J., concurring). This case involved no such “clear abuse of discretion” or “usurpation of judicial power,” and even the majority does not contend that the district court exceeded its power or authority under § 1404(a). Whether we agree with the district court’s decision not to transfer this case is not controlling. There is no question that, when the district court acts within its power and authority, mandamus is inappropriate to challenge the district court’s decision.

Addressing the second Cheney requirement, the majority states that Volkswagen’s right is clear and indisputable if the district court clearly abused its discretion. The majority explains that it will not “issue a writ to correct a mere abuse of discretion.... [A] writ is appropriate to correct a clear abuse of discretion.” But how the majority differentiates “clear abuse” from “mere abuse” is anything but clear. To find clear abuse, the majority “review[s] carefully the circumstances” before the district court and goes on to find five specific “errors” in the district court’s decision. Because Volkswagen concedes that the district court considered all the proper § 1404(a) transfer factors and no *321 improper ones, the majority must reweigh these factors in order to find its errors. The majority’s findings on these errors do not bear close inspection.

The district court first allegedly erred because it assigned too much weight to the plaintiffs’ choice of venue by applying the forum non conveniens dismissal standard. The majority reaches this conclusion by completely mischaracterizing the district court’s order. Essentially, the majority rests its conclusion on the fact that the district court’s order denying transfer states that the movant “must show that the balance of convenience and justice substantially weighs in favor of transfer.” For the majority, the district court’s use of the word “substantially” indicates that it was requiring Volkswagen to make the showing necessary to obtain a forum non conveniens dismissal. But that is simply not the case. The explanation for the lower court’s use of “substantially” becomes apparent when it is considered in the complete context of the transfer denial and the denial of reconsideration — that is, after a “careful review,” which the majority does not make. In denying the transfer motion, the district court described the movant’s burden in a variety of ways: that the balance of convenience and justice must “substantially” weigh in favor of transfer; that “[t]he plaintiffs choice of forum will not be disturbed unless it is clearly outweighed by other factors”; and that the plaintiffs’ “choice should not be lightly disturbed.” In denying Volkswagen’s motion for reconsideration, the district court explained that “decisive weight” was not given to the plaintiffs’ choice; it was simply one factor among many. Thus, the district court drew upon several formulations common to the venue transfer context to describe the unremarkable notion that the party seeking transfer bears some heightened burden in demonstrating that a transfer is warranted. It did not apply the forum non conveniens dismissal standard.

Additionally under the plaintiffs choice analysis, the majority distorts the relationship between §§ 1391 and 1404. Congress has afforded plaintiffs a broad venue privilege in § 1391(a) and (c). And although aspersions are often cast on plaintiffs’ “forum shopping,” frequently by defendants also “forum shopping,” we have explicitly stated that a plaintiffs motive for choosing a forum “is ordinarily of no moment: a court may be selected because its docket moves rapidly, its discovery procedures are liberal, its jurors are generous, the rules of law applied are more favorable, or the judge who presides in that forum is thought more likely to rule in the litigant’s favor.” McCuin v. Tex. Power & Light Co., 714 F.2d 1255 , 1261-62 (5th Cir.1983); cf. Miles v. Ill. Cent. R.R. Co., 315 U.S. 698, 707 , 62 S.Ct. 827 , 86 L.Ed. 1129 (1942) (Jackson, J., concurring) (stating, in the context of FELA’s broad forum selection clause, that “[t]here is nothing which requires a plaintiff to whom such a choice is given to exercise it in a self-denying or large-hearted manner”). Section 1404(a) does temper plaintiffs’ broad statutory right in venue selection, but how Congress went about doing so is telling. Congress did not restrict the range of permissible venues available to plaintiffs — that is, it did not give defendants the right to be sued only in certain forums, such as the most convenient. Rather, § 1404(a) vests a district court with the authority to transfer a case in its discretion. Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir.1998). Section 1404(a), therefore, is not the mandatory tool to “prevent plaintiffs from abusing their privilege under § 1391” that the majority describes; it is a discretionary tool to be applied by a district court “[f]or the convenience of parties and witnesses, in the interest of justice.” The *322 majority’s review of the plaintiffs’ choice, then, is both misleading as to the facts and wrong on the law.

