Venue

Question 1

What is venue in general?

Answer 1

Venue concerns which court among the courts having personal and subject matter jdx is the proper forum for hearing the matter. For cases in federal court, the issue is determining the proper geographic district in which the trial should occur. Each state has at least one federal judicial district; some have up to four. Venue requirements are statutory and are intended to ensure the parties a fair and convenient forum for litigating their dispute.

Question 2

How do local and transitory action affect venue?

Answer 2

The common law created a distinction between local and transitory actions for the purposes of venue. In general, local actions involve title to property and are required to be brought in a court where the property is located. Transitory actions involve a cause of action based on events that could have taken place anywhere. Many state venue statutes continue to apply this distinction, but the federal courts determine venue without regard to whether the action is local or transitory.

Question 3

What is the general venue rule?

Answer 3

In general, venue in a federal civil action is proper in only one of the following judicial districts:

1. A judicial district in which a ‘substantial part of the events or omissions’ on which the claim is based occurred, or where a ‘substantial part of the property’ that is the subject of the claim is located; or
2. a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located.

If there is otherwise no judicial district in which the action may be brought, then the fall-back alternative is that venue is proper in a judicial district in which any defendant is subject to personal jurisdiction.

Question 4

What is the definition of residence for natural persons for purposes of venue?

Answer 4

for venue purposes, a natural person, including an alien lawfully admitted for permanent residence in the US, is deemed to reside in the judicial district where that person is domiciled.

Question 5

Where is a DEFENDANT business said to reside for purposes of venue?

Answer 5

A D that is an entity with the capacity to sue and be sued, regardless of whether incorporated, is deemed to reside in any judicial district in which the entity is subject to personal jdx with respect to the civil action in question.

In a state that contains multiple districts and in which a D corporation is subject to personal jdx at the time the action is commenced, the corporation ‘shall be deemed to reside in any district in that state within which its contacts would be sufficient to subject it to personal jdx if that district were a separate state.’ If there is no such district, the corporation is deemed to reside in the district with which it has the most significant contacts.

Question 6

What is an example of venue for defendant corporations?

Answer 6

A corporation is incorporated in Delaware, has its principal place of business in Colorado, and maintains a regional sales office in Orlando, but conducts no business anywhere else in Florida. If the corp is sued, then for federal venue purposes it will reside in the district of Delaware, the District of Colorado, and the Middle District of Florida. NOTE: no other district in FL has proper venue.

Question 7

Where is the PLAINTIFF corporation said to reside for purposes of venue?

Answer 7

Plaintiff entities are deemed to reside only in the judicial district in which it maintains its principal place of business.

Question 8

How does venue and diversity jdx interact for partnerships and unincorporated associations?

Answer 8

with respect to partnerships and unincorporated associations, the ‘entity’ approach is taken only for venu purposes. It does not apply for purposes of determining diversity jdx, when a partnership or unincorporated association is considered a citizen of each state in which each of it partners or members is domiciled.

Question 9

Where are non-residents of the US considered to have residency for purposes of venue?

Answer 9

A Defendant who is not a resident of the US may be sued in any judicial district, but the joinder of such a defendant is disregarded when determining proper venue with respect to other defendants.

Question 10

How is venue objected to?

Answer 10

An objection to improper venue, unlike an objection regarding subject matter jurisdiction, may be waived by the parties, and it is automatically waived if not asserted in a timely manner.

Question 11

When is an objection to venue timely?

Answer 11

Venue must be objected to/asserted in a pre-answer motion or the first responsive pleading in order to be timely.

(Venue must be objected to in a pre-answer motion to dismiss under 12(b)(3) or in the first responsive pleading if no 12(b)3) motion is not filed)

Question 12

In California, what does venue refer to?

Answer 12

In CA, venue refers to the county in which an election may be tried.

Question 13

In CA, how is venue determined for transitory actions?

Answer 13

In actions in which the claim arose elsewhere:

-Venue is proper in the county where the defendant resides at the time the action commences. If no defendant resides in CA, then venue is proper in any county

Question 14

In CA, certain types of actions have specific venue rules; What are the venue rules for Contracts and personal injury/wrongful death actions?

Answer 14

In contract actions, venue lies in either the the county where the contract was executed or the county of performance

In personal injury or wrongful death actions, venue lies in the county where the injury occurred

Question 15

CA: in mixed actions, how is venue determined?

Answer 15

In actions subject to multiple venue rules, venue generally lies in the county where any defendant resides absent a compelling reason to conduct the trial in another county.

Question 16

CA: how is venue decided in cases against corporations, associations and partnerships?

Answer 16

Venue lies in the county in which the contract was executed or is to be performed, in which the obligation or liability arose, or in which the breach occurred. For corporations only, it also lies in the county where the corporation has its principle place of business.

Question 17

CA: How is venue decided in local actions?

Answer 17

Venue lies in a local action in the county in which the land, or some part of it, is located.

Question 18

CA: How is venue transferred in CA?

Answer 18

The CA Code of Civil Procedure permits a motion for transfer of venue when the court designated in the complaint is the wrong court. However, even if venue is proper, the court may transfer venue if:

1. A fair trial cannot be had in the original county
2. the convenience of the witnesses and the ends of justice so require a change, or:
3. there is no judge of the court qualified to act

Question 19

Are forum selection clauses enforceable in CA?

Answer 19

No, venue selection clauses are not enforceable in CA except when the clause reasonably provides that the action be tried an another state.

