In Re Volkswagen of America, Inc.

REVISED OCTOBER 25, 2007
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 24, 2007

No. 07-40058 Charles R. Fulbruge III
Clerk

In Re: VOLKSWAGEN OF AMERICA INC, a New Jersey Corporation;
VOLKSWAGEN AG, a foreign corporation organized under the laws of
Germany

Petitioners

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 2:06-CV-222

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Petitioners Volkswagen AG and Volkswagen of America, Inc. (collectively,
“Volkswagen”), defendants in the Marshall Division of the Eastern District of
Texas, seek a writ of mandamus directing the district court to transfer this case
to the Dallas Division of the Northern District of Texas, where the automobile
accident and the injuries to the parties occurred. The plaintiffs exercised their
privilege to choose the Marshall Division as the forum for their case, but
Marshall has no connection to the parties or the facts of the case. For the
reasons presented below, we grant Volkswagen’s petition for a writ of mandamus
and remand with instructions to transfer the case to the Northern District of
Texas, Dallas Division.
 No. 07-40058

I.
On the morning of May 21, 2005, a Volkswagen Golf automobile was
struck from behind and propelled rear-first into a flat-bed trailer parked on the
shoulder of a freeway in Dallas, Texas. Ruth Singleton was driving the
Volkswagen Golf. Richard Singleton was a passenger. Mariana Singleton,
Richard Singleton and Ruth Singleton’s granddaughter, was also a passenger.
Richard Singleton was seriously injured in the accident. Mariana Singleton died
as result of her injuries.
Richard Singleton, Ruth Singleton, and Amy Singleton (Mariana’s mother)
filed suit against Volkswagen in the Marshall Division of the United States
District Court for the Eastern District of Texas (“Marshall Division”). The
complaint alleged that design defects in the Volkswagen Golf caused Richard’s
injuries and Mariana’s death. Volkswagen filed a third-party complaint against
the driver of the vehicle 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.
Pursuant to 28 U.S.C. § 1404(a), Volkswagen moved to transfer venue to
the Dallas Division of the Northern District of Texas (“Dallas Division”).
Volkswagen asserted that a transfer was warranted as (1) the Volkswagen Golf
was purchased in Dallas County, Texas; (2) the accident occurred on a freeway
in Dallas, Texas; (3) Dallas residents witnessed the accident; (4) Dallas police
and paramedics responded and took action; (5) a Dallas doctor performed the
autopsy; (6) the third-party defendant lives in Dallas County, Texas; (7) none of
the plaintiffs live in the Marshall Division; (8) no known party or significant
non-party witness lives in the Marshall Division; and (9) none of the facts giving
rise to this suit occurred in the Marshall Division. The district court denied the
motion, holding that Volkswagen had not satisfied its burden of showing that the
balance of convenience and justice weighs substantially in favor of transfer.

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Volkswagen then filed a motion for reconsideration, arguing that the
district court gave inordinate weight to the plaintiffs’ choice of forum and that
the district court failed properly to weigh the venue transfer factors. The district
court also denied the motion for reconsideration, for the same reasons presented
in its denial of Volkswagen’s motion for transfer.
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 Fed. App’x 305 (5th Cir. Feb. 13,
2007). The panel majority held that the district court did not abuse its discretion
in denying Volkswagen’s motion to transfer. Judge Garza wrote a dissenting
opinion, noting 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).
Volkswagen 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. This panel then heard oral argument on the issues
raised for review.
II.
“Mandamus is an extraordinary writ. It . . . is not a substitute for an
appeal. We will issue the writ 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). However, although “few litigants have surmounted the
formidable obstacles and secured the writ,” this court has “recognized the
availability of mandamus as a limited means to test the district court’s

