Venue

Venue in federal courts is controlled by 28 U.S.C. §1391. The statute provides two grounds for venue and a fallback provision. It provides mainly for venue based on the defendant’s residence, the place where a substantial part of the relevant events occurred, or the place where defendant can be made subject to personal jurisdiction. The main provisions of 1391 are as follows:

1391(a): A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial 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, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

1391(b): A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial 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, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

1391(c): For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.

1391(a): example 1

John, a citizen of Montana, wants to file an action in federal court against Mark, a citizen of South Dakota, for injuries John sustained during an automobile collision. John seeks to recover $100,000. The proper venue is federal district court in South Dakota (assuming there is only one federal courthouse in South Dakota; otherwise, local rules apply regarding which division of the particular district court should host the action).

1391(a): example 3

What does 1391(a) say?

Some federal civil actions are based only on diversity of citizenship. If all defendants reside in the same state, the action may be brought in a district where any of the defendants reside. Another option is to bring the action in the district in which the main events on which the claim is based occurred. In an action where the subject is property, the action may be brought in the district in which a substantial part of the property is located. If all of the defendants are not from the same state, or there is not one state in which the substantial events occurred or in which the main part of the property is located, the action may be brought in a district in which any defendant is subject to personal jurisdiction at the time the action is brought.

Where all defendants do not reside in the same state, and there is no district in which the substantial events occurred or in which the main property is located, the action may be brought in a district in which any defendant is subject to personal jurisdiction at the time the action is brought. Personal jurisdiction, in this situation, is not determined by the state in which the defendant is a citizen, but rather by the boundaries of the federal judicial district.

• Example: John, a citizen of New Jersey, wants to file an action in federal court against Mark, a citizen of New York (who resides in the southern district), and Paul, a citizen of Connecticut, for some matters that arose in Canada. 28 U.S.C. § 1391(a)(1) does not apply, nor does 28 U.S.C. § 1391(a)(2). Therefore, 28 U.S.C. § 1391(a)(3) applies, and the action may be brought in either the district court in Connecticut or in the Southern District in New York. Remember, of course, that personal jurisdiction must still be satisfied with regard to each defendant.

1391(a): example 2

John, a citizen of New Jersey, wants to file an action in federal court against Mark and Mike, citizens of New York, for injuries John sustained during an automobile collision; John seeks to recover $100,000 from each defendant. Mark lives in Buffalo, New York, which is within the Western District of New York, and Mike lives in Scarsdale, New York, which is in the Southern District of New York. John may file his action in either the United States District Court for the Western District of New York or the United States District Court for the Southern District of New York. If the collision had occurred in Hempstead, New York, John could also have brought his action in federal district court for the Eastern District of New York, because that is where the substantial part of the events giving rise to the claim occurred.

1391(c): example

What does 1391(b) say?

Where a defendant is a corporation, the corporation resides in any district in which it is subject to personal jurisdiction at the time the action is brought. This means that a corporation may reside, for venue purposes, in more than one judicial district. If the state has more than one district for the federal district court (e.g., New York), the corporation can reside in any district in the state with which it has minimum contacts, as if that district were a separate state.

Proper venue for actions against unincorporated associations (e.g., partnerships) is determined in the same manner as with corporations.

John, a citizen of New Jersey, wants to file an action in federal court against ABC Corp., whose business is only conducted in the Southern District of New York, and has absolutely no contact with anyone or anything within any of the other districts in New York. Therefore, John may only file his action in the United States District Court for the Southern District of New York.

If, however, ABC Corp. conducted business throughout the entire state of New York, but not enough to have the requisite minimum contacts needed for personal jurisdiction, the corporation’s residence is the district in which it has the most significant contacts, which is a determination to be made by the court. Recall that jurisdiction for a corporation is based on its citizenship. However, the proper venue for an action against a corporation depends on the corporation’s residence. While citizenship of a corporation is based upon the state where the corporation is incorporated and its principal place of business, the corporation's residence depends on where the corporation does business, which may be numerous districts.

Many federal civil actions are not based only on diversity of citizenship. Some actions, for example, qualify for diversity of citizenship but also concern a federal question, while some federal actions are allowable in federal court simply in the basis of federal question jurisdiction. In these cases, like actions based only on diversity of citizenship, if all defendants reside in the same state, the action may be brought in a district where any of the defendants reside.

Also like actions based only on diversity of citizenship, another option is to bring the action in the district in which the main events on which the claim is based occurred. In an action where the subject is property, the action may be brought in the district in which the substantial part of the property is located.

If all of the defendants are not from the same state, or there is not one state in which the substantial events occurred or in which the main property is located, the action may be brought in a district in which any defendant may be found. This last option differs substantially from the venue options for actions based only on diversity of citizenship.

Venue under federal judicial system

As stated earlier, a defendant may move to dismiss the case for improper venue pursuant to FRCP 12(b)(3). Even if the court decides that venue is proper, it may choose to transfer the case to another venue for the convenience of parties and witnesses and/or in the interest of justice. The court to which the case will be transferred must have been able to hear the case in the first place, however (the transferee court must have jurisdiction and be a proper venue).

• When such a transfer occurs, the plaintiff is not penalized for the delay. Because the case is merely transferred, and not dismissed, the statute of limitations will not run during transfer. The court’s discretion to make such a transfer is quite broad.

Venue under federal judicial system

Some states have more than one federal district, whereas some states have only one federal district. In addition, there may be more than one courthouse within each district. Within the Southern District of New York, for example, federal district courts exist in both Manhattan and White Plains. In which specific court the case should be filed depends on the rules of the local court, which should be researched when needed.

As in the realm of personal jurisdiction, a party's residence is usually controlled by his or her domicile, so that a person, for the purposes of venue, can have only one residence. Keep in mind, however, that different jurisdictions may not agree on this point. Also like personal jurisdictions, and unlike subject matter jurisdiction, most jurisdictions hold that one may consent to venue. Again, however, some jurisdictions disagree. Some jurisdictions hold that a defendant who consents to personal jurisdiction also consents to venue. If a defendant does not object to improper venue, the objection is waived.

Change or transfer of venue

For various reasons either party to a lawsuit may move for a change of venue, which is up to the discretion of a judge in the court where the case or prosecution was originally filed. Reasons for such a request may include a clause in a contract stating that any action must be brought in a certain other venue, or pretrial publicity may be claimed to have tainted the potential jurors in that venue from rendering an impartial judgment. Other reasons, among others, may include lack of personal or subject matter jurisdiction, and "interests of justice". The interests of justice is subject to varied interpretations and may encompass many issues, such as efficient use of judicial resources and avoidance of unnecessary waste and expense, convenience to parties and witnesses, familiarity of the court with the state law to be applied, level of congestion of the respective courts, and avoidance of inconsistent adjudications.

Venue can also be transferred from one federal district to another (28 U.S.C. § 1404). A case can also be removed from a state court to a federal court. Finally, a case may be dismissed because its venue is harshly "unfair" to one or more parties under a doctrine called forum non conveniens, often used in cases where the events took place in a foreign country.

Venue may be waived

Venue, unlike subject matter jurisdiction, may be waived.

Venue is determined by statute, but parties can stipulate or contract to an otherwise improper venue. Objections to venue are waived unless timely asserted. Improper venue does not subject a judgment to collateral attack.

Venue under federal judicial system

Compulsory

remand

If the federal judge concludes that the removal did not satisfy the statutory requirements, she must remand the case to the state court from which it came.

• Example: If in a diversity case it turns out that one or more of the Ds was a citizen of the state in which the state suit was commenced, the federal judge must send the case back to the state court where it began.

Because federal law is applied nationally, when an action arises under federal law, one important question is: in which district court should the action be brought? This is not a question to be taken lightly, for a case filed in the wrong venue may be subject to dismissal, even if the court has subject matter jurisdiction and jurisdiction over the parties or things.

