IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30067

In re: 

RED BARN MOTORS, INCORPORATED; BARBARA A. RICHARDSON;

DONALD B. RICHARDSON; 

LOUISIANA’S FIRST CHOICE AUTO AUCTION, L.L.C.,

 Petitioners.

Petitions for Writs of Mandamus to

the United States District Court

for the Middle District of Louisiana

Before SMITH, ELROD, and HIGGINSON, Circuit Judges.

PER CURIAM:

These petitions for writs of mandamus ask us to order the United States 

District Court for the Middle District of Louisiana to vacate its transfer to the 

Southern District of Indiana. The petitions were filed more than three months 

after the transfer and after proceedings had begun in the transferee court. We 

deny the petitions.

I.

Red Barn Motors, Incorporated (“Red Barn”), is a car dealership that, in 

United States Court of Appeals

Fifth Circuit

FILED

July 20, 2015

Lyle W. Cayce

Clerk

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2011, entered into an agreement with Dealer Services Corporation (“DSC”) for 

DSC to finance Red Barn’s purchase of vehicles at auction. According to Red 

Barn’s complaint, when it would buy a vehicle at auction, sometimes six to 

eight weeks would elapse before the auction house would obtain the title and 

transfer it to DSC. Red Barn contends that DSC would not pay the auction 

house until DSC received the title but would charge interest and fees starting 

from when Red Barn made the purchase, weeks before DSC transferred the 

funds to the auction house.

In March 2013, Red Barn stopped making payments to DSC on its line 

of credit, whereupon DSC began seizing some of Red Barn’s assets. In April, 

Red Barn delivered about a dozen vehicles to Louisiana’s First Choice Auto 

Auction, L.L.C. (“First Choice”), to sell, but First Choice delivered them to DSC.

Red Barn declared bankruptcy that month. At some point, DSC was absorbed 

by NextGear Capital, Inc. (“NextGear”).

II.

Red Barn sued NextGear and First Choice in the Middle District of Louisiana, claiming breach of contract and unjust enrichment by NextGear and 

conversion by both defendants. NextGear moved to transfer the case to the 

Southern District of Indiana under 28 U.S.C. § 1404(a).1 NextGear attached 

to its motion a copy of the promissory note that Red Barn had tendered to DSC, 

which stated that Red Barn consented to personal jurisdiction and venue in 

the state and federal courts of Marion and Hamilton Counties, Indiana, and 

that any claims by Red Barn against DSC arising out of the promissory note 

would be brought in those courts.

 

1 “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 or to any district or division to which all parties have consented.”

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First Choice and Red Barn opposed the transfer. Red Barn contended 

that this was an exceptional case in which a forum-selection clause should not 

be enforced; it also alleged that NextGear had intended to breach the promissory note when signing it and had therefore procured the contract by fraud. 

First Choice, meanwhile, contended that venue would be improper in Indiana 

because First Choice was a Texas company with its principal place of business 

in Louisiana, and all of the events relating to the lawsuit took place in Louisiana. Additionally, First Choice stated that the forum-selection clause could 

not be applied against it because it was not a signatory.

NextGear responded, in relevant part, that First Choice could be bound 

to the forum-selection clause under the doctrine of direct-benefits estoppel, 

which in some circumstances can make a forum-selection clause effective 

against a nonsignatory.2 NextGear contended that First Choice was aware of 

the financing agreement because the purchase forms executed by First Choice 

and Red Barn noted DSC as the financer. Additionally, NextGear asserted 

that First Choice benefited from the agreement because it allowed Red Barn to 

buy First Choice’s vehicles.