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discretion in issuing transfer orders.” In re Horseshoe Entm’t, 337 F.3d 429, 432
(5th Cir. 2003) (internal quotations omitted). We have enumerated standards
for determining the propriety of a district court’s ruling on a motion to transfer
under § 1404(a), and it is these standards that determine the issues raised on
appeal in this case.
The Pfizer standards for determining the propriety of a district court’s
ruling on a motion to transfer ask: (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. In re Volkswagen AG, 371
F.3d 201, 203 (5th Cir. 2004) [hereinafter In re Volkswagen I]; Ex parte Chas.
Pfizer & Co., 225 F.2d 720, 723 (5th Cir. 1955).
The Pfizer standards require a careful review of “the circumstances
presented to and the decision making process used by” the district court. In re
Horseshoe, 337 F.3d at 432. The standards do not allow us to replace the district
court’s exercise of discretion with our own. Indeed, we will issue a writ only
when there is an abuse of discretion. In re Volkswagen I, 371 F.3d at 203. But,
again, the Pfizer standards do require a careful review of the district court’s
exercise of its discretion.
III.
The preliminary question under the change of venue statute, 28 U.S.C. §
1404, is whether the suit could have been filed originally in the destination
venue. Id. Volkswagen seeks to transfer this case to the Dallas Division of the
Northern District of Texas. There is no question but that this suit originally
could have been filed in the Dallas Division. See 28 U.S.C. § 1391.
Further, provisions of § 1404(a) state that “[f]or 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.” 28

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U.S.C. § 1404(a). Our precedents indicate that, when considering a § 1404
motion to transfer, a district court should consider a number of private and
public interest factors, “none of which can be said to be of dispositve weight.”
Action Indus., Inc. v. U.S. Fid. & Guar. Corp., 358 F.3d 337, 340 (5th Cir. 2004).1
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
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 I, 371 F.3d at 203 (citing Piper Aircraft Co. v. Reyno, 454 U.S.
235, 241 n.6 (1981)). 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.
It is also clear that a plaintiff’s choice of forum is one of the several factors
to be considered under the § 1404(a) venue transfer analysis. Ex parte Chas.
Pfizer & Co., 225 F.2d at 722; In re Horseshoe, 337 F.3d at 434. We address this
consideration first, and then address the private and public interest factors
presented above.
A.
Volkswagen argues that the district court abused its discretion by applying
the wrong legal standard when, giving plaintiffs’ choice of forum an elevated
status, it stated that the moving party must show that the balance of
convenience and justice substantially weighs in favor of transfer. This standard,

1
While we have not indicated that the factors that we have enumerated are exhaustive
or exclusive, the failure to follow with some precision the test we have set out necessarily
produces inconsistent results in this Circuit. Absent exceptional circumstances, the district
courts of the Fifth Circuit must consider motions to transfer under the rubric we have
provided.

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Volkswagen argues, reflects the much stricter forum non conveniens dismissal
standard, and it is inappropriately applied in the § 1404(a) context. We agree.
The role of the plaintiff’s choice of forum in the venue transfer analysis has
not been clearly specified in our recent § 1404(a) cases. Indeed, the venue
transfer factors that we have adopted do not include a consideration of the
plaintiff’s choice of forum at all, as these factors address only the convenience of
parties and witnesses and the interests of justice. Our earlier § 1404(a) cases,
however, specified the appropriate role of the plaintiff’s choice of forum in the
venue transfer analysis.
In Humble Oil & Ref. Co. v. Bell Marine Serv., Inc., we noted that a
plaintiff’s choice of forum is to be treated “as a burden of proof question rather
than one of a presumption.” 321 F.2d 53, 56 (5th Cir. 1963); see also 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 forum should be changed.”). The weight given to a plaintiff’s choice of
forum, then, corresponds with the burden that a moving party must meet to
demonstrate that a transfer should be granted under § 1404(a).
We now turn to consider the cases that address the appropriate weight to
be given to a plaintiff’s choice of forum.
In Veba-Chemie A.G. v. M/V Getafix, we explained 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.” 711 F.2d 1243, 1247 (5th
Cir. 1983) (emphasis added). We also have repeatedly acknowledged the
Supreme Court’s directive that § 1404(a) was “intended to permit courts to grant
transfers upon a lesser showing of inconvenience” than that required in the

