In Re: Beazley Ins ( 2009 )


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  •             IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                         Fifth Circuit
    
                                                      FILED
                                                                                 May 4, 2009
    
                                           No. 09-20005                    Charles R. Fulbruge III
                                                                                   Clerk
    
    In re: BEAZLEY INSURANCE CO.
    
                                                       Petitioner
    
    
    
    
                     Petition for Writ of Mandamus to the United States
                      District Court for the Southern District of Texas
                                         (08-CV-3340)
    
    
    Before WIENER, STEWART, and OWEN, Circuit Judges.
    PER CURIAM:*
           The petition for panel rehearing is GRANTED. We withdraw our prior
    unpublished opinion 1 and substitute the following opinion:
           Beazley Insurance Company (“Beazley”) petitions for a writ of mandamus
    directing the district court to remand the instant case to Texas state court and
    to vacate the district court’s orders requiring Beazley to mediate before
    Bankruptcy Judge Isgur. Determining that mandamus relief is inappropriate
    on the discrete facts of this case, we deny relief.
    
    
    
    
           *
             Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
    R. 47.5.4.
           1
               
    2009 WL 205859
     (5th Cir. Jan. 29, 2009) (unpublished).
                                         No. 09-20005
    
                             I. FACTS AND PROCEEDINGS
          Plaintiffs in the underlying suit, Doctors Hospital 1997, L.P. and
    Tidwell/Parkway Property Holdings, L.P. (collectively, the “Hospital”), have a
    troubled financial history in which operating expenses now exceed revenues by
    approximately $1.5 million per month. To cover the shortfall, the Hospital
    borrowed several million dollars from dismissed defendant GE HFS Holdings,
    Inc. (“GE HFS”). By the time it filed the instant lawsuit, the Hospital was in
    default on its loans from GE HFS and owed GE HFS more than $20 million. GE
    HFS refused to lend any additional funds to the Hospital and had called the
    outstanding loans.
          The Hospital holds an insurance policy from petitioner Beazley that covers
    property damage and business-interruption loss at each of the Hospital’s two
    facilities, the Tidwell and Parkway campuses.              GE HFS is named as an
    additional insured on the policy.2 In September 2008, Hurricane Ike damaged
    both campuses, with the Parkway location suffering serious damage.                    The
    Hospital elected to close the Parkway campus rather than to repair it and filed
    a claim with Beazley for both property-damage and business-interruption losses.
    Beazley has to date disbursed at least $2.5 million and, at the time of suit, was
    continuing to issue monthly business-interruption payments and to adjust
    claims as the Hospital submitted documentation.
          GE HFS asserted that it was entitled to receive whatever insurance
    proceeds Beazley paid out so that the funds, at GE HFS’s discretion, would pay
    down the Hospital’s outstanding debt.
    
    
    
    
          2
             General Electric is actually named as the additional insured party rather than the
    related entity, GE HFS.
    
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                                           No. 09-20005
    
           On November 5, 2008, the Hospital filed its original petition in Texas state
    court naming both GE HFS and Beazley as defendants.3 As to GE HFS, the
    Hospital asserted breach of fiduciary duty, tortious interference with contract,
    breach of contract, and economic distress claims for “GE [HFS]’s egregious
    misconduct and blatant attempts to bankrupt” the Hospital. As to Beazley, the
    Hospital asserted only a breach of contract claim alleging that Beazley “failed
    to timely make all payments required under the Policy.” Later that day, the
    state judge granted an ex parte temporary restraining order directing Beazley
    to advance $1.5 million to the Hospital; Beazley complied.
           On November 10, GE HFS removed the instant case to the District Court
    for the Southern District of Texas on the basis of diversity jurisdiction.4 GE HFS
    neither sought nor obtained consent to removal from its co-defendant Beazley
    because, according to GE HFS, Beazley was a mere nominal party to the suit.
           The Hospital proceeded to file an application for preliminary injunction to
    (1) prevent GE HFS from collecting insurance proceeds as payment for
    outstanding debt and (2) require Beazley to follow the terms of the insurance
    policy and to “[i]mmediately fund all business interruption proceeds owed
    directly and solely to [the Hospital].” On November 17, the district court held
    a hearing at which the Hospital asserted that without injunctive relief, it would
    no longer be able to operate. At the hearing, the district court indicated that in
    addition to the disputed financial issues, it recognized the community’s interest
    
