28 U.S. Code § 1391, 1404, and 1406: Venue Generally, Change of Venue, and Cure for Defects

Question 1

What is venue? (Q)

Answer 1

Venue is the geographic location, i.e., the federal judicial district, in which the case can be heard. Each state contains one or more such districts. Federal venue is chiefly controlled by the general federal-venue statute. Under this statute, there may be more than one appropriate venue in a case.

Venue should be distinguished from personal jurisdiction, which is a court’s power over the parties to the case. Venue, by contrast, represents the choice of an appropriate location for the suit. Thus, a court might have personal jurisdiction yet not be the most appropriate venue as compared to another court that also has personal jurisdiction. 1391

Question 2

If venue is initially proper in a federal case, must venue be reevaluated when parties or claims are added? (Q)

Answer 2

Yes. Even if venue is initially proper, venue must be reevaluated when any claim or party is added to the case. In other words, venue must always be proper as to all parties and all claims. 1391

Question 3

Where is venue proper? (GG)

Answer 3

Venue is proper where either a defendant resides (if they are all residents of the state where that action is brought) or a district in which a substantial part of the events giving rise to the claim took place. 1391

Question 4

What is the doctrine of forum non conveniens? (Q)

Answer 4

The doctrine of forum non conveniens allows a federal court to dismiss or stay a case if the dispute is more appropriately litigated in a judicial system other than the federal courts. Typically, the alternative system is either a state-court system or the judicial system of a foreign country. Forum non conveniens may be raised on a party’s motion or by the court on its own initiative. (Piper Aircraft)

Question 5

In ruling on forum non conveniens, must the court first consider whether the plaintiff can obtain an adequate remedy in an alternative judicial system? (Q)

Answer 5

Yes. In ruling on forum non conveniens, the court must first consider whether there is an adequate alternative forum for the litigation. An adequate alternative forum is a judicial system, other than the federal system, in which the plaintiff can obtain an adequate remedy. An alternative forum is not inadequate merely because the law in that forum is less favorable to a party than the law that would apply in the federal courts.

Question 6

If an adequate alternative forum exists, what other factors must the court consider in ruling on forum non conveniens? (Q)

Answer 6

The relevant public and relevant private interest factors?

Question 7

What are some relevant private interest factors in the case of forum non conveniens? (Q)(GG)

Answer 7

(1) the availability of evidence and witnesses,
(2) the potential expense of bringing evidence and witnesses to court,
(3) the availability of compulsory process in the alternative forum, and
(4) the possibility of conducting a shorter or less expensive trial in the alternative forum.

Question 8

What are some relevant public interest factors in the case of forum non conveniens? (Q)(GG)

Answer 8

(1) the desirability of having local disputes settled by local decision-makers in the alternative forum and
(2) the potential for confusion in applying foreign law in a federal court if the federal case is allowed to proceed.

Question 9

When a case is removed from state court to federal court, what is the proper federal venue? (Q)

Answer 9

In a removed case, venue is proper in the federal district and division that encompasses the location of the state court in which the case is pending. A division is a designated portion of a federal judicial district.

Question 10

In a federal civil case, where does an individual reside for purposes of venue? (Q)

Answer 10

An individual resides in the judicial district in which that person is domiciled. A person’s domicile is the place in which he makes his principal home, with intent to remain indefinitely.

Question 11

If an entity or organization is a plaintiff, where does that entity or organization generally reside for purposes of venue? (Q)

Answer 11

For purposes of federal venue, an entity or organization that is a plaintiff generally resides only in the federal district in which it has its principal place of business. This applies to both corporations and unincorporated entities.

Question 12

If an entity or organization is a defendant, where does that entity or organization generally reside for purposes of federal venue? (Q)

Answer 12

For purposes of federal venue, an entity or organization that is a defendant generally resides in any federal district in which it is subject to personal jurisdiction in the pending case. This applies to both corporations and unincorporated entities.

However, in states with multiple judicial districts, a defendant corporation resides in any district in which it would be subject to personal jurisdiction if that district were treated as a separate state. If there is no such district, then the corporation resides in the district in which it has the most significant contacts.