The court held a hearing on the transfer motion in July 2014 and granted

it in September 2014. The court reasoned that First Choice had knowingly 

exploited the contract. Because § 1404(a) allows transfer to a venue to which 

the parties have consented, the court held that the case could be transferred to 

the Southern District of Indiana even though that court probably would not 

otherwise have personal jurisdiction over First Choice. The court then conducted the rest of the transfer analysis, ultimately concluding that this was 

 

2 See, e.g., Vloeibare Pret Ltd. v. Lloyd’s Register N. Am., Inc., No. 14-20538, 2015 U.S. 

App. LEXIS 6200, at *5−9 (5th Cir. Apr. 16, 2015) (per curiam) (unpublished); In re Lloyd’s 

Register N. Am., Inc., 780 F.3d 283, 291−93 (5th Cir. 2015), petition for cert. filed (May 14, 

2015) (No. 14-1366).

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not an exceptional case in which a forum-selection clause should not be 

enforced. The clerk electronically transferred the case to the Southern District 

of Indiana in September.

Red Barn waited until January 2015 to file the instant mandamus petition, and First Choice followed with its own petition in February. The case is 

pending in Indiana, that court having temporarily stayed proceedings awaiting 

the outcome of these petitions.

Both petitions claim that the district court erred in enforcing the forumselection clause against First Choice, a nonsignatory to the contract containing 

the clause. They contend First Choice received no benefits under the contract 

and had no knowledge of its terms and that applying the clause against it

through direct-benefits estoppel was therefore improper.

Although NextGear did not initially question our jurisdiction to order 

mandamus, we have an independent obligation to determine our own jurisdiction, even if the question is not raised or disputed by the parties. See, e.g., 

Sandy Creek Investors, Ltd. v. City of Jonestown, Tex., 325 F.3d 623, 626 (5th 

Cir. 2003). We ordered supplemental briefing on the question whether this 

court has jurisdiction to issue the writ. Because petitioners did not diligently 

seek review of the transfer in this court, we deny the petitions.

III.

The All Writs Act, 28 U.S.C. § 1651, empowers us to issue writs of mandamus, but that statutory authority does not itself confer jurisdiction. Regions 

Bank of La. v. Rivet, 224 F.3d 483, 493 (5th Cir. 2000). We can issue a writ of 

mandamus only if we have jurisdiction. See United States v. Denedo, 556 U.S. 

904, 911 (2009). “The power conferred on [the circuit courts of appeals] by 

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§ 1651 is limited to their appellate jurisdiction.”3 Our jurisdiction for 

mandamus “is not confined to the issuance of writs in aid of a jurisdiction 

already acquired on appeal but extends to those cases which are within [our] 

appellate jurisdiction although no appeal has been perfected.” Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25 (1943).

The jurisdiction of the courts of appeals extends to “appeals from all final 

decisions of the district courts of the United States.” 28 U.S.C. § 1291. Generally, however, such an appeal can be taken only by “the court of appeals for the 

circuit embracing the district,” 28 U.S.C. § 1294(1), so we can take appeals only 

from district courts in Texas, Mississippi, and Louisiana and certain administrative agencies. 28 U.S.C. § 41. This case began in a Louisiana district court 

but has been transferred to a district court in the Seventh Circuit, in which 

any appeal would lie.

The Louisiana court, meanwhile, has lost its jurisdiction. In re Sw.

Mobile Homes, Inc., 317 F.2d 65, 66 (5th Cir. 1963). It is no longer capable of 

making a final decision that would be appealed to us. No party contends that 

the transfer order is an immediately reviewable decision. See In re Rolls Royce 

Corp., 775 F.3d 671, 676 (5th Cir. 2014). This is not just a case in which no 

appeal to the Fifth Circuit has been perfected; instead, it is a proceeding in 

which no appeal to this court can be taken, short of the purely speculative possibility that the Indiana court transfers it back.

In Southwestern Mobile Homes, 317 F.2d at 66, we recognized it was 

“extremely doubtful” that we had authority over a case once it was transferred 

to a district court in a different circuit. It seems uncontroversial in this 

 

3 In re Grand Jury Proceedings, 724 F.2d 1157, 1160 (5th Cir. 1984) (quoting 9 JAMES 

W. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 110.28, at 315 (2d ed. 1983)).

