CIV PRO – VENUE 2/5/2008 1 of 6 I. VENUE IN FEDERAL COURT A. Generally: In addition to PJ and SMJ, there it the additional requirement of venue. SMJ determines what categories of cases a court system (e.g., the federal courts) has authority to decide. Likewise, PJ, as applied to states, determines whether a court system has power over a D. Venue determines where within a court systems a case can be brought. B. Venue is primarily a matter of convenience: Is largely defined by statute. There is no federal constitutional right to venue in a particular place. If PJ, SMJ, and venue are all proper in a court, then that court has authority to hear the case. However, a court may invoke the doctrine of forum non conveniens and decline as a matter of discretion to hear the case. 1. Why do we need venue?: Doesn’t PJ takes care of some convenience, too? Gives some measure of convenience within the state; PJ gives you no protection w/in a state. Having just PJ as the standard would not protect against the vindictive use of a remote venue in larger states. Venue also facilitates the process of proof at trial. 2. Why not adopt the venue standard for PJ?: Although venue seems to take care of the reasons for having PJ, it would not account for situations like WWV. If venue were the standard for jurisdiction, then jurisdiction would have been proper against the distributor and retailer in WWV because a substantial part of events took place in Oklahoma in that case. However, PJ requires purposeful acts and venue does not. PJ allows more protection for a D, who must engage in a voluntary act to be subject to the laws of that state. 3. Brennan’s take: J. Brennan would be a strong advocate of venue based on a standard of PJ. Brennan wants to use reasonableness as the standard and doesn’t care about things like sovereignty C. PJ must be proper: Absent a federal statute or rule extending service of process, a federal court has PJ over an out-of-state D only if the state in which the federal court sits in would have had PJ. Thus, state PJ doctrine limits the place in which a D can be sued in the federal system. PJ is necessary but not sufficient for proper venue. D. Venue is waivable: A Ds objection to venue must be timely. Like PJ, and unlike SMJ, the right to object to venue is waivable. E. §1392 irrelevant to removed cases: Cases removed from state to federal court have their own venue provision. §1441 states a D can only remove to the federal district court for the district “embracing the place where such action is pending.” Therefore, the provisions of §1391 are irrelevant to removed cases. However, transfer may still be available. Example: A federal question suit is brought in NY state court by a NY resident against a NJ D, on a cause of action arising in NJ. In an original action, venue could only lie in NJ, since that is where “defendant’s residence” would lie, as well as where “place of events” venue would lie; the “fallback provision” would not give venue in NY because there is a district (NJ) where the action might “otherwise be brought.” Notwithstanding the unavailability of original jurisdiction in NY, the case would nonetheless be removed to NY district court, in accordance with §1441(a). F. Applies only to transitory actions, not local actions: Any case that is not a local action is a transitory action. A local action involves land. Most state venue statutes state that the venue must be laid were the land is located. Federal statutes are interpreted similarly. There are three major categories of local actions: 1. In rem or QIR case, in which property if the basis of jurisdiction. 2. Cases in which the P seeks a remedy in or to realty, such as a claim for quiet title, ejectment, foreclosure of mortgage, enforcement of removal of lien. 3. Claim for damages for injury to land, such as trespass. CIV PRO – VENUE 2/5/2008 2 of 6 G. The general venue statute is 28 U.S.C. §1391: 1. A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in a judicial district: (a) where any D resides, if all Ds reside in the same State; OR Comment: Individual residents reside where they are domiciled (including aliens). Corporations reside as described in 3. (b) 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; OR (c) in which any D is subject to PJ at the time the action is commenced, if there is no district in which the action may otherwise be brought. Comment: For “fallback provision” to apply, probably would need cause of action to happen abroad, multiple Ds who reside in different states, and tag jurisdiction in the forum state. Very rare. 2. A civil action wherein jurisdiction is founded is not founded solely on diversity [federal question] may, except as otherwise provided by law, be brought only in a judicial district: (a) Same as (a)(1); OR (b) Same as (a)(2); OR (c) in which any D may be found, if there is no district in which the action may otherwise be brought. 3. For purposes of venue, a D corporation resides in: (a) any judicial district in which it is subject to PJ at the time the action is commenced; OR (b) in a State which has more than one judicial district and in which a D corporation is subject to PJ at the time an action is commenced, such corporation resides in any district in that State within which its contacts would be sufficient to subject it to PJ if that district were a separate State, AND (c) if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts. Comment: For venue only, unincorporated associations are treated like corporations. 4. An alien [individual or corporation] may be sued in any district. Comment: [PJ is the only option available to available to an alien to defeat venue?] CIV PRO – VENUE 2/5/2008 3 of 6 H. The “fallback provisions”: §§1391(a)(3) and (b)(3) provide fallback provisions: 1. (a)(3): Maybe (a)(3) excludes cases where the sole basis of jurisdiction is in-state service (e.g., Burnham) after the filing of the complaint b/c in such a case the D is not subject to PJ at the time the action in commenced. 