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

Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, WIENER,

BARKSDALE, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT,

PRADO, OWEN, ELROD, SOUTHWICK, and HAYNES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge, joined by JONES, Chief Judge, and SMITH,

BARKSDALE, GARZA, CLEMENT, OWEN, ELROD, SOUTHWICK, and

HAYNES, Circuit Judges:

The overarching question before the en banc Court is whether a writ of

mandamus should issue directing the transfer of this case from the Marshall

Division of the Eastern District of Texas—which has no connection to the

parties, the witnesses, or the facts of this case—to the Dallas Division of the

Northern District of Texas—which has extensive connections to the parties, the

witnesses, and the facts of this case. We grant the petition and direct the

district court to transfer this case to the Dallas Division.

United States Court of Appeals

Fifth Circuit

F I L E D

October 10, 2008

Charles R. Fulbruge III

Clerk
No. 07-40058

1 Section 1404(a) provides: “For 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.”

2

I.

A.

On the morning of May 21, 2005, a Volkswagen Golf automobile traveling

on a freeway in Dallas, Texas, was struck from behind and propelled rear-first

into a flat-bed trailer parked on the shoulder ofthe freeway. Ruth Singleton was

driving the Volkswagen Golf. Richard Singleton was a passenger. And Mariana

Singleton, Richard and Ruth Singleton’s seven-year-old granddaughter, was also

a passenger. Richard Singleton was seriously injured in the accident. Mariana

Singleton was also seriously injured in the accident, and she later died as a

result of her injuries.

Richard Singleton, Ruth Singleton, and Amy Singleton (Mariana’s mother)

filed suit against Volkswagen AG and Volkswagen of America, Inc., in the

Marshall Division of the Eastern District of Texas, alleging that design defects

in the Volkswagen Golf caused Richard’s injuries and Mariana’s death. 

In response to the Singletons’ suit, Volkswagen filed a third-party

complaint against the driver of the automobile that struck the Singletons,

alleging that the Singletons had the ability to sue him but did not and that his

negligence was the only proximate cause of the damages.

B.

Pursuant to 28 U.S.C. § 1404(a),1 Volkswagen moved to transfer venue to

the Dallas Division. Volkswagen asserted that a transfer was warranted as the

Volkswagen Golf was purchased in Dallas County, Texas; the accident occurred

on a freeway in Dallas, Texas; Dallas residents witnessed the accident; Dallas

police and paramedics responded and took action; a Dallas doctor performed the

autopsy; the third-party defendant lives in Dallas County, Texas; none of the
No. 07-40058

2 The parties have referenced the deference given to a “plaintiff’s choice of forum” in

venue transfer cases. However, a transfer between federal courts pursuant to § 1404(a) is not

a transfer between forums; it is a transfer between venues. Thus, in venue transfer cases,

deference given to a plaintiff’s initial choice is deference given to a plaintiff’s choice of venue.

3

plaintiffs live in the Marshall Division; no known party or non-party witness

lives in the Marshall Division; no known source of proof is located in the

Marshall Division; and none of the facts giving rise to this suit occurred in the

Marshall Division. These facts are undisputed.

The district court denied Volkswagen’s transfer motion. Singleton v.

Volkswagen of Am., Inc., 2006 WL 2634768 (E.D. Tex. Sept. 12, 2006).

Volkswagen then filed a motion for reconsideration, arguing that the district

court gave inordinate weight to the plaintiffs’ choice of venue2 and, to state

Volkswagen’s arguments generally, that the district court failed meaningfully

to weigh the venue transfer factors. The district court also denied Volkswagen’s

motion for reconsideration, and for the same reasons presented in its denial of

Volkswagen’s transfer motion. Singleton v. Volkswagen of Am., Inc., 2006 WL

3526693 (E.D. Tex. Dec. 7, 2006).

C.

Volkswagen then petitioned this Court for a writ of mandamus. In a per

curiam opinion, a divided panel of this Court denied the petition and declined

to issue a writ. In re Volkswagen of Am. Inc., 223 F. App’x 305 (5th Cir. 2007).

The panel majority held thatthe district court did not clearly abuse its discretion

in denying Volkswagen’s transfer motion. Judge Garza wrote a dissenting

opinion and in it noted that “[t]he 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.” Id. at 307 (Garza, J., dissenting).
No. 07-40058

4

Volkswagen then filed a petition for rehearing en banc. The original panel

interpreted the petition for rehearing en banc as a petition for panel rehearing,

granted it, withdrew its decision, and directed the Clerk’s Office to schedule the

petition for oral argument. A second panel of this Court then heard oral

argument on the issues raised for review. The second panel granted

Volkswagen’s petition and issued a writ directing the district court to transfer

this case to the Dallas Division. In re Volkswagen of Am., Inc., 506 F.3d 376 (5th

Cir. 2007).

The Singletons then filed a petition for rehearing en banc, which the Court

granted. In re Volkswagen of Am., Inc., 517 F.3d 785 (5th Cir. 2008).

II.

