Venue, Transfer, and Forum Nonconveniens

Question 1

General Venue Statute

Answer 1

28 USC 1391
1391(1) All Ds reside in same state = venue proper in any district in that state within which a D resides.

1391(2) District where important events/omissions creating the claim took place or where relevant property is located

1391(3) If neither of the above work, then venue allowed in any district where any D is subject to PJ.

• -This only happens when events/omissions are abroad.
• -You still have a PJ problem for other Ds. They are subject to venue, but not automatically PJ.

Question 2

Transfer Under 1404(a)

Answer 2

This is for cases initially in proper venue.

(1) Consent: if all parties have consented to venue in the transferee district, then venue is proper.

(2) Could it be transferred: could it have been brought there originally (venue and PJ)?
- –Forum selection clause is one factor among many.

(3) Should it be transferred: in the interest of justice and for convenience of witnesses and parties? Forum selection clause dispositive.
- -Factors: access to sources of proof, cost of attendance for willing witnesses, possibility of view of premises, possibility of delay/prejudice if transfer granted, P’s choice of forum, etc.

Question 3

Transfer Under 1406(a)

Answer 3

If venue was improper in the current district, the district court can transfer the case to any district where it could have been brought IF it is in the interest of justice.

Question 4

Venue for Removed Cases

Answer 4

28 USC 1441(a): venue is the district court for the district embracing the state court.

Question 5

Applicable Law after Transfer

Answer 5

For 1404 transfers:

• -State law claims: rules of transferor court (unless forum selection clause, then apply rules of transferee court)
• -Federal law claims: circuit split

For 1406 transfers:

• -State law claims: rules of transferee court
• -Federal law: circuit split

Question 6

Definition of “resident” for regular venue statute

Answer 6

D Natural Person/permanent resident alien = domicile (can only be one place)

D Entity = PJ by district (courts are inconsistent on whether incorporation = state-wide or just district).

–BUT, P Entity resides only in the judicial district in which is has it’s PPB.

D Nonresident Alien/U.S. domiciled abroad: don’t count for this analysis; can’t ever have a valid venue objection.

Question 7

Pendent venue

Answer 7

Rule: venue must be proper for each D and each claim.

Exception: pendent venue = can get venue if claims arise from same CNOF

Ex) Pca & Ptx v. Dmi/de & Dva. Events happened in Ca.
–Ds are not from same state, venue ok in Ca, Ptx can get in through pendent venue b/c same CNOF.

Question 8

Forum Selection Clause and Venue

Answer 8

(1) Scope: does the FSC apply?
- -Use state law

(2) Exclusive: is the FSC mandatory?
- -Yes: =consent for that venue and is basis for transfer/dismissal
- -No: =consent for that venue

(3) “Courts in” vs. “Courts of”
- -In = federal or state courts
- -Of = state courts

Question 9

Forum Nonconveniens Definition

Answer 9

Ask court to dismiss the suit b/c a foreign court or U.S. state court is more convenient for adjudicating the case. The result is a dismissal.

Derives from federal common law.

Question 10

Forum Nonconveniens Factors

Answer 10

(1) Available alternate forum (PJ, SMJ, etc.)
(2) Adequate alternate forum (bare minimums of due process & available remedy [but large difference in awards doesn’t matter])

(3) Private interest factors
- -P’s choice (strongest factor). Rational connection between current forum and P = presumption that it’s most convenient.
- -Convenience for parties and witnesses
- -Location of evidence
- -Connection between community (jury) and the case
- -Enforceability

(4) Public interest factors
- -Admin difficulties (docket too full)
- -Will there be conflict of law issues?

Question 11

Motion for Forum Nonconveniens (no FSC)

Answer 11

D must prove that there is an available and adequate alternative forum and that the balance of private and public factors favor dismissal.

Question 12

Motion for Forum Nonconveniens (yes FSC)

Answer 12

P must prove that dismissal is unwarranted.

D must show that FSC is valid and enforceable and that public interest factors favor dismissal (court assumes private factors support the FSC).

Question 13

Deadline for Motion for Forum Nonconveniens

Answer 13

Within a reasonable time after party learns or should have learned of facts that support the motion.