Jurisdiction and venue - Venue, forum non conveniens, and transfer

Learning Outcomes

This article explains the principles governing venue in federal civil actions. It covers the determination of proper venue, the mechanisms for transferring cases between federal districts, and the doctrine of forum non conveniens. After reading this article, you will be able to identify the appropriate federal district(s) for bringing an action, analyze motions to transfer venue based on convenience or improper venue, and apply the doctrine of forum non conveniens, enabling you to address venue-related issues in MBE questions.

MBE Syllabus

For the MBE, you are required to understand the rules determining the proper federal district for a civil action and the procedures for changing venue. This includes analyzing statutory venue provisions, transfer statutes, and the common law doctrine of forum non conveniens. You should be prepared to:

• Distinguish venue from subject matter jurisdiction and personal jurisdiction.
• Apply the general federal venue statute (28 U.S.C. § 1391) to determine proper venue based on residency or where events occurred.
• Identify situations where specific venue statutes apply.
• Analyze the rules governing transfer of venue under 28 U.S.C. § 1404 (convenience transfer) and § 1406 (improper venue transfer).
• Apply the doctrine of forum non conveniens for dismissal when a more appropriate forum exists outside the federal system.
• Understand how venue objections are raised and waived.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Venue in federal court refers to the:
   1. Court's power over the subject matter of the case.
   2. Court's power over the defendant.
   3. Proper geographical federal district in which to bring the action.
   4. State law that will be applied in a diversity case.
2. Under the general federal venue statute, if all defendants reside in the same state, venue is proper in:
   1. Any district where a substantial part of the events occurred.
   2. Any district where any defendant resides.
   3. Only the district where the plaintiff resides.
   4. Only the district where the claim arose.
3. A motion to transfer venue under 28 U.S.C. § 1404(a) allows a transfer from a district where venue is proper to another district:
   1. Only if the original venue was improper.
   2. For the convenience of parties and witnesses, in the interest of justice, to any district where the action might have been brought or to which all parties consent.
   3. Only if the transferee court would apply more favourable law.
   4. Only if the plaintiff consents to the transfer.
4. Dismissal based on forum non conveniens is appropriate when:
   1. Venue is improper in the federal court where the action was filed.
   2. A federal court that is a proper venue finds that the case should be heard in a state court or a foreign court that is far more convenient and adequate.
   3. The defendant waives objection to personal jurisdiction.
   4. The plaintiff seeks transfer to a more convenient federal district.

Introduction

Once it is established that a federal court has both subject matter jurisdiction over the type of case and personal jurisdiction over the defendant, a third requirement, venue, must be satisfied. Venue concerns the proper geographic district within the federal court system where the action should be brought. Unlike jurisdiction, venue relates primarily to the convenience of the litigants and witnesses and the location of events or property involved in the dispute. Venue requirements are statutory, primarily governed by 28 U.S.C. § 1391 for general civil actions, though specific statutes may govern venue in particular types of cases. Objections to venue are waivable if not timely raised.

Key Term: Venue The geographic specification of the proper federal district(s) in which a civil action can be brought. It is distinct from jurisdiction.

Determining Proper Venue

The general federal venue statute, 28 U.S.C. § 1391, provides the primary rules for determining proper venue in civil actions brought in federal district court.

General Rule - § 1391(b)

Venue is proper in a judicial district where:

1. Any defendant resides, if all defendants reside in the same state.
   • "Residency" for individuals means the district where they are domiciled.
   • "Residency" for corporations (and other entities sued in their own name) in states with multiple districts means any district within the state where the entity would be subject to personal jurisdiction if that district were a separate state. If no such district exists, the entity resides in the district where it has the most significant contacts. A corporate defendant resides in any district where it is subject to personal jurisdiction for the action in question.
   • "Residency" for defendants not resident in the United States means any judicial district. The joinder of such a defendant is disregarded in determining venue regarding other defendants.
2. 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.
   • This allows venue in districts connected to the core dispute, even if no defendant resides there.
3. Fallback Provision: Any defendant is subject to personal jurisdiction, if there is no district in which the action may otherwise be brought.
   • This provision applies only if neither (1) nor (2) yields a proper venue within the United States.

Worked Example 1.1

Plaintiff (domiciled in the Southern District of Florida) sues Defendant 1 (domiciled in the Northern District of California) and Defendant 2 (domiciled in the Central District of California) in federal court based on diversity jurisdiction. The claim arose from a single car accident that occurred entirely within the Eastern District of California. Where is venue proper?

Answer: Venue is proper in the Eastern District of California because a substantial part of the events giving rise to the claim occurred there (§ 1391(b)(2)). Venue is also proper in both the Northern and Central Districts of California under § 1391(b)(1). Although the defendants reside in different districts, they both reside in the same state (California). Therefore, venue is proper in any district within California where either defendant resides.