In this opinion, we will first address whether mandamus is an appropriate

means to test a district court’s ruling on a venue transfer motion. Citing our

precedents and the precedents of the other courts of appeals, we hold that

mandamus is appropriate when there is a clear abuse of discretion. We note

that the Supreme Court has set out three requirements for the issuance of the

writ. Of these, we address first whether Volkswagen has established a clear and

indisputable right to the writ. We begin by observing that the only factor that

favors keeping the case in Marshall, Texas, is the plaintiffs’ choice of venue. We

discuss this privilege granted under 28 U.S.C. § 1391, and how the privilege is

tempered by the considerations of inconvenience under § 1404(a). We

demonstrate that a plaintiff’s choice of forum under the forum non conveniens

doctrine is weightier than a plaintiff’s choice of venue under § 1404(a) because

the former involves the outright dismissal of a case, and the latter involves only

a transfer of venue within the same federal forum. After determining the correct

standards to apply in the § 1404(a) analysis, we then consider the showing of

inconvenience that Volkswagen has made. We review the district court’s ruling

and conclude thatthe district court abused its discretion in denying the transfer.
No. 07-40058

3 See, e.g., In re Sealed Case, 141 F.3d 337, 340 (D.C. Cir. 1998); In re Josephson, 218

F.2d 174, 183 (1st Cir. 1954), abrogated on other grounds by In re Union Leader Corp., 292

F.2d 381, 383 (1st Cir. 1961); In re Warrick, 70 F.3d 736, 740 (2d Cir. 1995); In re FederalMogul Global, Inc., 300 F.3d 368, 378 (3d Cir. 2002); In re Ralston Purina Co., 726 F.2d 1002,

1005 (4th Cir. 1984); Lemon v. Druffel, 253 F.2d 680, 685 (6th Cir. 1958); In re Nat’l Presto

Indus., Inc., 347 F.3d 662, 663 (7th Cir. 2003); Toro Co. v. Alsop, 565 F.2d 998, 1000 (8th Cir.

1977); Kasey v. Molybdenum Corp. of Am., 408 F.2d 16, 19–20 (9th Cir. 1969); Cessna Aircraft

Co. v. Brown, 348 F.2d 689, 692 (10th Cir. 1965); In re Ricoh Corp., 870 F.2d 570, 573 n.5

(11th Cir. 1989).

5

But that does not resolve the case. The question next becomes whether the

district court’s ruling was a clear abuse of discretion that qualifies for

mandamus relief. Concluding that the district court gave undue weight to the

plaintiffs’ choice of venue, ignored our precedents, misapplied the law, and

misapprehended the relevant facts, we hold that the district court reached a

patently erroneous result and clearly abused its discretion in denying the

transfer. Further finding that the showing satisfies the other requirements of

the Supreme Court for mandamus, we conclude that a writ is appropriate under

the circumstances of this case. We now begin this discussion.

III.

Because some suggestion is made that mandamus is an inappropriate

means to test the district court’s discretion in ruling on venue transfers, we will

first turn our attention to this subject.

We—and the other courts of appeals that have considered the

matter—have expressly “recognized the availability of mandamus as a limited

means to test the district court’s discretion in issuing transfer orders.” In re

Horseshoe Entm’t, 337 F.3d 429, 432 (5th Cir. 2003).3 There can be no doubt

therefore that mandamus is an appropriate means of testing a district court’s

§ 1404(a) ruling.

Although the Supreme Court has never decided mandamus in the context

of § 1404(a), the Supreme Court holds that mandamus is an appropriate remedy

for “exceptional circumstances amounting to a judicial usurpation of power or a
No. 07-40058

4 See Albemarle Paper Co. v. Moody, 422 U.S. 405, 416 (1975) (noting that a decision

calling for the exercise of discretion “hardly means that it is unfettered by meaningful

standards or shielded from thorough appellate review”); United States v. Taylor, 487 U.S. 326,

336 (1988) (“Whether discretion has been abused depends, of course, on the bounds of that

discretion and the principles that guide its exercise. Had Congress merely committed the

choice of remedy to the discretion of district courts, without specifying factors to be considered,

a district court would be expected to consider ‘all relevant public and private interest factors,’

and to balance those factors reasonably.” (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235,

257 (1981))); James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993) (“Here, as generally, the

judicial recognition of such factors as guides to a proper exercise of discretion operates to

impose legal constraints on its exercise by trial courts and in turn to guide our review—to

6

clear abuse of discretion.” Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380 (2004)

(citations and internal quotation marks omitted). Thus, the specific standard

that we apply here is that mandamus will be granted upon a determination that

there has been a clear abuse of discretion.

The Supreme Court also has said, however, that courts reviewing petitions

for mandamus “must be careful lestthey suffer themselves 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.” Will v.

United States, 389 U.S. 90, 98 n.6 (1967); see Bankers Life & Cas. Co. v. Holland,

346 U.S. 379, 382–83 (1953) (rejecting reasoning that implied that “every

interlocutory order which is wrong might be reviewed under the All Writs Act”).

This admonition distinguishes the standard of our appellate review from that of

our mandamus review. The admonition warns that we are not to issue a writ to

correct a mere abuse of discretion, even though such might be reversible on a

normal appeal. The inverse of the admonition, of course, is that a writ is

appropriate to correct a clear abuse of discretion.

