Venue, Removal & Choice of Law Flashcards
What does venue dictate?
The region within a particular state where a suit can occur
- In federal court, this region is called a judicial district
Define Proper Venue
Which Federal Court parties may litigate before within a jurisdiction
Proper Venue - individuals
Any district where:
- all ▵s reside or where substantial portion of claim arose,
- Theres SMJ over the claim, and
- PJ over the parties
Where all Defendants Reside
Judicial District where:
- Residence for Natural Persons ➞ Domicile, where they are citizens
- Exception:
- All ▵s reside in different districts within the same state = Venue is proper in Any district where any ▵ resides
Judicial District where Substantial Part of Claim Arose
Judicial District where Substantial Part of Claim Arose or substantial part of property that is the subject of the action is located
What is the effect if there is no district where the action can be brought?
If No District, where the action can be brought
- Diversity - Any district where ▵ is subject to personal jurisdiction
- Federal Question - District where the ▵ can be found
Proper Venue for Corporations
Corporations - Any district where corp. is subject to personal jurisdiction
Transfer of Venue Rule & What are the requirements ?
There is a Presumption that Plaintiff’s choice of venue stays (Transfer is the exception not the rule)
-
Requirements for Transfer - Transferee court where action could have originally been brought
- Must Have Subject Matter Jurisdiction
- Personal Jurisdiction over the ▵
- Must have Proper Venue
Transfer of Venue - Original Venue is Proper
Court can still transfer based on:
- Convenience of the parties, AND
- Interests of Justice - ∏s choice is entitled to deference & should not be disturbed w/out compelling reasons of fairness
- Public Factors
- Court Congestion
- Local Interests in having local control decided “at home”
- Forum Familiarity with Substantive Law
- Unfairness to Forum - unfairness of burdening citizens w/ jury duty for case unrelated to forum
- Public Factors
Private Factors
Ease of Access to evidence
Availability of witness subpoenas
Cost of getting witnesses to forum
Possibility of viewing premises related to the action
Interests of Justice - Plaintiff’s choice is entitled to deference & should not be disturbed w/out compelling reasons of fairness
Public Factors
- Court Congestion
- Local Interests in having local control decided “at home”
- Forum Familiarity with Substantive Law
- Unfairness to Forum - unfairness of burdening citizens w/ jury duty for case unrelated to forum
Interests of Justice - Plaintiff’s choice is entitled to deference & should not be disturbed w/out compelling reasons of fairness
Private Factors
- Ease of Access to evidence
- Availability of witness subpoenas
- Cost of getting witnesses to forum
- Possibility of viewing premises related to the action
Original Venue Improper
Ct. can either:
- grant dismissal of action or
- order that venue be transferred if transfer is in the interest of justice
Transfer of Venue - Choice of Law ?
Transferor Court ➞ Change of court not change of law
Removal - General Test
Case originally filed in state court can be removed to federal by ▵ only if case could have orig. been filed in federal court
Who can remove?
Defendant Only - Removal allows ▵ to veto Plaintiff’s choice of forum (i.e.State Court)
- Multiple ▵s - All ▵s must consent to removal
-
Waiver of Removal Right:
- If ▵ files a permissive counterclaim in st. court ➞ YES, waiver of right to remove
- If ▵ files compulsory counterclaim ➞ NO waiver
To which court may a defendant remove ?
Vertical Removal Only
- Only to federal district court that geo. embraces the state court
- Diversity Exception - Diversity case can’t be removed if any ▵ is a resident of state in which action was brought
What are the grounds for removal?
A defendant can remove a case from state to federal court if:
- Orig. well-plead complaint by the P
- Could have been filed in federal court (FQ, Div., Supp)
When can a defendant not remove a case?
Home state defendant rule
- Fed. juris. would be grounded only in diversity juris. AND
- D is a citizen of the state where the action is filed
Removal - State Claims Laws
State action joins fed. statutory claim & st. law claim
- State claim falls within original or supp. juris. - Both claims come up to fed. & remain in fed. ct.