    
    
    
           3
             The previous day, November 4, the Hospital filed an identical suit in state court. GE
    HFS removed that suit to the District Court for the Southern District of Texas on November
    5. The Hospital voluntarily dismissed that suit only to re-file the identical instant case in
    state court later that same day.
           4
              The parties do not dispute the district court’s diversity jurisdiction. The Hospital
    consists of two Texas limited partnerships; their principal places of business are in Texas. GE
    HFS is a Delaware corporation; its principal place of business is in Maryland. Beazley is a
    Connecticut corporation; its principal place of business is in Connecticut.
    
                                                  3
                                     No. 09-20005
    
    in the Hospital’s continued operation. The court ordered the parties to mediate
    before Bankruptcy Judge Isgur the following day.
          All parties attended that mediation and, on the afternoon of November 18,
    Judge Isgur reported to the district court that the Hospital and GE HFS were
    progressing toward a resolution that would require GE HFS to release some of
    the Beazley insurance proceeds that had been disbursed to GE HFS. Judge
    Isgur also advised the court that the Hospital needed an additional $800,000 no
    later than the next day. The district court instructed Beazley and GE HFS to
    be prepared to pay that amount. The mediation then continued.
          The next morning, the district court held a hearing during which, Judge
    Isgur notified the court, the Hospital and GE HFS reached a settlement.
    According to the terms of the settlement, (1) GE HFS was dismissed with
    prejudice from the suit; (2) GE HFS agreed to release $2.2 million to the
    Hospital; and (3) the Hospital assigned certain rights to GE HFS to prosecute its
    claims against Beazley. The Hospital and Beazley failed to reach a settlement.
    At the hearing, Judge Isgur informed the district court that, although the other
    parties had mediated in good faith, Beazley “did not negotiate in good faith.”
          On the same day, Beazley filed a motion to remand to state court on the
    ground that it was not a mere nominal party, but instead had a real stake in the
    litigation because the amount of insurance proceeds payable under the policy
    was disputed.
          On November 24, the Hospital and GE HFS — now participating as the
    Hospital’s co-plaintiff rather than as a defendant (the “Plaintiffs”) — filed an
    amended complaint in the district court asserting only the breach of contract
    claim against Beazley, the sole remaining defendant. The amended complaint
    
    
    
    
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                                            No. 09-20005
    
    alleges that Beazley breached the terms of the insurance policy in a variety of
    ways that caused substantial losses.5
           On December 1, the district court ordered the parties to mediate again
    before Judge Isgur during the ensuing 60 to 90 days. Accordingly, the district
    court stayed the case and extended all deadlines for an additional 90 days.
    Beazley sought to vacate the December 1 order on the ground that Judge Isgur’s
    impartiality was questionable; the district court denied that motion.
           On December 18, the district court denied Beazley’s motion to remand on
    the basis that Beazley’s consent was not required when GE HFS originally
    removed the case to federal court.6
           On January 9, 2009, Beazley filed the instant petition for writ of
    mandamus.7
                                  II. STANDARD OF REVIEW
           The All Writs Act authorizes us to “issue all writs necessary or appropriate
    in aid of [our] respective jurisdiction[] and agreeable to the usages and principles
    of law.”8     The writ of mandamus is, however, a “drastic and extraordinary
    remedy reserved for really extraordinary causes.” 9
                 Because the writ is an extraordinary remedy, the Supreme
           Court has established three requirements that must be met before
           a writ may issue: (1) “the party seeking issuance of the writ [must]
           have no other adequate means to attain the relief he desires — a
    