Admittedly, the distinction between an abuse of discretion and a clear

abuse of discretion cannot be sharply defined for all cases. As a general matter,

a court’s exercise of its discretion is not unbounded;thatis, a court must exercise

its discretion within the bounds set by relevant statutes and relevant, binding

precedents.4“A district court abuses its discretion if it: (1) relies on clearly
No. 07-40058

which we now turn.”); Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984) (“That is,

when we say that a decision is discretionary, or that a district court has discretion to grant or

deny a motion, we do not mean that the district court may do whatever pleases it. The phrase

means instead that the court has a range of choice, and that its decision will not be disturbed

as long as it stays within that range and is not influenced by any mistake of law. An abuse

of discretion, on the other hand, can occur in three principal ways: when a relevant factor that

should have been given significant weight is not considered; when an irrelevant or improper

factor is considered and given significant weight; and when all proper factors, and no improper

ones, are considered, but the court, in weighing those factors, commits a clear error of

judgment.”); Gurmankin v. Costanzo, 626 F.2d 1115, 1119–20 (3d Cir. 1980) (“Meaningful

appellate review of the exercise of discretion requires consideration of the basis on which the

trial court acted. If the factors considered do not accord with those required by the policy

underlying the substantive right or if the weight given to those factors is not consistent with

that necessary to effectuate that policy, then the reviewing tribunal has an obligation to

require the exercise of discretion in accordance with ‘what is right and equitable under the

circumstances and the law.’” (quoting Langnes v. Green, 282 U.S. 531, 541 (1931)));

Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Mfg. Co., 550 F.2d 189, 193 (4th Cir.

1977) (“A judge’s discretion is not boundless and must be exercised within the applicable rules

of law or equity.” (citing Petersen v. John Hancock Mut. Life Ins. Co., 116 F.2d 148, 151 (8th

Cir. 1971))).

5 See, e.g., In re Estelle, 516 F.2d 480, 483 (5th Cir. 1975) (noting that mandamus is

appropriate “to confine an inferior court to a lawful exercise of its prescribed jurisdiction” and

“to confine the lower court to the sphere of its discretionary power” (internal quotation marks

and citations omitted)); see also In re Sandahl, 980 F.2d 1118, 1121–22 (7th Cir. 1992)

(granting petition for writ of mandamus to vacate “patently erroneous” order); In re BellSouth

Corp., 334 F.3d 941, 954 (11th Cir. 2003) (noting that “mandamus should ordinarily lie . . .

only if the district court order is patently erroneous”).

7

erroneous factual findings; (2) relies on erroneous conclusions of law; or (3)

misapplies the law to the facts.” McClure v. Ashcroft, 335 F.3d 404, 408 (5th

Cir. 2003) (citation omitted). On mandamus review, we review for these types

of errors, but we only will grant mandamus relief when such errors produce a

patently erroneous result. 

Thus, as to the suggestion that mandamus is an inappropriate means to

test the district court’s discretion in ruling on venue transfers, the precedents

are clear that mandamus is entirely appropriate to review for an abuse of

discretion that clearly exceeds the bounds of judicial discretion.5
No. 07-40058

8

IV.

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 condition designed to ensure thatthe 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.” Cheney, 542 U.S. at 380–81 (alterations

in original) (citations and internal quotation marks omitted). “These hurdles,

however demanding, are not insuperable.” Id. at 381.

Although, at the moment, we will not address these requirements in the

context of and in the order enumerated in Cheney, we shall tie it all together

further into the opinion. We shall first address the second requirement because

it captures the essence of the disputed issue presented in this petition.

A.

The second requirement is that the petitioner must have a clear and

indisputable right to issuance of the writ. If the district court clearly abused its

discretion (the standard enunciated by the Supreme Courtin Cheney) in denying

Volkswagen’s transfer motion, then Volkswagen’s right to issuance of the writ

is necessarily clear and indisputable. In re U.S. Dept. of Homeland Sec., 459

F.3d 565, 571 (5th Cir. 2006) (Dennis, J., concurring) (noting that petitioner

must 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’”); In re Steinhardt Partners, 9 F.3d 230, 233 (2d Cir. 1993)

(same); In re Wilson, 451 F.3d 161, 169 (3d Cir. 2006) (same); In re Qwest

Commc’ns Int’l Inc., 450 F.3d 1179, 1184 (10th Cir. 2006) (same).
No. 07-40058

6 Judge Friendly noted that “[e]ven when a statute or rule expressly confers discretion

or uses the verb ‘may’ or some similar locution, there is still the implicit command that the

judge shall exercise his power reasonably.” Henry J. Friendly, Indiscretion About Discretion,

31 Emory L.J. 747, 765 (1982). Judge Friendly also said, “When the ‘you shall do it unless’

type of formulation is not a realistic option because ofthe multiplicity of considerations bearing

upon an issue, it is still useful for legislators or appellate courts to specify the factors that the

trial judge is to consider. This has long been done, for example, with respect to the subject

with which we began, dismissal on the ground of forum non conveniens, and its cousin,transfer

under 28 U.S.C. section 1404. . . . If [the judge] has faithfully checked off and correctly decided

each item, his determination should usually be allowed to stand. Per contra, if he has neglected

or misapprehended items that would operate in favor ofthe losing party, an appellate court will

have sound basis for finding that discretion was abused.” Id. at 769–70 (emphasis added).

7 When reviewing petitions for mandamus, courts of appeals often consider the venue

transfer factors (or those factors applicable in other contexts) and the relevant facts to

determine whether a district court clearly abused its discretion in granting or denying transfer

(or the relief requested in other contexts). See, e.g., In re Tripati, 836 F.2d 1406, 1407 (D.C.

