MICHAEL P. MILLS, Chief Judge.
This cause comes before the court on the motion of the plaintiffs to transfer trial of this case to Greenville.
Plaintiffs filed suit in the Greenville Division of the Northern District of Mississippi. The matter was assigned to this court and set for trial in Oxford, seat of the Western Division, as the customary practice in this district is for judges to try cases at their duty station. The plaintiffs wish to move this trial to Greenville pursuant to 28 U.S.C. § 1404(a). The defendants oppose the plaintiffs' motion and request that the trial be held in Oxford.
In Beck v. Koppers, Inc., 2006 WL 2228918 at *1 (N.D.Miss. July 25, 2006), Judge Pepper followed the general practice in the Northern District of denying transfer from his duty station to the division in which the case was filed.
For the last decade, the judges of the Northern District have operated under a series of substantially similar standing orders relating to divisional venue and case assignments which are based upon policy considerations specific to the litigation needs of this district. Legislative history indicates that, since 1988, it has been Congress' intent to permit federal district courts to establish, if they so choose, their own standards relating to divisional venue. Prior to its repeal, the divisional venue statute, 28 U.S.C. § 1393 provided that:
Section 1393 was repealed in 1988. Comments found in the U.S.Code Annotated give some guidance as to Congress' intent in doing so:
32A Am.Jur.2d Federal Courts § 1190 "Venue in multidivision districts" similarly explains that:
The repeal of § 1393 provided an opportunity for this court to establish its own standards regarding divisional venue. It
The potential for shopping for a particular judge or jury has been a matter of longstanding concern among the bench in the Northern District. The judges of this district wish to avoid the perception that one form of justice will be available to litigants filing suit in one division in this district as opposed to those filing suit in another. The judges also wish to avoid a situation whereby any particular division comes to be seen as a "fiefdom" of sorts, in which the idiosyncrasies and preferences of one judge come to dominate the local litigation practice.
Finally, there is the matter of the named standing divisions in the Northern District as opposed to reality. In 1996, the Clarksdale Courthouse, site of the Delta Division, was closed. Though this courthouse was closed, Mississippi's divisional statute was not amended, see 28 U.S.C. § 104, thereby leaving the Northern District with a division without a courthouse. Changes in court facilities have effected other divisional aspects of litigation in this district. For instance, this District has adopted a jury selection plan pursuant to the Jury Selection and Service Act of 1968. 28 U.S.C. § 1863. That plan divides the district into three divisions: Eastern; Western;
Motivated by these and other concerns, then-Chief Judge Biggers first issued, on July 21, 1999, a standing order publicly filed under case number 3:98MC19, which allocated cases filed in the various divisions among the Northern District judges. On July 2, 2003, then-Chief Judge Davidson issued a substantially similar order, under the same case number, reflecting changes in the makeup of the Northern District judges. On December 3, 2007, this court issued its own such order, likewise providing for allocation of civil cases filed in the Northern District as follows:
Division: EASTERN DELTA WESTERN GREENVILLE (Aberdeen) (Clarksdale) (Oxford) (Greenville)
4Chief Judge Mills 20% 30% 50% 25% Judge Pepper 5% 50% 15% 50% Judge Aycock 50% 10% 15% 25% Sr. Judge Biggers 10% 10% 10% 0% Sr. Judge Davidson 15% 0% 10% 0%
In Re: Procedures for the Assignment of Civil Cases, No: 3:98MC19 (December 3,
There is a price to be paid for this approach. That price is that litigants and witnesses are sometimes required to endure longer travel distances than would be the case if a particular district judge only heard cases in his or her own division. While this is regrettable, it has been the view of a succession of chief judges in this district, and is the view of all Northern District judges presently serving, that these burdens are outweighed by the important policy considerations discussed above. This district views the quality and uniformity of justice that is administered in its courtrooms to be more important than the driving distance which litigants face in reaching those courtrooms.
The judges in this district must juggle individual dockets containing hundreds of potential trials. It would be impossible for these judges to efficiently manage their dockets if required to maintain a near-constant state of preparation to travel to various trials on their calender. This is particularly true considering the local practice of "stacking" several trials, likely filed in different divisions, all set to begin on the same date in a particular courtroom. It often does not become apparent until days or even hours before trial which cases will settle and which will proceed.
Historically, there were four courthouses and two active district judges in this district, thus making the need to travel obvious. This court remembers when Judges Keady and Senter rode the circuit holding trials in all four divisions. At that time the District had more courthouses than judges. The travel schedules of Judges Keady and Senter brought the federal system to every corner of this district. Presently, however, there are three courthouses and three active "resident" judges, along with two senior judges. With five judges and only three courthouses, there is no courthouse in the district that does not frequently host duty station trials. The presence of the federal justice system is felt everyday in every available courthouse in this District.