It is essential to note that in addition to proper venue, the court must still have jurisdiction over the parties or things and jurisdiction over the subject matter of the case. Venue and personal jurisdiction are entirely different issues – just because a case is filed in the correct venue does not mean that the court necessarily has jurisdiction over the persons or subject matter.

Personal jurisdiction is the limiting factor

Venue under state judicial system: general guidelines

Locality of venue

In World-Wide Volkswagen Corp. v. Woodson, the plaintiffs sued, in an Oklahoma state court, an automobile dealership based in New York for damages from an explosion that occurred on June 11, 1977, as the plaintiffs drove the car through Oklahoma. Had the plaintiffs sued in U.S. federal court sited in Oklahoma, personal jurisdiction against the dealership would have been unavailable, as the dealership did not have minimum contacts with the forum state. Venue, however, would have been proper under 28 U.S.C. § 1391, the general federal venue statute, because Oklahoma was a state in which a substantial part of the events or omissions giving rise to the claim occurred. However, the United States Supreme Court found that the defendants (World-Wide Volkswagen Corp.) did not have the minimum contacts with Oklahoma necessary to create personal jurisdiction there.

Although specific venue rules vary from state to state, following are some general rules that apply to many jurisdictions:

• If all parties to a controversy reside out of a state, the proper venue is usually in the county in which the transaction or event that gave rise to the cause of action occurred.
• If the case is to determine the status of real property, or if jurisdiction is based on attached real property (i.e., cases based on quasi-in-rem jurisdiction), the proper venue is usually the county in which that property is located. Many states extend this rule so that all cases involving real property should be tried where the property is located.
• Where one or more parties lives in the state that is hosting the case, proper venue is often the home county of either party, although some states favor the home county of the defendant as the ideal venue.

Venue for practical purposes

Venue is either a county (for cases in state court) or a district or division (for cases in federal court). Venue deals with locality of a lawsuit--that is, in which locale a lawsuit may be filed or commenced. It involves a decision of which district (federal court) or county (state court) is appropriate, based typically on where a matter occurred or where the defendant resides.

A case can be brought only in a certain venue. For instance, in federal diversity cases, the venue can be only:

• (a) the district where any defendant resides if all defendants reside in the same state,
• (b) the district where a substantial part of the events giving rise to the claim occurred, or
• (c) the district in which any defendant is subject to personal jurisdiction if there is no district in which the claim can otherwise be brought.

Venue and personal jurisdiction are closely related for practical purposes. A lawyer should usually perform joint analysis of personal jurisdiction and venue issues. Personal jurisdiction is largely a constitutional requirement, though also shaped by state long-arm statutes and Rule 4 of the Federal Rules of Civil Procedure, while venue is purely statutory. It is possible for either venue or personal jurisdiction to preclude a court from hearing a case:

Venue may

be waived

Both plaintiffs and defendants can waive venue at the time of trial. Plaintiffs may also waive their right to sue in certain venues through a contract that contains a valid and reasonable forum selection clause or venue selection clause. Forum selection clauses, establishing venue convenient to the offeror, are near universal in form contracts offered by a party that does business in many places. The proper recourse for challenging venue is a motion to dismiss for improper venue. This is one of the waivable defenses, meaning that this must be made in the initial response to the complaint or it will be waived.

Venue is the limiting factor

Suppose Dale resides in California. Peter from Nevada wants to sue Dale for battery which Dale committed against Peter in California. Peter knows Dale is going to a week-long conference in South Carolina. Peter realizes that Dale would settle a suit that would take place in South Carolina, because it would be too expensive to defend. So, during Dale's trip, Peter serves Dale with process for an action filed in South Carolina federal court. The federal court has personal jurisdiction, based on Dale's presence in South Carolina at the time process was served (transient service of process). However, venue is improper under § 1391.

Schedule of removal

Mechanics of removal

D must usually file for removal within 30 days of the time he receives service of the state-court complaint.

The procedures through which a defendant may remove the case to federal court are detailed, but fairly simple. Generally, defendants must file a notice of removal with the appropriate federal court within 30 days of receiving the summons and complaint. In addition to filing the notice, the defendant must include “a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.” 28 U.S.C. § 1446(a). The filing of the notice creates automatic removal – the case is no longer under the jurisdiction of the state court. At this point, it is up to the appropriate federal court to determine whether the removal is proper, whether all claims are removable, etc. If need be, the court may remand either the entire case or certain claims back to state court. The case will not be dismissed for inappropriate removal; rather, the remedy is to remand it back to the state court.

As stated above, the defendant(s) has 30 days from receipt of the summons and complaint to file the notice of removal. If, however, the case is not removable at this point, but becomes removable later, because, for example, the plaintiff amends the complaint, the defendant will again have 30 days by which to file a notice of removal, beginning on the date that the amendment is filed.

Removal can be waived

Parties can agree to waive removal. If, in a contract, a clause exists that a particular claim will be litigated in state court, that claim will not be removed to federal court.

• Example: Bill and Ted enter into a contract in which Bill agrees to buy 84 widgets from Ted. The last clause of the contract provides: “All claims arising under this contract must be heard by Idaho state court. No claim arising under this contract may be removed to federal court.” Bill files an action in state court against Ted. Ted files a notice of removal in federal district court. The federal district court will remand the case back to state court.

Jurisdiction vs. Venue

To understand venue, it is crucial that you remember that all other jurisdictional requirements, such as diversity jurisdiction or federal question jurisdiction, and personal jurisdiction, must be satisfied before venue can even be discussed. In other words, for a court to be a proper venue, it first must have jurisdiction to hear the case.

Venue under state judicial system: factors to be considered

Venue under state judicial system

In state trials, venue is determined by statute. The states are free to set up virtually any venue rules they wish, without worrying about the federal constitution. Typically venue in state judicial systems may be based on some or all of the following factors:

• the locus of the res (property) or event that is the subject of the lawsuit.
• where the defendant resides.
• where the defendant does business, or retains an agent.
• where the plaintiff resides.
• where the plaintiff does business.
• in suits by or against government parties, where the seat of government is located.

The rules for proper venue vary from state to state, as each state has created its own venue rules. In state actions, proper venue usually depends on where the defendant resides. Where the cause of action arose, where the tort (if applicable) occurred and where the defendant does business are also factors on which proper venue may depend, depending on the type of case or controversy.

Substitute service:

Leave at dewelling

Notice of removal

The most common substitute service provision allows the process papers to be left at D’s dwelling within the state, if D is not at home. These provisions usually require the papers to be left with an adult who is reasonably likely to give them to D.

• Example: FRCP 4(e)(2) allows the papers to be left with a person of "suitable age and discretion residing in the dwelling place in question."

All defendants (except purely nominal ones) must join in the notice of removal. (However, if removal occurs under §1441(c)’s "separate and independent federal claim" provision, then only the defendant(s) to the separate and independent federal claim needs to sign the notice of removal.)

• Example: John brings a cause of action against Mike and Mark in state court. Assume that a federal court also has jurisdiction, both personal and subject matter, over the parties and the case. Further assume that Mike and Mark qualify for removal. If Mike seeks to remove the case to federal court but Mark does not agree, the case may not be moved. If Mike qualifies for removal but Mark doesn’t qualify for removal, then Mark’s disagreement does not affect the initial decision about removal; it will be removed.

Substitute service

Personal service – handing the papers to D himself – will always suffice as adequate notice. But all states, and the federal system, also allow "substitute service" in most instances. Substitute service means "some form of service other than directly handing the papers to the defendant."

