Cragar Industries, Inc., In re, s. 83-4285

• Decision Date: 18 May 1983
• Docket Number: Nos. 83-4285,83-4286,s. 83-4285
• Citation: 706 F.2d 503
• Parties: In re CRAGAR INDUSTRIES, INC. and General Motors Corporation, Petitioners.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 503

706 F.2d 503

In re CRAGAR INDUSTRIES, INC. and General Motors

Corporation, Petitioners.

Nos. 83-4285, 83-4286.

United States Court of Appeals, Fifth Circuit.

May 18, 1983.

Gold, Little, Simon, Weems & Bruser, Alexandria, La., for defendants.

Howard N. Nugent, Jr., Alexandria, La., for Robinson.

Howard B. Gist, Jr., Charles O. Lacroix, Steven W. Cook, Alexandria, La., for GMC in both cases.

Gist, Methvin, Hughes & Munsterman, Alexandria, La., for GMC in 83-4286.

Henry B. Bruser, III, Alexandria, La., for Cragar Ind., Inc.

On Petitions for Writ of Mandamus and/or Prohibition to the United States District Court for the Western District of Louisiana.

Before CLARK, Chief Judge, POLITZ and HIGGINBOTHAM, Circuit Judges.

BY THE COURT:

General Motors and Cragar Industries, defendants in a suit for personal injuries, petition for writ of mandamus requesting review of an order transferring the case from the Western District of Louisiana to the Northern District of Mississippi. The order of transfer, while not specific as to its statutory basis, apparently granted a motion filed by plaintiff, Jerrell Wayne Robinson, under 28 U.S.C. Sec. 1404(a).

The willingness of appellate courts to review rulings on requested transfer motions under the All Writs Act has been expressed in uneven terms throughout the country and within this circuit. The law of this circuit is best described as an increasing unwillingness to grant interlocutory review of district court decisions regarding requested transfers, apparently, in an increasing recognition that such decisions sound in the discretion of the trial court. Garner v. Wolfinbarger, 433 F.2d 117 (5th Cir.1970). In Garner we noted, "In the voluminous litigation over transfer orders, only a few litigants have surmounted the formidable obstacles and secured the writ [of mandamus]." Id. at 120. We noted the case development recently in In re McDonnell Douglas Corp., 647 F.2d 515 (5th Cir.1981). Identifying factors influencing the decision whether to issue such writs, we noted that they "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." Id. at 517. We turn to these petitions.

Jerrell Robinson is a resident of the Western District of Louisiana. He was injured in Coahoma County, Mississippi on November 9, 1976, while driving an automobile manufactured by General Motors, with mag-type wheels manufactured by Cragar Industries. Both the car and the wheels were purchased in Alexandria, Louisiana. A previous owner had used them there for more than two years before the accident.

Robinson first filed suit against General Motors in the Northern District of Mississippi on November 10, 1979, and joined Cragar as co-defendant on December 19, 1979. On February 20, 1980, Judge Keady in the Northern District of Mississippi granted Cragar's Rule 12 motion to dismiss on the basis that the Mississippi long-arm statute was not available to Robinson, a non-resident of Mississippi. Unable to proceed in Mississippi against both Cragar and General Motors, Robinson, on May 19, 1980, requested transfer under 28 U.S.C. Sec. 1404(a) to the Western District of Louisiana. Robinson had objected to an earlier request for transfer by General Motors, which had been denied on February 7, 1980. Robinson's change of heart apparently was based principally, if not solely, upon his inability to obtain jurisdiction over Cragar. Judge Keady granted the unopposed motion to transfer on May 27, 1980.

Robinson then amended his complaint in the Western District of Louisiana and obtained process on Cragar under the Louisiana long-arm statute. Cragar's motion to dismiss for lack of personal jurisdiction was denied by Judge Scott on August 26, 1981. However, on March 19, 1982, Judge Scott granted Cragar's motion for summary judgment, ruling that Robinson's claims against Cragar were barred by applicable Louisiana statutes of limitations. He issued a judgment of dismissal on June 28, 1982, but was not requested to, and did not, issue any certificate under Rule 54(b).

On January 7, 1983, General Motors moved for summary judgment, also urging that the claim against it was barred by limitations. Robinson responded to General Motors' motion for summary judgment by requesting that the case be returned to the Northern District of Mississippi. Robinson claimed by supporting affidavit there were six fact witnesses in Mississippi who would be available if the case were tried there. He did not identify them or detail their expected testimony. He also asserted that the docket conditions in the Western District of Louisiana were crowded. Eight days later, Judge Scott entered an order transferring the case to the Northern District of Mississippi. He thereafter stayed the order, however, to allow General Motors to move for reconsideration, a motion he denied by minute entry on April 19, 1983. It is this order returning the case to Mississippi that both General Motors and Cragar here complain of.

Cragar and General Motors are not similarly situated. Cragar is no longer a party to the case. It fears, however, that the interlocutory character of the order granting its motion for summary judgment might be reconsidered by the Mississippi court. While we doubt that Cragar's fears are sufficient to warrant review, we do not address its troubling procedural posture. The petition of General Motors squarely presents for review Judge Scott's order. For that reason, we pretermit consideration of Cragar's petition, turning instead to the petition for writ of mandamus filed by General Motors.

General Motors contends that the Louisiana court clearly abused its discretion because it effectively overturned the decision of the...