UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 02-30682

In Re: HORSESHOE ENTERTAINMENT,

Petitioner.

Petition for Writ of Mandamus to the

United States District Court for the

Middle District of Louisiana

September 10, 2002

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

DeMOSS, Circuit Judge:

Horseshoe Entertainment (“Horseshoe”), a Louisiana partnership

having its domicile and principal place of business in Bossier

City, Louisiana, petitions this Court to issue a Writ of Mandamus

to reverse a decision of the United States District Court for the

Middle District of Louisiana (the Middle District Court) in Civil

Action No. 01-295 on its docket, denying a motion by Horseshoe to

transfer the venue of a Title VII sex discrimination/ADA case to

the Shreveport Division of the United States District Court for the

Western District of Louisiana (the Shreveport Division Court) for

the convenience of the parties and witnesses and in the interest of

justice pursuant to 28 U.S.C. § 1404(a). Caroline W. Rogers2

(“plaintiff”) filed such suit against Horseshoe on April 17, 2001,

in the Middle District Court alleging that she was subjected to

discrimination and harassment while employed with Horseshoe in

violation of Title VII of t he Civil Rights Act of 1964 (“Title

VII”) and the Americans with Disabilities Act (“ADA”). On June 13,

2001, prior to filing any answer, Horseshoe filed its motion to

transfer pursuant to § 1404(a) and such motion was timely and of

s ufficient content to prevent waiver of the venue issue when

Horseshoe subsequently filed its answer in such proceeding. In its

motion to transfer , Horseshoe asserts the following uncontested

facts and grounds for its motion:

A. As reflected by plaintiff’s sworn complaint:

1. Plaintiff is a resident of Caddo Parish, Louisiana,

which is within the Shreveport Division of the Western District of

Louisiana;

2. Plaintiff was employed by Horseshoe in Bossier City,

Louisiana, which is also within the Shreveport Division of the

Western District of Louisiana;

3. P laintiff was subjected to certain acts of sexua l

harassment by other employees of Horseshoe and all of these acts

occurred in Bossier City which is also within the Shreveport

Division of the Western District of Louisiana;

4. Plaintiff suffers from a disability (diabetes) and

Horseshoe failed to make reasonable accommodations for her

disability and harassed her becau se of such disability; and all3

such cond uct occurred in Bossier City or the greater Shreveport

area within the Shreveport Division of the Western District of

Louisiana;

5. The alleged conduct of harassment and discrimination

caused plaintiff to be constructively discharged from her

employment on July 17, 2000, which occurred in Bossier City,

Louisiana, within the Shreveport Division of the Western District

of Louisiana; and

6. As a result of such alleged conduct, plaintiff

sustained severe emotional distress and dam ages in the greater

Shreveport area which is within the Shreveport Division of the

Western District of Louisiana.

B. Almost all of the potent i al witnesses for Horseshoe

reside in the areas of Bossier City and Shreveport, Louisiana, all

within the Shreveport Division of the Western District Court.

C. Almost all of plaintiff’s potential witnesses reside

within the Bossier City or Shre veport area within the Shreveport

Division of the Western District Court.

D. All employment records related to plaintiff’s employment

by Horseshoe are maintained in the offices of Horseshoe in Bossier

City, Louisiana, within the Shr eveport Division of the Western

District.

E. But for the alleged c onduct herein and the alleged

constructive discharge, the plaintiff would have continued to work

for Horseshoe in Bossier City, Lo uisiana, within the Shreveport4

Division of the Western District.

F. The distance between Baton Rouge, Louisiana , where the

Middle District Court would conduct this litigation if it is not

t ransferred, and the Shreveport/Bossier City area, where the

witnesses and parties reside, is more than 200 miles; and is

therefore beyond the 100 mile distance in which the automatic

subpoena power of a district court can be used to compel attendance

of witnesses.

As an initial point in her response filed with this Court to

Horseshoe’s petition for mandamus, the plaintiff questions whether

this Court has jurisdiction under the All Writs Act (28 U.S.C.

§ 1651) to review the Middle District Court’s decisions on the

motion to transfer and contends that since Horseshoe did not even

seek a certification from the Middle District Court pursuant to 28

U.S.C. § 1292, the order on the motion to transfer venue may not be

reviewable at all. In essence, the plaintiff’s contention is that

the decision of the Middle District Court on the motion to transfer

venue is not reviewable in any way by this Court. We disagree for

two reasons. First of all, we operate on the presumption that if

Congress wants to make a decision by a district court unreviewable

by a Circuit Court, it certainly k nows how to do that. S ee 28

U.S.C. § 1447(d) which states that an order remanding a case to a

state court from which it was removed “is not reviewable on appeal

or otherwise.” There is no such similar provision in the general5

venue statutes nor in the special venue statute applicable in this

case.