- State Law Claim Doesn’t Fall w/in Orig. or Supp. Juris. of Fed. ct. - Federal judge must severe the state law claim & remand to the state court
Removal - Timing
Notice of removal must be filed within 30 days after notice that case is removable
- usually 30 days after service of process - 30 days after ▵ knows case is removable
- Diversity Case Exception - 1 yr. limitation
- Removal can only happen w/in 1 yr after claim is filed
Procedure for Removal
- Notice of removal filed by ▵ in federal court stating the grounds for removal
- Signed under Rule 11
- Attach all documents served on ▵ in the state action
- Copy all adverse parties, and
- File a copy of the notice in state court
If the removal to federal court would be based on diversity of citizenship, how long does the defendant have to remove the case ?
- W/in 1 year of when the case is filed
- Usually happens when the P makes a changes to suit that create diversity
- 30 day window of when the rounds for removal became apparent still applies
Motion to Remand
- Procedural Defect - Motion to remand on basis of any defect other then SMJ must be made w/in 30 days after ▵ files notice of removal
- Lack of SMJ - Anytime before the final judgment
- No appeal - ▵ can NOT appeal an order to remand
Forum Non Conveniens
What to do when can’t transfer?
- Court can dismiss if far more appropriate & convenient forum exists elsewhere
- Court Considers:
- Convenience of the Parties,
- Witnesses and
- interests of justice
Forum Non Conveniens - Requirements
- There must be an Alternative Forum (More logical forum)
- Case dismissed under forum non conveniens because transfer is not possible
- Plaintiff’s recovery is irrelevant
- Plaintiff is not resident of current forum
Forum Non Conveniens - Intersts of Justice
Public Factors
- Court Congestion
- Local Interest - e.g. Crash may have occurred in alt. forum
- Forum familiarity with substantive law - greater familiarity w/ foreign law is w/ the foreign country not the U.S.
- Unfairness to forum - Unfair to USA forum for case that is very British that it should be litigated there (Unfair to use our resources)
Forum Non Conveniens - Intersts of Justice
Private Factors
- Ease of access to evidence
- Availability of witness subpoenas - e.g. can’t use US subpoena in Scotland
- Cost of getting witnesses to forum
- Possibility of viewing premises related to the action if needed
In diversity cases, what determines the law to apply?
The erie analysis
Choice of Law & Erie Doctrine
Fed. Ct. sitting in Diversity Juris. must apply substantive State law & Fed. Procedural law
What is substantive law?
Any law that would cause forum shopping
- If federal law is preferred, then call the law procedural
Substantive State Law
Matters of clearly substantive law:
- Elements of claim or defense
- Statute of limitations & Tolling of statue of limitations
- Conflict or Choice or Law rules
Federal Law on Point in Direct Conflict w/ State
Under supremacy clause Fed. ct. must apply Fed. law
Federal Procedural Law
If FRCP is arguably procedural & valid, it will be applied (No FRCP has been found to be invalid under the Erie Doctrine)
What if it is unclear if Procedural or Substantive ?
Unclear if Procedural or Substantive - Apply 3 part test:
- If st. law subst. determines the outcome
- its substantive & must be applied by fed. ct. sitting in div.
- Balance St. interests v. Federal interest in application of particular rule
- Does either have a strong interest that its rule be applied?
- Avoid Forum Shopping
- Judge considers if application of particular rule promotes forum shopping
What is the rule for removal when there are mult. defendants ?
All must agree to removal
Transferring venue by agreement requires?
If all parties consent, then the parties can go anywhere
When is invoking forum non conveniens appropriate?
When the most convenient court in which to litigate a suit is not in the united states
What does a court do when forum non conveniens is appropriate?
Dismiss the suit without prejudice so that the Plaintiff can refile the suit abroad if she desires
What are the steps in the Erie Analysis?
For Diversity Cases only:
- If a valid fed. statute or const. provision is on point - fed. ct. must apply it
- If there is no fed. statutory or const. law on point - Do what would avoid unfairness and forum shopping
- If determined state must be applied to avoid unfairness, it’s called substantive law