Cir. 1988); A. Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 444–45 (2d Cir. 1966); In

re Ralston Purina Co., 726 F.2d 1002, 1006 (4th Cir. 1984); ACF Indus., Inc. v. Guinn, 384

F.2d 15, 19–20 (5th Cir. 1967); In re Oswalt, 607 F.2d 645, 647 (5th Cir. 1979); In re

McDonnell-Douglas Corp., 647 F.2d 515, 517 (5th Cir. Unit A May 1981); Castanho v. Jackson

Marine, Inc., 650 F.2d 546, 550 (5th Cir. Unit A June 1981); In re First S. Sav. Ass’n, 820 F.2d

700, 709 (5th Cir. 1987); In re Ramu Corp., 903 F.2d 312, 319 (5th Cir. 1990); In re Horseshoe

Entm’t, 337 F.3d at 432; Chicago, Rock Island & Pac. R.R. v. Igoe, 220 F.2d 299, 305 (7th Cir.

1955); In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1295–1304 (7th Cir. 1995); Toro Co. v.

Alsop, 565 F.2d 998, 999-1000 (8th Cir. 1977); see also McGraw-Edison Co. v. Van Pelt, 350

F.2d 361, 363 (8th Cir. 1965) (“Unless it is made clearly to appear that the facts and

circumstances are without any basis for a judgment of discretion, the appellate court will not

9

There can be no question butthatthe district courts have “broad discretion

in deciding whether to order a transfer.” Balawajder v. Scott, 160 F.3d 1066,

1067 (5th Cir. 1998) (quoting Caldwell v. Palmetto State Sav. Bank, 811 F.2d

916, 919 (5th Cir. 1987)). But this discretion has limitations imposed by the text

of § 1404(a) and by the precedents of the Supreme Court and of this Court that

interpret and apply the text of § 1404(a).6

To determine whether a district court clearly abused its discretion in

ruling on a transfer motion, some petitions for mandamus relief that are

presented to us require that we “review[] carefully the circumstances presented

to and the decision making process” of the district court. In re Horseshoe Entm’t,

337 F.3d at 432.7 Others can be summarily decided. But—and we stress—in no
No. 07-40058

proceed further to examine the district court’s action in the situation. If the facts and

circumstances are rationally capable of providing reasons for what the district court has done,

its judgment based on those reasons will not be reviewed.”).

10

case will we replace a district court’s exercise of discretion with our own; we

review only for clear abuses of discretion that produce patently erroneous

results. We therefore turn to examine the district court’s exercise of its

discretion in denying Volkswagen’s transfer motion.

1.

The preliminary question under § 1404(a) is whether a civil action “might

have been brought” in the destination venue. Volkswagen seeks to transfer this

case to the Dallas Division of the Northern District of Texas. All agree that this

civil action originally could have been filed in the Dallas Division. See 28 U.S.C.

§ 1391.

2.

Beyond this preliminary and undisputed question, the parties sharply

disagree. The first disputed issue is whether the district court, by applying the

forum non conveniens dismissal standard, erred by giving inordinate weight to

the plaintiffs’ choice of venue. We have noted earlier that there is nothing that

ties this case to the Marshall Division except plaintiffs’ choice of venue. It has

indeed been suggested that this statutorily granted choice is inviolable. A

principal disputed question, then, is what role does a plaintiff’s choice of venue

have in the venue transfer analysis. We now turn to address this question.

(a)

When no special, restrictive venue statute applies, the general venue

statute, 28 U.S.C. § 1391, controls a plaintiff’s choice of venue. Under

§ 1391(a)(1), a diversity action may be brought in “a judicial district where any

defendant resides, if all defendants reside in the same State.” Under § 1391(c),

when a suit is filed in a multi-district state, like Texas, a corporation is “deemed
No. 07-40058

11

to reside in any district in that State within which its contacts would be

sufficient to subject it to personal jurisdiction if that district were a separate

State.” Because large corporations, like Volkswagen, often have sufficient

contacts to satisfy the requirement of § 1391(c) for most, if not all, federal

venues, the general venue statute “has the effect of nearly eliminating venue

restrictions in suits against corporations.” 14D Wright, Miller & Cooper, Federal

Practice & Procedure § 3802 (3d ed. 2007) (noting also that, because of the

liberal, general venue statute, “many venue disputes now are litigated as

motions to transfer venue under Section 1404 of Title 28”).

Congress, however, has tempered the effects of this general venue statute

by enacting the venue transfer statute, 28 U.S.C. § 1404. The underlying

premise of § 1404(a) is that courts should prevent plaintiffs from abusing their

privilege under § 1391 by subjecting defendants to venues that are inconvenient

under the terms of § 1404(a). See Norwood v. Kirkpatrick, 349 U.S. 29 (1955);

cf. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947) (“[The general venue]

statutes are drawn with a necessary generality and usually give a plaintiff a

choice of courts . . . . But the open door may admit those who seek not simply

justice but perhaps justice blended with some harassment.”). Thus, while a

plaintiff has the privilege of filing his claims in any judicial division appropriate

under the general venue statute, § 1404(a) tempers the effects of the exercise of

this privilege.

(b)

With this understanding of the competing statutory interests, we turn to

the legal precedents. We first turn to Gilbert because of its historic and

precedential importance to § 1404(a), even today.

