On June 18, 2013, the Fifth Circuit issued a venue decision in In re Radmax, 720 F.3d 285 (5th Cir. 2013), which involved an intra-division transfer motion seeking transfer from the Marshall Division of the Eastern District of Texas to the Tyler Division. Two items to note:
“Garden Variety” Delay Due To Transfer Not To Be Taken Into Consideration In Transfer Analysis. The Fifth Circuit stated:
[T]he district court took into account that “transfer will result in delay for all parties” and concluded that “this factor weighs against transfer.” The delay associated with transfer may be relevant “in rare and special circumstances,” In re Horseshoe Entm’t, 337 F.3d 429, 435 (5th Cir.2003), and we have found such circumstances present where a “transfer [of] venue would have caused yet another delay in [an already] protracted litigation,” Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir.1989), but we have not elaborated on the circumstances under which delay is “rare and special.” We clarify today that garden-variety delay associated with transfer is not to be taken into consideration when ruling on a § 1404(a) motion to transfer. Were it, delay would militate against transfer in every case.
100 Mile “Rule” Does Not Mean That Inconvenience Factor Is Inapplicable Where Transfer Is Sought To Venue Less Than 100 Miles Away: In the Fifth Circuit’s prior Volkswagen decision, the Fifth Circuit stated, “[w]hen the distance between an existing venue for trial of a matter and a proposed venue under § 1404(a) is more than 100 miles, the factor of inconvenience to witnesses increases in direct relationship to the additional distance to be traveled.” This is known as the “100 mile rule.” Based on this “rule,” the district court found that the “rule” was not implicated with respect to a transfer between Marshall and Tyler (approximately 60 miles). The Fifth Circuit did not agree with the district court’s reasoning: “We did not imply, however, that a transfer within 100 miles does not impose costs on witnesses or that such costs should not be factored into the venue-transfer analysis, but only that this factor has greater significance when the distance is greater than 100 miles.” (emphasis in original).