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MARSHALL -- The U.S. Fifth Circuit Court of Appeals granted a writ of mandamus in a controversial case against Volkswagen, ordering the transfer of venue of the motor vehicle products liability case from a court in Marshall to one in Dallas.

The decision was the third issued by the court in the case that arose out of an automobile accident that occurred within the Dallas Division of the Northern District of Texas.

The victim's family filed a product liability suit against Volkswagen in the Marshall Division of the Eastern District. Volkswagen filed a third-party complaint against the driver of the other automobile.

Volkswagen sought to change the venue to Dallas because the accident occurred in Dallas, the witnesses and plaintiffs reside in Dallas, the car at issue was purchased in Dallas, medical care was obtained in Dallas, and no known parties or witnesses reside in the Marshall division.

District Judge John Ward in Marshall denied the transfer motion stating, "The plaintiff's choice of forum is a paramount consideration in any determination of a transfer request and that choice should not be light distributed."

After Judge Ward denied a motion for reconsideration regarding the transfer, Volkswagen appealed the decision to the Fifth Circuit.

Initially, the appeals court upheld the lower court's decision by holding that the district court "did not clearly abuse its discretion."

Volkswagen then filed a petition for rehearing and at a rare oral argument for reconsideration the Fifth Circuit agreed with Volkswagen that the district court abused its discretion by applying the wrong legal standard and not properly weighing interest factors.

The now-vacated opinion asserted a 100-mile threshold between the existing location and the proposed location. The court found that "the factor of inconvenience to witnesses increases in direct relationship to the additional distance traveled."

The court remanded the case to the lower court with instructions to transfer to the Dallas Division. The ruling was viewed as giving parties seeking transfer of a product liability case a slight advantage.

Vacating the previous decision, the Fifth Circuit granted the plaintiff's petition to review the previous appellate decision with en banc proceedings which were held on May 23 in New Orleans.

With the opinion issued on Oct 10, the Fifth Circuit wrote that the district court "abused its discretion in denying the transfer" and the only factor keeping the case in Marshall is the plaintiffs' choice of venue.

"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," the opinion stated.

The opinion also attempts to clarify what role a plaintiff's choice of venue will have in the venue transfer analysis. The Fifth Circuit wrote that the lower court held Volkswagen to a stricter legal standard, which gave the plaintiffs' choice inordinate weight.

The Fifth Circuit applied Section 1404 (a) which 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."

Public and private factors in determining whether a case should be transferred include the ease of access to proof, availability to secure witnesses, cost of attendance for witnesses, court congestion, local interest, if the forum is familiar with the law that will govern the case, avoidance of conflict of laws, and other issues that may make a trial of a case "easy, expeditious and inexpensive."

The Fifth Circuit concluded that the lower court erred in properly weighing these factors. With the majority opinion, the district court is ordered to transfer the case to the Dallas Division of the Northern District of Texas.

Circuit Court Judges King, Davis, Benavides, Stewart, Dennis, and Prado wrote a dissent against the majority opinion. The dissent suggests that the majority inappropriately applied the standard of "clear abuse of discretion" and thus, contrary to precedent provided an interlocutory review of a nonappealable order which is committed to the district court's discretion. Further, the dissent disagrees with how the majority weighed the public and private interest factors.

The dissenting opinion stated, "But even if I, sitting as a district judge, would have granted the motion to transfer, that kind of difference in judgment, particularly in a matter committed to the district court's discretion, does not justify an extraordinary writ."

Case No: 07-40058

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