Secondly, we think plaintiff misreads our Circuit’s

precedents. In G arner v. Wolfinbarger

, 433 F.2d 117, 120 (5th Cir.

1970), after first holding “that § 1292(b) review is inappropriate

for challenges to a judge’s discretion in granting or denying

transfer under § 1404(a),” the panel went on to state:

This Circuit has recognized the availability of

mandamus as a limited means to test the district

court’s discretion in issuing transfer orders. Ex

Parte B laski , 245 F.2d 737 (5th Cir.), c ert.

denied, 355 U.S. 872, 78 S. Ct. 122, 2 L.Ed.2d 76

(1957); E

x Parte Pfizer & Co.

, 225 F.2d 720 (5th

Cir. 1955); A tlantic Coastline RR v. Davis

, 185

F.2d 766 (5th Cir. 1950) ; c f. Ex Parte Deep Water

Exploration Co.

, supra

.

The petition for writ of mandamus in Garner was denied because

there was no showing of “any failure by the dis trict judge to

correctly construe and apply the statute or to consider the

relevant factors incident to ruling upon a motion to transfer or

clear abuse of discretion on his part” which were the standards of

review set in Pfizer

, supra . While the court in Garner commented

that “in the voluminous litigation over transfer orders, only a few

litigants have surmounted the formidable obstacles and secured the

writ,” we take that as a simple expression of the adage that

“exceptions prove the rule.” There is no way that this Court can

determine whether the Pfizer standards have been met except by

reviewing carefully the circumstances presented to and the decision6

making by the Middle District Court; and for the reasons

hereinafter set forth the errors of the Middle District Court are

sufficient to satisfy the P fizer standards and to justify the

issuance of the writ of mandamus.

In addition to the general statutory provisio ns regarding

venue set forth in Chapter 87 of Title 28 of the U.S. Code (28

U.S.C. § 1391, et seq.), Congress has adopted special venue

provisions for the type of litigation involved in this case (claims

under Title VII and the ADA) which state as follows:

(3) Each United States district court and

each United States court of a place subject to the

jurisdiction of the United States shall have

jurisdiction of actions brought under this

subcha pter. Such an action may be brought in any

judicial district in the State in which the

unlawful employment practice is alleged to have

been committed, in the judicial district in which

the employment records relevant to such practice

are maintained and administered, or in the judicial

district in which the aggrieve d person would have

worked but for the alleged unlawful employment

practice, but if the respondent is not found within

any such district, such an action may be brought

within the judicial district in which the

respondent has his principal office. For purposes

of sections 1404 and 1406 of Title 28, the judicial

district in which the respondent has his principal

office shall in all cases be considered a district

in which the action might have been brought.

42 U.S.C. § 2000e-5(f)(3). We note that the last sentence of this

spec ial venue provision makes express cross-reference to §§ 1404

and 1406 of Title 28 indicating clearly Congre ss’ intention that

the provisions of §§ 1404 and 1406 would also be applicable in this

case.7

The provisions of 28 U.S.C. § 1404(a), upon which Horseshoe

relies in its motion for transfer, state as follows:

(a) For the convenience of parties and

witnesses, in the interest o f justice, a district

court may transfer any civil action to any other

distr ict or division where it might have been

brought.

The first issue that a district court must address in ruling on a

motion to transfer under § 1404(a) is the question of whether the

judicial district to which transfer is sought qualifies under the

applicable venu e statutes as a judicial district where the civil

action “might have been brought.” While the Middle District Court

did not expressly address this issue, in our view there is no

genuine controversy therein. Plaintiff’s suit might have been

originally filed in the Shreveport Division of the Western District

because (1) that is where “the un lawful employment practices are

alleged to have been committed,” (2) that is where “the employment

records relevant to such practice are maintained and administered,”

(3) that is where “the aggrieved person would have worked but for

the alleg ed unlawful employment practice,” and (4) that is where

“the respondent has his principal office.” The critical issue in

this case, therefore, is whet her the “convenience of parties and

witnesses, in the interest of justice” requires a district court to

transfer this civil action to the Shreveport Division of the

Western District.

