IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`United States Court of Appeals
`Fifth Circuit
`
`F I L E D
`October 10, 2008
`
`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
`
`Petition for Writ of Mandamus
`to the United States District Court
`for the Eastern District of Texas
`
`Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, WIENER,
`BARKSDALE, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT,
`PRADO, OWEN, ELROD, SOUTHWICK, and HAYNES, Circuit Judges.
`
`E. GRADY JOLLY, Circuit Judge, joined by JONES, Chief Judge, and SMITH,
`BARKSDALE, GARZA, CLEMENT, OWEN, ELROD, SOUTHWICK, and
`HAYNES, Circuit Judges:
`The overarching question before the en banc Court is whether a writ of
`mandamus should issue directing the transfer of this case from the Marshall
`Division of the Eastern District of Texas—which has no connection to the
`parties, the witnesses, or the facts of this case—to the Dallas Division of the
`Northern District of Texas—which has extensive connections to the parties, the
`witnesses, and the facts of this case. We grant the petition and direct the
`district court to transfer this case to the Dallas Division.
`
`

`
`No. 07-40058
`I.
`A.
`On the morning of May 21, 2005, a Volkswagen Golf automobile traveling
`on a freeway in Dallas, Texas, was struck from behind and propelled rear-first
`into a flat-bed trailer parked on the shoulder of the freeway. Ruth Singleton was
`driving the Volkswagen Golf. Richard Singleton was a passenger. And Mariana
`Singleton, Richard and Ruth Singleton’s seven-year-old granddaughter, was also
`a passenger. Richard Singleton was seriously injured in the accident. Mariana
`Singleton was also seriously injured in the accident, and she later died as a
`result of her injuries.
`Richard Singleton, Ruth Singleton, and Amy Singleton (Mariana’s mother)
`filed suit against Volkswagen AG and Volkswagen of America, Inc., in the
`Marshall Division of the Eastern District of Texas, alleging that design defects
`in the Volkswagen Golf caused Richard’s injuries and Mariana’s death.
`In response to the Singletons’ suit, Volkswagen filed a third-party
`complaint against the driver of the automobile 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.
`B.
`Pursuant to 28 U.S.C. § 1404(a),1 Volkswagen moved to transfer venue to
`the Dallas Division. Volkswagen asserted that a transfer was warranted as the
`Volkswagen Golf was purchased in Dallas County, Texas; the accident occurred
`on a freeway in Dallas, Texas; Dallas residents witnessed the accident; Dallas
`police and paramedics responded and took action; a Dallas doctor performed the
`autopsy; the third-party defendant lives in Dallas County, Texas; none of the
`
`1 Section 1404(a) provides: “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.”
`
`2
`
`

`
`No. 07-40058
`plaintiffs live in the Marshall Division; no known party or non-party witness
`lives in the Marshall Division; no known source of proof is located in the
`Marshall Division; and none of the facts giving rise to this suit occurred in the
`Marshall Division. These facts are undisputed.
`The district court denied Volkswagen’s transfer motion. Singleton v.
`Volkswagen of Am., Inc., 2006 WL 2634768 (E.D. Tex. Sept. 12, 2006).
`Volkswagen then filed a motion for reconsideration, arguing that the district
`court gave inordinate weight to the plaintiffs’ choice of venue2 and, to state
`Volkswagen’s arguments generally, that the district court failed meaningfully
`to weigh the venue transfer factors. The district court also denied Volkswagen’s
`motion for reconsideration, and for the same reasons presented in its denial of
`Volkswagen’s transfer motion. Singleton v. Volkswagen of Am., Inc., 2006 WL
`3526693 (E.D. Tex. Dec. 7, 2006).
`
`C.
`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 F. App’x 305 (5th Cir. 2007).
`The panel majority held that the district court did not clearly abuse its discretion
`in denying Volkswagen’s transfer motion. Judge Garza wrote a dissenting
`opinion and in it noted 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).
`
`2 The parties have referenced the deference given to a “plaintiff’s choice of forum” in
`venue transfer cases. However, a transfer between federal courts pursuant to § 1404(a) is not
`a transfer between forums; it is a transfer between venues. Thus, in venue transfer cases,
`deference given to a plaintiff’s initial choice is deference given to a plaintiff’s choice of venue.
`3
`
`