           5
               Beazley filed a motion for more definite statement, which the district court denied.
           6
            Beazley requested that the district court certify its interlocutory order for appeal
    pursuant to 28 U.S.C. § 1292(b). The court declined to do so.
           7
              Simultaneously with the filing of its petition for writ of mandamus, Beazley filed a
    motion for stay in this court seeking temporary relief from mediating before Judge Isgur
    pending our decision in the mandamus action. Because we issue our ruling on Beazley’s
    petition today, we will deny the motion to stay as moot.
           8
               28 U.S.C. § 1651(a); see Cheney v. U.S. Dist. Court, 
    542 U.S. 367
    , 380 (2004).
           9
               Cheney, 542 U.S. at 380 (internal quotation marks and citation omitted).
    
                                                   5
                                            No. 09-20005
    
            condition designed to ensure that the writ will not be used as a
            substitute for the regular appeals process”; (2) “the petitioner must
            satisfy the burden of showing that [his] right to issuance of the writ
            is clear and indisputable”; and (3) “even if the first two prerequisites
            have been met, the issuing court, in the exercise of its discretion,
            must be satisfied that the writ is appropriate under the
            circumstances. . . . These hurdles, however demanding, are not
            insuperable.” 10
    
    We address in turn each of Beazley’s putative bases for mandamus relief.
                            III. District Court’s Denial of Remand
    A.      No Other Adequate Means to Attain Relief
            Beazley contends that our recent en banc decision in In re Volkswagen
    lends sufficient support to conclude that it has no other adequate means to
    attain relief.11 We agree.
            In In re Volkswagen, following the district court’s denial of a defendant’s
    28 U.S.C. § 1404(a) motion to transfer venue, the petitioner sought a writ of
    mandamus directing the district court to transfer the case.12 As in the instant
    case,13 interlocutory review of the district court’s order was unavailable.14 We
    said:
    
    
    
            10
             In re Volkswagen of Am., Inc., 
    545 F.3d 304
    , 311 (5th Cir. 2008) (en banc) (quoting
    Cheney, 542 U.S. at 380–81).
            11
                 Id. at 318–19.
            12
                 Id. at 307–08.
            13
              See Aaaron v. Nat’l Union Fire Ins. Co. of Pittsburgh, 
    876 F.2d 1157
    , 1160 (5th Cir.
    1989) (“A district court’s denial of a motion to remand is not a final order, and it therefore is
    not reviewable on [interlocutory] appeal.”).
            14
               In re Volkswagen, 545 F.3d at 319. In the instant case, the district court declined
    to grant certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). In In re
    Volkswagen, the denial of transfer was an order ineligible for interlocutory review under
    section 1292(b). Id. Any distinction between the two situations is immaterial to our inquiry
    as the effect on the petitioner in both cases was the same — unavailability of an interlocutory
    appeal.
    
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                                             No. 09-20005
    
           As Judge Posner has noted, a petitioner “would not have an
           adequate remedy for an improper failure to transfer the case by way
           of an appeal from an adverse final judgment because [the petitioner]
           would not be able to show that it would have won the case had it
           been tried in a convenient [venue].” . . . And the harm —
           inconvenience to witnesses, parties and other — will already have
           been done by the time the case is tried and appealed, and the
           prejudice suffered cannot be put back in the bottle. Thus, the writ is
           not here used as a substitute for an appeal, as an appeal will
           provide no remedy for a patently erroneous failure to transfer
           venue.15
    
    We recognize that, technically, the district court’s denial of Beazley’s motion to
    remand will be reviewable on appeal pursuant to 28 U.S.C. § 1291.16 Yet, venue
    transfer orders like the one in In re Volkswagen are also reviewable on appeal.17
    Our decision in In re Volkswagen thus forecloses this fact from being
    determinative.18 For the purpose of our inquiry today, the Plaintiffs set forth no
    rationale for distinguishing a denial of a motion to transfer venue from denial
    of a motion to remand to state court. Beazley has no adequate means of relief
    other than the extraordinary writ it now seeks.19
    B.     Clear and Indisputable Right to the Issuance of the Writ
    