For reasons not readily discernable from the record or the

parties’ briefing, the Middle District Court waited some 13 months8

until Jul y 2002, to rule on Horseshoe’s motion to transfer. As

indicated earlier, Horseshoe filed its mo tion to transfer timely

and before it filed its answer and in our view disposition of that

motion shoul d have taken a top priority in the handling of this

case by the Middle District Court. When it finally did get around

to ruling, the Mi ddle District Court summarized its findings and

conclusions in the following paragraph:

In considering the relevant factors, the Court

finds that, since the plaintiff, the defendant and

presumably the witnesses, all reside in Caddo

Parish, the factors of availability and convenience

of witnesses, availability and convenience of the

parties, and place of alleged wrong militate in

favor of the requested transfer. On the other

hand, the factors of possibi lity of delay or

p rejudice if transfer is granted, the location of

counsel, 8 and plaintiff’s choice of forum seem to

dictate that the requested transfer be denied. 9

Since the relevant factors appear to be evenly

divided between the two alternatives, the Court

finds that defendant has failed to carry its burden

of establishing that justice weighs substantially

in favor of the requested transfer of venue.

Therefore, transfer of this litigation is not

warranted and plaintiff’s choice o f forum will be

honored.

In footnote 8, the Middle District Court pointed out that “Both

parties are now represented by Baton Rouge counsel.” In footnote

9, the Middle District Court indicated that it “Does not consider

the factor regarding the location of books and records to be

significant in the case because the implements of modern electronic

imaging and document transfer and retrieval will greatly reduce, if

not eliminate any inconvenience to the parties in this regard.”

We think the District Court erred in concluding that the9

“relevant factors appear to b e evenly divided between the two

alternatives” and that in such circumstance “the plaintiff’s choice

of forum will be honored,” for the following reasons:

1. The factor of “location of counsel” is irrelevant and

improper for consideration in determining the question of transfer

of venue. Neither the plaintiff nor the Middle District Court

favored us with a citation to any Supreme Court or Circuit Court

decision recognizing the appropriaten ess of this factor nor have

they cited any statutory text or any legislative history indicating

the intention of Congress that such a factor be considered in

deciding a motion to transfer. The Middle District Court erred in

considering this factor and giving it equivalent weight in its

decision-making process.

2. We think the Middle District Court erred in not

considering “the factor regarding the location of books and

records.” Where relevant employment records are maintained and

administered is expressly stated as a venue factor in the special

venue statute and should be weighed by a District Court in

evaluating the interest of justice” aspect of the motion to

transfer.

3. We think the Middle District Court erred in considering

and giving weight to the factor of “possibility of delay or

prejudice if transfer is granted.” There is absolutely nothing in

the p leadings, briefs, or records of this case from which we can

determine what specifically the Middle District Court had in mind10

in using the vague generalities of “possibility of delay or

prejudice” if transfer is granted. We recognize that in rare and

special circumstances a factor of “delay” or of “prejudice” might

be relevant in deciding the propriety of transfer, but only if such

circumstances are established by clear and convincing evidence. N o

such evidence exists here in this case and we think t he Middle

District Court erred by considering and giving weight to the mere

“possibility” of vague and indefinite circumstances.

4. Finally, we believe the Middl e District Court erred in

attributing decisive weight to the plaintiff’s choice of forum. We

believe that it is clear under Fifth Circuit precedent that the

plaintiff’s choice of forum is clearly a factor to be considered

but in and of itself it is neither conclusive nor determinative.

Garner v. Wolfinbarger

, supra at 119. Obviously, to be considered

at all, the plaintiff’s choice of forum must be one which is

permitted under the relevant ven ue statute; and we have serious

doubts that the plaintiff’s selection of the Middle District of

Louisiana was a p roper venue choice in this case. The plaintiff

did not allege that “any unlawful employment practice” was

committed in the Middle District of Louisiana; there is nothing in

this record to indicate that relevant employment records were

maintained or administered in the Midd le District of Louisiana;

there is nothing in this record to indicate that the plaintiff

“would have worked” for Horseshoe in the Middle District of

Louisiana but for the alleged unlawful employment practice and11

there is nothing in this record to indicate that Horseshoe had any

office of any kind in the Middle District of Louisiana.

Plaintiff theorizes, and the Middle District Court seems to

have adopted the theory, that the phraseology of the portion of the

special venue statute relating to where the unlawful em ployment

practice occurred permits her to bring suit in any judicial

district in the State of Louisiana because she alleged in her

petition that the unlawful employment practice occurred in the

State of Louisiana. Plaintiff postulates that this reading of the

statutory language was intended by Congress to permit plaintiffs in

employment discrimination cases to sue their employer in judicial

districts in which their employer had no connection or involvement

whatsoever in order to assure that “jury pools” were not tainted by

t he employer’s presence in that district. However, neither the

plaintiff nor the Middle District Court favored us with any case

citation to any Supreme Court or Circuit Court case which adopts

this reading of the particular statutory language nor with any

citation to legislative history indicating that Congress intended

to provide what plaintiffs say they intended. Plaintiff’s novel

and ingenious reading of the statutory language which permits the

fixing of venue on a state-wide basis is completely inconsistent

with the pattern and practice in the general venue statute and in

other special venue statutes where venue is set on a judicial

district basis depending upon the existence of facts or occurrences

within that particular judicial district. Fixing venue on a state-12

wide basis would create a field day for forum shopping by

plaintiffs.