Continuing under Cheney’s second requirement, the majority’s “careful review” of the remaining four § 1404(a) transfer factors further fails to take account of the realities that surround a transfer decision and the realities in this particular case. Generally speaking, venue transfer motions are filed very early in the case. (For example, Volkswagen’s motion was filed three weeks after the Singletons’ original complaint.) At this early stage, assessing what best serves the “convenience of parties and witnesses” and “interests of justice” is hardly an exact science, since it is often unclear how the lawsuit will develop or what issues will be key. But the district court can draw on its experience with the day-to-day reality of litigation issues— an area in which appellate courts lack expertise. As former Second Circuit Judge Jerome Frank described the § 1404(a) inquiry: “ ‘Weighing’ and ‘balancing’ are words embodying metaphors which, if one is not careful, tend to induce a fatuous belief that some sort of scales or weighing machinery is available. Of course it is not. At best, the judge must guess, and we should accept his guess unless it is too wild.” Ford Motor Co. v. Ryan, 182 F.2d 329, 331-32 (2d Cir.1950) (footnote omitted).

I now turn to the majority’s take on the four remaining § 1404(a) factors. The majority would have us believe that since this case involves only a Dallas traffic accident, Dallas is the only convenient location for the Singletons’ suit. But, while the convenience inquiry may begin with listing this case’s Dallas connections, it does not end there. First for the Dallas documents: the district court’s reasoning, where it “note[d] that this factor has become less significant” and concluded that “[a]ny documents or evidence can be easily transported to Marshall,” hardly “reads the sources of proof requirement out of the” transfer analysis. Instead, the district court considered the reality that the Northern and Eastern Districts have required EOF (electronic case filing) for a long time and that all the courtrooms are electronic. This means that the documents will be converted to electronic form, and whether they are displayed on monitors in Dallas or Marshall makes no difference to their availability. Secondly, the court’s subpoena power runs throughout the state, and an experienced district court can properly discount the likelihood of an avalanche of motions to quash. The majority’s novel notion of “absolute subpoena power” results in only the most marginal of convenience gains, if any. Thirdly, the Dallas witnesses will not likely be inconvenienced because (as Volkswagen recognizes) discovery will be, in all likelihood, conducted in Dallas. Additionally, witnesses necessary to establish damages for Mariana’s wrongful death — her teachers, neighbors, and friends — all reside in the Eastern District (where the Singletons resided at the time of the accident). And the majority’s “100-mile rule” 1 is no proxy for considering the realistic costs and incon *323 venience for witnesses that will attend the trial, particularly in a state as expansive as Texas. As for the two non-party fact witnesses who submitted identical affidavits asserting inconvenience, if the case goes to trial and if they end up testifying (two very big “ifs,” the district court was no doubt aware), the court could reasonably conclude that traveling 150 miles, or two hours on a four-lane interstate (1-20), each way is only minimally inconvenient. And finally, with regard to the local interests factor, the majority’s assertion that Eastern District residents “are not in any relevant way connected to the events that gave rise to this suit” overstates the case and glosses over the fact that this is a products liability suit. A Dallas traffic accident may have triggered the events that revealed a possibly defective product, but that does not change the nature of this suit. Drivers in the Eastern District could be connected to the actual issues in this case as they may be interested to learn of a possibly defective product that they may be driving or that is on their roads. 2 Thus, the majority’s “careful review” under the § 1404(a) transfer factors is both erroneous as to its method and misleading as to the facts.

Having identified five “errors” in the district court’s § 1404(a) analysis, the majority moves on to declare the sum of these errors as a “clear abuse” justifying the writ (as distinguished from “mere abuse” which wouldn’t) by labeling the errors “extraordinary errors” and concluding that those “errors resulted in a patently erroneous result.” “Thus, Volkswagen’s right to the issuance of the writ is clear and indisputable, and the second requirement, under Cheney , ... is therefore satisfied.”