    
    
           15
              Id. at 318–19 (quoting In re Nat’l Presto Indus., Inc., 
    347 F.3d 662
    , 663 (7th Cir.
    2003)) (emphasis added).
           16
                See, e.g., Gillis v. Louisiana, 
    294 F.3d 755
    , 758 (5th Cir. 2002).
           17
                See, e.g., Broussard v. State Farm Fire & Cas. Co., 
    523 F.3d 618
    , 631 (5th Cir. 2008).
           18
              545 F.3d at 318–19. But see In re Briscoe, 
    448 F.3d 201
    , 215 (3d Cir. 2006)
    (concluding that “an appeal after final judgment is not an illusory or ineffectual means
    through which petitioners can pursue their arguments for a remand to state court”).
           19
              We have previously noted the problematic nature of appellate review of denials of
    remand. See McAteer v. Silverleaf Resorts, Inc., 
    514 F.3d 411
    , 416 (5th Cir. 2008) (“[I]f subject
    matter jurisdiction is . . . established and a case remains in the federal court system for a
    significant length of time or reaches a verdict on the merits, considerations of finality and
    economy may result in affirming a judgment [on appeal] despite the improper removal.” (citing
    Caterpillar Inc. v. Lewis, 
    519 U.S. 61
    , 75 (1996)).
    
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                                            No. 09-20005
    
           1.       Legal Standard
                    i.     Mandamus Standard
           A petitioner may show “that its right to issuance of the writ is ‘clear and
    indisputable’ by demonstrating that there has been a ‘usurpation of judicial
    power’ or a ‘clear abuse of discretion.’” 20 In In re Volkswagen, we focused on
    “clear abuse of discretion” because we were reviewing a district court’s denial of
    a motion to transfer venue that, on appeal, would have been subject to review for
    mere, not clear, abuse of discretion.21 In the instant case, however, we consider
    a legal question — the district court’s denial of Beazley’s motion to remand —
    that, on appeal, we would review de novo.22 Given this distinction, we may not
    here review for clear abuse of discretion; it is illogical to review under that
    standard a ruling on a legal issue for which the district court may not exercise
    discretion in the first place.23 Even in a mandamus proceeding, we must review
    de novo the district court’s interpretations of law.24 Yet, mandamus remains an
    extraordinary remedy, and “[m]erely showing that the district court erred is
    
    
    
    
           20
             In re Volkswagen, 
    545 F.3d 304
    , 311 (quoting In re U.S. Dep’t of Homeland Sec., 
    459 F.3d 565
    , 571 (5th Cir. 2006) (Dennis, J., concurring)).
           21
              See id. at 309–10 (discussing clear abuse of discretion); see also Broussard v. State
    Farm Fire & Cas. Co., 
    523 F.3d 618
    , 631 (5th Cir. 2008) (reviewing, on appeal, for abuse of
    discretion a decision on a motion to transfer venue).
           22
                See Sherrod v. Am. Airlines, Inc., 
    132 F.3d 1112
    , 1117 (5th Cir. 1998).
           23
               Even though we distinguish between the possible standards of review, we “must be
    careful . . . [not] to be misled by labels such as ‘abuse of discretion’ and ‘want of power’ into
    interlocutory review of nonappealable orders on the mere ground that they may be erroneous.”
    In re Volkswagen, 545 F.3d at 309 (quoting Will v. United States, 
    389 U.S. 90
    , 98 n.6 (1967))
    (quotation marks omitted).
           24
              In re Hot-Hed Inc., 
    477 F.3d 320
    , 323 (5th Cir. 2007) (per curiam); In re Am. Airlines,
    Inc., 
    972 F.2d 605
    , 609 (5th Cir. 1992); In re Dresser Indus., Inc., 
    972 F.2d 540
    , 543 (5th Cir.
    1992).
    
