Venue

Question 1

28 USC §1391(b) - Rules for determining venue.

Answer 1

ASP

Any if all
Substantial events or omissions
Personal jurisdiction fallback

1. Judicial district where D resides, if all Ds reside in the same state;
2. Substantial part of omissions/events/property
3. If not 1 or 2, any jurisdiction where D is subject to personal jurisdiction.

Question 2

§1391(c) - Residency for venue purposes

Answer 2

1. Individuals is domicile (NOT WHETHER THEY ARE SUBJECT TO PJ)
2. Entity is resident in the judicial district (not state) where they are a subject to PJ if D, prinicpal place of business if P.
3. Non-US resident may be sued in any judicial district, and joinder of such a D is disregarded

Question 3

§1391(d) Residency of corporations in states with multiple districts

Answer 3

1. D is subject to PJ in state at large
2. Deemed reside in
3. Any district with sufficient minimum contacts

Question 4

Venue for non-resident defendants (non-US)

Answer 4

May be sued in any judicial district in the US, but still subject to PJ and SMJ analysis. Also applies to US citizens domiciled abroad and to artificial persons. If there are multiple Ds and some reside in the US and some reside outside the US, the foreign persons are disregarded for venue purposes.

Question 5

Proper venue for removal jurisdiction

Answer 5

28 USC 1441(a) provides that the proper venue of a removed action is the district court of the US for the district and division embracing the place where such action is pending.

Removal is controlled by 1441, not 1391.

Question 6

Challenging venue

Answer 6

D must raise a motion to dismiss for improper venue under FRCP 12(b)(3) in their initial response, or the right to challenge venue is WAIVED.

Initial counterclaims does not apply. So if D counterclaims but does not challenge venue, he has not yet waived the right to challenge venue.

Question 7

Pendant venue

Answer 7

1. Claim not properly venued standing alone can still be heard
2. If related to a claim with a common nucleus of operative fact.

Claims governed by a general venue statute may be brought in the same district as a claim governed by a special venue statute if the claims arise out of the same nucleus of facts.

However, the converse is not true. Where claims are governed by special venue statutes (such as 1400(b)), which limits venue to specified districts, such claims may be brought only in a district specified by the statute. This is so because congressional intent to limit the available districts is clear and cannot be circumvented.

Question 8

Forum-selection clauses

Answer 8

Federal courts must enforce mandatory forum-selection clauses unless the objecting party can “clearly show that enforcement would be unreasonable and unjust, or that the clause is invalid for such reasons as fraud or overreaching.” Thus, D will be deemed to have consented to venue and cannot motion to dismiss under Rule 12(b)(3).

However, a forum-selection clause cannot serve as the basis for a dismissal for improper venue if venue is otherwise proper under a federal statute. The proper remedy here is a motion to transfer the case under 28 USC 1404 or motion to dismiss for forum non conveniens.

Question 9

Choice of law rules in context of a venue transfer

Answer 9

1. SC stated that cases transferred under 1404(a) are governed by the transferor state’s choice of laws rules (Van Dusen v. Barrack, SCOTUS, 1964).
2. However, Van Dusen will NOT apply when the 1404 transfer is made under a forum selection clause;
3. Likewise, Van Dusen will not apply under a 1406 transfer because the case was filed in an improper venue initially.
4. Van Dusen also does not apply when transferred to another Circuit in federal question cases.

Question 10

§1404(a) Change of venue

Answer 10

1. For convenience of parties
2. Interests of justice
3. District court may transfer to
4. Any district to which claim may have been brought or
5. All parties consented (e.g., forum-selection clause).

Question 11

§1406(a) Curing defective venue

Answer 11

1. District court where case is filed;
2. If wrong venue; may
3. Transfer or dismiss
4. May be waived if not motioned under §12(b).

Question 12

Must claims which do not arise out the name nucleus of operative fact be assessed separately for venue purposes?

Answer 12

Yes, so if venue is only proper in one state or another, the claims cannot be tried together. E.g., Claim against 2 Ds for breach of K and battery where Ds are diverse and events/omissions took place in different states.

Question 13

Requirements to file class action

Answer 13

Because usual litigation process CAN’T handle.

1. Common question
2. Adequate representation
3. Numerous claimants
4. Typical claims