`
`No. 07-40058
`Volkswagen then 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. A second panel of this Court then heard oral
`argument on the issues raised for review.
`The second panel granted
`Volkswagen’s petition and issued a writ directing the district court to transfer
`this case to the Dallas Division. In re Volkswagen of Am., Inc., 506 F.3d 376 (5th
`Cir. 2007).
`The Singletons then filed a petition for rehearing en banc, which the Court
`granted. In re Volkswagen of Am., Inc., 517 F.3d 785 (5th Cir. 2008).
`II.
`In this opinion, we will first address whether mandamus is an appropriate
`means to test a district court’s ruling on a venue transfer motion. Citing our
`precedents and the precedents of the other courts of appeals, we hold that
`mandamus is appropriate when there is a clear abuse of discretion. We note
`that the Supreme Court has set out three requirements for the issuance of the
`writ. Of these, we address first whether Volkswagen has established a clear and
`indisputable right to the writ. We begin by observing that the only factor that
`favors keeping the case in Marshall, Texas, is the plaintiffs’ choice of venue. We
`discuss this privilege granted under 28 U.S.C. § 1391, and how the privilege is
`tempered by the considerations of inconvenience under § 1404(a). We
`demonstrate that a plaintiff’s choice of forum under the forum non conveniens
`doctrine is weightier than a plaintiff’s choice of venue under § 1404(a) because
`the former involves the outright dismissal of a case, and the latter involves only
`a transfer of venue within the same federal forum. After determining the correct
`standards to apply in the § 1404(a) analysis, we then consider the showing of
`inconvenience that Volkswagen has made. We review the district court’s ruling
`and conclude that the district court abused its discretion in denying the transfer.
`
`4
`
`

`
`No. 07-40058
`But that does not resolve the case. The question next becomes whether the
`district court’s ruling was a clear abuse of discretion that qualifies for
`mandamus relief. Concluding that the district court gave undue weight to the
`plaintiffs’ choice of venue, ignored our precedents, misapplied the law, and
`misapprehended the relevant facts, we hold that the district court reached a
`patently erroneous result and clearly abused its discretion in denying the
`transfer. Further finding that the showing satisfies the other requirements of
`the Supreme Court for mandamus, we conclude that a writ is appropriate under
`the circumstances of this case. We now begin this discussion.
`III.
`Because some suggestion is made that mandamus is an inappropriate
`means to test the district court’s discretion in ruling on venue transfers, we will
`first turn our attention to this subject.
`We—and the other courts of appeals that have considered the
`matter—have expressly “recognized the availability of mandamus as a limited
`means to test the district court’s discretion in issuing transfer orders.” In re
`Horseshoe Entm’t, 337 F.3d 429, 432 (5th Cir. 2003).3 There can be no doubt
`therefore that mandamus is an appropriate means of testing a district court’s
`§ 1404(a) ruling.
`Although the Supreme Court has never decided mandamus in the context
`of § 1404(a), the Supreme Court holds that mandamus is an appropriate remedy
`for “exceptional circumstances amounting to a judicial usurpation of power or a
`
`3 See, e.g., In re Sealed Case, 141 F.3d 337, 340 (D.C. Cir. 1998); In re Josephson, 218
`F.2d 174, 183 (1st Cir. 1954), abrogated on other grounds by In re Union Leader Corp., 292
`F.2d 381, 383 (1st Cir. 1961); In re Warrick, 70 F.3d 736, 740 (2d Cir. 1995); In re Federal-
`Mogul Global, Inc., 300 F.3d 368, 378 (3d Cir. 2002); In re Ralston Purina Co., 726 F.2d 1002,
`1005 (4th Cir. 1984); Lemon v. Druffel, 253 F.2d 680, 685 (6th Cir. 1958); In re Nat’l Presto
`Indus., Inc., 347 F.3d 662, 663 (7th Cir. 2003); Toro Co. v. Alsop, 565 F.2d 998, 1000 (8th Cir.
`1977); Kasey v. Molybdenum Corp. of Am., 408 F.2d 16, 19–20 (9th Cir. 1969); Cessna Aircraft
`Co. v. Brown, 348 F.2d 689, 692 (10th Cir. 1965); In re Ricoh Corp., 870 F.2d 570, 573 n.5
`(11th Cir. 1989).
`
`5
`
`