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                                             No. 09-20005
    
    insufficient to obtain . . . relief.” 25 Accordingly, we shall grant relief only if
    Beazley demonstrates that the district court “clearly and indisputably erred.”26
                   ii.    Legal Standard: Remand to State Court
           Pursuant to 28 U.S.C. § 1447(c), a party may, within thirty days of
    removal of a case from state court, file a motion to remand the case on the basis
    of any defect other than lack of subject-matter jurisdiction.27 The purported
    defect in the instant case is that Beazley’s consent was a necessary condition of
    removal, but was not sought when its then co-defendant GE HFS filed the notice
    of removal. We have previously explained:
                  All defendants who are properly joined and served must join
           in the removal petition, and . . . failure to do so renders the petition
           defective. There is an exception to this general rule, however.
           “Nominal” or “formal” parties need not join in the removal petition.
           To establish that non-removing parties are nominal parties, the
           removing party must show . . . that there is no possibility that the
           plaintiff would be able to establish a cause of action against the
           non-removing defendants in state court.28
    
    In determining whether a party is nominal, a court asks “whether, in the
    absence of the [party], the Court can enter a final judgment consistent with
    equity and good conscience, which would not be in any way unfair or
    
    
           25
              In re Avantel, S.A., 
    343 F.3d 311
    , 317 (5th Cir. 2003); see also Bankers Life & Cas.
    Co. v. Holland, 
    346 U.S. 379
    , 383 (1953) (“The supplementary review power conferred on the
    courts by Congress in the All Writs Act is meant to be used only in the exceptional case . . . .”).
           26
              In re Avantel, 343 F.3d at 317 (stating that the petitioner “must show not only that
    the district court erred, but that it clearly and indisputably erred”); In re Occidental Petrol.
    Corp., 
    217 F.3d 293
    , 295 (5th Cir. 2000) (same).
           27
               If the court lacks subject-matter jurisdiction at any time before final judgment, it
    must remand the case. 28 U.S.C. § 1447(c). In the instant case, the district court indisputably
    has diversity jurisdiction irrespective of any error in removal procedure. See Johnson v.
    Helmerich & Payne, Inc., 
    892 F.2d 422
    , 423 (5th Cir. 1990) (“The failure of all the defendants
    to join in the removal petition is not a jurisdictional defect.”).
           28
             Farias v. Bexar County Bd. of Trustees for Mental Health Mental Retardation Servs.,
    
    925 F.2d 866
    , 871 (5th Cir. 1991) (internal quotation marks and citations omitted).
    
                                                    9
                                               No. 09-20005
    
    inequitable.” 29 Additionally, a party is nominal if its role is restricted to that of
    a “depositary or stakeholder,” 30 e.g., one “who has possession of the funds which
    are the subject of litigation [and] . . . must often be joined purely as a means of
    facilitating collection.” 31 The test is not dependant on how the plaintiff labels its
    complaint, but rather on the practical effect of a judgment on a given
    defendant.32 Equity is the major concern in this inquiry.33 “The question of
    whether a named defendant is a nominal party depends on the facts in each
    case.” 34 And, we look to whether a party was nominal at the time of removal
    rather than considering any subsequent events.35
           2.       Beazley Fails to Establish Clear and Indisputable Right to
                    Relief
           In the instant case, the district court held that GE HFS properly removed
    the case because Beazley was a nominal party — a mere depositary or
    stakeholder — at the time of removal. The court determined that only after
    
    
    
