In Re: Horseshoe

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit July 1, 2003

Charles R. Fulbruge III
Clerk
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

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. Rogers

(“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 the 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

sufficient 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. Plaintiff was subjected to certain acts of sexual

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 because of such disability; and all

2
such conduct 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 damages in the greater

Shreveport area which is within the Shreveport Division of the

Western District of Louisiana.

B. Almost all of the potential 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 Shreveport 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 Shreveport Division of the Western

District.

E. But for the alleged conduct herein and the alleged

constructive discharge, the plaintiff would have continued to work

for Horseshoe in Bossier City, Louisiana, within the Shreveport

3
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

transferred, 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.

JURISDICTIONAL QUESTION

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 or a circuit

court unreviewable it certainly knows how to do that. See 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

4
or otherwise; and see 28 U.S.C. 2244 (b)(3)(E).” There is no such

similar provision in the general venue statutes nor in the special

venue statute applicable in this case.

Secondly, we think plaintiff misreads our Circuit’s

precedents. In Garner 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 Blaski, 245 F.2d 737 (5th Cir.), cert.
denied, 355 U.S. 872, 78 S. Ct. 122, 2 L.Ed.2d 76
(1957); Ex Parte Pfizer & Co., 225 F.2d 720 (5th
Cir. 1955); Atlantic Coastline RR v. Davis, 185
F.2d 766 (5th Cir. 1950); cf. 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 district 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.” Neither Garner nor Pfizer have been

overruled or criticized by this Court; and from these cases we draw

5
the following standards (the Pfizer Standards) to be applied by our

Court in deciding the propriety or not of a district court’s ruling

on a motion to transfer under §1404 (a):

a.) Did the district court correctly construe and apply
the relevant statutes;

b.) Did the district court consider the relevant
factors incident to ruling upon a motion to
transfer; and

c.) Did the district court abuse its discretion in
deciding the motion to transfer.

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 decision making process used by

the Middle District Court; and for the reasons hereinafter set

forth the errors of the Middle District Court are sufficient to

satisfy the Pfizer standards and to justify the issuance of the

writ of mandamus.

VENUE QUESTIONS

In addition to the general statutory provisions 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
subchapter. Such an action may be brought in any
judicial district in the State in which the

6
 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 aggrieved 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

special venue provision makes express cross-reference to §§ 1404

and 1406 of Title 28 indicating clearly Congress’ intention that

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

case.

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 of justice, a district
court may transfer any civil action to any other
district 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 venue 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 on this point. Plaintiff’s suit might have

7
been originally filed in the Shreveport Division of the Western

District because (1) that is where “the unlawful 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 alleged unlawful employment practice,” and

(4) that is where “the respondent has his principal office.” The

critical issue in this case, therefore, becomes whether 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 months

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

indicated earlier, Horseshoe filed its motion to transfer timely

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

motion should have taken a top priority in the handling of this

case by the Middle District Court. When it finally did rule the

Middle 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 possibility of delay or
prejudice if transfer is granted, the location of

8
 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 of 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 the

“relevant factors appear to be 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 appropriateness 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. Furthermore, at the time Horseshoe

9
filed its motion to transfer, it was represented by counsel in

Shreveport and the premise of the Middle District Court’s reliance

on this factor was not correct. The delay by the Middle District

Court in ruling on the motion to transfer required Horseshoe to

engage counsel in Baton Rouge to represent it in the ongoing

matters before the Middle District Court. Such “boot strapping” of

even a relevant factor, much less an irrelevant factor, should not

be encouraged; and we hold that 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 giving

significance to “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 pleadings, briefs, or records of this case from which we can

determine what specifically the Middle District Court had in mind

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

10
be relevant in deciding the propriety of transfer, but only if such

circumstances are established by clear and convincing evidence. No

such evidence exists here in this case and we think the Middle

District Court erred by considering and giving weight to the mere

“possibility” of vague and indefinite circumstances.

