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. 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.
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 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
or otherwise.” There is no such similar provision in the general
4
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.” 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
5
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 Pfizer standards and to justify the
issuance of the writ of mandamus.
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
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.
6
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 therein. Plaintiff’s suit might have 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, is 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
7
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 get around
to ruling, 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
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
8
“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. 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 pleadings, briefs, or records of this case from which we can
determine what specifically the Middle District Court had in mind
9
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. 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; and we have serious
doubts that the plaintiff’s selection of the Middle District of
Louisiana was a proper 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 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
10
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 employment
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
the 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-
11
wide basis would create a field day for forum shopping by
plaintiffs.
When the filing 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 statutory language which
would support 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 Shreveport 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 transferring
this case to the docket of the Shreveport Division of the Western
12
District forthwith.
ENDRECORD
13
BENAVIDES, Circuit Judge, dissenting:
The standard for reviewing a district court’s decision not to
transfer venue is clear and well-settled: “[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 of purely legal
questions... is effectively de novo, because ‘[a] district court by definition abuses its discretion when
it makes an error of law.’” Delgado-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 many 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, seldom-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.” In re Chesson, 897 F.2d 156, 159 (5th Cir. 1990) (citing In re First South Savings
Association, 820 F.2d 700 (5th Cir. 1987); United States v. Crawford Enterprises, 754 F.2d 1272
1
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 transfer,” 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
(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 Cragar 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. See Cragar, 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 categorically 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 support its 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. § 2000e-
5(f)(3), makes clear that venue is proper in any judicial district in any state in which the alleged
discrimination occurred, which, here, includes the Middle District. See 42 U.S.C. § 2000e-5(f)(3)
(noting that venue o f Title VII suit lies 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 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 employment
15
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. See, 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 matter
should be litigated in the Western District 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 Western
2
It has been established that this special venue statute
supersedes any general venue provision. See, e.g., Harding v.
Williams Property Co., 1998 WL 637414, *2 n.5 (4th Cir. 1998)
(unpublished disposition); Ross v. Buckeye Cellulose Corp., 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 employed 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
conducted, 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
District is (1) the place of the alleged discriminatory conduct; (2) where the employment 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
ability 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.
4
Also perhaps relevant is the fact 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. See 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 filed in the
Middle District a motion for summary judgment, which presumably
relies upon various witness affidavits, defendant, 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
In Re Horseshoe Entertainment
Court: Court of Appeals for the Fifth Circuit
Date filed: 2002-09-10
Citations: 337 F.3d 429
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