United States Court of Appeals

for the Fifth Circuit

No. 22-11009

In re Planned Parenthood Federation of America,

Petitioners.

Petition for a Writ of Mandamus

to the United States District Court

*

the considerations of timeliness and delay identified by the district court and noted in Judge

Elrod’s opinion.

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circumstances amounting to a judicial usurpation” or “a clear abuse of dis-

cretion.” Cheney, 542 U.S. at 390 (quotations omitted). Because Petitioners

have not shown that either of those circumstances are present here, we deny

the petition, and deny the motion to stay as moot.

I.

This mandamus petition concerns a qui tam action brought against

Planned Parenthood Federation of America, Inc., and five Texas-based affil-

iates.

tions in large part in April of 2022. Petitioners then sought reconsideration

of that order, which the district court denied in July of 2022. Discovery pro-

ceeded meanwhile; tens of thousands of documents were exchanged and sev-

eral motions to compel were raised by both parties and ruled on.

Seven months after the case was unsealed, Petitioners moved to trans-

fer to the Austin Division of the Western District of Texas, arguing that it is

a more convenient forum than the Amarillo Division of the Northern District

of Texas, where the case was originally filed and remains pending. The

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assertion that Planned Parenthood’s policies regarding the sale of fetal tissue violated nu-

merous state and federal laws. See generally Planned Parenthood of Greater Texas v. Kauff-

man, 981 F.3d 347 (5th Cir. 2020) (en banc).

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district court denied that motion. Order, United States v. Planned Parenthood

Federation of America, Inc., No. 2:21-cv-22 (N.D. Tex. Sept. 20, 2022), ECF

183. Petitioners then filed the instant mandamus petition.

We issue a writ of mandamus only if the petitioner satisfies three con-

ditions. First, it must show it has “no adequate means to attain the relief [it]

desires.” Second, the court must be “satisfied that the writ is appropriate

under the circumstances.” And third, the petitioner must show a “clear and

for clear abuses of discretion that produce patently erroneous results.” In re

Volkswagen of America, Inc., 545 F.3d 304, 312 (5th Cir. 2008).

Assuming arguendo Petitioners could satisfy the first two conditions,

we are compelled to deny their mandamus petition because they fail to show

a clear and indisputable right to the writ.

At the outset, we stress that the decision of whether to transfer a case

is committed to the district court’s discretion. In re Volkswagen, 545 F.3d at

4

court, some inconvenience is expected and acceptable.” Defense Distributed

v. Bruck, 30 F.4th 414, 433 (5th Cir. 2022). But “the fact that litigating would

be more convenient for that defendant elsewhere is not enough to justify

transfer.” Id. Instead, the party seeking transfer must “clearly establish

good cause for transfer based on convenience and justice.” Id.

The familiar transfer analysis proceeds in two parts. First, the district

court must ask whether the case “might have been brought” in the destina-

tion venue. 28 U.S.C. § 1404(a). The parties agree this action might have

been brought in the Austin Division of the Western District of Texas.

The private interest factors are: (1) the relative ease of access

to sources of proof; (2) the availability of compulsory process

to secure the attendance of witnesses; (3) the cost of attend-

ance for willing witnesses; and (4) all other practical problems

that make trial of a case easy, expeditious and inexpensive.

In re Volkswagen, 545 F.3d at 315 (quotations omitted). We have emphasized

that in weighing these factors, no one consideration “can be said to be of dis-

positive weight.” Id. (quoting Action Industries, Inc. v. U.S. Fidelity & Guar-

We have also emphasized that the Gilbert factors “are not necessarily

exhaustive or exclusive.” In re Volkswagen, 545 F.3d at 315. Pertinent here,

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“courts have considered a party’s delay in denying a motion to transfer.”

Peteet v. Dow Chemical Co., 868 F.2d 1428, 1436 (5th Cir. 1989) (collecting

cases). That is so because “parties seeking a change in venue should act with

‘reasonable promptness.’” Id. (quoting Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 3847 (2d ed. 1986)).

The record before us falls well short of establishing that the destina-

tion venue is clearly more convenient than Respondents’ chosen venue. The

1.

a.