4. Finally, we believe the Middle 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 venue statute. 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 Middle 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 and there is nothing in this

record to indicate that Horseshoe had any office of any kind in the

Middle District of Louisiana.

The only basis upon which the Middle District Court could be

a permitted venue under the Statute is the language which states:

“such an action may be brought in any judicial district

11
 in the State in which the unlawful employment practice is
alleged to have been committed.”

Assuming, without deciding, that the Middle District Court was

an appropriate venue for Plaintiff’s suit, we nevertheless conclude

that the Middle District Court clearly erred and abused its

discretion in denying Horseshoe’s motion to transfer. Clearly the

Middle District Court found that the criteria of “convenience of

the parties and witnesses” as specified in § 1404(a) “militated” in

favor of granting the transfer in this case. Likewise the Middle

District Court found that the statutory venue factor of “district

in which the unlawful employment practice is alleged to have

occurred” militated in favor of transfer to the Western District.

Only by considering factors which are not mentioned in the special

venue statute (i.e. “possibility of delay or prejudice” and “the

location of counsel”) and by disregarding other factors that are

expressly stated in the special venue statute (i.e. location of

books and records; place where plaintiff would have worked but for

the unlawful practice; and place where respondent has its principal

place of business) was the Middle District Court able to create an

evenly divided set of factors. If the two factors not mentioned in

the venue statute are left out of the analysis and the three

factors expressly mentioned in the venue statute but not considered

by the Middle District Court are added into the analysis, the

factors favoring transfer substantially out weigh the single factor

of the place where plaintiff chose to file the suit.

12
 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 transferring

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

District forthwith.

13
BENAVIDES, Circuit Judge, dissenting:

I would deny the writ. All necessary facts and factors were considered by the district court

and the transfer statute was properly construed. Under these circumstances we should not even

attempt to weigh and balance the factors which the district court was required to consider in reaching

its decision. Ex parte Chas. Pfizer & Co., 225 F.2d 720 (5th Cir. 1955). While purporting to review

the district court’s decision for a clear abuse of discretion, the majority in fact conducts a de novo

review. I fear that the decision will lead to the filing of unnecessary and unwholesome pretrial

mandamus petitions by parties aggrieved by rulings on motions to transfer brought under 28 U.S.C.A.

§ 1404(a). Mandamus is an extraordinary writ and should not be a substitute for appeal. We have

decided that 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.” In re

Chesson, 897 F.2d 156, 159 (5th Cir. 1990) (denying writ of mandamus) (citing In re First South

Savings Association, 820 F.2d 700 (5th Cir. 1987); United States v. Crawford Enterprises, 754 F.2d

1272 (5th Cir. 1985)). This is not such a case.

For these reasons and for the reasons stated in my dissent to the panel’s original opinion,1 I

would deny the writ.

1
In re Horseshoe Entertainment, 305 F.3d 354, 360-62 (5th Cir.
2002) (Benavides, J., dissenting).

14
 United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
July 1, 2003
For the Fifth Circuit
Charles R. Fulbruge III
Clerk

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, Baton Rouge

ON PETITION FOR REHEARING EN BANC
(Opinion 9/10/02, 5 Cir., 305 F.3d 354)
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:

Treating the Petition for Rehearing En Banc as a Petition for
Panel Rehearing, the Petition for Panel Rehearing is GRANTED; and
the panel opinion filed under date of September 10, 2002, and
published at 305 F.3d 354, et seq. is hereby withdrawn and the new
opinion filed contemporaneously with this Order is substituted for

15
such prior opinion. The mandate on this substituted opinion shall
issue forthwith. No member of the panel, nor judge in regular
active service of the Court having requested that the Court be
polled on rehearing en banc (FED. R. APP. P. and 5TH CIR. R. 35), the
Petition for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

HAROLD R. DEMOSS, JR.
UNITED STATES CIRCUIT JUDGE

16