In 1947, in Gilbert, the Supreme Court firmly established in the federal

courts the common-law doctrine of forum non conveniens. See Piper Aircraft Co.

v. Reyno, 454 U.S. 235, 248 (1981) (noting that “the doctrine of forum non
No. 07-40058

8 The district courts are permitted to grant transfers upon a lesser showing of

inconvenience under § 1404(a) because §1404(a) venue transfers do not have the serious

consequences of forum non conveniens dismissals. See Norwood, 349 U.S. at 31 (“‘The forum

non conveniens doctrine is quite different from Section 1404(a). That doctrine involves the

dismissal of a case because the forum chosen by the plaintiff is so completely inappropriate and

inconvenient that it is better to stop the litigation in the place where brought and let it start

all over again somewhere else. It is quite naturally subject to careful limitation for it not only

denies the plaintiffthe generally accorded privilege of bringing an action where he chooses, but

makes it possible for him to lose out completely, through the running of the statute of

limitations in the forum finally deemed appropriate. Section 1404(a) avoids this latter

danger.’” (quoting All States Freight v. Modarelli, 196 F.2d 1010, 1011 (3d Cir. 1952))); Van

Dusen v. Barrack, 376 U.S. 612, 639 (1964) (holding that a “change of venue under § 1404(a)

generally should be, with respect to state law, but a change of courtrooms”); Ferens v. John

Deere Co., 494 U.S. 516, 519 (1990) (applying the Van Dusen rule when a plaintiff moves for

transfer).

12

conveniens was not fully crystallized” until Gilbert). The essence of the forum

non conveniens doctrine is that a court may decline jurisdiction and may actually

dismiss a case, even when the case is properly before the court, if the case more

conveniently could be tried in another forum. Gilbert, 330 U.S. at 507.

Shortly after the Gilbert decision, in 1948, the venue transfer statute

became effective. The essential difference between the forum non conveniens

doctrine and § 1404(a) is that under § 1404(a) a court does not have authority to

dismiss the case; the remedy under the statute is simply a transfer of the case

within the federal system to another federal venue more convenient to the

parties,the witnesses, and the trial of the case. Thus, as the Supreme Court has

said, “Congress, by the term ‘for the convenience of parties and witnesses, in the

interest of justice,’ intended to permit courts to grant transfers upon a lesser

showing of inconvenience.” Norwood, 349 U.S. at 32.8

That § 1404(a) venue transfers may be granted “upon a lesser showing of

inconvenience” than forum non conveniens dismissals, however, does not imply

“that the relevantfactors [from the forum non conveniens context] have changed
No. 07-40058

9

Indeed, we have adopted the Gilbert factors, which were enunciated in Gilbert for

determining the forum non conveniens question, for determining the § 1404(a) venue transfer

question. See Humble Oil & Ref. Co. v. Bell Marine Serv., Inc., 321 F.2d 53, 56 (5th Cir. 1963).

10 We have noted that a plaintiff’s choice of venue is to be treated “as a burden of proof

question.” Humble Oil, 321 F.2d at 56; Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir.

1966) (“At the very least, the plaintiff’s privilege of choosing venue places the burden on the

defendant to demonstrate why the [venue] should be changed.”). The Singletons, however,

argue that a plaintiff’s choice of venue should be considered as an independent factor within

the venue transfer analysis and argue that Norwood, because itindicated thatthe factors have

not changed from the forum non conveniens context, requires this result. And, indeed, the

district court considered the plaintiffs’ choice of venue as an independent factor within the

venue transfer analysis. A plaintiff’s choice of forum, however, is not an independent factor

within the forum non conveniens or the § 1404(a) analysis. In fact, the Supreme Court has

indicated that a plaintiff’s choice of forum corresponds to the burden that a moving party must

meet:“A defendantinvoking forum non conveniens ordinarily bears a heavy burdeninopposing

the plaintiff’s chosen forum.” Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 127 S.Ct.

1184, 1191 (2007) (emphasis added); see also Gilbert, 330 U.S. at 508 (indicating the

convenience factors and then noting “[b]ut unless the balance is strongly in favor of the

defendant, the plaintiff’s choice of forum should rarely be disturbed”). Although a plaintiff’s

choice of venue is not a distinct factor in the venue transfer analysis, it is nonetheless taken

into account as it places a significant burden on the movant to show good cause for the

transfer. Thus, our analysis directly manifests the importance that we must give to the

plaintiff’s choice.

13

or that the plaintiff’s choice of [venue] is not to be considered.” Id.9 But it does

imply that the burden that a moving party must meet to justify a venue transfer

is less demanding than that a moving party must meet to warrant a forum non

conveniens dismissal. And we have recognized as much, noting that the “heavy

burden traditionally imposed upon defendants by the forum non conveniens

doctrine—dismissal permitted only in favor of a substantially more convenient

alternative—was dropped in the § 1404(a) context. In order to obtain a new

federal [venue], the statute requires only that the transfer be ‘[f]or the

convenience of the parties, in the interest of justice.’” Veba-Chemie A.G. v. M/V

Getafix, 711 F.2d 1243, 1247 (5th Cir. 1983) (emphasis and first alteration

added); see Piper Aircraft, 454 U.S. at 254 (noting the “relaxed standards for

transfer”).10 Thus, the district court, in requiring Volkswagen to show that the

§ 1404(a) factors must substantially outweigh the plaintiffs’ choice of venue,
No. 07-40058

11 We emphasize that this is a different proposition from whether mandamus lies to

address the district court’s ruling, because as we have earlier noted, mandamus does not reach

all erroneous rulings of the district court.