`
`No. 07-40058
`clear abuse of discretion.” Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380 (2004)
`(citations and internal quotation marks omitted). Thus, the specific standard
`that we apply here is that mandamus will be granted upon a determination that
`there has been a clear abuse of discretion.
`The Supreme Court also has said, however, that courts reviewing petitions
`for mandamus “must be careful lest they suffer themselves to be misled by labels
`such as ‘abuse of discretion’ and ‘want of power’ into interlocutory review of
`nonappealable orders on the mere ground that they may be erroneous.” Will v.
`United States, 389 U.S. 90, 98 n.6 (1967); see Bankers Life & Cas. Co. v. Holland,
`346 U.S. 379, 382–83 (1953) (rejecting reasoning that implied that “every
`interlocutory order which is wrong might be reviewed under the All Writs Act”).
`This admonition distinguishes the standard of our appellate review from that of
`our mandamus review. The admonition warns that we are not to issue a writ to
`correct a mere abuse of discretion, even though such might be reversible on a
`normal appeal. The inverse of the admonition, of course, is that a writ is
`appropriate to correct a clear abuse of discretion.
`Admittedly, the distinction between an abuse of discretion and a clear
`abuse of discretion cannot be sharply defined for all cases. As a general matter,
`a court’s exercise of its discretion is not unbounded; that is, a court must exercise
`its discretion within the bounds set by relevant statutes and relevant, binding
`precedents.4
`“A district court abuses its discretion if it: (1) relies on clearly
`
`4 See Albemarle Paper Co. v. Moody, 422 U.S. 405, 416 (1975) (noting that a decision
`calling for the exercise of discretion “hardly means that it is unfettered by meaningful
`standards or shielded from thorough appellate review”); United States v. Taylor, 487 U.S. 326,
`336 (1988) (“Whether discretion has been abused depends, of course, on the bounds of that
`discretion and the principles that guide its exercise. Had Congress merely committed the
`choice of remedy to the discretion of district courts, without specifying factors to be considered,
`a district court would be expected to consider ‘all relevant public and private interest factors,’
`and to balance those factors reasonably.” (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235,
`257 (1981))); James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993) (“Here, as generally, the
`judicial recognition of such factors as guides to a proper exercise of discretion operates to
`impose legal constraints on its exercise by trial courts and in turn to guide our review—to
`6
`
`

`
`No. 07-40058
`erroneous factual findings; (2) relies on erroneous conclusions of law; or (3)
`misapplies the law to the facts.” McClure v. Ashcroft, 335 F.3d 404, 408 (5th
`Cir. 2003) (citation omitted). On mandamus review, we review for these types
`of errors, but we only will grant mandamus relief when such errors produce a
`patently erroneous result.
`Thus, as to the suggestion that mandamus is an inappropriate means to
`test the district court’s discretion in ruling on venue transfers, the precedents
`are clear that mandamus is entirely appropriate to review for an abuse of
`discretion that clearly exceeds the bounds of judicial discretion.5
`
`which we now turn.”); Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984) (“That is,
`when we say that a decision is discretionary, or that a district court has discretion to grant or
`deny a motion, we do not mean that the district court may do whatever pleases it. The phrase
`means instead that the court has a range of choice, and that its decision will not be disturbed
`as long as it stays within that range and is not influenced by any mistake of law. An abuse
`of discretion, on the other hand, can occur in three principal ways: when a relevant factor that
`should have been given significant weight is not considered; when an irrelevant or improper
`factor is considered and given significant weight; and when all proper factors, and no improper
`ones, are considered, but the court, in weighing those factors, commits a clear error of
`judgment.”); Gurmankin v. Costanzo, 626 F.2d 1115, 1119–20 (3d Cir. 1980) (“Meaningful
`appellate review of the exercise of discretion requires consideration of the basis on which the
`trial court acted. If the factors considered do not accord with those required by the policy
`underlying the substantive right or if the weight given to those factors is not consistent with
`that necessary to effectuate that policy, then the reviewing tribunal has an obligation to
`require the exercise of discretion in accordance with ‘what is right and equitable under the
`circumstances and the law.’” (quoting Langnes v. Green, 282 U.S. 531, 541 (1931)));
`Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Mfg. Co., 550 F.2d 189, 193 (4th Cir.
`1977) (“A judge’s discretion is not boundless and must be exercised within the applicable rules
`of law or equity.” (citing Petersen v. John Hancock Mut. Life Ins. Co., 116 F.2d 148, 151 (8th
`Cir. 1971))).
`
`5 See, e.g., In re Estelle, 516 F.2d 480, 483 (5th Cir. 1975) (noting that mandamus is
`appropriate “to confine an inferior court to a lawful exercise of its prescribed jurisdiction” and
`“to confine the lower court to the sphere of its discretionary power” (internal quotation marks
`and citations omitted)); see also In re Sandahl, 980 F.2d 1118, 1121–22 (7th Cir. 1992)
`(granting petition for writ of mandamus to vacate “patently erroneous” order); In re BellSouth
`Corp., 334 F.3d 941, 954 (11th Cir. 2003) (noting that “mandamus should ordinarily lie . . .
`only if the district court order is patently erroneous”).
`7
`
`