Most common practice in federal courts

Substitute service:

Mail

In federal actions, a plaintiff may serve process upon an individual, corporation or association by:

• delivering the summons and complaint to the individual personally;
• leaving the summons and complaint at the individual's dwelling house or usual place of abode with a person of suitable age and discretion then residing therein;
• delivering the summons and complaint to an agent authorized by appointment or by law to receive service of process.

Application of 1391(a): example 2

Venue under American law is a concept distinct from jurisdiction, which focuses on the authority of a court to hear a particular case. Venue is concerned with the geographical location of the court where a lawsuit is commenced. However, unlike personal jurisdiction, there is no constitutional requirement for proper venue in order to have a valid judgment.

Jurisdiction is the power to adjudicate, while venue relates to the place where judicial authority may be exercised and is intended for the convenience of the litigants. Thus, venue becomes a consideration only when jurisdiction over parties has been established.

Application of 1391(a): example 1

Some states, and the federal system, allow service to be made by ordinary first class mail. However, usually this method is allowable only if D returns an acknowledgement or waiver form to P’s lawyer. If D does not return the form, some other method of service must then be used.

P, from Massachusetts, brings a diversity suit against D1, from the Southern District of New York, and D2, from the Eastern District of New York. Venue will lie in either the Southern District of New York or the Eastern District of New York – each of these is home to at least one defendant, and each of these two districts is in a state that is home to all the defendants. But if D2 had been a resident of the District of Connecticut instead of any New York district, there would not be any "defendant’s residence" venue anywhere.

P, from Massachusetts, sues D, a car dealer from Connecticut. P alleges that D sold P a car in Connecticut, that P drove the car to Massachusetts, and that a defect in the car caused P to be injured in Massachusetts. Probably venue in either the District of Massachusetts or the District of Connecticut would be allowed under the "place of events" provision, since probably both the selling of the defective car and the incurring of the accident were a "substantial part" of the events.

Personal service

Service by mail

Application of 1391(a)

In the past, personal in-hand service within the forum state was generally required in in personam cases. Individual service of process clearly is the best means of ensuring actual notice and thus a favored way of obtaining jurisdiction. Until now, personal service is still the best and surest means of satisfying the notice requirement.

If Ds reside in different districts but all within the same state, venue is proper in any district in which one D resides in that state. Subsection (3) is a fallback provision that is only available in unusual circumstances when there is no district anywhere in the US where venue would be proper under (1) or (2). "Except as otherwise provided by law" means that 1391 will apply unless there is a special venue statute for the type of claim the P brings. For example, tort claims against the US must be brought in the district where the P resides or where the act or omission complained of occurred. Venue is proper under (2) for any district where a substantial part of the events giving rise to the claim took place, even if substantial events also took place in other districts. We don't have to choose which events are most substantial.

FRCP 4(d)(2) provides incentives for a defendant to agree to waive formal service and instead accept service by mail. Upon notice of the commencement of the action and a request for waiver of service from the plaintiff, a defendant who so agrees is granted an extended time within which to answer – 60 days instead of the 20 days granted when process is formally served.

FRCP 4 also imposes upon the defendant “a duty to avoid unnecessary costs of serving the summons,” and therefore, failure to accept process by mail subjects the defendant to liability for costs of service as well as attorney’s fees incurred in any motion to collect the costs of service.

The concept of notice is critical to the integrity of legal proceedings. Due process requires that legal action cannot be taken against anyone unless the requirements of notice and an opportunity to be heard are observed.

An individual being sued in a civil action must be provided with notice of the nature of the suit. State statutes prescribe the method of providing this type of notice. Courts are usually strict in requiring compliance with these laws, and ordinarily a plaintiff must put this information into a complaint that must be served upon the defendant in some legally adequate manner. The plaintiff may personally serve the complaint to the defendant. When that is not practical, the papers may be served through the mail. In some cases a court may allow, or require, service by posting or attaching the papers to the defendant's last known address or to a public place where the defendant is likely to see them.

Removal of multiple claims

Change of venue outside of judicial system

Federal question

1391(a): Federal diversity cases

Where the claim for which there is original federal jurisdiction is a federal question claim, and there is another, "separate and independent," claim for which there is no original federal jurisdiction, D may remove the whole case.

State courts have no power to transfer cases to the courts of other states, and neither state nor federal courts have the power to transfer cases to the courts of foreign countries. In such cases, most judicial systems permit dismissal of suits under the common law doctrine of forum non conveniens, in anticipation that the plaintiff will recommence the suit in the alternative foreign venue. To obtain a forum non conveniens dismissal, the defendant must:

• demonstrate that an adequate alternative forum is available.
• show that considerations of party and forum convenience override the plaintiff’s choice of forum and justify dismissal. Typical such considerations include: relative ease of access to proof, availability of compulsory process for attendance of witnesses, the cost of obtaining their attendance, the possibility of obtaining a jury view of the scene of the accident or property which is the subject of the action, and the enforceability of any eventual judgment in the original forum.

1391(a) governs venue in diversity cases. Except as otherwise provided by law, venue is only proper in:

• A judicial district where any D resides (if all Ds reside in the same state),
• A judicial 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 subject of the action is situated, or
• A judicial district in which any D is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. (FALLBACK PROVISION)

Specific

venue

Notice is a vital principle of fairness and due process in legal procedure, and must be given to both parties, to all those affected by a lawsuit or legal proceeding, to the opposing attorney, and to the court. In short, neither a party nor the court can operate in secret, make private overtures or conceal actions. Notice of a lawsuit or petition for a court order begins with personal service on the defendants (delivery of notice to the person) of the complaint or petition, together with a summons or order to appear (or file an answer) in court. Thereafter, if a party is represented by an attorney, notice can usually be given to the attorney by mail. If there is a so-called ex parte hearing (an emergency session with a judge with only the requesting party or his/her attorney present) the party wanting the hearing must make a diligent attempt to give notice to the other party. A court may allow "constructive" notice by publication in an approved legal newspaper of a summons in a lawsuit.

Where P asserts against D in state court two claims, one of which could be removed if sued upon alone, and the other of which could not, complications arise.

Very often, plaintiffs will join multiple causes of action in one case filed in state court. In a case where the federal district court has original jurisdiction over some of the claims but not others, the entire case may be removed to federal court. This is similar to supplemental jurisdiction – the non-removable claims can go along with the removable claims. Once removed, the federal district court will either hear the entire case or, if it feels that the state court is the more appropriate forum for certain claims in which state law predominates, it will remand those claims to state court.

Some federal civil actions include an officer or employee of the United States or a United States agency as a defendant. Such an action may be brought in any judicial district in which a defendant in the action resides, any district in which a substantial part of the events on which the action is based occurred, or any district in which a substantial part of the property on which the action is based is located. If no real property is involved in the action, the action may also be brought in any judicial district in which the plaintiff resides. Remember, however, that venue for non-government defendants must still satisfy the venue requirements discussed above.

• Furthermore, the courts have personal jurisdiction over the federal employee or agency (or the United States) within the boundaries of the United States, even if the employee or agency is not within the actual district over which the court has jurisdiction. To obtain personal jurisdiction over such a defendant, the summons and complaint may be served by certified mail.

Diversity

Due process

Example

Definition

The Due Process Clauses (found in the Fifth Amendment and the Fourteenth Amendment) of the United States Constitution deny effect to adjudications unless the parties to be bound were given prior notice and an opportunity to participate. Notice that satisfies due process may be found from proper service of process or other recognized alternatives. Process usually consists of a summons directing defendant to respond or appear in court on penalty of default. Service is the formal means by which process is delivered to a defendant.

If the claim for which there is federal jurisdiction is a diversity claim, the presence of the second claim (for which there is no original federal jurisdiction and diversity is not complete) defeats the defendant’s right of removal entirely – the whole case must stay in state court.