           29
              Louisiana v. Union Oil Co. of Calif., 
    458 F.3d 364
    , 366–67 (5th Cir. 2006) (quoting
    Acosta v. Master Maint. & Constr. Inc., 
    452 F.3d 373
    , 379 (5th Cir. 2006)) (quotation marks
    omitted); see Farias, 925 F.2d at 871 (quoting Tri-Cities Newspapers, Inc. v. Tri-Cities Printing
    Pressmen & Assistants’ Local 349, Int’l Printing Pressmen & Assistants’ Union of N. Am., 
    427 F.2d 325
    , 327 (5th Cir. 1970)).
           30
              Union Oil Co., 458 F.3d at 367 (citing Tri-Cities, 427 F.2d at 327); Tri-Cities, 427
    F.2d at 327 (“The test of whether or not a named defendant is a nominal party is if his role in
    the law suit is that of a depositary or stakeholder . . . .” (citation omitted)).
           31
              S.E.C. v. Cherif, 
    933 F.2d 403
    , 414 (7th Cir. 1991); see BLACKS LAW DICTIONARY 1440
    (8th ed. 2004) (A “stakeholder” is “[a] disinterested third party who holds money or property,
    the right to which is disputed between two or more other parties.”).
           32
             See Union Oil Co., 458 F.3d at 367 (“We take practical considerations into account
    in making this determination.”).
           33
                Farias, 925 F.2d at 871.
           34
                Tri-Cities, 427 F.2d at 327.
           35
                See, e.g., In re Shell Oil Co., 
    932 F.2d 1518
    , 1522–23 (5th Cir. 1991).
    
                                                    10
                                            No. 09-20005
    
    removal did Beazley become a real party in interest. To support its conclusion,
    the district court relied on exchanges that occurred during the November 17,
    2008 preliminary injunction hearing.                Specifically, the court noted that
    “Beazley’s counsel stated that ‘Beazley is really not a part of this dispute’ going
    on right now between the parties and that he ‘believe[s] that Beazley is not a
    real party in interest; and therefore, . . . should not have been brought into the
    matter.’” The court also relied on counsel’s statement:
           Clearly, the dispute between the hospital and GE [HFS] over the
           $2.1 million in receivable payments that were made and whatever
           financing agreement GE [HFS] has with the hospital on the pledge
           of receivables, . . . has nothing to do with us. We have no control
           over it. In fact, I don’t have any knowledge of it except what we’ve
           heard here today.
    
    Beazley contends that the district court misconstrued these statements or took
    them out of context. Beazley now urges the interpretation that these statements
    did not refer to its interest in the overall lawsuit, but rather to Beazley’s interest
    in the portion of the dispute that was the focus of the preliminary injunction
    hearing — whether the amount of insurance proceeds due at that time was
    payable solely to the Hospital or whether GE HFS was to be a payee. On this
    issue, Beazley concedes it was a mere bystander. But, Beazley maintains that
    although it has no interest in which party receives the proceeds, it has always
    disputed the amount of proceeds that would be paid.36 Perhaps more damaging,
    and less susceptible to mis-interpretation, than any of the statements cited by
    the district court, is a statement from a December 3, 2008 hearing. There,
    counsel for Beazley represented to the court that “We went to the mediation
    
    
    
           36
                Counsel for Beazley asserts that the “going on right now” part of his statement
    “Beazley is really not a part of the dispute that’s going on right now,” demonstrates that he
    was only referring to which party should receive the insurance proceeds. More difficult to
    explain away, however, is the statement, “Beazley is not a real party in interest; and therefore,
    . . . should not have been brought into the matter.”
    
