venue, transfer, and forum non conveniens

Question 1

waiver

Answer 1

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

Question 2

transfer

Answer 2

to have venue transferred, the defendant must show either that venue is improper in the plaintiff’s chosen venue (ii) or, if venue is proper, that venue should be transferred, in the interests of justice, for the convenience of the parties and witnesses
* cannot transfer from FC to state court; restricted to same judicial system

Question 3

options for venue

Answer 3

reisdential– any district where all Ds reside
* When Ds reside in different districts in the same state, venue is proper in any district where D resides
* if D lives outside the U.S., venue can lie in any district
* a corporation is deemed to reside in any district in that state within which the corporations contacts would be sufficient to subject it to personal jurisdiction if that district were a state (headquarters, PPB, or minimum contacts)

transactional– wherever a substantial part of the claim arose or substantial part of property involved in lawsuit is located
* more than one district can satisfy the req

Question 4

transfer from proper venue

Answer 4

When venue is proper, transfer may be made to another distinct in which the action might have been brought or to which all the parties have consented
* transferee court must have PJ over the D and SMJ over the action
* based on convenience of the parties and witnesses
* court considers public & private factors:
Public factors = what law applies, what community should be burdened with jury service over this case, local issues in local court
Private factors = convenience e.g. where the witnesses are, where the evidence is etc
* Transferee court usually must apply choice of law rules of transferor court

Answer 5

when venue is improper, transfer is to a proper venue that has subject matter jurisdiction and personal jurisdiction over the parties

court will either transfer in the interest of justice, OR
* 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

dismiss

Question 6

forum non conveniens

Answer 6

there is another court that is the center of gravity for the case BUT the court cannot transfer the case to that court because it is in a different judicial system
* 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
* other court must be avialable and adequate– adequate unless P can get no remedy at all even if less remedies available