Venue, Transfer, and Forum Non Conveniens Flashcards
The plaintiff may lay venue in any district where: (2)
(1) all defendants reside or, if all D’s reside in same state, any district in that state where one of them resides (residential venue)
(2) a substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located (transactional venue)
May a “substantial part” of a claim arise in more than on district?
Yes.
For example, a substantial part of a product liability tort claim might arise where the defective product was manufactured AND where the plaintiff was injured.
What is the proper venue if the defendant resides outside the US?
Any federal district court
If a case is transferred between two federal courts, what generally must be true of the transferee court? (2 things)
(1) Transferee must be a proper venue
(2) Transferee must have personal jurisdiction over the defendant(s), (generally this is true even if the defendant waives/consents to venue and PJ)
If the original district is a proper venue, may a court order transfer? Based on what? (2 things)
Yes, based on convenience of the parties and witnesses, and in the interests of justice
If transfer is sought from a court that is a proper venue, who has the burden of proving that transfer is appropriate? What factors?
The burden is on the person seeking transfer (typically the defendant).
(1) Public factors: what law applies, what community should be burdened with jury service, desire to keep a local controversy in a local court
(2) Private factors: convenience (e.g., where the defendants and evidence are found)
What is the effect on choice of law when a diversity case is transferred?
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.
What is a forum selection clause?
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 a forum selection clause, the defendant may seek to enforce the forum selection clause through a motion to transfer.
When there is a valid forum selection clause, which factors (public, private, or both) are considered for transfer?
Only public (e.g., what law applies, what community should be burdened with jury service, desire to keep a local controversy in a local court)
If the original district is an improper venue, what may a court do?
The court may either:
(1) transfer the case in the interest of justice, OR
(2) dismiss the case
If a transfer occurs due to improper venue, which choice of law rules does the transferee court apply?
The transferee court’s choice of law rules apply, NOT the transferor
What is forum non conveniens? When/how is it applied?
Forum non conveniens (“FNC”) applies when there is another court that is the “center of gravity” for the case, but the court exists in a different system (e.g., state court, or a foreign court) such that it cannot be “transferred.”
The court invoking FNC will either stay or dismiss the case, and plaintiff may sue in the other court.
For forum non conveniens to be invoked, the other court must be “adequate.” What does that mean?
It means that some form of remedy must be available in the other court, even if the other court does not offer the same kind of safeguards that exist in the federal judiciary (e.g., jury trials).
