Civil Procedure Learning Questions - Set 4 Flashcards
Which of the following statements is correct?
A
Objection cannot be made to improper venue
B
Venue is considered to be objected to unless expressly waived
C
Venue objections cannot be waived
D
Venue is considered to be waived unless a timely objection is made
D
Venue is considered to be waived unless a timely objection (in a pre-pleading motion or, where no such motion is made, in the answer) is made to the improper venue.
There is no presumed objection to venue. However, unlike jurisdiction over the subject matter, venue may be waived by the parties.
For venue purposes, a business entity defendant is deemed to reside in:
A
Any judicial district in which the defendant is subject to the court’s personal jurisdiction
B
The judicial district in which the business entity is incorporated
C
The judicial district in which the business entity’s owner is domiciled
D
Any judicial district in which the defendant is subject to the court’s personal jurisdiction with respect to the action in question
D
A business entity defendant is deemed to reside in any judicial district in which the defendant is subject to the court’s personal jurisdiction with respect to the civil action in question.
The judicial district in which the business entity is incorporated is too narrow an answer. Not all business entities are incorporated.
Any judicial district in which the defendant is subject to the court’s personal jurisdiction is too broad an answer; the entity must be subject to the court’s personal jurisdiction with respect to the particular civil action in question.
The domicile of the business entity’s owner is irrelevant for venue purposes.
Can either subject matter jurisdiction or venue be conferred by agreement?
A
Yes as to both subject matter jurisdiction and venue
B
Yes as to subject matter jurisdiction
C
Yes as to venue
D
No as to both subject matter jurisdiction and venue
C
Venue can be conferred by agreement, but subject matter jurisdiction cannot be conferred by agreement. Subject matter jurisdiction and venue are very often confused. Subject matter jurisdiction is the power of the court to adjudicate the matter before it, whereas venue relates to the proper geographic district in which to bring the action.
When a transfer is based on the ground that venue was improper, which law applies in the transferee court?
A
The law of the transferor court
B
The law of either court, whichever is more convenient
C
The law of the transferee court
C
A transfer on the ground that the original choice of venue was improper generally results in a change of the law applicable under the Erie doctrine; i.e., the law of the state in which the transferee court sits now applies.
This is in contrast to a transfer on convenience grounds, in which case the law of the transferor court continues to apply.
The plaintiff corporation is incorporated in State A and has its principal place of business in State B. The defendant corporation is incorporated and has its principal place of business in State C. It also has branch offices and does substantial business in all 50 states. The cause of action is based on a breach of contract that was to be performed in State D, which has a long arm statute authorizing jurisdiction in such cases.
In which of these states may the plaintiff corporation bring its action?
A In State C only, because that is the only state in which the defendant corporation is at home.
B In State D only, because that is where the cause of action arose and is thus the only proper venue.
C In States A or B only, because those are the only two states in which the plaintiff corporation resides for venue purposes.
D In States C or D only, because only those two states have personal jurisdiction and proper venue.
D
In a diversity case, the federal court is required to analyze the personal jurisdiction question as if it were a state court sitting in the particular state. States generally allow for general jurisdiction (i.e., jurisdiction over all causes of action) over persons and entities domiciled within their borders. Although it used to be that transacting a substantial amount of business in a state subjected a defendant to general jurisdiction in that state, the Supreme Court has narrowed this concept by requiring the defendant to be “at home” in the state. To be “at home” in a state, a defendant corporation must be incorporated in the state or have its principal place of business in the state. Thus, a court of State C would have general jurisdiction over the defendant corporation. Venue would also be proper in State C because the defendant corporation is subject to personal jurisdiction in State C with respect to the action. For specific jurisdiction (i.e., jurisdiction for the instant cause of action only), it must be determined whether the state has a long arm statute authorizing jurisdiction and whether the statute is constitutional (i.e., whether the defendant has sufficient minimum contacts with the jurisdiction such that the exercise of jurisdiction over him would be fair and reasonable). Here, State D has an applicable long arm statute that authorizes jurisdiction in breach of contract cases where the contract called for performance in the state. This type of provision is an uncontroversial provision that routinely has been held to be constitutional. Thus, personal jurisdiction also exists in State D, and venue would be proper both because a substantial part of the cause of action arose in State D and because the defendant corporation resides therein for venue purposes (because it is subject to personal jurisdiction there with respect to the action). (A) is incorrect because, although the defendant corporation is subject to general jurisdiction in State C, it is also subject to specific jurisdiction in State D, as explained above. (B) is incorrect because venue also may be based on the defendant’s residence for venue purposes, as explained above. (C) is incorrect because venue is based on where the events giving rise to the cause of action took place or where the defendant (not the plaintiff) resides for venue purposes.
A citizen of State A filed a complaint alleging negligence by two parties, both of whom reside in State B. The complaint was filed in the United States District Court of State B. However, the accident took place in State D, the plaintiff was treated by an emergency room physician in State D, and all of the witnesses reside in State D. Two months after they filed their respective answers, which did not address any problems with personal jurisdiction or venue, the defendants filed a joint motion to transfer the case to the District of State D.