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situation that a transfer to another circuit removes the case from our jurisdiction, and numerous circuits have stated that rule plainly.4

Although we lack jurisdiction to order the transferee district court to 

return the case,5 several circuits, where appropriate, have endorsed the 

method of directing the transferor district court to request that the transferee 

district court return the case.6 In Southwestern Mobile Homes, we recognized 

that using mandamus to undo a completed inter-circuit transfer risks “provok-

[ing] a possible conflict between the Circuits”; thus, if we even have the power 

to reverse such a transfer, we should exercise it only if faced with “a very 

extreme case.” 317 F.2d at 66–67. Here, that risk is tempered because the 

transferee district court has expressly stayed all proceedings pending this 

panel’s decision. 

Despite the potential availability of this remedy, mandamus is not 

warranted here.7 A court of appeals should consider directing that the 

 

4 See, e.g., White v. ABCO Eng’g Corp., 199 F.3d 140, 143 n.4 (3d Cir. 1999); Miller v. 

Toyota Motor Corp., 554 F.3d 653, 655 (6th Cir. 2009); In re Nine Mile Ltd., 673 F.2d 242, 244 

(8th Cir. 1982); Lou v. Belzberg, 834 F.2d 730, 733 (9th Cir. 1987); Chrysler Credit Corp. v. 

Country Chrysler, Inc., 928 F.2d 1509, 1516–17 (10th Cir. 1991); Roofing & Sheet Metal 

Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 988 n.10 (11th Cir. 1982); Starnes v. 

McGuire, 512 F.2d 918, 924 (D.C. Cir. 1974) (en banc); see also Manchester v. U.S. Org. Crime 

Drug Enforcement Task Force of Mid-Atl. Region, 900 F.2d 253 (4th Cir. 1990) (table).

5 In re McBryde, 117 F.3d 208, 221 (5th Cir. 1997) (stating that we lack mandamus 

authority over district courts in other circuits); see also Warrick, 70 F.3d at 737 (concluding 

that court of appeals lacks power to compel out-of-circuit court to return a case).

6 See In re Warrick, 70 F.3d 736, 740 (2d Cir. 1995); Town of N. Bonneville, Wash. v. 

U.S. Dist. Court, W. Dist. of Wash., 732 F.2d 747, 752 (9th Cir. 1984); In re Sosa, 712 F.2d 

1479, 1480 & n.1 (D.C. Cir. 1983); In re Nine Mile Ltd., 673 F.2d 242, 244 (8th Cir. 1982). 

Some courts have also held that a court of appeals has jurisdiction to vacate a completed 

inter-circuit transfer if the case was transferred to a court in which it could not have originally been brought, although the mandamus order often involves a request that the transferor 

court request the case back from the transferee court. See, e.g., Town of N. Bonneville, Wash. 

v. U.S. Dist. Court, W. Dist. of Wash., 732 F.2d 747, 752 (9th Cir. 1984); Farrell v. Wyatt, 408

F.2d 662, 664–65 (2d Cir. 1969) (distinguishing between treatment of transfers that are 

abuses of discretion and those that are beyond the transferor court’s power). 

7 See Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 381 (2004) (holding 

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transferor district court request return of the case only where the case has been 

transferred “despite the petitioner’s diligence.”8 Petitioners did not timely seek 

review of the transfer order. Although they could not have done so before the 

case was transferred, they offer no explanation for waiting more than three 

months before filing any petition for review. Petitioners have not been diligent 

in seeking review of the transfer.9

The petitions for writs of mandamus are DENIED.

 

that, to grant a writ of mandamus, a court, “in the exercise of its discretion, must be satisfied 

that the writ is appropriate under the circumstances”).

8 Warrick, 70 F.3d at 740; see also Starnes, 512 F.2d 918 at 924 (holding that it is 

“essential that procedures be adopted and observed that will provide plaintiffs a fair opportunity to seek review in the transferor circuit prior to the physical transfer of the record.”).

9 Because we find that petitioners’ had a fair opportunity to seek review but were not 

diligent, we do not reach the merits of petitioners’ argument.

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