Further, this court randomly assigns Magistrate Judges to each action. Random assignment means that no matter where a case is filed, it could be assigned to a Magistrate Judge whose chambers are in Aberdeen, Greenville, or Oxford. Magistrate Judges in this district conduct case management, settlement, and pre-trial conferences. Thus even if the court moved, for the purposes of trial, all cases to the division in which they were filed, the parties might still have to travel in order to complete the required conferences. Relative to the number of cases in which a case management conference is held, the number of cases that actually proceed to trial is quite small. Thus, the benefit of trying all cases in the division in which they are filed is greatly lessened.
This court does not suggest that its adoption of divisional venue practices means that no circumstances requiring divisional transfer might arise in this district. The Fifth Circuit has held in criminal cases, which similarly lack divisional venue rules, that an intra-district transfer may be required upon "a strong showing of prejudice." U.S. v. Duncan, 919 F.2d 981, 985 (5th Cir.1990). Clearly a "strong showing of prejudice" makes an intra-district transfer necessary and appropriate. This court can discern no unfairness to civil litigants by applying the Duncan standard to the civil docket, since a criminal defendant facing trial for his personal freedom faces much higher stakes than any civil litigant. The Duncan standard which has proven adequate for criminal defendants should likewise protect the interests of civil litigants.
Many attorneys in the Northern District are under the impression that In re Volkswagen of America, Inc., 545 F.3d 304 (5th Cir.2008) applies to requests for intra-district transfers. Application of that standard to intra-district transfer issues raised in light of a judge's decision to try a case at his duty station would be tantamount to abrogating this court's practice of trying cases at a Judge's assigned duty station. See Johnson v. City of Columbus, 1:07cv168, docket entry 67. The City of Columbus decision, as discussed below, is consistent with the Fifth Circuit precedents which apply only to inter-district transfers.
In In re Volkswagen, the Fifth Circuit set forth private interest factors for courts to consider in ruling upon Rule § 1404(a) motions to transfer, including (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 attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive. Volkswagen, 545 F.3d at 315. The first three factors largely involve considerations which, for the reasons discussed above, this court has elected to de-emphasize in the interests of pursuing broader judicial policy goals. The repeal of § 1393 clearly suggests that this court has the authority to pursue these goals. The fourth factor put forth by In re Volkswagen is sufficiently broad to encompass the public policies motivating the judges of this district to adopt the current venue rules. However, if the In re Volkswagen test is read as nothing more than an algebraic balancing of four equally weighted
The Fifth Circuit in In re Volkswagen also set forth a list of public interest factors to be considered including "`(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws [or in] the application of foreign law.'" Volkswagen, 545 F.3d at 315. It is obvious these public factors have little to do with intra-district transfers. The first factor encompasses one of the traditional policy concerns of the judges in this district. The other three factors are irrelevant.
It appears that the Duncan standard should apply to purely divisional transfer issues in this district, since In re Volkswagen involved a transfer outside of a particular judicial district and is thus factually distinguishable. In re Volkswagen would clearly be applicable in a case involving a transfer from the Northern District of Mississippi to the Southern District of Mississippi, and it might be applicable to a purely intra-district transfer in a district which had not adopted its own divisional venue practices. In the latter case, there would be no special local rules to consider, and, as suggested in the AmJur2d article quoted above, the general § 1404(a) factors would apply as default rules.
The issue in the Northern District, however, is not whether a particular judge made a correct transfer ruling based upon generalized § 1404(a) factors, but whether the district as a whole has the right to establish its own divisional venue standards. The Duncan "strong showing of prejudice" standard already applicable in this circuit will continue to serve as a minimal "floor" upon litigants' rights to obtain transfer, notwithstanding any local rule to the contrary.
This court will briefly address certain arguments raised by the defendant in Koppers. In seeking mandamus, that defendant relied largely upon 28 U.S.C. § 1404(c), which provides that a "district court may order any civil action to be tried at any place within the division in which it is pending." In the court's view, this provision must be read in light of the repeal of § 1393, and the resulting implicit invitation for district courts to establish their own individualized practices regarding divisional venue. It does not make a great deal of sense to suggest that Congress would, on the one hand, essentially wash its hands of the divisional venue issue by repealing § 1393, while at the same time maintaining stringent divisional trial venue rules in § 1404. Moreover, while the language of § 1404(c) indicates that district courts may order trials to be held anywhere in the division where suit is filed, it does not indicate that such trials may only be held in that division. "May" is the language of discretion.