Procedural

due process

P and D1 are both citizens of Kentucky. P brings an action in Kentucky state court alleging federal antitrust violations by D1. P adds to that claim a claim against D1 and D2, also from Kentucky, asserting that the two Ds have violated Kentucky state unfair competition laws. Section 1441(c) will allow D1 and D2 to remove to federal court, if the antitrust claim is "separate and independent" from the state unfair competition claim.

If §1441(c) applies, and the entire case is removed to federal court, the federal judge need not hear the entire matter. The court may instead remand all matters in which state law predominates. In fact, the federal court, after determining that removal is proper, may remand all claims – even the properly-removed federal claim – if state law predominates in the whole controversy.

Even if the court has authority to judge the dispute between the parties or over the property before it, the court may not proceed unless D received adequate notice of the case against him.

• The existence of personal jurisdiction depends upon a sufficient connection between the defendant and the forum state to make it fair to require defense of the action in the forum and the giving of reasonable notice to the defendant that an action has been brought. If the defendant has not received proper notice, the court's power to adjudicate is imperfect. Notice is usually given by serving the defendant with the "process" of the court.

Although a case meets both the statutory and constitutional requirements for personal jurisdiction, the suit may be dismissed if insufficient notice is given to the defendant.

• The defendant can claim that the proceeding violated due process because without proper notice there was no effective opportunity to be heard. What constitutes proper notice so as to satisfy the Constitution involves an inquiry into both the type of notice utilized and the timing of the notice.

The essence of procedural due process, another requirement that must be satisfied for a court to exercise personal jurisdiction over a defendant, is that the defendant must receive adequate notice and an opportunity to be heard. Again, notions of “fairness” are implicated.

• To satisfy procedural due process, a court must give the defendant adequate notice of the pending action. Additionally, the defendant must be notified of his opportunity to be heard and, if applicable, assert a defense. This is usually accomplished through service of process. How process may be served, however, is dependant upon the forum’s rules, which often vary from forum to forum. See Federal Rule of Civil Procedure Rule 4.

1391(b): federal question cases

An analysis of 28 U.S.C. § 1391

Function of notice

1391(b) governs venue in federal suits not based on diversity jurisdiction.

• 1391(a) and 1391(b) are the same except for subsection (3), which states that venue is proper where any D "may be found."
• Again, subsection (3) only applies if (1) and (2) cannot.

In diversity actions, venue is proper in the district all defendants reside if all the defendants reside in the same state, or in the district in which the claim arose, or, alternatively, where any of the defendants may be found.

In federal question cases there is no plaintiff's venue. The action may be brought only in the district where all defendants reside or the district in which the claim arose.

Transfer of venue within the same judicial system

Inter-system transfer has been codified in many jurisdictions. Under the federal transfer statute, 28 U.S.C. § 1404, both plaintiffs and defendants may seek transfer to a district where the case could have originally been brought. Transfer is available upon a lesser showing than required for forum non conveniens dismissal; generally for “the convenience of parties and witnesses, [or] in the interest of justice.” [28 U.S.C § 1404(a)] Any contractual choice of forum between the parties is not dispositive but is a factor to be considered.

Statutory transfer is intended only to change the place of trial, and not the applicable law or the availability of limitations defenses. Upon transfer, the court must apply the law that would have been applied in the transferor court, whether the movant was the plaintiff or the defendant.

1391(c): residence analysis for corporations

Specific venue

If a holder of stock in a corporation wishes to bring an action on behalf of his corporation, he may bring the action in any judicial district where the corporation could have sued the same defendants. In other words, if the corporation itself would be able to sue the defendants in the Northern District of New York, so may the corporation’s stockholders.

1391(c) provides residence guidance for corporations. Since 1391(a) and 1391(b) apply equally with individuals and corporations, the only outstanding issue is residence. 1391(c) provides:

• D corporations shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.

Constructive notice

Types of

notice

There are various types of notice, each of which has different results. In general, notice deals with information that a party knows or should have known. In this context notice is an essential element of due process.

The type of notice that must be utilized is decided on the case by case basis. The key in all cases, regardless of the type of jurisdiction involved, is what is practicable, with the emphasis on utilizing the means of notice that is most likely to reach the defendant. When determining what type of notice to require, the court also may consider the difficulties of locating the defendant and the need for the adjudication.

Constructive notice is the legal fiction that signifies that a person or entity should have known, as a reasonable person would have, even if they have no actual knowledge of it. For example if it is not possible to serve notice personally then a summons may be posted on a court house bulletin board or legally advertised in an approved newspaper. The person is considered to have received notice even if they were not aware of it.

• The notion of constructive service was developed to notify defendants who could not be located within the state. However, if you want to employ constructive notice, you must make sure this has become the only feasible method to notify the defendant, because the usage of constructive notice is limited by courts strictly. The standard that has generally been used for determining whether such constructive service is constitutionally adequate has been whether the procedure used was reasonably likely to give the defendant actual notice.

Specific

venue

Like copyright actions, actions for patent infringement may be brought in the district where the defendant resides. Unlike copyright actions, patent infringement actions may also be brought where the defendant committed the acts of infringement and has a regular and established place of business.

• Example: Jake, a resident of California, has developed a new miracle weight loss drug that he has patented with the appropriate federal agency. A few years later, Doug, a resident of the federal district of Western Nevada who maintains his office in the federal district of Northern Arizona, while working in his office, takes Jake’s formula and begins marketing his own weight loss drug. Assuming all jurisdictional requirements are met, Jake may bring a patent infringement action against Doug in the federal district of either Western Nevada or Northern Arizona.

Application of 1391(c): reminder

Application of 1391(c): example

Federal Rule

Most courts hold that a corporation is subject to general in personam jurisdiction in both the state of its principal place of business and the state of its incorporation. Corporations can be residents of multiple states. Thus, venue is proper in these locations. However, be careful in multi-district states; personal jurisdiction over a D is state-wide while venue is only district-wide.

In a state with more than one judicial district and in which a corporation is subject to personal jurisdiction the time an action is commenced, the corporation is deemed to reside in any district in that state where its contacts with that district would be sufficient to subject it to personal jurisdiction if it were a separate state. If there is no such district, the corporation is deemed to reside in the district where is has the most significant contacts.

• Example: XYZ Corp. is incorporated in Delaware, and has its only office in San Francisco. XYZ has no contacts with any part of California other than San Francisco. If XYZ is a defendant, it will reside, for venue purposes, in the district of Delaware and in the Northern District of California. XYZ is not a resident of any other districts in California – thus "defendant’s residence" venue would not lie against XYZ, for instance, in a suit brought in the Central District of California, located in Los Angeles.

Rule 4 of the Federal Rules of Civil Procedure (FRCP 4) sets forth the methods for effectuating service in federal trials. Specific procedures are outlined for various parties: individuals, infants and incompetents, corporations and associations, foreign, federal, state and local governments, as well as individuals in foreign countries.

• Service of process is governed by FRCP 4. The three methods of serving process are personal service, substituted service, and constructive service. Due process does not require that the defendant be served personally however, notice "reasonably certain" to reach the defendant is required, i.e., notice must be reasonably calculated under all the circumstances to apprise the defendant of the pendency of the action.

Federal

practice

Defendant’s motion: Usually, it is the defendant who moves for forum non conveniens. When this happens, the case may be transferred only to a district where P would have had the right, independent of the wishes of D, to bring the action. For example: If suit in a particular district would not have been possible, as an initial matter, because one or more of the Ds could not be personally served there, or because venue would not have been proper there, even the consent by all Ds would not authorize the action to be transferred to that district. However, it doesn't preclude a federal court from raising FNC on its own, that is, sua sponte. Thus, the court may invoke the doctrine of forum non conveniens sua sponte, that is, without the issue being raised by a party.