                                                   11
                                          No. 09-20005
    
    because of the fact that we felt obligated to do so by Your Honor’s direction. At
    the time of the oral presentation before the Court, . . . Beazley was almost a
    third party on my term — but it was suggested and ordered by the Court that
    we attend a mediation.” 37 The Plaintiffs suggest that either these post-removal
    statements should be construed as a waiver of the argument that Beazley was
    a real party, or judicial estoppel should now bar the claim because GE HFS
    relied on pre-removal representations. In response to the waiver argument,
    Beazley directs us to its statement at the preliminary injunction hearing that it
    may later move to remand the case.
           The district court also cited what it considered Beazley’s representation
    that it had been paying the Hospital’s business-interruption expenses and would
    continue to do so. Yet, Beazley, relying on, inter alia, a statement made on the
    day of removal that it was still adjusting the insurance claim, contends that the
    amount of its payments was never undisputed.
           Beazley also directs us to the Hospital’s original state court petition which
    sets forth an independent breach of contract claim against Beazley and alleges
    that it “has failed to timely make all payments required under the Policy.” The
    original petition asserts that Beazley’s breach caused the Hospital “substantial
    actual, consequential, and special losses.” To this, the Plaintiffs respond by
    noting that the original petition did not allege that the amount due under the
    policy was at issue; instead the Plaintiffs contend that the original petition
    should be read as seeking relief only in the form of release of an undisputed
    amount of proceeds.
           The Plaintiffs assert, and the district court apparently adopted, the
    argument that at the time of removal, Beazley appeared willing to issue a
    payment that the Plaintiffs considered to be appropriate under the policy and
    
           37
              In that hearing, counsel for Beazley did, however, urge that it had overpaid on the
    Hospital’s claim.
    
                                                 12
                                             No. 09-20005
    
    that only after removal did Beazley demonstrate an unwillingness to make
    business-interruption payments and contend that it had overpaid on the policy.38
    According to the Plaintiffs, they then filed their amended complaint alleging
    breach of contract based on these post-removal developments which had caused
    Beazley to become a real party.
           Based on the foregoing discussion of the parties’ positions and our de novo
    review, we are convinced that the district court did not err clearly and
    indisputably. The district court confronted what had quickly escalated into a
    fact-intensive inquiry into whether Beazley was a nominal party at the time of
    GE HFS’s removal. The district court was convinced that, at that instant,
    Beazley had done nothing more than “hold the money bag” and await
    authoritative instructions regarding to whom the bag should be passed. The
    district court very well may have erred in making this determination, but our
    discussion confirms that any error made falls well short of the heightened clear
    and indisputable standard. Thus, the question of the district court’s putative
    error is properly one for appeal, not mandamus.39 Beyond our conclusion that
    Beazley has not established a clear and indisputable right to the issuance of the
    
    
    
           38
             In the Plaintiffs’ view, Beazley did not become a real party until November 17, when
    Beazley first asserted in court that it had overpaid on the policy.
           39
              See, e.g., Roche v. Evaporated Milk Ass’n, 
    319 U.S. 21
    , 26 (1943) (“[Mandamus] may
    not appropriately be used merely as a substitute for the appeal procedure prescribed by . . .
    statute.”).
           The instant case is distinct from some other mandamus cases that, like this case,
    involve questions of law reviewed de novo. In those cases, the district court’s error is
    unmistakably clear and indisputable. For example, a district court clearly and indisputably
    errs when it uses the incorrect legal test. See In re Avantel, S.A., 
    343 F.3d 311
    , 318 (5th Cir.
    2003) (assessing “whether the district court should have applied the control-group test or the
    subject-matter test” of attorney-client privilege); see also In re Dresser Indus., Inc., 
    972 F.2d 540
    , 543 (5th Cir. 1992) (district court “erred in holding that its local rules . . . are the ‘sole’
    authority governing a motion to disqualify”). In the instant case, however, the district court’s
    application of the legal standard for motions to remand exhibits no such clear and indisputable
    error.
    
