The Court of Appeals, on rehearing, ordered a writ of mandamus to transfer a product liability case from the U.S. District Court for the Eastern District of Texas, Marshall, to the Northern District of Texas, in Dallas. In re Volkswagen of America, Inc. et al ___ F. 3d. ____, 2007 WL 3088142 C.A.5 (Tex.), 2007. Plaintiffs filed the case in the district court in Marshall against the Defendant, Volkswagen, for an allegedly defective seat back which killed a child riding in the back of a Volkswagen Golf vehicle. The accident occurred on a Dallas freeway. In addition to the dead child the father was also seriously injured. The district court denied the motion and the Appellate Court originally affirmed that ruling before agreeing to rehear the case.
The Volkswagen motion to transfer was pursuant to 28 U.S.C. ??1404(a). The Court of Appeals ruled that the district court erroneously applied the stricter forum non conveniens dismissal standard i.e. that the balance of convenience and justice substantially weigh in favor of the transfer. Under 1404(a) a transfer is granted for the convenience of the parties and witnesses in the interest of justice. The Court of Appeals recognized that a Plaintiff’s choice of forum is entitled to deference however, the court said “when the transferee forum is no more convenient than the chosen forum, the plaintiff’s choice should not be disturbed. When the transferee forum is clearly more convenient, a transfer should be ordered.” It said that Dallas was the more appropriate venue for the case since all of the documents and physical evidence regarding the accident were located there and that the Dallas court would have absolute subpoena power over witnesses and the cost of attendance for witnesses would be lower.