The majority moves on to Cheney’s remaining requirements. The first requirement, that the petitioner “have no other adequate means to attain relief,” is “certainly satisfied here.” This must be so because a petitioner “ ‘would not be able to show that it would have won the case had it been tried in a convenient [venue]”’ (alteration in the original) (quoting In re Nat’l Presto Indus., Inc., 347 F.3d 662, 663 (7th Cir.2003), and citing Fed.R.CivP. 61). We are told, then, that direct appeal is effectively unavailable to address a possible error in a § 1404(a) transfer decision. That is flat wrong. Direct appeal is available to review a transfer decision, as demonstrated by Action Industries, Inc. v. United States Fidelity & Guaranty Co., 358 F.3d 337 (5th Cir.2004), a decision cited by the majority and in which a § 1404(a) transfer decision was reviewed after a final judgment. That such an appeal may have limited success due to the harmless error rule, Fed.R.CivP. 61, does not mean — here or anywhere else that I know of — that direct appeal is “unavailable.” But it is telling that a refusal to transfer from Marshall to Dallas is unlikely, in the majority’s view, to affect Volkswagen’s substantial rights: if Volkswagen’s substantial rights will not likely be affected, how can this case satisfy the admittedly different, but even more stringent, requirements for mandamus?

The third Cheney requirement — that the issuing court be satisfied that the writ is appropriate — -is, for the majority, easily met. Because “[t]he district court clearly abused its discretion,” “Volkswagen has no other adequate remedy,” and “district courts ... have applied [venue transfer *324 tests] with too little regard for consistency of outcomes,” the majority convinces itself that mandamus is appropriate and issues the writ.

Despite the majority’s own recognition that a § 1404(a) transfer decision is a non-appealable interlocutory order, the majority’s decision is in striking derogation of remarkably consistent Supreme Court precedent stretching back to Chief Justice Marshall’s statement in Bank of Columbia v. Sweeny that using mandamus in this way is “a plain evasion of the provision of the Act of Congress, that final judgments only should be brought before this Court for re-examination.” 26 U.S. (1 Pet.) 567 , 569, 7 L.Ed. 265 (1828) (emphasis in original). As the majority opinion seems to recognize, but then ignores, the Supreme Court has been explicit on repeated occasions that mandamus must not devolve into “interlocutory review of nonappealable orders on the mere ground that they may be erroneous.” Will v. United States, 389 U.S. 90 , 98 n. 6, 88 S.Ct. 269 , 19 L.Ed.2d 305 (1967).

[T]he most that can be claimed ..(. is that [the district court] may have erred in ruling on matters within [its] jurisdiction. But “[t]he extraordinary writs do not reach to such cases; they may not be used to thwart the congressional policy against piecemeal appeals.” Mandamus, it must be remembered, does not “run the gauntlet of reversible errors.” Its office is not to “control the decision of the trial court,” but rather merely to confine the lower court to the sphere of its discretionary power.

Id. at 103-04 , 88 S.Ct. 269 (internal citations omitted) (quoting first Parr v. United States, 351 U.S. 513, 520 , 76 S.Ct. 912 , 100 L.Ed. 1377 (1956), and then Bankers Life, 346 U.S. at 382-83 , 74 S.Ct. 145 ); e.g., Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26 , 63 S.Ct. 938 , 87 L.Ed. 1185 (1943) (“[Mandamus] may not appropriately be used merely as a substitute for the appeal procedure prescribed by ... statute.”); Bankers Life, 346 U.S. at 383 , 74 S.Ct. 145 (“[E]xtraordinary writs cannot be used as substitutes for appeals, even though hardship may result from delay and perhaps unnecessary trial .... ” (internal citation omitted)); see also In re Horseshoe Entm’t, 337 F.3d 429, 435 (5th Cir.2003) (Benavides, J., dissenting) (“Mandamus is an extraordinary writ and should not be a substitute for appeal.”).

The Court’s prohibition on the use of mandamus as a substitute for appeal is based not only on the violation of 28 U.S.C. §§ 1291-1292 that it would entail but also on the resulting delay that those statutes were intended to avoid. This case is a painful and ironic example of that delay. Volkswagen’s petition for mandamus was filed in this court on January 23, 2007, and this court will finally dispose of it during October 2008. Discovery continued in the district court until this court — apparently in order to prevent the case from becoming moot — stayed the trial proceedings on September 18, 2007, one day before the scheduled close of discovery. The second panel’s opinion was issued one day after jury selection was slated to begin. In all probability, this case would have been concluded on its merits long before our court finishes with it, likely, not long after the second panel’s opinion issued. The delay here (even without taking the en banc process into account) perfectly exemplifies the harm caused by conducting an interlocutory review under the aegis of mandamus. 3