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                                             No. 09-20005
    
    writ, we make no pronouncement one way or the other as to the correctness of
    the district court’s ruling.
    C.     Whether the Writ is Appropriate Under the Circumstances
           When examined under the totality of the circumstances of the instant case,
    Beazley has failed to demonstrate that its right to the writ is so clear and
    indisputable that intervention is necessary.                   We are unpersuaded that
    mandamus would be appropriate.40 As we said in In re Volkswagen, “writs of
    mandamus are supervisory in nature and are particularly appropriate when the
    issues also have an importance beyond the immediate case.”41 The discrete facts
    of this case, viz., the distinct fact-intensive remand analysis that the district
    court conducted and which we reviewed de novo, establish that the issue
    presented here would be of minimal “importance beyond this case.”42
                                      IV. Mediation Order
           Beazley also contends that it is entitled to a writ of mandamus ordering
    the district court to vacate its order directing Beazley to mediate before Judge
    Isgur. According to Beazley, Judge Isgur violated a federal statute 43 and the
    Southern District of Texas’s local rules 44 that prohibit the disclosure of
    
    
    
           40
              See In re Volkswagen, 
    545 F.3d 304
    , 311 (5th Cir. 2008) (en banc) (emphasizing that
    even if the other two requirements for relief are met, “‘the issuing court, in the exercise of its
    discretion, must be satisfied that the writ is appropriate under the circumstances.’” (quoting
    Cheney v. U.S. Dist. Court, 
    542 U.S. 367
    , 380–81 (2004))).
           41
                Id. at 319.
           42
                Cf. id. at 319.
           43
              See 28 U.S.C. § 652(d) (“[E]ach district court shall, by local rule . . . provide for the
    confidentiality of the alternative dispute resolution processes and to prohibit disclosure of
    confidential dispute resolution communications.”).
           44
              S.D. Tex. Local Rule 16.4I (“All communications made during ADR proceedings
    (other than communications concerning scheduling, a final agreement, or ADR provider fees)
    are confidential, are protected from disclosure, and may not be disclosed to anyone, including
    the Court, by the provider or the parties.”).
    
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                                              No. 09-20005
    
    communications made during mediation. Beazley specifically objects to Judge
    Isgur’s statement that Beazley “did not negotiate in good faith.” Beazley alleges
    that Judge Isgur’s impartiality is questionable and that he should be disqualified
    from conducting further mediation in the instant case.45 The Plaintiffs respond
    that Judge Isgur violated no rule because the rules protect only the
    confidentiality of “communications,” of which Judge Isgur disclosed none. The
    Plaintiffs further urge that, under Beazley’s interpretation, — in the absence of
    the parties’ consent — a mediator would not even be permitted to report to the
    district court on the progress of mediation.
             We cannot grant Beazley extraordinary relief on the basis it seeks.
    Beazley points to no precedent demonstrating that a court has ever granted a
    writ of mandamus to protect a petitioner’s asserted right not to attend non-
    binding mediation. This is for good reason. We repeat, a writ of mandamus is
    a “drastic and extraordinary remedy reserved for really extraordinary causes”;46
    and, there is nothing extraordinary about requiring Beazley to attend mediation
    at which it would control its own destiny, viz, any resolution would be voluntary.
    Additionally, even if Judge Isgur did err by making an unauthorized disclosure
    to the district court, his action was far from that which would compel drastic and
    extraordinary relief.
             Beazley’s petition on this ground is meritless, and we have no occasion to
    venture further into the applicable three-pronged mandamus analysis on this
    issue.
                                          V. CONCLUSION
    
    
    
             45
              See 28 U.S.C. § 455(a) (“Any justice, judge, or magistrate judge of the United States
    shall disqualify himself in any proceeding in which his impartiality might reasonably be
    questioned.”); id. § 651(a) (indicating that mediation requires a “neutral third party”); id. § 653
    (describing the process for selecting “neutrals”).
             46
                  Cheney, 542 U.S. at 380 (internal quotation marks and citation omitted).
    
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                                     No. 09-20005
    
          Beazley has not demonstrated a clear and indisputable right to the
    issuance of a writ of mandamus on either of the grounds it advances. We deny
    its petition and deny as moot its motion to stay.
          MANDAMUS DENIED. STAY DENIED AS MOOT.
    
    
    
    
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