`
`No. 07-40058
`IV.
`Because the writ is an extraordinary remedy, the Supreme Court has
`established three requirements that must be met before a writ may issue: (1)
`“the party seeking issuance of the writ [must] have no other adequate means to
`attain the relief he desires—a condition designed to ensure that the writ will not
`be used as a substitute for the regular appeals process”; (2) “the petitioner must
`satisfy the burden of showing that [his] right to issuance of the writ is clear and
`indisputable”; and (3) “even if the first two prerequisites have been met, the
`issuing court, in the exercise of its discretion, must be satisfied that the writ is
`appropriate under the circumstances.” Cheney, 542 U.S. at 380–81 (alterations
`in original) (citations and internal quotation marks omitted). “These hurdles,
`however demanding, are not insuperable.” Id. at 381.
`Although, at the moment, we will not address these requirements in the
`context of and in the order enumerated in Cheney, we shall tie it all together
`further into the opinion. We shall first address the second requirement because
`it captures the essence of the disputed issue presented in this petition.
`A.
`The second requirement is that the petitioner must have a clear and
`indisputable right to issuance of the writ. If the district court clearly abused its
`discretion (the standard enunciated by the Supreme Court in Cheney) in denying
`Volkswagen’s transfer motion, then Volkswagen’s right to issuance of the writ
`is necessarily clear and indisputable. In re U.S. Dept. of Homeland Sec., 459
`F.3d 565, 571 (5th Cir. 2006) (Dennis, J., concurring) (noting that petitioner
`must show “that its right to issuance of the writ is ‘clear and indisputable’ by
`demonstrating that there has been a ‘usurpation of judicial power’ or a ‘clear
`abuse of discretion’”); In re Steinhardt Partners, 9 F.3d 230, 233 (2d Cir. 1993)
`(same); In re Wilson, 451 F.3d 161, 169 (3d Cir. 2006) (same); In re Qwest
`Commc’ns Int’l Inc., 450 F.3d 1179, 1184 (10th Cir. 2006) (same).
`
`8
`
`