Service on

out-of-staters

Federal

practice

Notice

Where D is not present in the forum state, he must somehow be served out of state. Remember that in a state court suit, this can only be done if the state has a long-arm statute covering the type of case and defendant in question. Once the long-arm covers the situation, the out-of-state defendant must still be given some sort of notice.

• Mail notice: Many states provide for notice by registered or certified mail on the out-of-state defendant.
• Public official: Sometimes, service maybe made by serving a state official, plus giving notice by mail to D. (Example: Many non-resident motorist statutes allow P to serve the state Director of Motor Vehicles with a matching mailing to the out-of-state defendant.)
• Newspaper publication: If D’s identity or residence are unknown, some states allow service by newspaper publication. But this may only be used where D truly cannot be found by reasonable effort.

Due process

Types of notice

Reasonableness test

Opportunity to be heard

Federal practice

Removal

In the federal system, when a defendant successfully moves for forum non conveniens, the original court transfers the case to another district, rather than dismissing it. Under 28 U.S.C. §1404(a), "for the convenience of parties and witnesses … a district court may transfer any civil action to any other district or division where it might have been brought."

General right to remove

Removal statute

Removal of multiple claims

Remand

Waiver

Mechanics of removal

Mullane v. Central Hanover Bank & Trust Co.

Rationale: achieve a balance

Venue

Constructive

notice

Venue generally

Venue vs. Jurisdiction

Venue under state judicial system

Venue under federal judicial system

Improper venue

Federal rule

In certain cases, the defendant may wish the case to be heard by a federal, rather than state, tribunal. Where a defendant in a state civil action wants to have the case heard by a federal tribunal, the defendant will seek to “remove” the case to federal court.

• In order to achieve a balance between plaintiff and defendant, when we give plaintiff the right to choose the federal court system or the state court system to sue, at the same time we also give defendant the right to second-guess that choice by removing some types of cases from the state court to a federal court. Once properly removed the case becomes a federal case, and the state court loses jurisdiction over it. Both pretrial litigation and trial will take place in the federal court.

The rule 4 of FRCP sets forth the correct manner of service carried out in federal courts. The allowable manner of service is somewhat different, depending on whether the defendant is an individual or a corporation.

• The manner for serving an individual is set out in 4(e). Service on the individual may be made by serving him personally, by leaving the summons and complaint at defendant’s residence with a person of suitable age and discretion residing there, by serving an agent appointed or designated by law to receive process, by serving defendant in the manner provided either by the law of the state where the district court sits or by the law of the state where the person is being served.
• On the other hand, service on a corporation may be made by leaving the papers with an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive process for the corporation.
• In addition, based on Rule 4(m), service on the defendant must be made within 120 days after the filing of the complaint. If the plaintiff fails to serve the defendant within this time, the court can dismiss the action.

Facts: Central Hanover Bank (P) was the trustee of a common trust fund formed by pooling the assets of a number of smaller trusts. Central Hanover Bank petitioned to the New York Surrogate’s Court for a judicial settlement of the trust. The only notice provided to beneficiaries was via publication in a newspaper. Mullane (D) was appointed attorney and special guardian for a number of beneficiaries who either were unknown or did not appear. Mullane objected to the statutory provision for notice by publication, arguing that it was unconstitutional for lack of due process under the Fourteenth Amendment.

Service by newspaper publication announcing the suit has been upheld widely in many cases, especially where the defendant’s identity is unknown. So, service by publication will virtually never be constitutionally sufficient if the defendant’s name and address are known. But, if a domiciliary of the forum state hides himself intentionally within the state, service by publication is proper.

Alternative means of notice, such as newspaper publication, may satisfy due process where individual notice is impracticable and the party seeking to bypass individual notice can demonstrate that (1) the suit is in the interest of the absentees, (2) they will be adequately represented by one before the court, and (3) the value of their individual interests is not too great. Where the identities and parties can be reasonably ascertained, however, individual notice is required.

Forum Non Conveniens

Definition & function

Factors to be considered

Public interest

Adequate alternate forum

Federal practice

Federal

practice

Issue: Is notice given to out of state parties by publication in a newspaper, when the parties’ addresses were known, constitutional in light of the Due Process Clause of the Fourteenth Amendment?

Choice of law: When federal forum non conveniens is granted, the state law of the transferor court is to be applied by the transferee court. For example: P brings a diversity action against D in Mississippi federal court. That court grants D’s motion to have the case moved to Pennsylvania District Court. If, as is likely, Mississippi federal court would have applied Mississippi state law rather than Pennsylvania state law under Erie principles, the Pennsylvania federal court must also apply Mississippi state law. This is true whether the forum non conveniens was sought by P or by D.

Venue

Attacking notice

Instructor Xiang Li

Specific

venue

Defective service of process can be challenged by a FRCP 12(b)(5) motion to dismiss or the objection can be made in the answer. Defective service of process goes to lack of notice. Due process requires notice and an opportunity to be heard.

Definition

In certain instances, the proper venue may depend on the type of federal action brought. While general venue rules are codified at 28 U.S.C. § 1391, other sections are more specific. For example, actions concerning copyrights may be brought in any district in which the defendant (or his agent) resides, or any district in which the defendant (or his agent) may be found.

• Example: Jake, a resident of California, has created a comic strip called “Dopie” and has copyrighted the Dopie character. A few years later, Doug, a resident of the federal district of Western Nevada, has created his own comic strip called “Mopie”. The Mopie character is exactly the same as the Dopie character. Jake wants to bring an action against Doug in federal court for copyright infringement. Assuming all jurisdictional requirements are met, Jake may bring his action in Western Nevada, as that is where Doug resides.

What is venue?

Service on a

corporation

Function

Literally, forum non conveniens means “inconvenient forum”. It does not refer to a judicial forum that is improper; rather it refers to a judicial forum that is inconvenient or not as appropriate as another forum may be.

• Forum non conveniens (Latin for "forum not agreeing") is a common law legal doctrine whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties. As a doctrine of the conflict of laws, forum non conveniens applies between courts in different countries and between courts in different jurisdictions in the same country.

Several means are commonly allowed for giving notice of suit to corporations.

• Corporate officer: Many states require that a corporation, if it wishes to be incorporated in the state or to do business in the state, must designate a corporate official to receive process for suits against the company. Service on this designated official is, of course, deemed to be adequate notice.
• Federal Rule: The Federal Rules, and the rules of many states, are more liberal, in that they allow service on any person associated with the corporation who is of sufficiently high placement. Thus FRCP 4(h)(1) provides that service on a corporation may be made by giving the papers to "an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process."

Put it simple, venue means a proper place, such as the correct court to hear a case because it has authority over events that have occurred within a certain geographical area. Every court system, state or federal, has venue rules, generally established by statute, indicating the proper or most convenient location for trial of a case.

• For civil cases, venue is usually the district or county which is the residence of a principal defendant, where a contract was executed or is to be performed, or where an accident took place. However, the parties may agree to a different venue for convenience (such as where most witnesses are located). Sometimes a lawsuit is filed in a district or county which is not the proper venue, and if the defendant immediately objects (asks for a change of venue), the court will order transfer of the case to the proper venue.

Sometimes, the federal district courts will have original jurisdiction over a civil action filed in state court. That is not to say that the case has been improperly filed in state court – it is only to say that the federal court is also be able to hear the case because it has original subject matter jurisdiction. In such a case, the defendant or defendants may remove the case to the federal district court for the district and division in which the action is pending. To where does the case get removed? Generally, a case filed in state court will be removed to the federal court that has geographical jurisdiction encompassing the state court’s location.

• Example: John brings a cause of action against Mike in New York Supreme Court in Westchester County. Assume that a federal court also has jurisdiction, both personal and subject matter, over the parties and the case. If Mike’s motion to remove the case to federal court is granted, the case will most likely be removed to United States District Court for the Southern District of New York in White Plains, New York.

