In re Planned Parenthood Fed'n of Am., Inc.

52 F.4th 625

IN RE PLANNED PARENTHOOD FEDERATION OF AMERICA, INCORPORATED; Planned Parenthood Gulf Coast, Incorporated; Planned Parenthood of Greater Texas, Incorporated; Planned Parenthood South Texas, Incorporated ; Planned Parenthood Cameron County, Incorporated ; Planned Parenthood San Antonio, Incorporated, Petitioners.

No. 22-11009

United States Court of Appeals, Fifth Circuit.

FILED October 31, 2022

Danny Scot Ashby, Esq., Justin Roel Chapa, Megan Whisler, O'Melveny & Myers, L.L.P., Dallas, TX, Anton Metlitsky, O'Melveny & Myers, L.L.P., New York, NY, for Petitioner In re: Planned Parenthood Federation of America, Incorporated.

Christopher Odell, Arnold & Porter Kaye Scholer, L.L.P., Houston, TX, Tirzah Sungyeh Lollar, Arnold & Porter Kaye Scholer, L.L.P., Washington, DC, Paula Ramer, Arnold & Porter Kaye Scholer, L.L.P., New York, NY, for Petitioners Planned Parenthood Gulf Coast, Incorporated, Planned Parenthood of Greater Texas, Incorporated, Planned Parenthood South Texas, Incorporated, Planned Parenthood Cameron County, Incorporated, Planned Parenthood San Antonio, Incorporated.

Heather Gebelin Hacker, Andrew Bowman Stephens, Hacker Stephens, L.L.P., Austin, TX, for Alex Doe.

Raymond Charles Winter, Office of the Attorney General, Civil Medicaid Fraud Division, Austin, TX, Amy Snow Hilton, Assistant Attorney General, Office of the Attorney General for the State of Texas, General Litigation Division, Austin, TX, for State of Texas.

Before Elrod, Graves, and Ho, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge:^*

We have often said that a writ of mandamus is an "extraordinary remedy" reserved for "extraordinary causes." In re Depuy Orthopaedics, Inc. , 870 F.3d 345, 350 (5th Cir. 2017) (quoting Cheney v. U.S. District Court for D.C. , 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) ). Such a remedy is warranted only by "exceptional circumstances amounting to a judicial usurpation" or "a clear abuse of discretion." Cheney , 542 U.S. at 390, 124 S.Ct. 2576 (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 affiliates.¹ Relator filed his initial complaint on February 5, 2021, alleging that Petitioners presented millions of dollars of false or fraudulent claims for payment under the Medicaid system.² The State of Texas joined the action, filing a complaint in intervention in January of 2022. Shortly after, the case was unsealed, and Petitioners were served on January 26, 2022. Petitioners moved to dismiss both complaints, and the district court denied those motions in large part in April of 2022. Petitioners then sought reconsideration of that order, which the district court denied in July of 2022. Discovery proceeded meanwhile; tens of thousands of documents were exchanged and several motions to compel were raised by both parties and ruled on.

Seven months after the case was unsealed, Petitioners moved to transfer 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 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.

II.

We issue a writ of mandamus only if the petitioner satisfies three conditions. 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 indisputable" right to the writ. Cheney , 542 U.S. at 367, 124 S.Ct. 2576 (quotations omitted). This requires "more than showing that the court misinterpreted the law, misapplied it to the facts, or otherwise engaged in an abuse of discretion." In re Lloyd's Register North America, Inc. , 780 F.3d 283, 290 (5th Cir. 2015). Instead, and particularly in the context of a motion to transfer, "we review only for clear abuses of discretion that produce patently erroneous results." In re Volkswagen of America, Inc. , 545 F.3d 304, 312 (5th Cir. 2008).

III.

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.

A.

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 311 ("There can be no question but that the district courts have ‘broad discretion in deciding whether to order a transfer.’ ") (quoting Balawajder v. Scott , 160 F.3d 1066, 1067 (5th Cir. 1998) ). The ultimate inquiry is whether the destination venue is "clearly more convenient than the venue chosen by the plaintiff." Id. at 315. Of course, whenever "a defendant is haled into 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 destination 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.

Second, the district court must weigh the private and public interest factors set forth in Gulf Oil Corp. v. Gilbert , 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) to determine whether the destination venue is "clearly more convenient than the venue chosen by the plaintiff." In re Volkswagen , 545 F.3d at 315.

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 attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive.

The public interest factors are: (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.

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 dispositive weight." Id. (quoting Action Industries, Inc. v. U.S. Fidelity & Guaranty Co. , 358 F.3d 337, 340 (5th Cir. 2004) ).

We have also emphasized that the Gilbert factors "are not necessarily exhaustive or exclusive." In re Volkswagen , 545 F.3d at 315. Pertinent here, "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) ).

B.

The record before us falls well short of establishing that the destination venue is clearly more convenient than Respondents' chosen venue. The district court specifically addressed each factor.

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 electronic, and therefore equally accessible in either forum. The location of evidence bears much more strongly on the transfer analysis when, as in Volkswagen , the evidence is physical in nature. See In re Volkswagen , 545 F.3d at 316–17. The district court further found that there was some remaining documentary evidence in both the Northern District and the Western District.³ As to the availability of compulsory process, the district court found 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 availability of compulsory process "receives less weight when it has not been alleged or shown that any witness would be unwilling to testify." Hefferan v. 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 others costs in Amarillo are less—such as hotels and restaurants. It is not altogether clear in which direction these various costs weigh. Nonetheless, we cannot say that this analysis is based on incorrect legal principles or erroneous factual findings such that it would constitute an abuse of discretion.⁴

b.

The district court also stressed the lateness of Petitioners' motion to 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 discretion to conclude that Petitioners' failure to seek...