In re Horseshoe Entertainment

• Decision Date: 01 July 2003
• Docket Number: No. 02-30682.,02-30682.
• Citation: 337 F.3d 429
• Parties: In Re: HORSESHOE ENTERTAINMENT, Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 429

337 F.3d 429

In Re: HORSESHOE ENTERTAINMENT, Petitioner.

No. 02-30682.

United States Court of Appeals, Fifth Circuit.

July 1, 2003.

As Corrected July 30, 2003.

Murphy J. Foster, III, Yvonne Inez Reed, Breazeale, Sachse & Wilson, Baton Rouge, LA, for Petitioner.

Dori Kay Bernstein, Carolyn L. Wheeler, EEOC, Washington, DC, for EEOC.

Jill Leininger Craft, Craft & Craft, George Gregory Caballero, Caballero Law Firm, Baton Rouge, LA, for Rogers.

Petition for Writ of Mandamus to the United States District Court for the Middle District of Louisiana.

ON PETITION FOR REHEARING EN BANC

(Opinion 9/10/02, 5 Cir., 305 F.3d 354)

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:

Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is GRANTED; and the panel opinion filed under date of September 10, 2002, and published at 305 F.3d 354, et seq. is hereby withdrawn and the new opinion filed contemporaneously with this Order is substituted for such prior opinion. The mandate on this substituted opinion shall issue forthwith. No member of the panel, nor judge in regular active service of the Court having requested that the Court be polled on rehearing en banc (FED. R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.

DeMOSS, Circuit Judge:

Horseshoe Entertainment ("Horseshoe"), a Louisiana partnership having its domicile and principal place of business in Bossier City, Louisiana, petitions this Court to issue a Writ of Mandamus to reverse a decision of the United States District Court for the Middle District of Louisiana (the Middle District Court) in Civil Action No. 01-295 on its docket, denying a motion by Horseshoe to transfer the venue of a Title VII sex discrimination/ADA case to the Shreveport Division of the United States District Court for the Western District of Louisiana (the Shreveport Division Court) for the convenience of the parties and witnesses and in the interest of justice pursuant to 28 U.S.C. § 1404(a). Caroline W. Rogers ("plaintiff") filed such suit against Horseshoe on April 17, 2001, in the Middle District Court alleging that she was subjected to discrimination and harassment while employed with Horseshoe in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act ("ADA"). On June 13, 2001, prior to filing any answer, Horseshoe filed its motion to transfer pursuant to § 1404(a) and such motion was timely and of sufficient content to prevent waiver of the venue issue when Horseshoe subsequently filed its answer in such proceeding. In its motion to transfer, Horseshoe asserts the following uncontested facts and grounds for its motion:

A. As reflected by plaintiff's sworn complaint:

1. Plaintiff is a resident of Caddo Parish, Louisiana, which is within the Shreveport Division of the Western District of Louisiana;

2. Plaintiff was employed by Horseshoe in Bossier City, Louisiana, which is also within the Shreveport Division of the Western District of Louisiana;

3. Plaintiff was subjected to certain acts of sexual harassment by other employees of Horseshoe and all of these acts occurred in Bossier City which is also within the Shreveport Division of the Western District of Louisiana;

4. Plaintiff suffers from a disability (diabetes) and Horseshoe failed to make reasonable accommodations for her disability and harassed her because of such disability; and all such conduct occurred in Bossier City or the greater Shreveport area within the Shreveport Division of the Western District of Louisiana;

5. The alleged conduct of harassment and discrimination caused plaintiff to be constructively discharged from her employment on July 17, 2000, which occurred in Bossier City, Louisiana, within the Shreveport Division of the Western District of Louisiana; and

6. As a result of such alleged conduct, plaintiff sustained severe emotional distress and damages in the greater Shreveport area which is within the Shreveport Division of the Western District of Louisiana.

B. Almost all of the potential witnesses for Horseshoe reside in the areas of Bossier City and Shreveport, Louisiana, all within the Shreveport Division of the Western District Court.

C. Almost all of plaintiff's potential witnesses reside within the Bossier City or Shreveport area within the Shreveport Division of the Western District Court.