Opportunity to be heard

Public interest

Defendant's right

D must not only be notified of the suit against him, but must also be given an opportunity to be heard. That is, before his property may be taken, he must be given a chance to defend against the claim. This "opportunity to be heard" must be given to D not only when his property will be taken forever, but even before there is any significant interference with his property rights.

• Opportunity-to-be-heard questions arise most frequently in the context of pre-judgment remedies, which protect plaintiff against the defendant’s hiding or squandering his assets during litigation. Two common forms of pre-judgment remedies are the attachment of D’s bank account and the placing of a lis pendens against her real estate.

Public interest factors include: “(1) having local disputes settled locally; (2) avoiding problems of applying foreign law; and (3) avoiding burdening jurors with cases that have no impact on their community.” Another factor to consider is whether another group of citizens has a greater interest in deciding the case than those of the original forum. Finally, another consideration is whether a judgment by one court will have to be enforced in another jurisdiction, which can create more legal hurdles; it may make more sense to have the other jurisdiction decide the case in the first place.

• Example: Andy slips and falls on the sidewalk outside Paul’s boutique in Manhattan in New York City. Both Andy and Paul are residents of Manhattan. Andy files an action against Paul in State Supreme Court in Westchester County, New York. Paul moves to invoke the doctrine of forum non conveniens. A court is likely to grant the motion because the parties are from Manhattan and the events giving rise to the action occurred in Manhattan. In addition, because the court would like to to avoid burdening jurors with cases that have no impact on their community, if possible, the doctrine may be applied and the action may be moved to Manhattan.

The defendant may move to dismiss an action on the ground of FNC. Invoking this doctrine usually means that the plaintiff properly invoked the jurisdiction of the court, but it is inconvenient for the court and the defendant to have a trial in the original jurisdiction. The court must balance convenience against the plaintiff’s choice of forum. In other words, if the plaintiff’s choice of forum was reasonable, the defendant must show a compelling reason to change jurisdiction. If a transfer would simply shift the inconvenience from one party to the other, the plaintiff’s choice of forum should not be disturbed.

Reasonableness test

What is venue?

Purpose of venue

In order for D to have received adequate notice, it is not necessary that he actually have learned of the suit. Rather, the procedures used to alert him must have been reasonably likely to inform him, even if they actually failed to do so.

Public interest vs. Private interest

Venue refers to the specific court in which a case is brought. In each city, county, state or country, there may be many courts in which a case may be brought, but one specific court may be more appropriate or proper than another.

• Actually, venue is a French legal terminology, which means place of trial. In American civil procedure law, it is regarded as the place within a sovereign jurisdiction in which a given action is to be brought. In civil cases, venue is generally proper in the county or district where important events related to the case took place, such as the signing or performance of a contract or the accident or other incident that led to a personal injury case. Typically, the plaintiff in a civil case may also sue in the district or county where the defendant lives or does business.

Mullane v. Central Hanover Bank & Trust Co.

Venue principles are aimed at the selection of the most convenient and logical court within a given court system.

• If jurisdiction determines what state a suit can be brought in, venue determines what county or judicial district it may be brought in. The purpose of venue rules is to limit the plaintiff's choice of forum in order to insure that the locality of the lawsuit has some logical relationship to the litigants or the subject matter of the dispute.

As a matter of fact, generally what matters is the appropriateness of the notice prescribed by statute and employed, not whether the defendant actually got the notice. Thus, if a reasonable means of notification is prescribed by statute, and followed in the individual case, it does not matter that the defendant did not in fact receive notice. For instance, if a party’s name and address are "reasonably ascertainable," publication notice will not be sufficient, and instead notice by mail (or other means equally likely to ensure actual notice) must be used.

Analysis: Notice must be reasonably calculated to inform known parties affected by the proceedings. However, constructive notice by publication was acceptable with regard to missing or unknown parties or for those whose whereabouts could not be ascertained by due diligence or for whom future interests were too conjectural to be known with certainty. In the instant case, notice given to out of state parties by publication in a newspaper, when the parties’ addresses were known, is unconstitutional in light of the Due Process Clause of the Fourteenth Amendment.

Rule: The Court held that the expense of notification by mail, and the availability of names and addresses of beneficiaries, were factors that could be taken into account in determining whether publication was sufficient notice. The standard is becoming on of general reasonableness in view of all the circumstances (importance of proceedings, cost, and availability of other better notification methods)

There are two types of factors the court will take into account when considering a forum non conveniens motion: public interest and private interest.

Function

Opportunity

to be heard

Opportunity

to be heard

The court will weigh three factors against each other to determine whether due process was violated when D’s property was interfered with through a pre-judgment remedy:

• First, the degree of harm to D’s interest from the pre-judgment remedy;
• Second, the risk that the deprivation of D’s property right will be erroneous (especially if the state could have used additional procedural safeguards against this but did not); and
• Third, the strength of the interest of the party (typically P) seeking the prejudgment remedy.

Example: A state statute allows P to get a prejudgment attachment of D’s real estate without D’s having a hearing first, so long as P "verifies by oath" that there is probable cause to sustain his claim.

• Factor 1 above (the strength of D’s interest) works against allowing attachment, since an attachment clouds D’s title and affects his credit rating.
• Factor 2 (risk of erroneous deprivation) also supports not allowing the attachment, since the judge can’t accurately determine the likely outcome of the litigation based solely on P’s one-sided conclusory statements in the oath.
• Factor 3 (strength of P’s interest) also works against the attachment, since P is not required to show D is dissipating his assets.

Consequently, the grant of a prejudgment attachment of D’s property violates his due process rights.

The doctrine of forum non conveniens can be employed when the venue, albeit proper, is inappropriate, inconvenient, or unacceptable for various reasons. It is for a court to determine, on a case by case basis, whether it is the proper venue in which to hear the action. This is true even though it has jurisdiction over the parties, jurisdiction over the subject matter of the case, and is a proper venue in which the action can be brought.

Conversely, if the prescribed statutory method is either insufficient, or is not followed, the fact that the individual defendant actually received notice does not make the service valid. Why? That’s because the hearing requirement of 14th Amendment provides the defendant must not only be notified of the suit against him, but must also be given an opportunity to be heard. That is, in order for the state to take defendant’s property from him, the defendant must be given a chance to appear in court to tell his side of story. Remember that what matters is the appropriateness of the notice prescribed by statute and employed, not whether D actually got the notice.

Federal venue statute: 28 U.S.C. §1391

Example: P’s process server leaves the summons and complaint at D’s house, with D’s wife. D’s wife throws it in the garbage, and D never learns of it. D has received adequate notice, so the court can exercise jurisdiction over him. Conversely, if P’s process server had left the papers on the sidewalk outside the house, and D had happened to pick them up, this would not be adequate notice to D – the procedures used were not reasonably likely to give D notice, and they are not saved by the fact that D in fact learned of the suit.

28 U.S.C. §1391

Private interest

Venue under

American law

Factors concerning private interests include: “(1) ease of access to evidence; (2) the cost for witnesses to attend trial; (3) the availability of compulsory process; and (4) other factors that might shorten trial or make it less expensive.”

Venue is the legally proper or most convenient place where a particular case should be filed or handled. Every state has rules determining the proper venue for different types of lawsuits.

• A basic principle of U.S. law is that a civil action will be decided by a court in the locality where the dispute occurred. This principle is expressed in the concept of venue. In accordance with this principle a civil action must be started where either the plaintiff or the defendant resides, where the cause of action arose, or, if real property is at issue, where the real property is situated.

State practice

What is

venue?

