We recently noticed the Court’s opinion in Wells Fargo Bank v. Bank of America (pdf copy of the decision here). The opinion dealt with Bank of America’s motion to transfer venue pursuant to 28 U.S.C. § 1404(a). Bank of America sought to transfer the case to the Southern District of New York, and the Court granted the motion.
In the process, the Court stated, “[a] ‘[p]laintiff’s choice of forum is clearly a factor to be considered but in and of itself is neither conclusive nor determinative.’” The Court cited (and quoted) In re Horseshoe Entm’t, 337 F.3d 429 (5th Cir. 2003), for support. And, in fact, the Fifth Circuit did state, in In re Horseshoe, “We believe that it is clear under Fifth Circuit precedent that the plaintiff’s choice of forum is clearly a factor to be considered but in and of itself it is neither conclusive nor determinative.” 337 F.3d 429, 434 (5th Cir. 2003) (emphasis added).
The Court failed to note, however, that this portion of In re Horseshoe Entm’t was overruled by the Fifth Circuit, sitting en banc, in In re Volkswagen of Am., Inc., 545 F.3d 304, 327 (5th Cir. 2008). In particular, the Fifth Circuit in In re Volkswagen stated:
We have noted that a plaintiff’s choice of venue is to be treated “as a burden of proof question.” The [plaintiffs], however, argue that a plaintiff’s choice of venue should be considered as an independent factor within the venue transfer analysis . . . . And, indeed, the district court considered the plaintiffs’ choice of venue as an independent factor within the venue transfer analysis. A plaintiff’s choice of forum, however, is not an independent factor within the forum non conveniens or the § 1404(a) analysis. . . . Although a plaintiff’s choice of venue is not a distinct factor in the venue transfer analysis, it is nonetheless taken into account as it places a significant burden on the movant to show good cause for the transfer. Thus, our analysis directly manifests the importance that we must give to the plaintiff’s choice.
Id. at 315 n.10 (emphases added).
While the Fifth Circuit in In re Volkswagen faulted the district court for considering the plaintiffs’ choice of venue as a factor, the Fifth Circuit overlooked the fact that the district court was applying binding Fifth Circuit at the time of its decision (a la, at a minimum, In re Horseshoe). And, for this reason, the Federal Circuit in In re TS Tech USA Corp., 551 F.3d 1315, 1322 (Fed. Cir. 2008), was wrong when it stated that “the Fifth Circuit’s recent en banc decision [in In re Volkswagen] did not change any aspect of the law regarding the trial court’s § 1404(a) analysis[.]” (On a separate note, the sheer number of recent patent cases where the Federal Circuit has “mandamused” district courts in the Eastern District of Texas suggests that In re Volkswagen did, in fact, change the law regarding transfer (or the Federal Circuit, in applying In re Volkswagen, has done so). Either way, as our friends in the Eastern District of Texas know, it’s a different ballgame post-In re Volkswagen.))
So, to answer our question, the plaintiff’s choice of venue is not a factor in the venue analysis in the Northern District of Texas (or in any district within the Fifth Circuit) under Section 1404(a) post-In re Volkswagen (although the plaintiff’s choice does require the defendant to show “good cause” for the transfer and, in that sense, the plaintiff’s choice of venue still plays an important role in the analysis).