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forum non conveniens context.2 We therefore hold that the district court erred
in requiring Volkswagen to show that the balance of convenience and justice
substantially weighs in favor of transfer.
Establishing only this point, however, leaves us without a dismissal
standard; we must still determine the proper degree of deference to be given to
a plaintiff’s choice of forum.
We have, as outlined below, several conflicting panel opinions addressing
the proper degree of deference to be given to a plaintiff’s choice of forum. When
panel opinions appear to conflict, this court must follow the earlier opinion.
Modica v. Taylor, 465 F.3d 174, 183 (5th Cir. 2006). But dicta, of course, is not
binding authority. United States v. Barnes, 761 F.2d 1026, 1033 n.14 (5th Cir.
1985).
In our earliest case mentioning a defined weight to be given a plaintiff’s
choice of forum in the § 1404(a) context, Rodriguez v. Pan Am. Life Ins. Co., we
noted that a plaintiff’s choice of forum is “highly esteemed.” 311 F.2d 429, 434

2
Norwood, 349 U.S. 29, 32 (1955); see, e.g., Amalgamated Ass’n of St., Elec. Ry. &
Motor Coach Employees of Am., Div. No. 1127 v. S. Bus Lines, 172 F.2d 946, 948 (5th Cir.
1949) (noting that forum non conveniens “[d]ismissal for inconvenience is not to be visited
except when the choice of forum is a real hardship, or an imposition on the court. But here
again we meet the Revision of Title 28 . . . . Transfer is a less drastic matter than dismissal,
for it involves no loss of time or pleading or costs; and no doubt a broader discretion may be
exercised in ordering it.”); Ex parte Chas. Pfizer, 225 F.2d at 722 (5th Cir. 1955) (noting that
the “doubt that may have at one time existed as to whether § 1404(a) liberalized and extended
the doctrine of forum non conveniens” has been put to rest by the Supreme Court in Norwood.);
Humble Oil, 321 F.2d at 56 (5th Cir. 1963) (noting that the “avoidance of dismissal through
§ 1404(a) lessens the weight to be given the choice of forum factor, and to that extent broadens
the discretion of the District Court”); Dubin v. United States, 380 F.2d 813, 816 (5th Cir. 1967)
(“Its purpose is to determine the most convenient forum from among two or more possibly
correct ones. In substance, § 1404 is the statutory enactment of the doctrine of forum non
conveniens tempered to allow transfer rather than dismissal.”); Ellis v. Great Sw. Corp., 646
F.2d 1099, 1103 n.4 (5th Cir. 1981) (“Section 1404(a) is a revision rather than just a
codification of forum non conveniens. It permits federal courts to grant transfers on a lesser
showing than is required under the common law doctrine and there is no need for pleadings
or documents to be refiled in the transferee court. The relevant factors, however, are the
same.”).