Challenging Venue

Improper venue is a defense that must be raised by the defendant in a timely manner, typically in a pre-answer motion under Rule 12(b)(3) or in the answer, whichever comes first. Failure to raise a timely objection constitutes a waiver of the venue defense. [FRCP 12(h)(1)]

Transfer of Venue

Even if an action is filed in a district where venue is proper, or if venue is improper, the case may be transferred to another federal district court.

Transfer When Original Venue is Proper - § 1404(a)

Under 28 U.S.C. § 1404(a), if the original venue is proper, the court may nonetheless transfer the case "for the convenience of parties and witnesses, in the interest of justice" to:

• Any other district where the action "might have been brought" (meaning a district with proper venue and personal jurisdiction over the defendants); OR
• Any district to which all parties have consented.

The court balances private factors (convenience of parties and witnesses, location of evidence) and public factors (court congestion, local interest in the dispute, familiarity with governing law). A valid forum selection clause in a contract is given controlling weight in determining convenience, absent extraordinary circumstances. [Atlantic Marine Constr. Co. v. U.S. Dist. Court]

Transfer When Original Venue is Improper - § 1406(a)

Under 28 U.S.C. § 1406(a), if the original venue is improper, the court must either:

• Dismiss the case; OR
• Transfer the case to any district in which it could have been brought (meaning proper venue and personal jurisdiction), if transfer is "in the interest of justice."

Transfer is generally preferred over dismissal, especially if dismissal would prejudice the plaintiff (e.g., due to the statute of limitations).

Choice of Law After Transfer

• Transfer under § 1404(a) (Original Venue Proper): The transferee court must apply the choice-of-law rules of the transferor court (the court where the case was originally filed). [Van Dusen v. Barrack] Exception: If transfer is to enforce a forum selection clause, the transferee court applies its own choice-of-law rules. [Atlantic Marine]
• Transfer under § 1406(a) (Original Venue Improper): The transferee court applies its own choice-of-law rules.

Forum Non Conveniens

Forum non conveniens (FNC) is a common law doctrine that allows a federal court to dismiss an action—even if venue, subject matter jurisdiction, and personal jurisdiction are proper—if it finds that the court is a seriously inconvenient forum and that an adequate alternative forum exists elsewhere in which the action should be heard.

Key Term: Transfer of Venue The statutory mechanism (28 U.S.C. §§ 1404, 1406) allowing a federal civil action to be moved from one federal district court to another.

Key Term: Forum Non Conveniens A common law doctrine allowing a court with proper jurisdiction and venue to dismiss an action because another court (often in a different judicial system, like a foreign country or state court) is far more convenient and adequate.

Applicability

• Transfer Preferred: If the more convenient forum is another federal District court, the federal court should transfer the case under § 1404(a) rather than dismiss under FNC.
• Dismissal Appropriate: FNC dismissal is appropriate only when the alternative forum is a state court or a foreign court.

Factors

The court balances similar public and private interest factors as in a § 1404(a) transfer analysis. Key considerations include:

• Adequacy of Alternative Forum: The alternative forum must be adequate (e.g., defendant amenable to process, remedy available).
• Private Interests: Convenience of parties and witnesses, location of evidence, ability to compel witness attendance.
• Public Interests: Court congestion, local interest in the controversy, avoiding conflicts of law problems, fairness of burdening local jurors.

Dismissal under FNC is often conditioned on the defendant waiving objections to jurisdiction or statutes of limitations in the alternative forum.

Worked Example 1.2

A citizen of France sues a Delaware corporation (principal place of business in New York) in the Southern District of New York (SDNY) for injuries sustained in a factory accident in Brazil. All witnesses to the accident and all relevant physical evidence are located in Brazil. Brazilian law will apply. Defendant moves to dismiss based on forum non conveniens, stipulating it will submit to jurisdiction in Brazil. Should the SDNY court likely grant the motion?

Answer: Yes, likely. Venue and jurisdiction are proper in SDNY. However, Brazil appears to be a far more convenient and adequate forum. The private interest factors (witnesses, evidence location) strongly favor Brazil. The public interest factors (applying Brazilian law, local interest) also favor Brazil. Given that the alternative forum is foreign, dismissal under FNC, conditioned on defendant submitting to Brazilian jurisdiction, is appropriate.

Key Point Checklist

This article has covered the following key knowledge points:

• Venue refers to the proper federal district, distinct from jurisdiction.
• The general venue statute (§ 1391) bases venue on defendant residency or location of events/property.
• Venue objections are waived if not timely raised.
• § 1404(a) allows transfer from a proper venue for convenience to another district where the action might have been brought or to which parties consent.
• § 1406(a) allows dismissal or transfer from an improper venue.
• Choice of law rules after transfer depend on whether the original venue was proper (§ 1404 vs. § 1406).
• Forum non conveniens allows dismissal when a state or foreign court is a clearly more appropriate forum, provided the alternative forum is adequate.
• FNC applies when transfer within the federal system is unavailable or inappropriate.

Key Terms and Concepts

• Venue
• Transfer of Venue
• Forum Non Conveniens