2. (b)(3): Maybe (b)(3) applies only where a D is physically present and the provision cannot be used where a D is absent but otherwise subject to jurisdiction on the basis of his contacts. I. What if both federal question and diversity apply?: In “hybrid” cases, where SMJ can be asserted under both diversity of citizenship and federal question jurisdiction, §1391(a) makes clear that they are to be treated as federal question cases. J. What if multiple venues are available?: If the there are two or more venues where the “substantial part of the events or omissions giving rise to the claim occurred,” the Bates court considered the following factors: 1. The convenience of the Ds 2. The location of the evidence and witnesses. 3. The focus of the analysis is not “contacts” or “purposeful availment,” but “events.” Examples: 1. Paula is involved in an auto accident w/Doug. Paula is a Massachusetts citizen. Doug is a NY citizen, w/his home in the E. District of NY. The accident occurred in Maine. Assume that Paula’s claim exceeds $75,000. (a) Paula wants to sue Doug in NY. Where would venue be proper? The E. District of NY. (b) Paula sues Doug in federal court in Vermont, where Doug lives while attending college in Vermont. Is venue proper in the district of Vermont? No, Doug is not deemed to be domiciled in Vermont. (c) Paula sues Doug in federal court in Massachusetts, serving him while he is in Massachusetts doing business. Is venue proper in Massachusetts? No, Doug does not reside in Massachusetts nor did a substantial part of the events giving rise to the cause of action happen there. Although he is subject to PJ in Massachusetts at the time the cause of action is commenced, the fallback provision doesn’t apply b/c there are other districts where venue is proper (Maine and EDNY.) (d) Assume that Doug is a citizen of France. Where would venue be proper? Would it matter if he were admitted for permanent residence under §1332(a)? Venue would be proper in any district where Doug is subject to PJ. In this case, that would be Maine (motorist statute) or perhaps Massachusetts (but only if tagged [need to ask Schapiro about this]). If §1332(a) applied, then Doug would deemed to domiciled in the E. District of NY. He could then be subject to venue there. [need to ask Schapiro] 2. Suppose Paula decides to sue Car Inc., the manufacturer of her car, alleging defective design and manufacture of the vehicle. Car Inc. is incorporated in Delaware w/its headquarters and a factory in the W. District of Michigan (WDM). It also has factories in the W. District of Tennessee (WDT) and the N. District of Georgia (NDG). Assume that Paula’s claim exceeds $75,000. (a) In Paula v. Car Inc., where is venue proper? Venue is proper wherever the corporation was subject to PJ at the time the action was commenced. In this case, that would be Delaware (SOI) and WDM (PPB). If there is a relevant LAS (pertaining to this tortious act) and minimum contacts were met, Car could be subject to venue in Maine. In addition, venue in WDT and NDG could be proper if there was a LAS and minimum contacts were met. (b) Assume that Car Inc. did not acquire the factory in Tennessee until after the accident between Paula and Doug. In Paula v. Car Inc., would venue be proper in the WDT? Assuming that Car Inc. would be subject to PJ in the WDT, venue would still be proper if Car Inc. owned the factory at the time the action was commenced. (c) In addition to the facts described above, Car Inc. is licensed to do business in NY and has an agent for service of process there. The agent is located in the WDNY. Currently, Car Inc. has no operations in NY. In Paula v. Car Inc., would venue be proper in the WDNY? The EDNY? Venue would be proper in the WDNY b/c the presence of Car Inc.’s agent allows for PJ through consent. There would be no venue in EDNY. (d) Assume that the facts are as described in (2)(c). Paula sues Doug and Car Inc. Would venue be proper in the WDM? The EDNY? The WDNY? The WDT? Even though the WDM is Car Inc.’s PPB, venue would not be proper in the WDM b/c all Ds would need to reside in Michigan and Doug does not. Venue would be proper in the either NY district b/c both Ds reside in NY. Venue would not be proper in the WDT b/c all Ds would need to reside in Tennessee and Doug does not. CIV PRO – VENUE 2/5/2008 4 of 6 II. CHANGE OF VENUE A. Transfer of civil cases in state courts: All states allow for transfer of civil cases from one county to another within the state. Most state permit a D to seek transfer if she is unlikely to get a fair trial where the case is filed. Tactic: To transfer to another state, the court must dismiss the case under “forum non conveniens” and the P must file a new action in the other state. B. Where can cases be transferred within the federal court system?: Both §1404(a) and §1406(b) permits transfers to any district where the suit “might/could have been brought”: 1. Both PJ and venue must have been proper: This means that both venue and PJ would have been proper in the transferee state at the time the case was filed. 2. Not restricted by state lines: The federal government is not restricted by state lines. Cases can transferred anywhere in the federal system. 3. Removal: Remember, if a case is properly removed, then the venue is considered proper. 4. Distinction between the two statutes: Under §1404(a) the transferor court is a proper venue. Under §1406(a) the transferor court is a improper venue. C. Tactics: It is not unusual for a state court D to remove the case to federal court (assuming there is SMJ) and then seek a transfer. However, a D cannot consent to PJ and venue in a district that would have been improper without his consent for the sole purpose of obtaining a transfer there. 1. Expediting transfer: If you are D in a state court in Georgia and want California, can’t transfer. Remove to federal court and transfer to California. Still would apply Georgia choice of law rules though. 