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(5th Cir. 1962) (noting also that “transfers to other federal courts are quick and
ready tools for our trial courts under 28 U.S.C. § 1404(a)”), vacated on other
grounds by Pan-Am. Life Ins. Co. v. Rodriguez, 376 U.S. 779 (1964). Rodriguez,
however, is a forum non conveniens case. Id. at 432. We have found two other
Fifth Circuit cases that, citing Rodriguez, note that a plaintiff’s choice of forum
is highly esteemed: Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966),
and Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir. 1989).
In Humble Oil, a case that followed Rodriguez by less than a year, we
noted that, in contrast to the forum non conveniens context, “the avoidance of
dismissal through § 1404(a) lessens the weight to be given the choice of forum
factor” and that “he who seeks the transfer must show good cause.” 321 F.2d at
56. We further noted that the deference owed the plaintiff’s choice of forum did
“no more than cast[] the burden of proof” on the moving party. Id. at 57.
Humble Oil involved a motion for transfer under the now-amended Admiralty
Rule 54. The portion of the rule under consideration provided that a district
court “may, in its discretion, transfer the proceedings to any district court for the
convenience of the parties.” Id. at 54. The Humble Oil court referenced and
applied § 1404(a) analysis as the admiralty rule, like § 1404(a), provided for a
discretionary transfer. Id.
This court has also held that “unless the balance is strongly in favor of the
defendant” the plaintiff’s choice should rarely be disturbed. This formulation
first appeared in Marbury-Pattillo Constr. Co. v. Bayside Warehouse Co., 490
F.2d 155, 158 (5th Cir. 1974). In Bayside Warehouse we referred to a 1947
Supreme Court case and observed that “[i]n Gulf Oil Corp. v. Gilbert, the
Supreme Court elucidated upon the factors justifying a Section 1404(a) change
of venue, but it was careful to point out that ‘[u]nless the balance is strongly in
favor of the defendant, the plaintiff's choice of forum shall rarely be disturbed.’”
Id. (internal citation omitted). Bayside Warehouse is a §1404(a) case. But

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Gilbert, which was cited for the proposition that the balance must “strongly
favor” the defendant, is not a § 1404(a) case. In fact, Gilbert is a forum non
conveniens case, and it was decided in 1947, before Congress had even enacted
§ 1404(a). See Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). Bayside
Warehouse, then, is grounded in an error, or at least in an unexplained
conflation of the forum non conveniens analysis with that appropriate to §
1404(a). And this conflation seems to directly contradict the Supreme Court’s
directive that § 1404(a) was “intended to permit courts to grant transfers upon
a lesser showing of inconvenience” than that required in the forum non
conveniens context. Norwood, 349 U.S. at 32. We have found one other Fifth
Circuit case that, citing Bayside Warehouse, notes that a plaintiff’s choice of
forum is strongly favored: In re McDonnell-Douglas Corp., 647 F.2d 515, 517 (5th
Cir. 1981).
Again, when panel opinions appear to conflict, this court must follow the
earlier opinion. Modica, 465 F.3d at 183. But dicta, as we have noted, is not
binding authority. Barnes, 761 F.2d at 1033 n.14. The discussion of § 1404(a)
presented in Rodriguez is dicta, as the case was decided on forum non
conveniens grounds. The discussion of § 1404(a) presented in Humble Oil is
arguably dicta, as Admiralty Rule 54 applied rather than § 1404(a). But
removing the discussion of § 1404(a) from Humble Oil would leave no basis for
the decision reached by the Humble Oil court. Further, the language of the two
rules is indistinguishable in any relevant way. This being so, we understand
this panel to be bound by the Humble Oil decision. And as Humble Oil preceded
Bayside Warehouse, to the extent that these two opinions conflict, we again find
ourselves bound by Humble Oil.
Apart from the rules governing controlling decisions, we are assured in
this holding by additional considerations. First, the “highly esteemed” and
“strongly favored” standards referenced above each suffer from significant

