Docstoc

civ pro venue outline

Document Sample
civ pro venue outline Powered By Docstoc
					VENUE
- meant to further restrict the places where the plaintiff may choose to bring suit
-assure that suits are tried in a place that bears some sensible relationship to the claims
asserted or to the parties to the action

S1391

a) jurisdiction founded only on diversity of citizenship may be brought only in

        1) if all defendants reside in the same state  a district where any defendant resides

       2) district in which a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is situated

         3) if there is no district in which the action may other wise be brought  a judicial
district in which any defendant is subject to personal jurisdiction at the time the action is
commenced

b) jurisdiction is not founded solely on diversity of citizenship

        1) see a(1)

        2) see b(2)

         3) if there is no district in which the action may otherwise be brought  a judicial
district in which any defendant may be found

c) residence of corporations for the puproses of venue:

-deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time
the action is commenced

-if state has more than one judicial district  corporation deemed to reside in any distict in that
state within which its contacts would be sufficient to subject it to personal jurisdiction if that
district were a separate state

-if no district would satisfy the sufficient contacts corporation deemed to reside in the district
within which it has the most siginificant contacts



TRANSFER
S1404: Change of Venue- if venue is good
   a) District court may tranfer any civil action to any other district where it might have been
      brought  for the convenience of parties and in the interest of justice
               -defendant has to ask for the suit to be transfered
   b) If all parties consent, then court may transfer in its discretion- weigh out public and
      private interest (CB 410)
               - availability and convenience of witnesses and parties
               - location of books and records
               - cost of obtaining attendance of witnesses and other trial expenses
               - the place of the alleged wrong
               - the possibility of delay
               - prejudice if transfer is granted
               - plaintiff’s choice of forum –usually entitled to great dference

- If venue is good and pj is good  the case can be transferred to a district court in another
state under 1404, then the new district must apply the substantive law of the initial district

-if venue is good and pj bad  the court may transfer the case under 1404 to a district where
venue is proper and where personal jurisdiction could have been established when the suit was
originally brought- substantive law of the original forum does not travel with the case

S1406- Transfer when Venue is bad
-court can dismiss OR tranfer case to any district in which it coculd have been brought

-if the case is transferred to a district court in another state under 1406- substantive law of the
original forum does not travel with the case

-if venue is bad and pj is bad  the court may transfer the case under 1406 to a district where
venue is proper and where personal jurisdiction could have been established when the suit was
originally brought- substantive law of the original forum does not travel with the case



FORUM NON CONVENIENS (cb pg. 422)
   -   Not a trasfer doctrine, but a dismissal doctrine
   -   May be used in federal court when the more covenient forum is a foreign country or
       State court in the U.S.
   -   May be used by a state court when the more convenient forum is a foreign or a sister
       state

A party seeking a forum non conveniens dismissal must usually meet a heavy burden of
persuasion. The moving party must show:

       1) That there is an available alternative forum
       2) That the balace of private and public concerns implicated by the choice of forum
          weighs heavily in favor of dismissal
Notes on venue:

    1. Defendant waives objection to venue by failing to raise it when responding to the
       plaintiff’s complaint


Removal

S 1441
(a)
-allows a case to be removed to federal court ONLY. You can only remove that which district courts
have original jurisdiction over. Any case in state court that could have in federal court in the first place
(fed quest, diversity, supplemental)
-district and division embracing

(b)ONLY AN EXCEPTION FOR DIVERSITY CASES. If it's a federal question case then you can just remove
it. Cannot remove if def is resident of state. This favors the plaintiff. He can guarantee that he stays in
state court. This does not put an undue burden on def because its his home state.

c) Does not mean 1367
The district court can chop it up however it wants. Designed to prevent plaintiff from playing dirty.
Attempting to prevent plaintiff from attaching an unrelated state claim.

S 1446
How to remove

				
DOCUMENT INFO
Categories:
Tags:
Stats:
views:30
posted:6/29/2013
language:
pages:3