Federal venue statutes

Example: John wants to bring an action against Bill for injuries John sustained during a collision between John’s and Bill’s vehicles. Both John and Bill live in White Plains, New York, and the collision occurred in White Plains, New York. White Plains is in Westchester County, which is adjacent to Rockland County. New York State trial courts exist in both Westchester and Rockland. Both courts have jurisdiction over John and the subject matter of the case. However, the proper venue in which to being this case is in Westchester county since that is where both parties reside and that is where the accident occurred. Where a plaintiff may bring a federal action is also an issue. If John’s claim was based on federal law, should he bring his action in United States District Court for the Southern District of New York, or should he bring his action in United States District Court for the Eastern District of New York?

Under the doctrine of forum non conveniens, the state may use its discretion not to hear the case in a county where there is statutory venue. Sometimes, this involves shifting the case to a different place within the state. At other times, it involves the state not having the case take place in-state at all. Usually, it is the defendant who moves to have the case dismissed or transferred for forum non conveniens. Three factors that state courts often consider in deciding whether to dismiss for forum non conveniens are:

• (a) whether the plaintiff is a state resident (if so, he has a stronger claim to be able to have his case heard in his home state);
• (b) whether the witnesses and sources of proof are more available in a different state or county; and
• (c) whether the forum’s own state laws will govern the action (transfer is more likely if a different state’s law controls).

Fall back venue

Different rules regulate venue in the federal courts. The federal court system is divided into judicial districts, which can cover an entire state or, in the case of populous states, only a portion of the state. The federal venue statute (28 U.S.C.A. § 1391) refers to these districts in the way state venue statutes refer to counties. Except when a special law applies to a particular type of case, proper venue is determined by the factor that allows the case to be brought in federal court.

• If the court derives its authority because the plaintiffs and defendants are residents of different states (known as diversity jurisdiction), then the proper venue is the judicial district where all the plaintiffs or all the defendants reside or the district where the claim arose. In lawsuits where the federal court has jurisdiction because a question of federal law is involved (known as federal question jurisdiction), venue lies only in the district where all the defendants reside or where the claim arose.

If, based on the preceding grounds, there is no district in which the action may otherwise be brought: (1) diversity actions may be brought in “a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced.” [28 U.S.C. § 1391(a)(3)]; (2) federal question cases may be brought in a judicial district “in which any defendant may be found.” [28 U.S.C. § 1391(b)(3)]. The fallback provision set forth in § 1391(a)(3) is largely invoked when there are defendants who do not reside in the same state and either the claim arose outside the United States or all of the defendants are not subject to personal jurisdiction where a substantial part of the claim-related events occurred.

Original

defendant

Federal question cases

The original defendant(s) may remove the action to federal court. Whether a defendant to a counterclaim, crossclaim or third party action, etc. (who may be the plaintiff in the original action), may remove the case to federal court is another question. The majority of courts hold that such removal is not allowed. If an original defendant moves for removal, the counterclaims and crossclaims, etc., may end up being removed anyway.

Where the plaintiff’s state court complaint raises a federal question, the defendant may remove. The well-pleaded complaint rule applies in the removal situation, and the fact that the defendant has raised a federal defense to the plaintiff’s state law claim is not sufficient to support removal. However, plaintiff is master of his claim. If he chooses not to assert a possible federal claim, the defendant may not remove the case by citing the unasserted claim.

• The right of removal is generally decided from the face of the pleadings. The jurisdictional allegations of plaintiff’s complaint control. For example, P is badly injured in an automobile accident caused by D’s negligence. P’s medical bills total $80,000, but P sues only for $60,000, for the express purpose of thwarting D’s right to remove. The jurisdictional allegations of P’s complaint control, so that D may not remove even though more than $75,000 is "really" at stake.

Scheme of 28 U.S.C. § 1391

Other factors to be considered

In deciding whether to grant the motion, the court also considers: The location of potential witnesses:

• The defendant must make a full and candid showing, naming the potential witnesses for the defense, specifying their location, specifying what their testimony may be and how crucial it is for the defense, and setting forth how exactly they may be inconvenienced by having to testify in the court chosen by plaintiff.

Nature of venue

Venue is a statutory limitation on the geographic location of litigation designed to prevent the plaintiff from suing where it would be burdensome for the defendant to appear and defend. The most important reason of the existence of the venue rule is to further restrict the places where the plaintiff may choose to bring suit and to assure that suits are tried in a place that bear some sensible relationship to the claims asserted or to the parties to the action. That’s because personal jurisdiction and subject matter jurisdiction will not always limit the plaintiff’s choice of forum so significantly.

• Example: State X is found to have jurisdiction over the person of B, in a suit against him by A. Venue determines in which county or district of State X the case should be tried.

To sum up, the statute provides two grounds for venue and a fallback provision:

Other factors to be considered

Diversity

cases

State venue statutes

Possible undue hardship for the defendant:

• The defendant must explain what the hardship is and how material the costs are. If there are costs involved, they need to be spelled out. If there is a difficulty in getting witnesses out of a foreign court and into the original court, this needs to be revealed to the court. The standard that the defendant must meet is “overwhelming hardship” if they are required to litigate in the forum’s State.

Where the federal district courts have original jurisdiction over a civil action in state court that is not based on a federal claim (i.e., the court's subject matter jurisdiction is based on diversity of citizenship), the action is removable to federal district court only if none of the defendants is a citizen of the state in which the action was brought. Of course, the defendants must be properly joined and served.

• Where the federal district courts have original jurisdiction over a civil action in state court because the action arises under federal law, the case is removable, regardless of the citizenship or residence of the parties involved.

State venue statutes list a variety of factors that determine in which county and in which court a lawsuit should be brought, including where the defendant resides, where the defendant does business, where the plaintiff does business, or where the seat of government is located.

• A plaintiff may bring his action in any of the places permitted by state law. Most commonly, states allow a lawsuit to be brought in the county where the defendant resides. Choosing the wrong place is not fatal to the plaintiff's action, however. Statutes usually provide that a judgment rendered by a state court is valid even if venue is improper. If a defendant believes the suit is being tried in the wrong venue, she usually must object at the outset of the case, or she will be presumed to have waived the right to object.

Other factors to be considered

Ground 1: Defendant’s Residence

Ground 2: Locus of Substantial Part of Events or Property at Issue

In both diversity and federal questions cases, venue may be proper in the district where the defendant resides, or if there are multiple defendants, in any district where any defendant resides provided that all defendants reside in the state in which the federal court sits. Most courts equate residence with domicile for venue purposes. Subsection 1391(c) defines the residence of a defendant corporation to be “any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.” This test has been applied to unincorporated associations as well for purposes of venue.

The location of relevant evidence and records:

• The defendant must identify the records; explain who is in charge of the records; address necessity, language, and translation problems; address the volume of such records; address the law governing these records; and rule out the existence of duplicate records in the jurisdiction chosen by the plaintiff. The mere fact that records need to be translated is not sufficient grounds to invoke FNC.

Venue may be proper in the judicial district “in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated.”

Other factors to be considered

Availability of adequate alternative forums for the plaintiff :

• Merely pointing out that the plaintiff could have sued somewhere else is not sufficient to succeed on an FNC motion.

The expeditious use of judicial resources:

• In practice, this is just boilerplate language that comes along with the application. However, sometimes the court chosen by the plaintiff may be logistically or administratively unfit or ill-equipped for the case; for example, a case may involve a large number of torts.

Additional factors may include

Piper Aircraft Co.

v. Reyno

Diversity cases

Jurisprudential development and political conditions at the foreign forum - Is the court going to send the plaintiff to a land where the law is underdeveloped, uncivilized, or where there is no equal protection or due process? Is the court going to send the plaintiff to another court in a country where violence is rampant or in the middle of a war? A suit will not be dismissed if the foreign court does not permit litigation of the subject matter of the complaint, no live testimony of the plaintiff is required by appearance, or if the foreign law is otherwise deficient in its protocols or procedures.