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defects. “Highly esteemed” is so vague as to be unworkable. “Strongly favored,”
though not vague as a statement, would have to be understood in the light of the
Supreme Court decision in Norwood, which provided that § 1404(a) was
“intended to permit courts to grant transfers upon a lesser showing of
inconvenience” than that required in the forum non conveniens context. 349
U.S. at 32. We would therefore have to give content to “strongly favored”
without referencing the distinction between change of venue cases and the forum
non conveniens cases from which the standard derives. This consideration, then,
renders “strongly favored” vague in the context of applying § 1404(a).
Second, and more generally, under either of these standards, we would
need to reconcile the content that might be given to these standards with our
holding that “dismissal permitted only in favor of a substantially more
convenient alternative—was dropped in the § 1404(a) context,” Veba-Chemie
A.G., 711 F.2d at 1247 (emphasis added), and with our holding that “broader
discretion” is to be exercised in the § 1404(a) context than in the forum non
conveniens context, S. Bus Lines, 172 F.2d at 948, and with our holding that Ҥ
1404(a) liberalized and extended the doctrine of forum non conveniens,” Ex parte
Chas. Pfizer, 225 F.2d at 721. In sum, we would not survive a walk through the
legal minefield of trying to reconcile either the “highly esteemed” or “strongly
favored” standards—which are derived primarily from forum non conveniens
cases—with the language of § 1404(a), which provides for transfer “[f]or the
convenience of parties and witnesses, in the interest of justice.”
Third, and consequently, the standard presented in Humble Oil is most
consistent with the language and with the intended purpose and effect of §
1404(a), which simply provides that a district court may transfer any civil action
“[f]or the convenience of parties and witnesses, in the interest of justice.”3

3
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

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We agree, then, with the contention that the district court erred in
requiring Volkswagen to show that the balance of convenience and justice
substantially weighs in favor of transfer. Plaintiff’s choice of forum is entitled
to deference. Indeed, this deference establishes the burden that a moving party
must meet in seeking a § 1404(a) transfer. But the appropriate standard for this
burden is that established by Humble Oil. Namely, a party seeking a transfer
“must show good cause.” When viewed in the light of § 1404(a), to show good
cause means that a moving party must demonstrate that a transfer is “[f]or the
convenience of parties and witnesses, in the interest of justice.” When the
transferee forum is no more convenient than the chosen forum, the plaintiff’s
choice should not be disturbed. When the transferee forum is clearly more
convenient, a transfer should be ordered.

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 plaintiff the 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. Its words should be considered for what
they say, not with preconceived limitations derived from the forum non conveniens doctrine.’”
(emphasis added) (quoting All States Freight v. Modarelli, 196 F.2d 1010, 1011 (3d Cir. 1952)));
see also Van Dusen v. Barrack, 376 U.S. 612, 622, 624, 636-37 (1964) (“‘The idea behind §
1404(a) is that where a “civil action” to vindicate a wrong—however brought in a
court—presents issues and requires witnesses that make one District Court more convenient
than another, the trial judge can, after findings, transfer the whole action to the more
convenient court.’ This remedial purpose—the individualized, case-by-case consideration of
convenience and fairness—militates against restricting the number of permissible forums
within the federal system . . . . The power to defeat a transfer to the convenient federal forum
should derive from rights and privileges conferred by federal law and not from the deliberate
conduct of a party favoring trial in an inconvenient forum . . . . We believe, therefore, that both
the history and purposes of § 1404(a) indicate that it should be regarded as a federal judicial
housekeeping measure, dealing with the placement of litigation in the federal courts and
generally intended, on the basis of convenience and fairness, simply to authorize a change of
courtrooms.” (emphasis added) (quoting Cont’l Grain Co. v. The Barge FBL-585, 364 U.S. 19,
26 (1960))); Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 (1981) (“The statute was designed
as a ‘federal housekeeping measure,’ allowing easy change of venue within a unified federal
system.” (quoting Van Dusen, 576 U.S. at 613)).

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Nevertheless, we sympathize with the district court in the instant case
because our precedents have not been the model of clarity. Thus, although we
hold that the district court erroneously applied the stricter forum non
conveniens dismissal standard, we need not decide whether this error alone
warrants mandamus relief in this case, as we decide this petition on other
grounds.
B.
Volkswagen also argues that the district court abused its discretion in
failing properly to consider and apply the private and public interest factors.
Specifically, Volkswagen argues that, although the district court correctly
enumerated these factors, the court abused its discretion by failing meaningfully
to analyze and weigh them. We agree, for the reasons given below.4
1.
The first private interest factor to be considered is the relative ease of
access to sources of proof. The district court observed that all of the documents
and physical evidence relating to the accident are located in the Dallas Division.
The district court found, however, that this factor does not weigh in favor of
transfer as this factor has become less significant within venue transfer analysis
because of advances in copying technology and information storage. Volkswagen
asserts that this approach unilaterally reads the sources of proof requirement
out of the § 1404(a) analysis, and this despite the fact that this court has
recently reiterated that this factor is to be considered. See In re Volkswagen I,
371 F.3d at 203 (listing factors and citing cases).