The district court first concluded that the private interest factors

weigh against transfer. It found that the vast majority of the evidence was

that this factor did not weigh in favor of transfer because the Petitioners failed

to identify any witnesses who would be unwilling to testify. Indeed, the avail-

ability of compulsory process “receives less weight when it has not been al-

leged or shown that any witness would be unwilling to testify.” Hefferan v.

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not specifically in Amarillo, but this fact does not per se render the Amarillo Division less

convenient than the Austin Division. Rather, it is one consideration to be weighed against

the private and public interest factors. See In re Volkswagen, 545 F.3d at 315.

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Ethicon Endo-Surgery Inc., 828 F.3d at 488, 499 (6th Cir. 2016); see also Curtis

v. Galakatos, 19 F.4th 41, 53 (1st Cir. 2021). As to the cost of attendance for

willing witnesses, the relevant witnesses reside across the state and across the

country: Pennsylvania, Maryland, Houston, Dallas, San Antonio, and Austin.

In light of this fact, the parties spar over whether it would be cheaper for the

witnesses to travel to Austin or Amarillo. The district court acknowledged

these arguments, finding that there are more flights into Austin, but that oth-

ers costs in Amarillo are less—such as hotels and restaurants. It is not alto-

transfer. It concluded that the motion was “inexcusably delayed,” observing

that Petitioners “filed their motion seven months after this case was unsealed

and months into the discovery period.” Planned Parenthood Federation of

America, Inc., No. 2:21-cv-22, ECF 183 at 8. The district court was within its

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wide analysis.” But we have never framed the transfer analysis as focusing exclusively on

either the destination district or destination division. It is telling, then, that Petitioners cite

no Fifth Circuit precedent for their argument, or indeed any circuit precedent at all. What

is more, Petitioners’ argument fails on its own terms. They contend that the district court

analyzed the convenience factors as to the Northern District of Texas, instead of the Ama-

rillo Division, but that it simply not true. On the contrary, the district court assessed the

convenience of the Amarillo Division on multiple occasions. See Planned Parenthood Fed-

court sometimes assessed the convenience of the Northern District and the Western Dis-

trict at that level of generality, but nothing in its order suggests that it improperly excluded

division-specific considerations.

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litigation weighed against transfer. See Peteet, 868 F.2d at 1436. This conclu-

sion is only strengthened by the fact that Petitioners waited to seek transfer

until after the district court denied their motion to dismiss and motion for

reconsideration. See Planned Parenthood Federation of America, Inc., No. 2:21-

cv-22, ECF 183 at 8 (citing Utterback v. Trustmark Nat’l Bank, 716 F. App’x

241, 245 (5th Cir. 2017)) (“Given the timing of [Movant’s motion to trans-

fer], it would emphatically not serve the interest of justice to allow him to

take a second bite at the apple in Florida, just after learning he would lose in

factor is “speculative.” In re Genetech, Inc., 566 F.3d 1338, 1347 (Fed. Cir.

2009). But to the extent docket efficiency can be reliably estimated, the dis-

trict court is better placed to do so than this court. Moreover, this case ap-

pears to be timely proceeding to trial before the Amarillo Division. That fact

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problems did not weigh in favor of transfer. Petitioners fail to demonstrate

that these findings constitute an abuse of discretion.

tions to transfer; they need only grant such a motion where the evidence

demonstrates that the destination venue is “clearly more convenient” than

the chosen venue. In re Volkswagen, 545 F.3d at 315. We review that decision

“only for clear abuses of discretion that produce patently erroneous results.”

division where the litigation concerning the Medicaid provider agreement terminations

took place, and this case might be assigned to the same district judge who presided over

that case. See Planned Parenthood of Greater Texas v. Smith, No. 1:15-cv-1058 (W.D. Tex.).

However, the parties dispute whether the district judge assigned to Smith continues to take

new cases. We need not enter into that discussion because it is speculative at best that the

same district judge would be assigned to this case if it were transferred to the Austin Divi-

sion. Moreover, these two cases are not so related that this factor would demand transfer

by itself. Compare In re Volkswagen, 545 F.3d at 315. On the contrary, they involve different

destination venue is in a different State—in which case that State’s familiarity with the

applicable law would be especially probative to the transfer analysis. See, e.g., Defense Dis-

tributed, 30 F.4th at 436.

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that they are entitled to the extraordinary remedy of a writ of mandamus.

The petition for a writ of mandamus is DENIED. The motion to stay

is DENIED AS MOOT.