14

erred by applying the stricter forum non conveniens dismissal standard and thus

giving inordinate weight to the plaintiffs’ choice of venue.

As to the appropriate standard, in Humble Oil we noted that “the

avoidance of dismissal through § 1404(a) lessens the weight to be given” to the

plaintiff’s choice of venue and that, consequently, “he who seeks the transfer

must show good cause.” 321 F.2d at 56. This “good cause” burden reflects the

appropriate deference to which the plaintiff’s choice of venue is entitled. When

viewed in the context of § 1404(a), to show good cause means that a moving

party, in order to support its claim for a transfer, must satisfy the statutory

requirements and clearly demonstrate that a transfer is “[f]or the convenience

of parties and witnesses, in the interest of justice.” Thus, when the transferee

venue is not clearly more convenient than the venue chosen by the plaintiff, the

plaintiff’s choice should be respected. When the movant demonstrates that the

transferee venue is clearly more convenient, however, it has shown good cause

and the district court should therefore grant the transfer.11

3.

We thus turn to examine the showing that Volkswagen made under

§ 1404(a) and the district court’s response.

As noted above, we have adopted the private and public interest factors

first enunciated in Gulf Oil Corp. v Gilbert, 330 U.S. 501 (1947), a forum non

conveniens case, as appropriate for the determination of whether a § 1404(a)

venue transfer is for the convenience of parties and witnesses and in the interest

of justice. See Humble Oil, 321 F.2d at 56.

The private interest factors are: “(1) the relative ease of access to sources

of proof; (2) the availability of compulsory process to secure the attendance of
No. 07-40058

15

witnesses; (3) the cost of attendance for willing witnesses; and (4) all other

practical problems that make trial of a case easy, expeditious and inexpensive.”

In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) [hereinafter In re

Volkswagen I] (citing Piper Aircraft, 454 U.S. at 241 n.6). The public interest

factors are:“(1) the administrative difficulties flowing from court congestion; (2)

the local interest in having localized interests decided at home; (3) the

familiarity of the forum with the law that will govern the case; and (4) the

avoidance of unnecessary problems of conflict of laws [or in] the application of

foreign law.” Id.

Although the Gilbert factors are appropriate for most transfer cases, they

are not necessarily exhaustive or exclusive. Moreover, we have noted that “none

. . . can be said to be of dispositive weight.” Action Indus., Inc. v. U.S. Fid. &

Guar. Corp., 358 F.3d 337, 340 (5th Cir. 2004).

(a)

Before the district court, Volkswagen asserted that a transfer was

warranted because: (1) the relative ease of access to sources of proof favors

transfer as all of the documents and physical evidence relating to the accident

are located in the Dallas Division, as is the collision site; (2) the availability of

compulsory process favors transfer as the Marshall Division does not have

absolute subpoena power over the non-party witnesses; (3) the cost of attendance

for willing witnesses factor favors transfer as the Dallas Division is more

convenient for all relevant witnesses; and (4) the local interest in having

localized interests decided at home favors transfer as the Volkswagen Golf was

purchased in Dallas County, Texas;the accident occurred on a freeway in Dallas,

Texas; Dallas residents witnessed the accident; Dallas police and paramedics

responded and took action; a Dallas doctor performed the autopsy; the thirdparty defendant lives in Dallas County, Texas; none of the plaintiffs live in the

Marshall Division; no known party or non-party witness lives in the Marshall
No. 07-40058

16

Division; no known source of proof is located in the Marshall Division; and none

of the facts giving rise to this suit occurred in the Marshall Division.

(b)

Applying the Gilbertfactors, however, the district court concluded that: (1)

the relative ease of access to sources of proof is neutral because of advances in

copying technology and information storage; (2) the availability of compulsory

process is neutral because, despite its lack of absolute subpoena power, the

district court could deny any motion to quash and ultimately compel the

attendance ofthird-party witnesses found inTexas; (3)the cost of attendance for

willing witnesses is neutral because Volkswagen did not designate “key”

witnesses and because, given the proximity of Dallas to the Marshall Division,

the cost of having witnesses attend a trial in Marshall would be minimal; and

(4) the local interest in having localized interests decided at home factor is

neutral because, although the accident occurred in Dallas, Texas, the citizens of

Marshall, Texas, “would be interested to know whether there are defective

products offered for sale in close proximity to the Marshall Division.” Based on

this analysis, the district court concluded that Volkswagen “has not satisfied its

burden of showing that the balance of convenience and justice weighs in favor

of transfer.”

(c)

We consider first the private interest factor concerning the relative ease

of access to sources of proof. Here, the district court’s approach reads the

sources of proof requirement out of the § 1404(a) analysis, and this despite the

factthatthis Court has recently reiterated thatthe sources of proof requirement

is a meaningful factor in the analysis. See In re Volkswagen I, 371 F.3d at 203.