*325 In order to enable the majority to correct the district court’s “errors” in applying § 1404(a), the majority misapplies the “clear abuse of discretion” standard provided by the Supreme Court by divorcing the standard from the context that gave it meaning. The Court, in Bankers Life , held that “clear abuse of discretion” does not involve a district court’s possibly erroneous exercise of its conceded authority; rather, clear abuse occurs when the district court lacks the judicial power or authority to make the decision that it did. In Bankers Life , the petitioner was a plaintiff in a private antitrust suit naming numerous defendants, one of whom resided outside the district in which the suit was filed. 346 U.S. at 380 , 74 S.Ct. 145 . Based on the applicable venue statute, the district court held that venue was improper as to that nonresident defendant and transferred the case pursuant to 28 U.S.C. § 1406 (a). 4 Id. at 380-81 , 74 S.Ct. 145 . In seeking the writ, the petitioner’s sole argument was that the district court had the power to order the transfer only if venue was improper and that venue was, in fact, proper. Id. at 381 , 74 S.Ct. 145 . The Court, however, declined to review the district court’s possibly erroneous interlocutory decision and held that the alleged error in applying the statute was not a clear abuse of discretion. Id. at 382-83 , 74 S.Ct. 145 . It stated:

[The district court’s] decision against petitioner, even if erroneous — which we do not pass upon — involved no abuse of judicial power and is reviewable upon appeal after final judgment. If we applied the reasoning advanced by the petitioner, then every interlocutory order which is wrong might be reviewed under the All Writs Act. The office of a writ of mandamus would be enlarged to actually control the decision of the trial court rather than used in its traditional function of confining a court to its prescribed jurisdiction. In strictly circumscribing piecemeal appeal, Congress must have realized that in the course of judicial decision some interlocutory orders might be erroneous. 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 where there is clear abuse of discretion or “usurpation of judicial power” of the sort held to justify the writ in De Beers Consolidated Mines v. United States, 325 U.S. 212, 217 , 65 S.Ct. 1130 , 89 L.Ed. 1566 (1945). This is not such a case.

Id. (citations and footnotes omitted). For the Court, no “clear abuse of discretion” occurred because there was no question that the district court had the power or authority to do what it purported to do— transfer a case from an improper venue to a proper venue — and the petitioner’s sole argument regarding a possibly erroneous interlocutory order did not involve a “clear abuse of discretion.” That is, for the purposes of mandamus, a “clear abuse of discretion” occurs when the district court has acted outside the scope of its power or authority. 5 It is therefore a mistake to *326 equate the kind of ordinary error that might be labeled an “abuse of discretion” on appeal with the kind of error that justifies mandamus, as the majority does. Our inquiry on mandamus should center on reviewing errors that implicate a district court’s power to act as it did. There is no claim here that the district court did not have the judicial power to deny the transfer motion. The claim is that it erred in the judgment that it made when it exercised the power that it concededly has. That is not the basis for a writ.

The Court has also been explicit in prohibiting the use of mandamus to correct the alleged errors of a district court in a decision committed to its discretion. “Where a matter is committed to discretion, it cannot be said that a litigant’s right to a particular result is clear and indisputable.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 , 101 S.Ct. 188 , 66 L.Ed.2d 193 (1980) (internal quotation marks and citation omitted). The Court’s reason for denying the use of mandamus to review a discretionary decision is instructive. Were it otherwise, the Court warned, “[t]he office of a writ of mandamus would be enlarged to actually control the decision of the trial court rather than used in its traditional function of confining a court to its prescribed jurisdiction.” Bankers Life, 346 U.S. at 383 , 74 S.Ct. 145 ; see also Will, 389 U.S. at 104 , 88 S.Ct. 269 (stating that the office of mandamus “is not to ‘control the decision of the trial court,’ but rather merely to confine the lower court to the sphere of its discretionary power” (quoting Bankers Life, 346 U.S. at 383 , 74 S.Ct. 145 )). Where, as the majority does here, an appellate court reviews the district court’s analysis of the venue transfer factors and reweighs each factor as it feels appropriate, it is doing nothing less than controlling the district court’s decision, and thus enlarging mandamus in the precise fashion that the Bankers Life Court warned against.