Question 13

A plaintiff intended to sue a corporation in federal court for breach of contract. The plaintiff wanted to file the suit somewhere in State A. The corporation was a citizen of State B. State A had three federal judicial districts: the northern district, the southern district, and the middle district. The contract was negotiated in the northern district. The corporation had no presence or other dealings in the middle district or the southern district.

Assuming that State A had personal jurisdiction over the corporation based on this activity, where, within State A, does the corporation reside for purposes of venue? (Q)

Answer 13

The corporation resides in the northern district of State A for purposes of venue. In a state with multiple judicial districts, a defendant corporation resides for purposes of venue in any district in which it would be subject to personal jurisdiction if that district were a separate state.

In this case, the corporation had no contacts with the middle or southern districts of State A, which rules out those districts as places of residence. However, the facts indicate that State A had personal jurisdiction over the corporation based on its activities in the northern district. Accordingly, if the northern district were a separate state, then the corporation would be subject to personal jurisdiction there. Thus, the corporation resides in the northern district of State A for purposes of venue.

Question 14

If a resident of a foreign country is a defendant in a federal civil case, where is the defendant subject to venue? (Q)

Answer 14

A resident of a foreign country is subject to venue in any federal district. In a case with multiple defendants, the foreign defendant does not affect venue as to the other defendants.

Question 15

What are the three definitions of proper venue under the general federal-venue statute? (Q)

Answer 15

Under the general federal-venue statute, venue is proper:

(1) in a judicial district in which any defendant resides, if all defendants reside in the same state;
(2) in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or where a substantial part of any property that is the subject of the action is situated;
(3) or if there is no other appropriate venue, in a judicial district in which any defendant is subject to personal jurisdiction in the case.

Question 16

A plaintiff sued three individual defendants in federal court. The events giving rise to the suit occurred in the northern district of State A. The first defendant lived in the northern district of State A, the second defendant lived in the southern district of State A, and the third defendant lived in the northern district of State B.

Where is venue proper? (Q)

Answer 16

Venue is proper in the northern district of State A. Under the general federal venue statute, venue is proper in (1) a district in which any defendant resides, if all defendants reside in the same state, (2) a district in which a substantial part of the events giving rise to the claim occurred, or (3) if there is no other option, a district in which any defendant is subject to personal jurisdiction in the case.

In this case, option (1) does not apply, because the defendants reside in two different states, A and B. However, the events giving rise to the claim occurred in the northern district of State A, which is therefore the proper venue under option (2). Option (3) does not apply, because option (2) yields proper venue; thus, there is no need for the third, catch-all provision. Venue is thus proper in the northern district of State A.

Question 17

May federal venue be determined by a valid forum-selection clause, regardless of the general federal-venue statute? (Q)

Answer 17

Yes. The parties may use a valid forum-selection clause to agree on a venue for the litigation. The venue selected need not be a venue provided by the general federal-venue statute. The courts will enforce a valid forum-selection clause unless there are extraordinary systemic reasons not to do so. Those reasons must be related to the public interest rather than the interests of the parties.

Question 18

The plaintiff sued the defendant for breach of contract in a United States district court for the southern district of State A. The contract was negotiated, executed, and breached in the middle district of State A. The defendant lived in the northern district of State B. The contract included the following clause: “The parties agree that any dispute arising under this contract shall be litigated in the southern district of State A.”

Assuming that this clause is legally valid and that there are no extraordinary circumstances that would affect venue, is venue proper in the southern district of State A? (Q)

Answer 18

Yes. Venue is proper in the southern district of State A based on the parties’ forum-selection clause. Venue in the federal courts is generally governed by statute. However, the parties may agree on a different venue through a forum-selection clause. The courts will enforce a valid forum-selection clause unless there are extraordinary reasons not to do so. Those reasons must be related to the administration of the federal courts rather than the convenience of the parties.

Here, the facts state that the parties used a valid forum-selection clause to designate the southern district of State A for litigation. The facts also state that there are no extraordinary circumstances involved that might prevent enforcement of the clause. Thus, the forum-selection clause is enforceable, and venue is proper in the southern district of State A.

Question 19

If the initial venue is proper in a federal civil case, what legal standard must be met for a change of venue? (Q)

Answer 19

If venue is originally proper in a federal civil case, the court may change the venue for the convenience of parties and witnesses, and in the interests of justice. A change of venue in federal court is called a transfer, because the court will move, or transfer, the case to another federal court.