Question 20

What are the special types of cases for which there are specific venue rules?

Answer 20

1. Case against Federal Official
2. Cause Brought under the Federal Tort Claims Act
3. Case Against Foreign State
4. Multiparty, multi-forum litigation
5. Case removed from state court

Question 21

How is venue decided in cases against a federal official?

Answer 21

An action against an officer or employee of the U.S. or its agencies acting in an official capacity or under color of legal authority may be commenced in a judicial district in which :

1. A D in the action resides;
2. A substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is subject of the action is situated; OR
3. the P resides, if no real property is involved in the action.

(this does not apply to suites for money against people who happen to work for the feds; only applies to suits that are essentially against the fed gov’t)

Question 22

How is venue decided in cases brought under the federal tort claims act

Answer 22

Venue in a case brought under the Federal Tort Claims Act is proper either in the judicial district where the P resides or in the judicial district where the act or omission occurred.

Question 23

How is venue decided in cases against foreign states?

Answer 23

In a case against a foreign state, including political subdivision, agency or instrumentality, venue is proper in any judicial district in which a substantial part of the events or omissions giving rise to the claim took place, or a substantial part of property that is the subject of the action is situated. If the case is against a foreign state or its political subdivision, venue is proper in the U.S. District Court of D.C.

Question 24

How is venue decided in multiparty, multiforum litigation?

Answer 24

In a case in which the jdx of the court is based on the multiparty, multiforum class action provision (e.g. at least 75 natural persons died in an accident at a discrete location), venue is proper in any judicial district in which any defendant resides or in which a substantial part of the accident giving rise to the action took place.

Question 25

How is venue decided when a case is removed from state court?

Answer 25

In a case that is removed from state court, venue is proper in the federal district court in the district where the state action was pending. It is immaterial that venue would not have been proper under the general venue rule if the action had been brought initially in that district.

Question 26

When can the venue be changed when the original venue is proper in general?

Answer 26

In general: "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." This transfer may be ordered upon motion of a party, including a plaintiff, or by the court on its own initiative, but it is only available when the jdx and venue of the court considering the issue are proper. The burden of proof with regard to the motion rests on the party seeking the transfer.

Question 27

How does change of venue work in diversity cases even when the original venue is proper?

Answer 27

In a diversity case, if the court transfers the case, then the district court to which the case is transferred must apply the law as it would have been applied in the original venue.

Question 28

How does change of venue work in federal question cases even when the original venue is proper?

Answer 28

In a federal question case transferred to a district court in another appellate circuit, the district court to which the case is transferred must apply the federal law as interpreted by its federal court of appeals and not the interpretation of original venue's court of appeals.

Question 29

How does changes of venue work in forum selection clause cases?

Answer 29

When transfer is sought on the basis of a forum selection clause in a K, the clause is accorded respect. If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that the transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching. A few circuits courts treat the clause as merely a significant but not determining factor. If the clause specifies arbitration or a state or foreign forum, the clause is generally enforceable and the federal action dismissed.

Question 30

How is venue generally changed when the original venue is improper?

Answer 30

If venue in a case is improper, then the district court must dismiss the case, or 'if it be in the interest of justice,' transfer the case to any district or division in which it could have been brought. If no timely objection is made to venue, then nothing prevents the district court from maintaining jdx over the case.

Question 31

How is venue change in diversity cases when the original venue is improper?

Answer 31

In diversity cases transferred for improper venue, the district court to which the case is transferred applies the choice-of-law rules of the state in which it is located, as opposed to the state law of the district court that transferred the case.

Question 32

How is venue change in Federal Question cases when the original venue is improper?

Answer 32

In federal question cases transferred for improper venue, the new district court applies the law as interpreted by its own court of appeals.

Question 33

How is venue change in cases with no personal jurisdiction when the original venue is improper?

Answer 33

Even if the court lacks personal jurisdiction over the defendant, the court is not barred from transferring a case to a different venue.

Question 34

Can a case be transferred to another division in the same district?

Answer 34

A case may be transferred to another division in the same district at the discretion of the court on motion or by stipulation of all parties.

Question 35

What is forum non conveniens?

Answer 35

Forum non-conveniens is a common law doctrine that allows a court to dismiss an action--even if personal jurisdiction and venue are otherwise proper--if the court finds the forum would be too inconvenient for the parties and witnesses AND that another, more convenient venue is avaiable.

Question 36

Who bears the burden of convincing the court to invoke forum non conveniens?

Answer 36

The defendant normally bears a heavy burden to displace the plaintiff's chosen forum.

Question 37

How has forum non conveniens been codified?

Answer 37

Forum non conveniens has been codified and relaxed with respect to transfers between federal district courts. In those cases it's just known as changing venue when the original venue is proper. Because transferring between district courts has been codified, the common law doctrine is most applied by a federal district court when the forum that is deemed most appropriate for the action is a foreign court, since the federal statute does not apply to those circumstances.

Question 38

What are the factors to determining whether to apply forum non conveniens?

Answer 38

1. The availability of an alternative forum 2. the law that will apply 3. the location of the parties, witnesses and evidence.

Question 39

What is the CA approach to forum non conveniens?

Answer 39

CA has codified the doctrine of forum non conveniens; the statute allows a court to stay or dismiss an action if it finds, in the interest of substantial justice, that such action should be heard in a different state or country.