When the fi ling of a claim is covered by a special venue

statute, as in this case, we think the venue factors set forth in

that special statute are the clearest indicators of where Congress

considered the best place to try an employment discrimination case.

In this case those special venue factors clearly indicate that

Congress thought employment discrimination controversies should be

litigated in judicial districts that had direct and immediate

connection with the parties, the events and the evidence bearing on

their controversy. For these reasons we cannot accept the Middle

District Court’s interpretation of the st atutory language which

would s upport venue in the Middle District of Louisiana.

Furthermore, when the statutory venue factors are each and all

satisfied by one division of one judicial district, as they are for

the Shreveport Division of the Western District in this case, and

where the use of a district court’s subpoena power could be clearly

facilitated in the Shr eveport Division, we think the Middle

District Court clearly erred and abused its discretion in denying

Horseshoe’s motion to transfer to that district.

Accordingly, we grant Horseshoe’s petition for a writ of

mandamus, vacate the order of the Middle District Court denying

Horseshoe’s motion for transfer, and remand this case to the Middle

District Court with instructions to enter an order tr ansferring

this case to the docket of the Shreveport Division of the Western13

District forthwith.

ENDRECORD1 It is not clear whether the majority opinion adopts this abuse

of discretion standard or a more scrutinizing review. Although the

penultimate paragraph of the majority opinion concludes that the

district court “clearly erred and abused its discretion in denying

[the]... motion to tran sfer,” most of the opinion addresses only

whether the district court erred, not whether an error rose to the

level of an abuse of discretion.

14 BENAVIDES, Circuit Judge, dissenting:

The standard for reviewing a district court’s decision not to

transfer venue is clear and well-settle d: “[w]e review all

questions concerning venue under the abuse of discretion standard.”

United States v. Delgado-Nunez

, 295 F.3d 494, 496 (5th Cir. 2002) (quoting United States v. Asibor

,

109 F.3d 1023, 1037 (5th Cir. 1997)). Of course, “abuse of discretion review o f purely legal

questions... is effectively de novo, because ‘[a] district court by definition abuses its discretion when

it makes an err or of law.’” D elgado-Nunez

, 295 F.3d at 496 (quoting Koon v. United States

, 518

U.S. 81, 100 (1996)). At issue here, however, is not a purely legal question, such as those

contemplated in Delgado-Nunez and Koon

. Rather, in deciding not to transfer the matter, the district

court considered and balanced man y facts and factors. Accordingly, the district court’s decision

should not be reviewed de novo , but rather should stand barring an abuse of discretion. 1

Furthermore, the writ of mandamus is an extraordinary, seldo m-used remedy —not a

substitute for appeal. Indeed, the writ should issue only “in the absence of other adequate remedies

when the trial court has exceeded its jurisdiction or has declined to exercise it, or when the trial court

has so clearly and indisputably abused its discretion as to compel prompt intervention by the appellate

court.” I n re Chesson

, 897 F.2d 156, 159 (5th Cir . 1990) (citing I n re First South Savings

Association , 820 F.2d 700 (5th Cir. 1987); United States v. Crawford Enterprises

, 754 F.2d 127215

(5th Cir. 1985)). Factors used to determine whether to issue the writ of mandamus “include whether

the district court failed to construe and apply the statute correctly, whether the relevant factors

incident to a motion to transfer were considered, and whether there was a clear abuse of discretion.”

In re Cragar Industries, Inc. , 706 F.2d 503, 504 (5th Cir. 1983) (citing In re McDonnell Douglas

Corp.

, 647 F.2d 515, 517 (5th Cir. 1981)). Although it was concluded in C ragar that the district

court had in fact abused its discretion, no writ of mandamus was issued and the district court was

instead encouraged to reconsider its decision. S ee C r agar

, 706 F.2d at 506. Thus, because a

decision to transfer venue is governed by the abuse of discretion standard and the fact that the writ

of mandamus is categori cally disfavored as a remedy, the district court’s decision not to transfer

venue and to keep the matter in the Middle District of Louisiana must be respected in all but the most

compelling circumstances.