`
`No. 07-40058
`There can be no question but that the district courts have “broad discretion
`in deciding whether to order a transfer.” Balawajder v. Scott, 160 F.3d 1066,
`1067 (5th Cir. 1998) (quoting Caldwell v. Palmetto State Sav. Bank, 811 F.2d
`916, 919 (5th Cir. 1987)). But this discretion has limitations imposed by the text
`of § 1404(a) and by the precedents of the Supreme Court and of this Court that
`interpret and apply the text of § 1404(a).6
`To determine whether a district court clearly abused its discretion in
`ruling on a transfer motion, some petitions for mandamus relief that are
`presented to us require that we “review[] carefully the circumstances presented
`to and the decision making process” of the district court. In re Horseshoe Entm’t,
`337 F.3d at 432.7 Others can be summarily decided. But—and we stress—in no
`
`6 Judge Friendly noted that “[e]ven when a statute or rule expressly confers discretion
`or uses the verb ‘may’ or some similar locution, there is still the implicit command that the
`judge shall exercise his power reasonably.” Henry J. Friendly, Indiscretion About Discretion,
`31 Emory L.J. 747, 765 (1982). Judge Friendly also said, “When the ‘you shall do it unless’
`type of formulation is not a realistic option because of the multiplicity of considerations bearing
`upon an issue, it is still useful for legislators or appellate courts to specify the factors that the
`trial judge is to consider. This has long been done, for example, with respect to the subject
`with which we began, dismissal on the ground of forum non conveniens, and its cousin, transfer
`under 28 U.S.C. section 1404. . . . If [the judge] has faithfully checked off and correctly decided
`each item, his determination should usually be allowed to stand. Per contra, if he has neglected
`or misapprehended items that would operate in favor of the losing party, an appellate court will
`have sound basis for finding that discretion was abused.” Id. at 769–70 (emphasis added).
`
`7 When reviewing petitions for mandamus, courts of appeals often consider the venue
`transfer factors (or those factors applicable in other contexts) and the relevant facts to
`determine whether a district court clearly abused its discretion in granting or denying transfer
`(or the relief requested in other contexts). See, e.g., In re Tripati, 836 F.2d 1406, 1407 (D.C.
`Cir. 1988); A. Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 444–45 (2d Cir. 1966); In
`re Ralston Purina Co., 726 F.2d 1002, 1006 (4th Cir. 1984); ACF Indus., Inc. v. Guinn, 384
`F.2d 15, 19–20 (5th Cir. 1967); In re Oswalt, 607 F.2d 645, 647 (5th Cir. 1979); In re
`McDonnell-Douglas Corp., 647 F.2d 515, 517 (5th Cir. Unit A May 1981); Castanho v. Jackson
`Marine, Inc., 650 F.2d 546, 550 (5th Cir. Unit A June 1981); In re First S. Sav. Ass’n, 820 F.2d
`700, 709 (5th Cir. 1987); In re Ramu Corp., 903 F.2d 312, 319 (5th Cir. 1990); In re Horseshoe
`Entm’t, 337 F.3d at 432; Chicago, Rock Island & Pac. R.R. v. Igoe, 220 F.2d 299, 305 (7th Cir.
`1955); In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1295–1304 (7th Cir. 1995); Toro Co. v.
`Alsop, 565 F.2d 998, 999-1000 (8th Cir. 1977); see also McGraw-Edison Co. v. Van Pelt, 350
`F.2d 361, 363 (8th Cir. 1965) (“Unless it is made clearly to appear that the facts and
`circumstances are without any basis for a judgment of discretion, the appellate court will not
`9
`
`

`
`No. 07-40058
`case will we replace a district court’s exercise of discretion with our own; we
`review only for clear abuses of discretion that produce patently erroneous
`results. We therefore turn to examine the district court’s exercise of its
`discretion in denying Volkswagen’s transfer motion.
`1.
`The preliminary question under § 1404(a) is whether a civil action “might
`have been brought” in the destination venue. Volkswagen seeks to transfer this
`case to the Dallas Division of the Northern District of Texas. All agree that this
`civil action originally could have been filed in the Dallas Division. See 28 U.S.C.
`§ 1391.
`
`2.
`Beyond this preliminary and undisputed question, the parties sharply
`disagree. The first disputed issue is whether the district court, by applying the
`forum non conveniens dismissal standard, erred by giving inordinate weight to
`the plaintiffs’ choice of venue. We have noted earlier that there is nothing that
`ties this case to the Marshall Division except plaintiffs’ choice of venue. It has
`indeed been suggested that this statutorily granted choice is inviolable. A
`principal disputed question, then, is what role does a plaintiff’s choice of venue
`have in the venue transfer analysis. We now turn to address this question.
`(a)
`When no special, restrictive venue statute applies, the general venue
`statute, 28 U.S.C. § 1391, controls a plaintiff’s choice of venue. Under
`§ 1391(a)(1), a diversity action may be brought in “a judicial district where any
`defendant resides, if all defendants reside in the same State.” Under § 1391(c),
`when a suit is filed in a multi-district state, like Texas, a corporation is “deemed
`
`If the facts and
`proceed further to examine the district court’s action in the situation.
`circumstances are rationally capable of providing reasons for what the district court has done,
`its judgment based on those reasons will not be reviewed.”).
`10
`
`