4
We address only the private and public interest factors that are contested by the
parties. Several of the factors clearly weigh neither for nor against transfer, as the parties
acknowledge and as is often the case.

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The district court was certainly correct that advances in copying
technology and information storage affect the access to sources of proof, and that
district courts should consider the actual convenience or inconvenience of
accessing sources of proof. But, 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. Here, all of the documents and physical
evidence relating to the accident are located in the Dallas Division, as is the
collision site. The district court erred in applying this factor because it does
weigh in favor of transfer, although its precise weight may be subject to debate.
The second private interest factor to be considered is the availability of
compulsory process to secure the attendance of witnesses. The district court
observed that its subpoena power of non-party witnesses would be subject to
motions to quash. 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).” Id. at 205 n.4. 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. All of the
witnesses in this case reside more than 100 miles from the Marshall Division.
The district court discounted its lack of absolute subpoena power based on its
ability to deny a motion to quash and ultimately to compel the attendance of
third-party witnesses found in Texas, subject to reasonable compensation.
Volkswagen asserts that the district court’s analysis falls short. We agree.
A proper venue that does enjoy absolute subpoena power for both depositions
and trial—the Dallas Division—is available. As we noted above, and as § 1404
clearly indicates, venue transfer analysis is concerned with convenience. That
the district court can deny any motions to quash does not address concerns
regarding the convenience of parties and witnesses. Indeed, this rationale

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simply asserts that a district court, at some burden to the parties, will likely be
able to enforce an option that is inconvenient to witnesses. This factor, then,
also weighs in favor of transfer.
The third private interest factor is the cost of attendance for willing
witnesses. The district court noted that Volkswagen did not submit sufficient
information for the court to determine which of its witnesses were “key”
witnesses whose convenience was more important. The district court also noted
that given the proximity of Dallas, where all witnesses reside, to the Marshall
Division, the cost of having witnesses attend a trial in Marshall would be
minimal. The district court consequently found that this factor does not weigh
in favor of transfer.
Volkswagen, however, 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.
Volkswagen also 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. It would certainly
appear that these witnesses are important to Volkswagen’s case.
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 204–05.5 We said, further, that it is an “obvious conclusion” that it is

5
The Singletons argue that Jarvis Christian Coll. v. Exxon Corp. indicates that 150
miles is not substantial. 845 F.2d 523, 528 (5th Cir. 1988). In Jarvis Christian, this court

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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 fact witnesses must be away from their regular
employment.” Id. at 205. The district court abused its discretion by ignoring the
100-mile rule. The court did note, however, that Dallas is approximately 155
miles from the Marshall Division. Given the rule established in In re
Volkswagen I, it is clear that this factor favors transfer.
2.
The only contested public interest factor is the local interest in having
localized interests decided at home. Regarding this factor, the district court
stated: “There is a local interest in resolving this litigation among the residents
of the Dallas Division . . . because the automobile accident occurred there.
Furthermore, because the Defendant has brought a third-party claim against .
. . [a Dallas resident], residents of the Dallas Division . . . have an interest in a
case involving one of their fellow residents that arose out of an accident within
the [Dallas] Division. As the Plaintiffs point out, however, the citizens of
Marshall also have an interest in this product liability case because the product
is available in Marshall. Therefore, this factor is neutral.”
Further, with respect to the unfairness of burdening citizens in an
unrelated forum with jury duty,6 the district court noted that although the

declined to vacate a venue transfer because the defendant would have had to travel 203 miles.
Id. Jarvis Christian did not discuss witness inconvenience.
6
The private and public interest factors that we have adopted for venue transfer
analysis were first presented in a forum non conveniens case. Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 508-09 (1947); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)
(listing the same factors for forum non conveniens analysis). As presented in Gilbert and Piper
Aircraft, the public interest factors included a factor not reflected in all of the opinions of this
court: the unfairness of burdening citizens in an unrelated forum with jury duty. See Gulf Oil,