May the court grant the motion?
A No, because the defendants have waived any issue as to venue by not raising the issue of venue in the answer.
B No, because a plaintiff is entitled to choose venue.
C Yes, because the defendants raised the issue in their first motion before the court.
D Yes, because transferring the case to the District of State D could be “in the interests of justice.”
D
The court could grant the motion. Pursuant to Rule 12(b), improper venue must be raised in a defendant’s first response—either in its timely motion to dismiss before the answer or in the answer, whichever is first. Here, though, venue was initially proper because the defendants resided in State B. Rather, the issue is whether the court may transfer the case from one proper venue to another. Such a transfer has no strict time limit. Rather, transfer is left to the discretion of the trial judge, and the judge may refuse transfer where the case has been pending for some time and would work a prejudice to one of the parties. Two months is likely not a sufficient period to prevent transfer of the case. Thus, (D) is correct. (C) is incorrect. First, it misstates Rule 12. Rule 12 defenses must be raised in the first motion or answer, whichever comes first. Second, transfer where venue is initially proper does not fall under the Rule 12 timing requirements. (B) is incorrect because, although a plaintiff is entitled to choose the initial venue, venue may be transferred, in the interests of justice, for the convenience of the parties and witnesses despite the plaintiff’s initial choice of the forum. (A) is incorrect because, as explained, transfer of venue in the interests of justice does not fall under the “first pleading or motion” rule.
When he turned 21, a young man who lived in State A decided to move to a city in State B. He loaded all his possessions in his truck and trailer and set out for State B. While en route, he was involved in a serious accident in State C with a woman driving an SUV, injuring both parties. Because of his injuries, the man has remained in State C for several months. However, he still intends to relocate to the city in State B as soon as he has recuperated and is able to travel. The woman, a citizen and resident of State D, is preparing to file a negligence action in federal district court against the man for the injuries she suffered in the State C accident.
If the woman files the action before the man proceeds to State B, in what federal district or districts is venue proper?
A The District of State C only.
B The District of State C and the District of State A.
C The District of State C and the District of State B.
D The District of State C, the District of State A, and the District of State B.
B
Venue is proper in the District of State C and the District of State A. Federal venue in civil actions is proper in (i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and (ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred. If there is no district anywhere in the United States that satisfies (i) or (ii), the action may be brought in a judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action. Here, the District of State C is a proper venue because a substantial part of the events giving rise to the claim occurred there. Additionally, at the time of the accident, the man’s domicile was in State A. It remains his domicile until he acquires a new one by being physically present in a new place while intending to make that new place his permanent home. The man did not acquire a new domicile in State B because he has yet to be physically present there (although he does intend to make it his permanent home). As a result, (B) is the correct answer. (A) is not correct because the answer does not discuss the possibility of venue being based on the man’s domicile. State C was not his domicile, because he does not intend to live indefinitely in State C. As stated above, State A remains his domicile. (C) and (D) are not correct because, as discussed above, the man has not made either place his domicile.
An oil company incorporated in State A has its principal place of business in State B. It owns a subsidiary that drills for oil in Eastern Europe. One of the subsidiary’s wells in Latvia malfunctioned, causing an explosion. The explosion severely injured a number of nearby residents and damaged their homes. A number of the injured Latvians filed an action against the oil company in the United States District Court for the District of State B. Nearly all of the relevant witnesses and tangible evidence are in Latvia, and most of the relevant documents are in Latvian.
If the oil company wishes to move the case away from the District of State B, which of the following grounds is likely to prove most successful?
A Dismissal for lack of subject matter jurisdiction.
B Dismissal for forum non conveniens.
C Dismissal for improper venue.
D Dismissal for lack of personal jurisdiction.
B
The ground most likely to be successful is forum non conveniens. Even if the court has personal jurisdiction over the defendants, subject matter over the action, and venue is proper, the court has discretion to decline to hear the case in deference to a court in another country if it determines that the other country provides a substantially more efficient, convenient, and fair forum. Here, the court might make that determination since the key evidence is in Latvia and since a trial in State B would require extensive translation. In any event, choice (B) represents the most likely scenario for not having trial in State B because the other choices can be eliminated. (A) is not correct because the federal court has subject matter jurisdiction over claims by citizens of other countries against citizens of U.S. states, provided the amount in controversy exceeds $75,000. Here, the oil company is a citizen of State A and State B, and the plaintiffs are from Latvia. Due to the damage caused by the explosion and the number of severe injuries, the amount in controversy requirement is very likely satisfied. Thus, the court has subject matter jurisdiction. (C) is not correct. Federal venue in civil actions is proper in (i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and (ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred. A corporate defendant is deemed to reside in each district with which it has sufficient contacts to justify personal jurisdiction with respect to the action. As explained above, the oil company is subject to personal jurisdiction in State B. Thus, the oil company resides in the District of State B for venue purposes, making (C) an incorrect answer choice. (D) is not correct because the court in State B has general personal jurisdiction (i.e., jurisdiction for all causes of action) over the oil company because the oil company’s principal place of business is there.
