“Mandamus petitions from the Marshall Division are no strangers to the federal courts of appeals.” In re Radmax, Ltd., No. 13-40462 (June 18, 2013). In Radmax, the Fifth Circuit found a clear abuse of discretion in declining to transfer a case from the Marshall Division of the Eastern District of Texas to the Tyler Division. It found that the district court incorrectly applied the eight relevant 1404(a) factors, giving undue weight to potential delay and not enough weight to witness inconvenience, and quoting Moore’s Federal Practice for the principle that “‘the traditional deference given to plaintiff’s choice of forum . . . is less’ for intra-district transfers.” Accordingly the Court granted mandamus pursuant to In re Volkswagen, 545 F.3d 304 (5th Cir. 2008) (en banc). A pointed dissent agreed that the 1404(a) factors favored transfer but saw no clear abuse of discretion, noting that there was no clear Fifth Circuit authority on several of the points at issue in the context of intra-district transfers. “The majority persuasively fills those doctrinal gaps with citations to Moore’s Federal Practice; that treatise may prove convincing, but it is not binding law.”
The Supreme Court has granted certiorari in the case of In re Atlantic Marine Construction, 701 F.3d 736 (5th Cir. 2012), which declined to grant mandamus relief to enforce a forum selection clause. The questions for review indicate that the Court plans to resolve a circuit split about the standard for enforcement of a forum selection clause, when the forum of suit would otherwise be proper under the federal venue statutes. One view uses the test for “improper venue,” while another analyzes the issue under a 1404(a) convenience framework.
In 2011, Antill Pipeline joined a new third-party defendant to a case and obtained a continuance. In 2012, Antill Pipeline had the case consolidated with another lawsuit it had filed, which had the effect of joining two new defendants, and obtained another continuance. In December 2012, the trial court dismissed several defendants, including the three joined by Antill Pipeline. One week before the January 28 trial setting, Antill Pipeline moved to stay the trial and then sought mandamus two business days before the scheduled start date. The Fifth Circuit held: “Antill’s petition, if granted, would further delay a trial that Antill has already caused to be delayed numerous times. Under these circumstances we cannot say that the district court clearly abused or usurped its judicial power . . . .” In re Antill Pipeline Construction Co., No. 13-30102 (Jan. 25, 2013, unpublished).
The appellant in All Plaintiffs v. Transocean Offshore (the MDL relating to Deepwater Horizon) challenged an order requiring him to submit to a psychiatric exam and supply medical records as part of the procedure. No. 12-30237 (Jan. 3, 2013, unpublished). Following Mohawk Industries v. Carpenter, 130 S. Ct. 599 (2009), the Fifth Circuit held that the collateral order doctrine did not allow appeal of this interlocutory discovery order. Any erroneous effect on the merits of the case could be reviewed on appeal of final judgment, and even if that review was “imperfect” to remedy the intrusion on his privacy interest, the harm was not so great as to justify interlocutory review of the entire class of similar orders. A concurrence noted that while mandamus review was theoretically possible, this party had not requested it as an alternative to direct appeal, and had not made a sufficiently specific showing of harm to obtain mandamus relief.
In re Atlantic Marine Construction denied a mandamus petition about enforcement of a forum selection clause, finding no “clear abuse of discretion.” No. 12-50826 (Nov. 19, 2012). The majority and specially concurring opinions exchanged detailed views on whether Fed. R. Civ. P. 12(b)(3) or 28 U.S.C. § 1404(a) controls a forum selection issue when the parties did not select state law to govern enforcement of the clause and venue would otherwise be proper in the district of suit. The majority opinion reflects a continuing conservatism in recent mandamus cases after 2008’s en banc Volkswagen opinion.
The Court affirmed almost all of a series of immunity rulings by the district court in the consolidated litigation against the Corps of Engineers arising from Hurricane Katrina. In re Katrina Canal Breaches Litigation (March 2, 2012). While most of the opinion focuses on issues unique to flood control, it provides a crisp summary of the requirements of the National Environmental Policy Act as to environmental impact statements, and concludes with a brief summary of the standards for mandamus relief in the federal system. Op. at 27. The Court declined to grant a writ of mandamus to stay an upcoming trial because its opinion affirmed the immunity rulings that the district court would use for that trial. (A subsequent opinion mooted the mandamus issue because it changed the disposition of the merits.)