That access to some sources of proof presents a lesser inconvenience now than

it might have absent recent developments does not render this factor

superfluous. All of the documents and physical evidence relating to the accident
No. 07-40058

12 The Singletons argue that Volkswagen has not provided affidavits from these

individuals indicating what specific testimony they might offer, has not explained why such

testimony is important or relevant, and has not indicated that such testimony is disputed. In

the forum non conveniens context, however, we have rejected “the imposition of a blanket rule

requiring affidavit evidence.” Empresa Lineas Maritimas Argentinas, S.A. v. SchichauUnterweser, A.G., 955 F.2d 368, 371–72 (5th Cir. 1992); see also Piper Aircraft, 454 U.S. at 258

17

are located in the Dallas Division, as is the collision site. Thus, the district court

erred in applying this factor because it does weigh in favor of transfer.

The second private interestfactor is the availability of compulsory process

to secure the attendance of witnesses. As in In re Volkswagen I, the non-party

witnesses located in the city where the collision occurred “are outside the

Eastern District’s subpoena power for deposition under Fed. R. Civ. P.

45(c)(3)(A)(ii),” and any “trial subpoenas for these witnesses to travel more than

100 miles would be subject to motions to quash under Fed. R. Civ. P. 45(c)(3).”

Id. at 205 n.4. Moreover, a proper venue that does enjoy absolute subpoena

power for both depositions and trial—the Dallas Division—is available. As we

noted above,the venue transfer analysis is concerned with convenience, and that

a district court can deny any motions to quash does not address concerns

regarding the convenience of parties and witnesses. Thus, the district court

erred in applying this factor because it also weighs in favor of transfer.

The third private interest factor is the cost of attendance for willing

witnesses. Volkswagen has submitted a list of potential witnesses that included

the third-party defendant, accident witnesses, accident investigators, treating

medical personnel, and the medical examiner—all of whom reside in Dallas

County or in the Dallas area. Volkswagen also has submitted two affidavits, one

from an accident witness and the other from the accident investigator, that

stated that traveling to the Marshall Division would be inconvenient.

Volkswagen also asserts that the testimony of these witnesses, including an

accident witness and an accident investigator, is critical to determining

causation and liability in this case.12
No. 07-40058

(rejecting the contention“that defendants seeking forum nonconveniensdismissalmust submit

affidavits identifying the witnesses they would call and the testimony these witnesses would

provide if the trial were held in the alternative forum”).

18

In In re Volkswagen I we set a 100-mile threshold as follows: “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.” 371

F.3d at 204-05. We said, further, that it is an “obvious conclusion” that it is

more convenient for witnesses to testify at home and that “[a]dditional distance

means additional travel time; additional travel time increases the probability for

meal and lodging expenses; and additional travel time with overnight stays

increases the time which these fact witnesses must be away from their regular

employment.” Id. at 205. The district court disregarded our precedent relating

to the 100-mile rule. As to the witnesses identified by Volkswagen, it is

apparent that it would be more convenient for them if this case is tried in the

Dallas Division, as the Marshall Division is 155 miles from Dallas. Witnesses

not only suffer monetary costs, but also the personal costs associated with being

away from work, family, and community. Moreover, the plaintiffs, Richard

Singleton and Ruth Singleton, also currently reside in the Dallas Division (Amy

Singleton resides in Kansas). The Singletons have not argued that a trial in the

Dallas Division would be inconvenientto them;they actually have conceded that

the Dallas Division would be a convenient venue. The district court erred in

applying this factor as it also weighs in favor of transfer.

The only contested public interest factor is the local interest in having

localized interests decided at home. Here, the district court’s reasoning again

disregarded our precedent in In re Volkswagen I. There, under virtually

indistinguishable facts, we held that this factor weighed heavily in favor of

transfer. Id. at 205-06. Here again, this factor weighs heavily in favor of
No. 07-40058

13 Moreover, the facts do not favor the logic presented. The record indicates that the

Volkswagen Golf was purchased from a location in the Dallas Division, and that Marshall,

Texas, has no Volkswagen dealership.

19

transfer: the accident occurred in the Dallas Division, the witnesses to the

accident live and are employed in the Dallas Division, Dallas police and

paramedics responded and took action, the Volkswagen Golf was purchased in

Dallas County,the wreckage and all other evidence are located in Dallas County,

two of the three plaintiffs live in the Dallas Division (the third lives in Kansas),

not one of the plaintiffs has ever lived in the Marshall Division, and the thirdparty defendant lives in the Dallas Division. In short, there is no relevant

factual connection to the Marshall Division.

Furthermore, the district court’s provided rationale—that the citizens of

Marshall have an interest in this product liability case because the product is

available in Marshall, and that for this reason jury duty would be no

burden—stretches logic in a manner that eviscerates the public interest that this

factor attempts to capture.13 The district court’s provided rationale could apply

virtually to any judicial district or division in the United States; it leaves no

room for consideration of those actually affected—directly and indirectly—by the

controversies and events giving rise to a case. That the residents of the Marshall

Division “would be interested to know” whether a defective product is available

does not imply that they have an interest—that is, a stake—in the resolution of

this controversy. Indeed, they do not, as they are not in any relevant way

connected to the events that gave rise to this suit. In contrast, the residents of

the Dallas Division have extensive connections with the events that gave rise to

this suit. Thus, the district court erred in applying this factor as it also weighs

in favor of transfer.