2. Avoiding transfer: A P may want to design a case so it can’t be removed. If you have D in Alabama and one in Georgia, sue in Georgia. The case can’t be removed on diversity purposes due to “home state exception.” Therefore it can’t be transferred. D. Goldlawr transfers: §1406(a) permits transfer of cases filed in an improper venue and where the court lacked PJ. Pertains to §1404(a) transfers as well. Rationale: Allowing the transfer of such cases is consistent with the objective of the statutes, which is to remove whatever obstacles may impeded an expeditious and orderly adjudication of cases and controversies on their merits. E. Choice of law: Each state had its own choice of law rules and, therefore, different courts may apply different law when confronted with the same situation. 1. State courts: When litigation occurs in a state court, the forum applies its own choice of law rules. 2. Federal courts: On matters of substantive law (as opposed to matters of procedure), where there is no federal statute on point, a federal court ordinarily applies state law. (a) Applies state’s choice of law rules: The federal court should apply the choice of law rules of the state in which it sits. In other words, a federal court would apply whichever state’s law the state in which it sits in would have applied. (b) Transfer does not change choice of law rules: When a D seeks a §1404(a) transfer, that transfer is simply a change of courtroom and should not change the law that is applied, even if the P requests the transfer. The choice of law rules travel with the case and the transferee court will apply the laws that the transferor court would have applied. CIV PRO – VENUE 2/5/2008 5 of 6 (1) Rationale: The Supreme Court was concerned that if a change of venue brought with it a change of law , then a §1404(a) transfer would be used by Ds to defeat the advantage accruing to Ps, who have chosen a forum, although inconvenient, was a proper venue. (2) Irrelevant whether D or P requests the transfer: Even when the P requests the transfer, the transferee court should apply the law the transferor court would have applied. (3) Irrelevant to §1406(a) cases: Because venue was improper, the court never had authority to adjudicate the case in the first place. F. Standard for transfer under §§1404 and 1406: 1. §1404(a): expressly provides that in deciding whether to transfer, the court shall consider the convenience of the parties, convenience of the witnesses, and the “interest of justice.” 2. §1406(a): prescribes no such factors, providing that if the case is filed in an improper venue, the court “shall dismiss, or if it be in the interest of justice, transfer.” Usually will transfer. G. Forum selection clauses: FSCs are significant factors but are not dispositive in determining whether to transfer a case. H. Multidistrict litigation: §1407 permits all federal cases to be transferred to one district and consolidated for pretrial proceedings. These transfers need not meet other venue requirements. Following the pretrial proceedings, the cases shall be remanded to the districts from which they came. III. STATE VENUE PROVISIONS A. PJ determines whether a state as a whole has power over the D. B. Venue restrictions identify where within the state cases are to be adjudicated. C. Most states provide general and special venue rules for particular types of cases. CIV PRO – VENUE 2/5/2008 6 of 6 IV. FORUM NON CONVENIENS A. Generally: Even if PJ, SMJ, and venue are all proper, a court can still dismiss the case based on the doctrine of forum non conveniens (FNC). The P will be compelled to refile in a forum that is clearly superior. Court can condition dismissal on the D waiving certain conditions such as the statute of limitations. B. Must be an alternative forum: For the doctrine to be invoked, there must be an alternative forum: 1. Same court system: If the alternative forum is within the same court system, there will never be a dismissal due to FNC. The case will be transferred. 2. Not the same system: If the alternative forum is not within the same court system, the FNC is a viable tactic for the D. 3. Federal system: FNC is only available when the alternative forum is in another country. (State courts have their own rules) C. Apply the Gilbert balancing test to determine if FNC is proper (similar to transfer): 1. “Private interest factors” affecting the convenience of the litigants: (a) relative ease of access to sources of proof; (b) availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; (c) possibility of view of premises, if view would be appropriate to the action; (d) all other practical problems that make trial of a case easy, expeditious and inexpensive. 2. “Public interest factors” affecting the convenience of the forum: (a) administrative difficulties flowing from court congestion; (b) the “local interest in having localized controversies decided at home”; (c) the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; (d) the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; (e) the unfairness of burdening citizens in an unrelated forum with jury duty. D. P choice of forum is favored: Ordinarily a strong presumption in favor of P’s choice of forum, especially when he has chosen his home forum. However, alien Ps are not given this presumption. E. Role of substantive law: The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the FNC inquiry: 1. Protection of the D: One of the central tenets of FNC is to protects Ds against forum shopping. 2. Unfavorable change in law to P: FNC is appropriate even where the law of the alternative forum is less favorable to the P. However, where the law of the alternative forum is so unfavorable to the P that recovery would essentially be precluded, weight will be given to substantive law issues. 3. Alien Ps: Courts are less solicitous when alien Ps want to transfer to the U.S. due to more liberal tort laws. F. Policy considerations: FNC allows Ds to implead third parties for contribution or indemnity. Mitigates the danger of getting inconsistent verdicts that arise when a foreign court will not enforce the judgment of a U.S. court. Since FNC is judicially created doctrine, the matter may have been addressed by Congress by way of statute (e.g., Alien Torts Claim Act).