Question 20

If the initial venue is proper in a federal civil case, to which other court or courts may the case be transferred? (Q)

Answer 20

If the initial venue is proper, the court may transfer the case to (1) any federal court in which the case could have been brought originally or (2) any federal court to which all parties consent. A court in which the case could have been brought originally is one in which venue, subject-matter jurisdiction, and personal jurisdiction are proper, such that the plaintiff could have filed the case there initially.

Question 21

If the initial venue is improper in a federal civil case, what two options does the court have to cure the defect? (Q)

Answer 21

If venue is improper, the court may either (1) dismiss the case or (2) transfer the case to any federal district and division in which the case could have been brought originally. A court in which the case could have been brought originally is one in which venue, subject-matter jurisdiction, and personal jurisdiction are proper, such that the plaintiff could have filed the case there initially.

Question 22

May a federal court transfer a case if the transferring court lacks personal jurisdiction? (Q)

Answer 22

Yes. The court may transfer a case even if the transferring court lacks personal jurisdiction. The case must be transferred to a court where the case could have been brought originally. A court in which the case could have been brought originally is one in which venue, subject-matter jurisdiction, and personal jurisdiction are proper, such that the plaintiff could have filed the case there initially.

Question 23

May a defendant in a federal civil case challenge venue for the first time during trial? (Q)

Answer 23

No. In general, an objection to venue is waived if a party fails to raise the objection at an early stage of the case. Thus, a defendant waives any objection to venue if the defendant does not raise the issue either (1) in a pre-answer motion or (2) in the answer to the complaint.

Question 24

May a federal court transfer a civil case to a state court if the state court is a more appropriate place to try the case? (Q)

Answer 24

No. A federal court cannot transfer a case to a state court, because the states and the federal government are separate sovereignties. A federal court can transfer a case only to another federal court. A defendant who seeks to litigate a federal case in state court may invoke forum non conveniens to attempt to have the federal case dismissed or stayed. This might force the plaintiff to refile the case in state court, but it does not involve a transfer from federal to state court.

Transfer should not be confused with remand. A federal court remands a case to state court if the case has been filed in state court and improperly removed to federal court. However, there is no provision by which a federal court can send a case that was originally filed in federal court directly to a state court.

Question 25

If a venue in a civil case is improper, and no party objects to venue, what effect does the improper venue have on the court’s jurisdiction? (Q)

Answer 25

If no party objects to improper venue, then the improper venue has no effect on jurisdiction. This result follows from the premise that venue and jurisdiction are separate concepts. Jurisdiction is the court’s power over the parties, i.e., personal jurisdiction, and over the type of case, i.e., subject-matter jurisdiction. Venue is the location within the federal system in which the case can appropriately be heard. A court might have jurisdiction in a case even if venue is improper. Accordingly, improper venue does not destroy the court’s jurisdiction.

Question 26

May the plaintiff in a federal case move for a change of venue? (Q)

Answer 26

Yes. Any party may move to transfer a case to another federal district, even if the original venue is proper.

Question 27

If the initial venue is proper in a civil case, will a transfer generally change the applicable law? (Q)

Answer 27

No. A change of venue generally does not change the applicable law. This issue typically arises in diversity cases, in which the substantive claims are governed by state law. A transfer to a different federal court will not change the applicable state law. Among other things, this rule minimizes attempts to gain a legal advantage through transfer.

The courts make an exception to this rule if the case is transferred to enforce a forum-selection clause. In that event, after transfer the case will be governed by the law that would have applied if the case had been filed in the agreed-upon venue. This exception gives the parties the benefit of the bargain underlying their selection of the forum.

Question 28

What can a judge do instead of dismissing a case for forum non convieniens? (GG)

Answer 28

A judge may transfer a case filed in her court that should be litigated elsewhere to the more appropriate federal district. 1404a

Question 29

Are states able to transfer cases to another state? (GG)

Answer 29

No. The federal courts are able to transfer between themselves but the state courts are unable to do so.

Question 30

If there is a lack of personal jurisdiction, is venue effected?

Answer 30

Yes. There must be personal jurisdiction to have venue.