Venue, Transfer, and Forum Non Coveniens Flashcards
What is the idea behind venue?
SMJ says if we can take a case to federal court, venue tells us WHICH federal court to bring it.
What is the test for determining venue?
The P may lay venue in any district where:
(1) Where all D reside; or where any D resides so long as all D reside in that same state (residential venue), or
(2) A substanital part of the claim arose or a substantial part of the property involved in the lawsuit is located (transactional venue).
Substanital part of the claim can arise in more than one district (Ex: where contract entered into; where contract breach occured / was performed).
*Do not apply for removal, where the venue is proper only in the fed district embracing the state court it is removed from.
If a D resides outside of the US, where is venue proper?
In any fed district, but if another D does reside in the US, venue must be proper as to her.
Where do D “reside” 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 all districts WHERE IT IS SUBJECT TO PJ FOR THE CASE.
What is a transfer of venue?
Transfer goes from one trial court in a judicial system to another trial court in the same judicial system.
The original court is the “transferor,”
and the one to which the case is sent is the “transferee.”
To what courts within the same judicial system can a transferor court transfer a case for venue?
Transferee must must be a proper venue and have PJ over the defendant— and generally those must be true without waiver by the defendant.
Exception: If the case was properly venued, then can transfer to ANY district (even if improper venue) if ALL parties consent AND the court finds cause for the transfer. (unlikely b/c P brought it in the original venue for a reason).
What are the tests for a Transfer from a Proper Venue?
General: court can order transfer based on convenience of parties and witnesses and in the interests of justice.
Burden: Person seeking transfer (b/c transfer overrides P chose of proper venue).
Factors: Court considers both public and private factors showing that another court is the center of gravity for the case:
(A) Public: What law applies, what
community should be burdened with jury service, the desire to keep a local controversy in a local court.
(B) Private: Convenience: Where D and evidence are found.
Effect on Choice of Law: If diversity case and transfer from proper court, the transferee court must apply the choice of law rules of the transferor court.
Effect of Forum Selection Clause: 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:
(A) Federal law 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;
(B) When there is a valid FSC, only public interest factors are considered for transfer; and
(C) 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.
What are the tests for a Transfer from an Improper Venue?
The court may transfer in the interest of justice or dismiss. Usually, the court will transfer
if possible.
When the federal court transfers a diversity case because the original venue is improper, the transferee applies its own choice of law rules (So that the plaintiff doesn’t benefit by filing in an improper forum)
What are the rules for Forum Non Conveniens?
General Idea:
When another court is the center of gravity for the case, but can’t transfer b/c that court is in another judicial system.
The court invoking FNC will stay (hold it in abeyance) or dismiss the case. Whether the court dismisses or stays, the idea is that the plaintiff will then sue in the other court, and the court may impose conditions on the party requesting transfer such as requiring her to waive service of process.
Factors:
Same as public and private interests in transfer, including the existence of a valid forum selection clause.
Adequacy of other court:
The other court must be available and “adequate.” Usually, the forum will be adequate unless the plaintiff can get no remedy there.