In sum, as this court has held for decades, on application for mandamus to direct a § 1404(a) transfer, when the district court has properly construed the statute and considered all necessary facts and factors, we should “not attempt to recite the facts nor to weigh and balance the factors which the District Court was required to consider in reaching its decision.” Ex parte Chas. Pfizer & Co., Inc., 225 F.2d 720, 723 (5th Cir.1955); see also In re Horseshoe Entm’t, 337 F.3d at 435 (Bena-vides, J., dissenting) (“All necessary facts and factors were considered ... and the transfer statute was properly construed. Under these circumstances we should not even attempt to weigh and balance the factors which the district court was required to consider in reaching its decision.”).

Cheney describes mandamus as a “ ‘drastic and extraordinary’ remedy ‘reserved for really extraordinary causes.’ ” 542 U.S. at 380 , 124 S.Ct. 2576 (quoting Ex parte Fahey, 332 U.S. 258, 259-60 , 67 S.Ct. 1558 , 91 L.Ed. 2041 (1947)). To say the least, this is anything but a “really extraordinary cause.” Volkswagen seeks no more than to transfer this case 150 miles from the Eastern District of Texas to the Northern District of Texas. As we said many years ago (about a transfer from the Southern to the Northern District of Alabama), when we continued to be faithful to the Supreme Court’s direction, “[tjhat is not the basis for a writ.” Garner v. Wolfinbarger, 433 F.2d 117, 120-21 (5th Cir. 1970). The bottom line is that how one *327 assesses the § 1404(a) transfer factors in this case is essentially a matter of judgment. The district court’s judgment, informed by years of trial experience in cases like this, differs from that of the majority, and in my view the district court’s take on this case is more faithful to the actual case before it than is the majority’s take. But even if I, sitting as a district judge, would have granted the motion to transfer, that kind of difference in judgment, particularly in a matter committed to the district court’s discretion, does not justify an extraordinary writ.

Despite the Supreme Court’s crystal clear guidance that mandamus is unavailable in these circumstances, conflicts among the circuits and within individual circuits have proliferated on the question whether the writ may be used as a tool to review a district court’s § 1404(a) transfer decision. See generally 15 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3855, at 332 & n.29 (3d ed.2007). As the late Judge Friendly recognized more than 40 years ago, “[ajppellate courts die hard in relinquishing powers stoutly asserted but never truly possessed.... [W]e should ... end this sorry business of invoking a prerogative writ to permit appeals, which Congress withheld from us, from discretionary orders fixing the place of trial.” A. Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 445-46 (2d Cir. 1966) (Friendly, J., concurring).

. The so-called "100-mile rule,” now enshrined by the en banc court, was made up out of the whole cloth by the panel that decided In re Volkswagen AG, 371 F.3d 201, 204-05 (5th Cir.2004). It reads:

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.

The power of this court to establish such a "rule” escapes me. A footnote "observe[s]” that a trial subpoena for a non-party witness is subject to a motion to quash when that witness must travel more than 100 miles. Id. at 205 n. 4.

. The district court did recognize Dallas residents’ interest in a local traffic accident and balanced that interest against the Marshall residents’ ongoing interest in possibly defective products within their district, concluding that this factor was neutral. The majority holds, however, that a district court may never consider the interests of those that might be affected by an alleged defective product.

. The petition for mandamus in In re Horseshoe Entertainment, 337 F.3d 429 (5th Cir. 2003), was filed on July 11, 2002, and mandamus issued on July 1, 2003. There was no en banc consideration of that case.

. Section 1406(a) permits the transfer of a case where venue is improperly laid and is essentially “analogous” to § 1404(a). Van Dusen v. Barrack, 376 U.S. 612 , 621 n. 11, 84 S.Ct. 805 , 11 L.Ed.2d 945 (1964).

. De Beers Consolidated Mines , referenced in Bankers Life , is further instructive. There, the Court stated that review under the All Writs Act is appropriate "if the [district court’s] order was beyond the powers conferred upon [that] court.” 325 U.S. 212, 217 , 65 S.Ct. 1130 , 89 L.Ed. 1566 (1945). It went on:

When Congress withholds interlocutory reviews, [the All Writs Act] can, of course, not be availed of to correct a mere error in the exercise of conceded judicial power. But when a court has no judicial power to do what it purports to do — when its action is *326 not mere error but usurpation of power— the situation falls precisely within the allowable use of [the All Writs Act],

Id.