To supp ort it s argument that the district court should have transferred the matter to the

Western District of Louisiana, the majority opinion questions whether venue is proper in the Middle

District. Yet, the plain meaning of the relevant special venue statute, codified at 42 U.S.C. § 2000e5(f)(3), makes clea r that venue is proper i n a ny judicial district in any state in which the alleged

discrimination occurred, which, here, includes the Middle District. S ee 42 U.S.C. § 2000e-5(f)(3)

(noti ng t hat venue o f Title VII suit lies in “any judicial district in the State in which the unlawful

emplo yment practice is alleged to have been committed, in the judicial district in which the

employm ent reco rds relevant to such practice are maintained and administered, or in the judicial

district in which the aggrieved person would have worked but for the alleged unlawful employment2 It has been established that this special venue statute

supersedes any general venue provision. S ee, e.g., Harding v.

Williams Property Co.

, 1998 WL 637414, *2 n.5 (4th Cir. 1998)

(unpublished disposition); Ross v. Buckeye Cellulose Cor p. , 980

F.2d 648, 655 (11th Cir. 1993); Johnson v. Payless Drug Stores

Northwest, Inc. , 950 F.2d 586 (9th Cir. 1991).

3 Courts traditionally have empl o yed the following factors to

determine whether to transfer venue:

(1) Plaintiff’s choice of forum.

(2) The availability of compulsory process for the attendance of

unwilling witnesses.

(3) The cost of obtaining the attendance of willing witnesses.

(4) The accessibility and location of sources of proof.

(5) The location of counsel.

(6) The relative congestion of the courts’ dockets.

(7) Accessibility of the premises to jury view.

(8) Relation of the community in which courts and the jurors are

required to serve to the occurrence giving rise to the suit.

(9) The time, cost , and ease with which the trial can be

con ducted, and all other practical considerations relative to

the trial.

See Fletcher v. Southern Pacific Transp. Co.

, 648 F. Supp. 1400,

1401 (E.D. Tex. 1986) (voluminous internal citations omitted).

16 practice”). 2 Thus, given the plain meaning of the special venue statute, venue is proper in any district

in Louisiana, the state in which the alleged discrimination occurred. This sound result is neither novel

nor unprecedented. S ee, e.g., Richardson v. Alabama State Bd. of Educ.

, 935 F.2d 1240, 1248 n.11

(11th Cir. 1991) (“Since the alleged discrimination took place in Georgia, appellants were free to

bring suit in any of the state’s three federal judicial districts.”); see also Garus v. Rose Acres Farms,

Inc.

, 839 F. Supp. 563 (N.D. Ind. 1993); Gilbert v. General Elec. Co.

, 347 F. Supp. 1058 (E.D. Va.

1972). Cf. Thurman v. Martin Marietta Data Systems , 596 F. Supp. 367 (M.D. Pa. 1984).

In support of issuing the writ of mandamus, the majority opinion argues that this matt er

should be litigated in the West ern Dist rict of Louisiana. 3 To be sure, this matter could have been

brought properly in the Western District. Supportive of this conclusion are the facts that the Western4 Also perhaps relevant is the fa ct that the attorneys in this

matter are located in the Middle District—not the Western

District—of Louisiana. Although attorney location is never a

strong factor in the calculus to transfer venue, it can bear some

weight on the venue decision. S ee Formaldehyde Institute, Inc. v.

U. S. Consumer Product Safety Com’n

, 681 F.2d 255, 262 (5th Cir.

1982) (holding that attorney location was not “ a significant basis for

determining venue”).

5 It seems strange that although defendant has file d in the

Middle District a motion for summary j udgment, which presumably

relies upon various witness affidavits, defen dant, in support of

its request to transfer venue, hints that those same witnesses

would be unavailable for trial unless the matter is transferred to

the Western District. These positions appear to be mutually

exclusive.

17 District is (1) the place of the alleged discriminatory conduct; (2) where the employ ment records

relevant to the alleged discriminatory conduct are located; (3) the place of the plaintiff’s residence;

and (4) where most of the potential witnesses reside. Other factors, however, point toward keeping

the matter in the Middle District. Most significantly, transferring venue would hinder the plaintiff’s

abilit y to choose a forum and may also result in prejudice and delay in this litigation, 4 as some motions

in this matter have been disposed of and others are currently pending, including defendant’s motion

for summary judgment. 5

Believing that the district court’s analysis and determination not to transfer venue clearly does

not rise to the level of abuse of discretion, I would deny the extraordinary remedy of mandamus.

Accordingly, I dissent.