`
`No. 07-40058
`to reside in any district in that State within which its contacts would be
`sufficient to subject it to personal jurisdiction if that district were a separate
`State.” Because large corporations, like Volkswagen, often have sufficient
`contacts to satisfy the requirement of § 1391(c) for most, if not all, federal
`venues, the general venue statute “has the effect of nearly eliminating venue
`restrictions in suits against corporations.” 14D Wright, Miller & Cooper, Federal
`Practice & Procedure § 3802 (3d ed. 2007) (noting also that, because of the
`liberal, general venue statute, “many venue disputes now are litigated as
`motions to transfer venue under Section 1404 of Title 28”).
`Congress, however, has tempered the effects of this general venue statute
`by enacting the venue transfer statute, 28 U.S.C. § 1404. The underlying
`premise of § 1404(a) is that courts should prevent plaintiffs from abusing their
`privilege under § 1391 by subjecting defendants to venues that are inconvenient
`under the terms of § 1404(a). See Norwood v. Kirkpatrick, 349 U.S. 29 (1955);
`cf. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947) (“[The general venue]
`statutes are drawn with a necessary generality and usually give a plaintiff a
`choice of courts . . . . But the open door may admit those who seek not simply
`justice but perhaps justice blended with some harassment.”). Thus, while a
`plaintiff has the privilege of filing his claims in any judicial division appropriate
`under the general venue statute, § 1404(a) tempers the effects of the exercise of
`this privilege.
`
`(b)
`With this understanding of the competing statutory interests, we turn to
`the legal precedents. We first turn to Gilbert because of its historic and
`precedential importance to § 1404(a), even today.
`In 1947, in Gilbert, the Supreme Court firmly established in the federal
`courts the common-law doctrine of forum non conveniens. See Piper Aircraft Co.
`v. Reyno, 454 U.S. 235, 248 (1981) (noting that “the doctrine of forum non
`
`11
`
`

`
`No. 07-40058
`conveniens was not fully crystallized” until Gilbert). The essence of the forum
`non conveniens doctrine is that a court may decline jurisdiction and may actually
`dismiss a case, even when the case is properly before the court, if the case more
`conveniently could be tried in another forum. Gilbert, 330 U.S. at 507.
`Shortly after the Gilbert decision, in 1948, the venue transfer statute
`became effective. The essential difference between the forum non conveniens
`doctrine and § 1404(a) is that under § 1404(a) a court does not have authority to
`dismiss the case; the remedy under the statute is simply a transfer of the case
`within the federal system to another federal venue more convenient to the
`parties, the witnesses, and the trial of the case. Thus, as the Supreme Court has
`said, “Congress, by the term ‘for the convenience of parties and witnesses, in the
`interest of justice,’ intended to permit courts to grant transfers upon a lesser
`showing of inconvenience.” Norwood, 349 U.S. at 32.8
`That § 1404(a) venue transfers may be granted “upon a lesser showing of
`inconvenience” than forum non conveniens dismissals, however, does not imply
`“that the relevant factors [from the forum non conveniens context] have changed
`
`8 The district courts are permitted to grant transfers upon a lesser showing of
`inconvenience under § 1404(a) because §1404(a) venue transfers do not have the serious
`consequences of forum non conveniens dismissals. 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 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.’” (quoting All States Freight v. Modarelli, 196 F.2d 1010, 1011 (3d Cir. 1952))); Van
`Dusen v. Barrack, 376 U.S. 612, 639 (1964) (holding that a “change of venue under § 1404(a)
`generally should be, with respect to state law, but a change of courtrooms”); Ferens v. John
`Deere Co., 494 U.S. 516, 519 (1990) (applying the Van Dusen rule when a plaintiff moves for
`transfer).
`
`12
`
`