A stringent reading of § 1404(c) is also inappropriate in the Northern District based upon the physical realities. The defendant in Koppers relied partly upon 28 U.S.C. § 104(a)(3), which provides as follows:
As noted above, there is no federal courthouse in the Delta Division. Thus a stringent application of § 1404(c) is impossible. The Clarksdale courthouse was closed in 1996. Judges in this district can not hear cases in a Federal courthouse within the geographical bounds of the Delta Division. No fair reading of Congressional intent would require Delta Division cases to be stayed until an unplanned courthouse could be built.
In its motion seeking mandamus relief, the defendant in Koppers relied partly upon the fact that this court has not promulgated policies set forth in its standing order in a formal local rule. This court does acknowledge that AmJur2d and the statutory comments cited above speak in terms of a district adopting a "local rule," and this court has not formally done so. It was the intent of the judges in this district, however, that the standing order would serve as the functional equivalent of a local rule. The standing order was promulgated in the same manner and location as this district's local rules. Moreover, this court has some concerns that the time-consuming process of adopting a formal local rule will diminish the court's flexibility to modify its standing order quickly as
At a future date, this court may need to convert its standing order into a local rule or Congress may amend 28 U.S.C. § 104 to bring the jurisdictional statute for the Northern District up to date and consistent with the District's current needs and resources. However, the court finds it unlikely that the Fifth Circuit would conclude that the Northern District has erred in applying its standing order for the last decade. In re Volkswagen points out that "[t]here can be no question but that . . . district courts have `broad discretion in deciding whether to order a transfer.'" 545 F.3d at 311 (quoting Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir.1998)). A district court's discretion is broad enough that "`[i]f the facts and circumstances are rationally capable of providing reasons for what the district court had done'" that decision will not be reversed. Id. at 312 n. 7 (quoting McGraw-Edison Co. v. Van Pelt, 350 F.2d 361, 363 (8th Cir.1965)). As such, this court concludes that Koppers did not rob the judges of this district of the discretion to try cases at their duty stations and that the "strong showing of prejudice" standard applies to civil cases in this district.
Turning to the facts of this case, the plaintiffs here cite not only inconvenience to witnesses in seeking transfer; they has also submitted affidavits from accident witnesses Cynthia Stevens and Allison Cline in which these witnesses appear to flatly refuse to appear at trial in Oxford. In identically worded-affidavits which were apparently prepared by counsel for plaintiffs, Stevens and Cline assert as follows:
It is unclear whether this court should interpret this statement as an intention to file a motion to quash any trial subpoena issued by this court, and it is further unclear whether this statement originated with the witnesses or with counsel for plaintiffs.
This court's initial review of the law suggests that it would have discretion to deny any motion to quash filed by Stevens and Cline. That is, Fed.R.Civ.P. 45(c)(3)(A)(ii) provides that
(emphasis added). Greenville is approximately 115 miles from Oxford, which meets the distance requirement in Rule 45(c)(3)(A)(ii), but, since both cities are located in Mississippi, this court has the authority to order Greenville residents to attend trial in Oxford. This authority is subject to Rule 45(c)(3)(B)(iii), which provides that
(Emphasis added). The court has no motion to quash before it, and it will therefore not address whether it might choose to quash any trial subpoena issued for Stevens and/or Cline.
It is certainly no coincidence that this issue arises shortly after the Fifth Circuit's decision in Koppers. Indeed, the Northern District has seen a flurry of similar motions in the weeks following the Fifth Circuit's decision, even though the travel times and other physical circumstances have obviously not changed. The fact that Greenville residents have managed to do their civic duty for the last decade by testifying in Aberdeen and Oxford raises doubts in this court's mind as to whether good cause to quash any trial subpoena exists in this case. This is particularly true considering that Greenville and Oxford are not merely in the same state but are also in the same judicial district. In the court's view, it is essential that judges be able to enforce trial subpoenas in this district.
Even assuming that Stevens and Cline filed motions to quash which were somehow granted, however, any prejudice resulting from their absence would be greatly lessened by the fact that the parties had the opportunity to depose them. Counsel for plaintiffs argues that he would have questioned the witnesses differently if he had known that they would be unavailable for trial. Clearly, however, the issue of whether a deponent might be unavailable at trial is one which any lawyer should consider in deciding how to question that witness. Moreover, nothing prevented counsel from asking Stevens and Cline at their depositions whether they would be able to attend trial. Finally, if it were to be established that plaintiff's counsel had encouraged the witnesses to resist testifying in Oxford, then this would raise obvious estoppel issues in this context. Regardless, the court concludes that plaintiffs have failed to make the strong showing of prejudice required to support transfer, and their motion to transfer will therefore be denied.
It is therefore ordered that plaintiffs' motion to transfer is denied.