In an Oct. 10 decision that could make it easier for defendants to challenge plaintiffs’ choice of venue, the 5th U.S. Circuit Court of Appeals, sitting en banc, granted a car manufacturer’s petition for writ of mandamus to force a trial judge to move a products liability case from Marshall to Dallas.
The 5th Circuit held 10-7 in In Re: Volkswagen that the district judge’s denial of Volkswagen of America Inc.’s motion to transfer the case was a clear abuse of discretion.
Judge E. Grady Jolly wrote for the 5th Circuit majority that “the only factor that favors keeping the case in Marshall, Texas, is the plaintiffs’ choice of venue.”
Under 28 U.S.C. §1391(c), when a suit is filed in a multidistrict state, like Texas, a plaintiff can sue a corporation in any district in the state. While §1391 grants the plaintiff the privilege of choosing venue for a suit, that privilege is tempered by the considerations of inconvenience under 28 U.S.C. §1404(a), according to the majority opinion.
“The underlying premise of Section 1404(a) is that courts should prevent plaintiffs from abusing their privilege under Section 1391 by subjecting defendants to venues that are inconvenient under the terms of Section 1404(a),” Jolly wrote in the majority opinion.
Houston solo Martin Siegel, who argued before the 5th Circuit on behalf of the plaintiffs in the mandamus action, writes in an e-mail responding to Texas Lawyer’s request for an interview that the decision in In Re: Volkswagen of America Inc., et al. changes the law in this circuit, at least in some kinds of cases.
“The plaintiff’s initial choice of venue now has somewhat less weight in the discretionary transfer analysis than many trial courts have given it, and the court of appeals has signaled a greater willingness to use mandamus to police what it sees as erroneous transfer decisions,” Siegel wrote in the e-mail.
Siegel wrote that the plaintiffs are considering the possibility of petitioning the U.S. Supreme Court for a writ of certiorari.
Danny Ashby, a partner in K&L Gates in Dallas, argued on Volkswagen’s behalf before the 5th Circuit. Ashby did not immediately return a telephone call and an e-mail message seeking comment.
Fatal Crash
The 5th Circuit’s majority opinion provides the following background on the case: Mariana Singleton, 7, died from injuries she sustained when a front passenger seat collapsed on her during a 2005 motor vehicle accident on a Dallas freeway. The child was a back-seat passenger in a Volkswagen Golf her grandmother, Ruth Singleton, was driving. Richard Singleton, the child’s grandfather, a passenger in the front seat, also suffered serious injuries in the accident that occurred when the Volkswagen vehicle was struck from behind, propelling it into a flat-bed trailer parked on the shoulder of the freeway. He was left a paraplegic. In May 2006, the grandparents and Mariana’s mother, Amy Singleton, sued Volkswagen and its parent company Volkswagen AG in the U.S. District Court for the Eastern District of Texas in Marshall, alleging that the design defects in the Volkswagen Golf caused Richard Singleton’s injuries and the 7-year-old’s death. Pursuant to §1404(a), Volkswagen moved to transfer Singleton v. Volkswagen of America Inc., et al. to Dallas.
U.S. District Judge T. John Ward denied the motion in September 2006 and denied Volkswagen’s motion for reconsideration in December 2006. Among other findings, Ward determined that citizens of Marshall would have an interest in the product liability case because the product at issue in Singleton is available in Marshall.
As noted in the majority opinion, Volkswagen petitioned the 5th Circuit for a writ of mandamus, which issued a per curiam opinion denying the mandamus petition in a 2-1 decision in February 2007. Judge Emilio Garza wrote in a dissenting opinion that the only connection between Singleton and Eastern District was the plaintiffs’ decision to file there. Volkswagen filed a petition for rehearing en banc, which the panel interpreted as a petition for panel rehearing. Vacating its order, the original panel ordered the mandamus proceeding set for oral arguments. In October 2007, a second panel made up of Jolly, Edith Brown Clement and Priscilla Owen granted Volkswagen’s mandamus petition. The plaintiffs filed a petition for rehearing en banc, which the 5th Circuit granted this year.
The 5th Circuit held that Volkswagen’s petition for a writ of mandamus met the requirements under the U.S. Supreme Court’s 2004 decision in Cheney v. U.S. District Court. The high court held in Cheney that a mandamus writ is an appropriate remedy for “exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion.”
Under Cheney, for a mandamus writ to issue, the petitioner must have no other adequate way to obtain relief and show that his right to issuance of the writ is clear and indisputable. Cheney also requires the court issuing the writ to determine that mandamus is appropriate under the circumstances of the case.
Jolly noted in the majority opinion that Volkswagen asserted in the district court that the case should be transferred because, among other things, all documents and physical evidence related to the accident are in Dallas as are the witnesses to the accident and police and medical personnel who responded to it.
According to the majority, it is more convenient for the witnesses identified by Volkswagen, and for Richard and Ruth Singleton, who live in Collin County, if the case is tried in Dallas, not 155 miles away in Marshall.
Ward’s rationale that Marshall citizens have an interest in Singleton because the product involved is sold there “stretches logic in a manner that eviscerates the public interest that this factor attempts to capture,” Jolly wrote.
But King wrote in a dissenting opinion the majority, in order to grant the mandamus writ, begins by “plucking the standard ‘clear abuse of discretion’ out of the narrow context provided by the Supreme Court’s mandamus precedent and then confecting a case — not the case presented to the district court — to satisfy its new standard.”
While the majority noted that Singleton is a products liability case, the entire opinion treats it “as if this were simply a case in which victims of a Dallas accident were suing the driver of the offending car,” King wrote.
Judges Eugene Davis, Jacques Wiener Jr., Fortunato “Pete” Benavides, Carl Stewart, James Dennis and Edward Prado joined King in the dissent.
