JAMES P. MOORE, Circuit Judge.
Petitioners seek a writ of mandamus compelling the district court to transfer this case from the District of Wyoming to the Central District of California on grounds that the latter locus would be more convenient to the witnesses. Since the district court refused to consider this motion, we direct that it do so.
The underlying diversity action was brought by Ms. Andrea Dworkin against Hustler Magazine, Inc., Flynt Distributing Co., Inc., and Larry Flynt seeking damages on theories of libel, invasion of privacy, intentional infliction of emotional distress, outrage, and interference with her First Amendment rights. The suit was commenced in Wyoming state court and removed by petitioners to the United States District Court. Diversity jurisdiction lies because plaintiff is a resident of the state of New York and petitioners are domiciled in California.
Petitioners have moved to transfer the case pursuant to 28 U.S.C. § 1404(a), claiming none of the parties had contacts with Wyoming and the convenience of the defendants and their witnesses would be better served by transferring the case to Los Angeles. The motion was called for hearing in conjunction with other motions. While setting out the time to be accorded to the arguments, the district court stated:
With this conclusion, the motion was denied.
The first question we must address is whether mandamus will even lie in this situation. In the past, we have said that the writ would issue only on "a clear showing of abuse of discretion." Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 146 (10th Cir.1967). Yet, we have also said: "Mandamus is an appropriate remedy to test the validity of the transfer order." Cessna Aircraft Co. v. Brown, 348 F.2d 689, 691 (10th Cir.1965). Cognizant that a thorny thicket abounds in this area,
When the court refused to even hear the petitioners' case for transfer, it abused its discretion. When a motion for change of venue is filed pursuant to § 1404(a), the trial court is called upon to carefully weigh the competing equities relied upon by the parties for changing the place of trial. Under the peculiar circumstances of this case, in which none of the parties and only one witness has any connection with or residence in Wyoming, the necessity for a hearing cannot be gainsaid.
Although we do not suggest to the district court how its discretion should be exercised, we do mandate that it proceed to grant the parties a full and adequate hearing on the subject. The petition for writ of mandamus is granted.
McKAY, Circuit Judge, concurring:
I fully concur with the panel opinion. I write separately, however, to clarify why I believe this case presents extraordinary circumstances justifying mandamus relief.
The remedy of mandamus is "a drastic one, to be invoked only in extraordinary situations." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (per curiam). Consistent with the policy against piecemeal appellate review, the Supreme Court has said that "[o]nly exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy." Id. at 35, 101 S.Ct. at 190. Although the circuits differ on the availability of mandamus to challenge orders granting or denying a change of venue, all the circuits have been "extremely reluctant" to review such orders by mandamus. Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147 n. 1 (10th Cir.1967); 1 Moore's Federal Practice ¶ 0.147 at 1708. Mandamus review has been approved, however, "to prevent abuses of a district court's authority to transfer a case," In Re Chatman-Bey, 718 F.2d 484, 486 (D.C.Cir.1983) (per curiam); when a change of venue is ordered without argument or opportunity for a hearing, Fine v. McGuire, 433 F.2d 499, 501-02 (D.C.Cir.1970) (per curiam); in "really extraordinary situations," In re Josephson, 218 F.2d 174, 183 (1st Cir.1954); "to redress a clear-cut abuse of discretion," A. Olinick & Sons v. Dempster Brothers, Inc., 365 F.2d 439, 445 (2d Cir.1966); when "the right of the party seeking mandamus is clear and indisputable, [a standard which] requires considerably more strained circumstances than does a mere abuse of discretion," In re Ralston Purina Co., 726 F.2d 1002, 1005 (4th Cir.1984); and when the trial court's action was "without any possible basis for judgment of discretion, so as legally to involve abuse of judicial power and responsibility." Toro Co. v. Alsop, 565 F.2d 998, 1000 (8th Cir.1977).
This court has said that mandamus is available to review the validity of a transfer order only upon "a clear showing of abuse of discretion." Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 146 (10th Cir.1967). The Ninth Circuit has commented that the "abuse of discretion" standard is a "nebulous criterion [which] serves neither the trial judge who must abide by it nor the litigant who must frame his appeal in terms of it." Casey v. Molybdenum Corp. of America, 408 F.2d 16, 20 (9th Cir.1969). The court went on to explain that
Saying that we will invoke our mandamus jurisdiction only on "a clear showing of abuse of discretion" is merely a shorthand way of saying that we will not disturb the trial court's decision if it has exercised its discretion according to the criteria set forth in section 1404(a). If the trial court indicates it has considered these factors, mandamus should not lie to correct an error in the district court's judgment. See Loew's, Inc. v. McGuire, 205 F.2d 719 (D.C.Cir.1953); cf. Thermtron Products v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). I agree with Judge Goodrich who, speaking for the Third Circuit, said:
All States Freight, Inc. v. Modarelli, 196 F.2d 1010, 1011-12 (3d Cir.1952) (footnotes omitted).
What makes it necessary to exercise our very limited mandamus jurisdiction in this case is that the trial court's only consideration of the venue issue was that the motion was "silly." The court did not match the case to the statutory standards, and the motion is far from "silly." Since jurisdiction in this case is not founded solely on diversity of citizenship, 28 U.S.C. § 1391(b) determines where venue was proper in the first instance. That statute provides:
Since it appears from the limited record that at no time during the pendency of this lawsuit have all defendants or all plaintiffs resided in a single judicial district, venue was proper in Wyoming only if that is "where the claim arose." Wherever the claim did arise in this case, it certainly was not in Wyoming. See Leroy v. Great Western United Corp., 443 U.S. 173, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979); Davis v. Costa-Gavras, 580 F.Supp. 1082 (S.D.N.Y.1984); Pfeiffer v. International Academy of Biomagnetic Medicine, 521 F.Supp. 1331 (W.D.Mo.1981). Thus, Wyoming is not only an inconvenient forum for petitioners, but it is also an improper one under section 1391(b).
We have made no attempt to consider what our judgment would be on an appeal after trial — only what is permitted in the rarefied environment of mandamus review. On remand, the trial court may consider