* 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this opinion should not be published and is not precedent except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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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40058

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

United States Court of Appeals

Fifth Circuit

F I L E D

February 13, 2007

Charles R. Fulbruge III

Clerk
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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.”).