Venue, Transfer, & Forum Non Conveniens (Module 7)

Question 1

Two Possible Venues

Answer 1

• Any district where all D resides or any district D’s live in if all D’s reside within state (Residential Venue); or
• Where substantial part of claim arose or substantial part of property is located (Transactional Venue)

These provisions above do not apply if the case was removed from state to federal court. For removed cases, venue is in the federal district embracing the state court where the action was filed

Question 2

Where Claim can Arise for Transactional Venue

Answer 2

• A substantial part of the claim can arise in more than one district.
• substantial part of a tort claim might arise where the defective product was manufactured and where the plaintiff was injured.
• substantial part of a contract claim might arise where the contract was entered into and where it was to be performed.

Question 3

Miscellaneous Venue Matters

Answer 3

• For venue purposes, it does not matter where the plaintiff resides.
• The venue rules are the same for diversity or FQ cases.
• If the defendant resides outside of the United States, venue is proper in any federal district court, but if another defendant does reside in the United States, venue must be proper as to her.

Question 4

Where Defendants “Reside” for Venue Purposes*

Answer 4

• 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.

Question 5

Transfer of Venue*

Answer 5

• Transfer goes from one trial court in a judicial system to another trial court in the same judicial system.
• A federal district court may transfer the case to another federal district court, but it cannot transfer a case to a state court.
• Terminology: The original court is the “transferor,” and the one to which the case is sent is the “transferee.”
• transferee must be a proper venue and have PJ over the defendant—and generally those must be true without waiver by the defendant.

Question 6

Transfer from a Proper Venue (Statute 1)

Answer 6

If the original district is a proper venue, that court can order transfer based on convenience of parties and witnesses and in the interests of justice.
* Because transfer overrides the plaintiff’s choice of forum and the plaintiff chose a proper venue, the burden is on the person seeking transfer (usually the defendant).
* The court will consider both public and private factors showing that another court is the center of gravity for the case.
* Public: The court will consider things like what law applies, what community should be burdened with jury service, the desire to keep a local controversy in a local court.
* Private: The court considers convenience. For example, it will look to where the defendants and evidence are found.

Question 7

Effect on Choice of Law (Transfer Statute #1)

Answer 7

When a diversity case is filed in a proper venue but the court orders transfer under statute #1, the transferee court must apply the choice of law rules of the transferor court (unless transfer is to give effect to a valid forum selection clause)

Question 8

Effect of Forum Selection Clause (Transfer; Statute #1)

Answer 8

A provision in which the parties agree that a dispute between them will be litigated in a particular place. 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:
* 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;
* When there is a valid FSC, only public interest factors are considered for transfer; and
* 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.

Question 9

Statute #2 - Original Venue is Improper

Answer 9

If venue improper, court may:
* Transfer if in interest of justice; or
* Dismiss

When the federal court transfers a diversity case because the original venue is improper, the transferee applies its own choice of law rules, that is, the choice of law rules of the state in which it sits, and not the choice of law rules of the transferor court. The plaintiff doesn’t benefit by filing in an improper forum.

Question 10

Forum Non Conveniens

Answer 10

• Center of gravity is elsewhere in different judicial system
• Stay or dismissal (transfer not possible)
• 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.

The FNC decision is based on the same public and private factors as transfer above, including the existence of a valid forum selection clause.

The other court must be available and “adequate.” (Usually, the forum will be adequate unless the plaintiff can get no remedy there)