`
`No. 07-40058
`or that the plaintiff’s choice of [venue] is not to be considered.” Id.9 But it does
`imply that the burden that a moving party must meet to justify a venue transfer
`is less demanding than that a moving party must meet to warrant a forum non
`conveniens dismissal. And we have recognized as much, noting 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. In order to obtain a new
`federal [venue], the statute requires only that the transfer be ‘[f]or the
`convenience of the parties, in the interest of justice.’” Veba-Chemie A.G. v. M/V
`Getafix, 711 F.2d 1243, 1247 (5th Cir. 1983) (emphasis and first alteration
`added); see Piper Aircraft, 454 U.S. at 254 (noting the “relaxed standards for
`transfer”).10 Thus, the district court, in requiring Volkswagen to show that the
`§ 1404(a) factors must substantially outweigh the plaintiffs’ choice of venue,
`
`9 Indeed, we have adopted the Gilbert factors, which were enunciated in Gilbert for
`determining the forum non conveniens question, for determining the § 1404(a) venue transfer
`question. See Humble Oil & Ref. Co. v. Bell Marine Serv., Inc., 321 F.2d 53, 56 (5th Cir. 1963).
`
`10 We have noted that a plaintiff’s choice of venue is to be treated “as a burden of proof
`question.” Humble Oil, 321 F.2d at 56; 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 [venue] should be changed.”). The Singletons, however,
`argue that a plaintiff’s choice of venue should be considered as an independent factor within
`the venue transfer analysis and argue that Norwood, because it indicated that the factors have
`not changed from the forum non conveniens context, requires this result. And, indeed, the
`district court considered the plaintiffs’ choice of venue as an independent factor within the
`venue transfer analysis. A plaintiff’s choice of forum, however, is not an independent factor
`within the forum non conveniens or the § 1404(a) analysis. In fact, the Supreme Court has
`indicated that a plaintiff’s choice of forum corresponds to the burden that a moving party must
`meet: “Adefendant invoking forum non conveniens ordinarily bearsa heavy burdeninopposing
`the plaintiff’s chosen forum.” Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 127 S.Ct.
`1184, 1191 (2007) (emphasis added); see also Gilbert, 330 U.S. at 508 (indicating the
`convenience factors and then noting “[b]ut unless the balance is strongly in favor of the
`defendant, the plaintiff’s choice of forum should rarely be disturbed”). Although a plaintiff’s
`choice of venue is not a distinct factor in the venue transfer analysis, it is nonetheless taken
`into account as it places a significant burden on the movant to show good cause for the
`transfer. Thus, our analysis directly manifests the importance that we must give to the
`plaintiff’s choice.
`
`13
`
`

`
`No. 07-40058
`erred by applying the stricter forum non conveniens dismissal standard and thus
`giving inordinate weight to the plaintiffs’ choice of venue.
`As to the appropriate standard, in Humble Oil we noted that “the
`avoidance of dismissal through § 1404(a) lessens the weight to be given” to the
`plaintiff’s choice of venue and that, consequently, “he who seeks the transfer
`must show good cause.” 321 F.2d at 56. This “good cause” burden reflects the
`appropriate deference to which the plaintiff’s choice of venue is entitled. When
`viewed in the context of § 1404(a), to show good cause means that a moving
`party, in order to support its claim for a transfer, must satisfy the statutory
`requirements and clearly demonstrate that a transfer is “[f]or the convenience
`of parties and witnesses, in the interest of justice.” Thus, when the transferee
`venue is not clearly more convenient than the venue chosen by the plaintiff, the
`plaintiff’s choice should be respected. When the movant demonstrates that the
`transferee venue is clearly more convenient, however, it has shown good cause
`and the district court should therefore grant the transfer.11
`3.
`We thus turn to examine the showing that Volkswagen made under
`§ 1404(a) and the district court’s response.
`As noted above, we have adopted the private and public interest factors
`first enunciated in Gulf Oil Corp. v Gilbert, 330 U.S. 501 (1947), a forum non
`conveniens case, as appropriate for the determination of whether a § 1404(a)
`venue transfer is for the convenience of parties and witnesses and in the interest
`of justice. See Humble Oil, 321 F.2d at 56.
`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
`
`11 We emphasize that this is a different proposition from whether mandamus lies to
`address the district court’s ruling, because as we have earlier noted, mandamus does not reach
`all erroneous rulings of the district court.
`
`14
`
`

`
`No. 07-40058
`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 AG, 371 F.3d 201, 203 (5th Cir. 2004) [hereinafter In re
`Volkswagen I] (citing Piper Aircraft, 454 U.S. at 241 n.6). 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 co