4.
No. 07-40058

20

The reader will remember that we began our discussion by addressing the

three requirements set out by the Supreme Court in Cheney for the issuance of

the writ of mandamus. Up until this point, all of our discussion has focused

upon the second requirement: that the right to mandamus is clear and

indisputable. The remaining question as to this second requirement is whether

the errors we have noted warrant mandamus relief; that is, whether the district

court clearly abused its discretion in denying Volkswagen’s transfer motion. The

errors ofthe district court—applying the stricter forum non conveniens dismissal

standard, misconstruing the weight of the plaintiffs’ choice of venue, treating

choice of venue as a § 1404(a) factor, misapplying the Gilbert factors,

disregarding the specific precedents of this Court in In re Volkswagen I, and

glossing over the fact that not a single relevant factor favors the Singletons’

chosen venue—were extraordinary errors. Indeed, “[t]he only connection

between this case and the Eastern District of Texas is plaintiffs’ choice to file

there.” In re Volkswagen of Am., Inc., 223 F. App’x 305, 307 (5th Cir. 2007)

(Garza, J., dissenting).

In the light of the above, we hold that the district court’s errors resulted

in a patently erroneous result. Thus, Volkswagen’s right to issuance of the writ

is clear and indisputable, and the second requirement, under Cheney, for

granting a petition for a writ of mandamus is therefore satisfied.

B.

We now return to the first and the third requirements for determining

whether a writ should issue, as provided by the Supreme Court in Cheney.

The first requirement—that the petitioner must have no other adequate

means to attain relief—is certainly satisfied here. 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
No. 07-40058

21

it been tried in a convenient [venue].” In re Nat’l Presto Indus., Inc., 347 F.3d

662, 663 (7th Cir. 2003); see Fed. R. Civ. P. 61 (harmless error rule). Moreover,

interlocutory review of transfer orders under 28 U.S.C. § 1292(b) is unavailable.

Garner v. Wolfinbarger, 433 F.2d 117, 120 (5th Cir. 1970). 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.

As to the third requirementfor granting a petition for a writ of mandamus,

we must assure ourselves that it is appropriate in this case. We have addressed

most of the reasons outlined above. The district court clearly abused its

discretion and reached a patently erroneous result. And it is indisputable that

Volkswagen has no other adequate remedy that would provide it with relief.

Further, writs of mandamus are supervisory in nature and are particularly

appropriate when the issues also have an importance beyond the immediate

case. See United States v. Bertoli, 994 F.2d 1002, 1014 (3d Cir. 1993). 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. Thus, here it is further appropriate to grant mandamus

relief, as the issues presented and decided above have an importance beyond this

case. And, finally, we are aware of nothing that would render the exercise of our

discretion to issue the writ inappropriate.

We therefore conclude that all three of the Cheney requirements for

mandamus relief are met in this case.
No. 07-40058

22

V.

Thus, for the reasons assigned above, we grant Volkswagen’s petition for

a writ of mandamus. The Clerk of this Court shall therefore issue a writ of

mandamus directing the district court to transfer this case to the United States

District Court for the Northern District of Texas, Dallas Division.

MANDAMUS GRANTED;

TRANSFER OF CASE ORDERED.
No. 07-40058

23

KING, Circuit Judge, with whom DAVIS, WIENER, BENAVIDES,

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 hit on its left rear panel by Colin

Little, spun around, and slid rear-first into a flat-bed 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,
No. 07-40058

24

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 (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 (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,
No. 07-40058

25

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 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
No. 07-40058

26

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 plaintiff’s

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 plaintiff’s 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 plaintiff’s 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 (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
No. 07-40058

27

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 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
No. 07-40058

1 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

28

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

ECF (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”1is no proxy
No. 07-40058

travel more than 100 miles. Id. at 205 n.4. 

2 The district court did recognize Dallas residents’ interest in a localtraffic 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.

29

for considering the realistic costs and inconvenience 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 (I20), 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
No. 07-40058

30

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. CIV. P. 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. CIV. P. 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 tests]

with too little regard for consistency of outcomes,” the majority convinces

itself that mandamus is appropriate and issues the writ.
No. 07-40058

31

Despite the majority’s own recognition that a § 1404(a) transfer

decision is a nonappealable 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 (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 (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 (internal citations omitted) (quoting first Parr v. United States,

351 U.S. 513, 520 (1956), and then Bankers Life, 346 U.S. at 382–83); 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.”); Bankers Life, 346 U.S. at 383 (“[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)
No. 07-40058

3 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.

32

(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

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
No. 07-40058

4 Section 1406(a) permits the transfer of a case where venue is improperly laid and is

essentially “analogous” to § 1404(a). Van Dusen v. Barack, 376 U.S. 612, 621 n.11 (1964).

33

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. 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).4Id. at 380–81. 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. 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. 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 (1945). This is not such a case.
No. 07-40058

5 De Beers Consolidated Mines, referenced in BankersLife, 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 (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 not mere error but usurpation of power—the situation

falls precisely within the allowable use of [the All Writs Act].

Id.

34

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.5It is therefore a mistake to 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
No. 07-40058

35

a litigant’s right to a particular result is clear and indisputable.” Allied

Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (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; see also Will, 389 U.S. at 104 (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)). 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 (Benavides, 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
No. 07-40058

36

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 (quoting Ex parte

Fahey, 332 U.S. 258, 259–60 (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, “[t]hat 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 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.
No. 07-40058

37

2007). As the late Judge Friendly recognized more than 40 years ago,

“[a]ppellate 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).