CivP 7 - Venue, transfer Flashcards
Venue
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BASIC IDEA
Subject matter jurisdiction told us when we can take a case to federal court.
Venue tells us exactly where to bring it, that is, in which federal court to bring it.
The country is divided into federal districts.
The plaintiff is suing in federal court and wants to lay venue in a proper district.
BASIC CHOICES UNDER THE VENUE STATUTE
TWO POSSIBLE VENUES: The plaintiff may lay venue in any district where:
(i) RESIDENTIAL VENUE: All defendants reside (residential venue); (BUT, A judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located)
OR
(ii) TRANSACTIONAL VENUE: A substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located (transactional venue).
(iii) If there is no district anywhere in the United States which satisfies (i) or (ii), a judicial district in which ANY defendant is subject to the court’s personal jurisdiction with respect to the action.
BUT,
• IF REMOVED: These provisions above do not apply if the case was removed from state to federal court.
For removed cases, venue is in the federal district embracing the state court where the action was filed.
The above rules are for cases initially filed in federal court.
For removed cases, venue is in the….
For removed cases, venue is in the federal district embracing the state court where the action was filed.
Where Claim Can Arise for Transactional Venue
• TRANSACTIONAL VENUE: A substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located (transactional venue).
A substantial part of the claim can arise in more than one district.
So a substantial part of a tort claim might arise where the defective product was manufactured and where the plaintiff was injured.
A substantial part of a contract claim might arise where the contract was entered into and where it was to be performed.
Miscellaneous Venue Matters:
diversity or FQ cases?
• For venue purposes, it does not matter where the plaintiff resides.
• Additionally, the venue rules are the same for diversity or FQ cases.
If the defendant resides outside of the United States, venue is proper where?
• If the defendant resides outside of the United States, venue is proper in any federal district court, but if another defendant does reside in the United States, venue must be proper as to her.
A defendant who is not a resident of the United States—whether a U.S. citizen or an alien—may be sued in any judicial district. The joinder of such a defendant, however, is disregarded in determining where the action may be brought with respect to any other defendants. [28 U.S.C. §1391(c)(3)]
WHERE DEFENDANTS “RESIDE” FOR VENUE PURPOSES
For venue purposes:
• A human “resides” in the federal district where she is domiciled.
• A business, such as a corporation or unincorporated association, resides in any districts where it is subject to PJ for the case.
In a state having more than one judicial district and in which a corporate defendant is subject to personal jurisdiction at the time the action is commenced, the corporation is deemed to reside in any district in that state within which the corporation’s contacts would be sufficient to subject the corporation to personal jurisdiction if the district were a state. If there is no such district, the corporation is deemed to reside in the district within which it has the most significant contacts. [28 U.S.C. §1391(d)]
TRANSFER OF VENUE
Transfer goes from one trial court in a judicial system to another trial court in the same judicial system.
So a federal district court may transfer the case to another federal district court, but it cannot transfer a case to a state court.
Terminology: The original court is the “transferor,” and the one to which the case is sent is the “transferee.”
But the transferee must be a proper venue and have PJ over the defendant— and generally those must be true without waiver by the defendant.
Minor exception:
Under the transfer statute #1 (below), the court can transfer to any district (even an improper venue) if all parties consent and the court finds cause for the transfer.
It is unlikely that a plaintiff would consent to transfer in real life, because she chose the original venue.
There are two transfer statutes.
Transfer of venue must…
Must have PJ over the D, must be proper venue - and thos must be true without waiver by D.
EXCEPTIONS tho.
IMPROPER VENUE MAY BE WAIVED
Unlike jurisdiction over the subject matter, venue may be waived by the parties.
Venue is considered to be waived unless timely objection (in a pre-pleading motion or, where no such motion is made, in the answer) is made to the improper venue.
Statute #1—Transfer from a Proper Venue (Original venue proper)_
If the original district is a proper venue, that court can order transfer based on convenience of parties and witnesses and in the interests of justice.
Because transfer overrides the plaintiff’s choice of forum and the plaintiff chose a proper venue, the burden is on the person seeking transfer (usually the defendant).
The court will consider both public and private factors showing that another court is the center of gravity for the case.
• Public: The court will consider things like what law applies, what community should be burdened with jury service, the desire to keep a local controversy in a local court.
• Private: The court considers convenience. For example, it will look to where the defendants and evidence are found.
…
Section 1404(a) allows transfer to another district where the action “might have been brought” or “to which all parties have consented,” even though venue has been properly laid in the court before which the motion to transfer is made.
The policy behind section 1404 is that while venue may be correct, the parties or the witnesses might be greatly inconvenienced by the trial in the original forum.
By balancing the relative convenience offered by the alternative forums, the original court has discretion to transfer the action to a court in which the action “might have been brought” in conformity with the rules governing: (1) subject matter jurisdiction, (2) in personam jurisdiction over the defendant, and (3) venue.
Another alternative is transfer to a court to which all parties have consented (even if venue ordinarily would not be proper there). If the superior forum is in another judicial system, the court may dismiss or stay the action under the doctrine of forum non conveniens.
Transfer:
a. Effect on Choice of Law
• Transferee court usally must apply choice of law rules of transferor court
When a diversity case is filed in a proper venue but the court orders transfer under statute #1, the transferee court must apply the choice of law rules of the transferor court
*(unless transfer is to give effect to a valid forum selection clause, as we will see below).
Transfer:
b. Effect of Forum Selection Clause
A forum selection clause (“FSC”) is a provision in which the parties agree that a dispute between them will be litigated in a particular place.
If one party sues the other in violation of an FSC, the defendant may seek to enforce the FSC through a motion to transfer (assuming the FSC called for litigation in a proper federal district).
Key points to remember are:
• Federal law ordinarily enforces FSCs if they’re not unreasonable. Some states do not. But in federal court, federal law governs transfer. So a federal court may enforce an FSC clause even though a state court in that forum state would not;
• UNLESS public interest factors say otherwise (unlikely).
When there is a valid FSC, only public interest factors are considered for transfer; and
• Transferee court applies own choice of law rules.
When transfer is to enforce an FSC, the transferee court will apply its own choice of law rules.
(And remember that under Erie, the federal court is required to apply the choice of law rules of the state in which it is located.)
The transfer does not carry the transferor court’s choice of law rules with it.
Statute #2—Original Venue Is Improper
If venue improper, Ct will:
• Transfer if in interest of justice, OR
•Dismiss
If the original district is an improper venue, the court may transfer in the interest of justice or dismiss.
Usually, the court will transfer if possible. (For example, a federal district court can easily transfer the case to another federal district court.)
Transfer the case to a venue in which it could have been brought (in other words, subject matter jurisdiction, personal jurisdiction, and proper venue must exist). [28 U.S.C. §1406(a)] Transfer is more appropriate than dismissal except in extraordinary circumstances.
When the federal court transfers a diversity case because the original venue is improper, the transferee applies its own choice of law rules, that is, the choice of law rules of the state in which it sits, and not the choice of law rules of the transferor court.
The plaintiff doesn’t benefit by filing in an improper forum.