D. All employment records related to plaintiff's employment by Horseshoe are maintained in the offices of Horseshoe in Bossier City, Louisiana, within the Shreveport Division of the Western District.

E. But for the alleged conduct herein and the alleged constructive discharge, the plaintiff would have continued to work for Horseshoe in Bossier City, Louisiana, within the Shreveport Division of the Western District.

F. The distance between Baton Rouge, Louisiana, where the Middle District Court would conduct this litigation if it is not transferred, and the Shreveport/Bossier City area, where the witnesses and parties reside, is more than 200 miles; and is therefore beyond the 100 mile distance in which the automatic subpoena power of a district court can be used to compel attendance of witnesses.

JURISDICTIONAL QUESTION

As an initial point in her response filed with this Court to Horseshoe's petition for mandamus, the plaintiff questions whether this Court has jurisdiction under the All Writs Act (28 U.S.C. § 1651) to review the Middle District Court's decisions on the motion to transfer and contends that since Horseshoe did not even seek a certification from the Middle District Court pursuant to 28 U.S.C. § 1292, the order on the motion to transfer venue may not be reviewable at all. In essence, the plaintiff's contention is that the decision of the Middle District Court on the motion to transfer venue is not reviewable in any way by this Court. We disagree for two reasons. First of all, we operate on the presumption that if Congress wants to make a decision by a district court or a circuit court unreviewable it certainly knows how to do that. See 28 U.S.C. § 1447(d) which states that an order remanding a case to a state court from which it was removed "is not reviewable on appeal or otherwise; and see 28 U.S.C. 2244(b)(3)(E)." There is no such similar provision in the general venue statutes nor in the special venue statute applicable in this case.

Secondly, we think plaintiff misreads our Circuit's precedents. In Garner v. Wolfinbarger, 433 F.2d 117, 120 (5th Cir.1970), after first holding "that § 1292(b) review is inappropriate for challenges to a judge's discretion in granting or denying transfer under § 1404(a)," the panel went on to state:

This Circuit has recognized the availability of mandamus as a limited means to test the district court's discretion in issuing transfer orders. Ex Parte Blaski, 245 F.2d 737 (5th Cir.), cert. denied, 355 U.S. 872, 78 S.Ct. 122, 2 L.Ed.2d 76 (1957); Ex Parte Pfizer & Co., 225 F.2d 720 (5th Cir.1955); Atlantic Coastline RR v. Davis, 185 F.2d 766 (5th Cir. 1950); cf. Ex Parte Deep Water Exploration Co., supra.

The petition for writ of mandamus in Garner was denied because there was no showing of "any failure by the district judge to correctly construe and apply the statute or to consider the relevant factors incident to ruling upon a motion to transfer or clear abuse of discretion on his part" which were the standards of review set in Pfizer, supra. While the court in Garner commented that "in the voluminous litigation over transfer orders, only a few litigants have surmounted the formidable obstacles and secured the writ," we take that as a simple expression of the adage that "exceptions prove the rule." Neither Garner nor Pfizer have been overruled or criticized by this Court; and from these cases we draw the following standards (the Pfizer Standards) to be applied by our Court in deciding the propriety or not of a district court's ruling on a motion to transfer under § 1404(a):

a.) Did the district court correctly construe and apply the relevant statutes;

b.) Did the district court consider the relevant factors incident to ruling upon a motion to transfer; and

c.) Did the district court abuse its discretion in deciding the motion to transfer.

There is no way that this Court can determine whether the Pfizer standards have been met except by reviewing carefully the circumstances presented to and the decision making process used by the Middle District Court; and for the reasons hereinafter set forth the errors of the Middle District Court are sufficient to satisfy the Pfizer standards and to justify the issuance of the writ of mandamus.

VENUE QUESTIONS

In addition to the general statutory provisions regarding venue set forth in Chapter 87 of Title 28 of the U.S.Code (28 U.S.C. § 1391, et seq.), Congress has adopted special venue provisions for the type of litigation involved in this case (claims under Title VII and the ADA) which state as follows:

(3) Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been...