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accident occurred in the Dallas Division, the citizens of Marshall would be
interested to know whether there are defective products offered for sale in close
proximity to the Marshall Division and whether they are being exposed to these
products. The district court therefore held that this factor weighs against
transfer.
These findings stand in stark contrast to our analysis in In re Volkswagen
I. There, under virtually indistinguishable facts, we held that this factor
weighed heavily in favor of transfer. In re Volkswagen I, 371 F.3d at 205-06.
Here again, this factor weighs heavily in favor of transfer: the accident occurred
in the Dallas Division,7 the witnesses of 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), and the third-party defendant lives
in the Dallas Division. Indeed, there is no relevant factual connection to the
Marshall Division.
The district court’s provided rationales—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—stretch logic

330 U.S. at 508-09; see also Piper Aircraft, 454 U.S. at 241 n.6. We have, however,
acknowledged that this concern is relevant to § 1404(a) analysis. Koehring Co. v. Hyde Constr.
Co., 324 F.2d 295, 296 (5th Cir. 1963) (noting that “[j]ury duty is a burden that ought not to
be imposed upon the people of a community which has no relation to the litigation”); In re
Volkswagen I, 371 F.3d at 206 (same). We now incorporate this concern into the factor now
under consideration.
7
The district court, introducing a distinct factor not provided by this court’s § 1404(a)
cases, noted that the place of the alleged wrong is in the Dallas Division and that this factor
weighed slightly in favor of transfer. The place of the alleged wrong is a consideration that
properly can be considered within the analysis of the local interest in having localized interests
decided at home.

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in a manner that eviscerates the public interest that this factor attempts to
capture. The district court’s provided rationales could apply to virtually any
judicial district and division in the United States; they leave no room for
consideration of those actually affected—directly and indirectly—by the
controversies and events giving rise to a case. Thus, the district court committed
a clear abuse of discretion.8 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.
But again, the larger point is the one we emphasize: that a product is available
within a given jurisdiction is insufficient to neutralize the legitimate local
interest in adjudicating local disputes.
IV.
Having considered each of the relevant private and public interest factors,
we hold that, under a proper application of these factors, no relevant factor
favors the Singletons’ chosen forum. Further, and for the reasons given above,
we hold that the district court abused its discretion by failing to order transfer
of this case. The petition for mandamus is GRANTED and the case is
REMANDED with instructions that it be transferred to the Northern District of
Texas, Dallas Division.

8
In re Volkswagen I spoke directly to this in finding abuse of discretion and granting
mandamus against a refusal to transfer venue: “Plaintiffs have failed to demonstrate and the
Eastern District Court has failed to explain how the citizens of the Eastern District of Texas,
where there is no factual connection with the events of this case, have more of a localized
interest in adjudicating this proceeding than the citizens of the [transferee district], where the
accident occurred and where the entirety of the witnesses for the third-party complaint can be
located. Arguably, if Plaintiffs had alleged that the Volkswagen vehicle was purchased from
a Volkswagen dealer in Marshall, Texas, the people of that community might have had some
relation, although attenuated, to this litigation; but as it stands, there is absolutely nothing in
this record to indicate that the people of Marshall, or even of the Eastern District of Texas, have
any meaningful connection or relationship with the circumstances of these claims.” 371 F.3d
at 206 (emphasis added).

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PETITION FOR MANDAMUS GRANTED
and CASE REMANDED WITH INSTRUCTIONS.

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