Other factors to be considered

Issue: Should a case be dismissed on the grounds of forum non conveniens when all the witnesses and evidence are in another country, the other country’s jurors would be more connected to the problem, it is inconvenient to the parties to try the case in the jurisdiction where it was brought, and the other country’s law will be applied?

The most important single thing to remember about removal jurisdiction is this: In diversity cases, the action may be removed only if no defendant is a citizen of the state in which the action is pending. Since diversity jurisdiction is designed to protect against local prejudice, there is no reason to invoke it on behalf of a local party.

• Example: P, from New Jersey, brings a negligence action against D, from New York, in the New York state court system. D may not remove the case to federal court for New York, because he is a citizen of the state (New York) in which the action is pending. (But if P’s suit was for trademark infringement – a kind of suit that raises a federal question but may be brought in either state or federal court – D would be able to remove, because the "not a citizen of the state where the action is pending" requirement does not apply in suits raising a federal question.)
• In removal cases, the usual rules governing existence of a federal question or of diversity, and those governing the jurisdictional amount, apply. So, if there is no federal question, diversity must be "complete."

The choice of law applicable to the dispute:

• If all other factors weigh in favor of keeping the case in the jurisdiction where it was filed, then the court may choose between application of local law (lex fori) or relevant foreign law. Thus, the mere fact that foreign law may apply to the event, circumstances, accident, or occurrence is not a strong reason to dismiss the case on FNC grounds.

Other factors to be considered

Additional factors may include

Questions of public policy:

• In analyzing the factors, the subject matter of the complaint may touch on a sensitive issue that is important to the laws of either the original jurisdiction or the alternative forum. Those public policy issues must be pinpointed, analyzed and briefed in a way that makes it clear why this issue overrides the other factors. For example, an employee suing a foreign corporation in a state of employment, may enjoy the public policy to protect local employees from foreign abusers.

Piper Aircraft Co. v. Reyno

The location where the cause of action arose:

• In most states, defendant must usually show that the cause of action arose outside of the jurisdiction.

Vexatious motive:

• Where there is no evidence that the plaintiff had improper intent in bringing the case specifically in a particular forum, courts usually deny the FNC motion.

Adequate alternate forum

Additional factors may include

In situations where the defendant seeks to employ the doctrine of forum non conveniens and names a court in a foreign country as an alternative forum, the original court will take many factors into consideration, such as: whether the foreign court will apply American substantive law; whether the plaintiff will be prejudiced by transfer to a foreign court; and whether the foreign court will be fair. As for the transfer of a trial to a jurisdiction outside of the U.S., courts will only grant the transfer if a foreign court is “more appropriate”, and there may be a real opportunity to obtain justice there.

To exercise the doctrine of forum non conveniens, an adequate alternate forum in which the case may be heard is essential. Such a forum must be willing to hear the case, and the defendant(s) must be able to be served with process within the alternate forum.

• There must be an adequate alternative forum in which the case can be heard. The burden to prove the existence of such an alternate forum is on the party who moves to transfer the case for forum non conveniens, usually the defendant. Without an alternate forum, the case must remain in the original forum, no matter how inconvenient it may be.

Analysis: The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry. If conclusive or substantial weight were given to the possibility of a change in law, the forum non conveniens doctrine would become virtually useless. Jurisdiction and venue requirements are often easily satisfied. As a result, many plaintiffs are able to choose from among several forums. Ordinarily, these plaintiffs will select that forum whose choice-of-law rules are most advantageous. Thus, if the possibility of an unfavorable change in substantive law is given substantial weight in the forum non conveniens inquiry, dismissal would rarely be proper. Additionally, this would lead to other practical problems. At least where the foreign plaintiff named an American manufacturer as defendant, a court could not dismiss the case on grounds of forum non conveniens where dismissal might lead to an unfavorable change in law. The American courts, already very attractive to plaintiffs, would become even more attractive. The flow of litigation into the United States would increase and further congest already crowded courts.

2007

The identities of the parties:

• Who is suing whom? Is the plaintiff suing an individual defendant or a small company without financial means as a method to oppress the defendant with financial and legal costs by litigating in a remote court? Is the defendant a conglomerate making the FNC application simply to force the plaintiff to bear expensive costs of travel and retainer of foreign lawyers? A plaintiff who is a resident in the state where action was filed is normally entitled to have his case heard in his home state.

2001

2013

To determine whether another forum is an adequate alternative, the court must determine whether the alternate forum will hear the case, and whether the defendants may be served with process in the alternate forum. Usually, the latter depends on the jurisdiction of the alternate forum over the defendants. Because it is usually the defendants who move to transfer the case to the alternative forum, the defendants will often consent to such jurisdiction. If the defendants refused to consent, the case would remain in the original forum, which is exactly what the defendants were attempting to avoid.

Piper Aircraft Co. v. Reyno

Analysis: Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference. The District Court's holding that the case would be better suited in Scotland was not unreasonable. First, because the majority of evidence was there and second, because the decedents were not able to properly implead the defendants. Also, Pennsylvania would not be a good venue because there would need to be two law standards - the Pennsylvania law would apply to Piper and Scottish law would apply to Hartzell. A trial involving two sets of laws would be confusing to the jury. A lack of familiarity with Scottish law would also be confusing. Another powerful reason why Pennsylvania is a bad venue is that Scotland has a very strong interest in this litigation. There is "a local interest in having localized controversies decided at home." The incremental deterrence that would be gained if this trial were held in American court is likely to be insignificant. The American interest in this accident is simply not sufficient to justify the enormous commitment of judicial time and resources that would inevitably be required if the case were to be tried there.

Legal policy

Legal policy: example

Piper Aircraft Co.

v. Reyno

It should be noted that the plaintiff’s initial choice of forum is given deference. Even if there are more reasons to grant the motion for forum non conveniens than to deny it, the deference may still control and the court may hold on to the case. The reasons to grant the motion to move the case must be extremely persuasive.

• Generally speaking, there is a strong presumption in favor of the plaintiff’s choice of forum. A defendant must show compelling evidence in order to disturb the choice of forum. The burden of proof is on the defendant. The court must also consider the defendant’s vast resources compared with the plaintiff’s limited resources as an aggrieved individual.

Rule: The doctrine of forum non conveniens allows a court to dismiss a case that was brought in the wrong forum. When all or most of the significant events, witnesses and evidence are centered in one location, then a court must dismiss a case brought in another location under the doctrine of forum non conveniens unless the alternate forum provides the plaintiff with absolutely no remedy. Whether the law of the forum chosen by the plaintiff is more favorable to the plaintiff should not be given weight.

Remember: Choosing a particular forum because the law is more favorable to the plaintiff cannot be given any substantial weight under a forum non conveniens analysis. Although the general rule is that a court should not dismiss a case on grounds of forum non conveniens unless there is an alternate forum in which the plaintiff can pursue a remedy, this rule only requires that the plaintiff be able to file a proper lawsuit in that alternate forum.

In 2006, the 2nd Circuit Federal Court in New York issued a decision in the famous Coca Cola case. Coca Cola took over assets of Jews expelled from Egypt in the 1950s and was sued in New York. In that case, the plaintiffs were Canadians and nonresidents of New York. The court denied Coca Cola’s FNC motion and the U.S. Supreme Court denied certiorari. The 2nd Circuit stated that the fact that the New York court would need to apply “modest application” of Egyptian law was not a problem because “courts of this Circuit are regularly called upon to interpret foreign law without thereby offending the principles of international comity”. Also, the fact that there were witnesses abroad was not a problem either. They could be flown into the U.S. or Letters Rogatory could be issued to the Egyptian courts to collect their testimony. Further, it was held that in an FNC scenario, a court applies the balance of conveniences, but preference (and weight) must be given to the fact that plaintiffs chose this particular forum for “legitimate reasons”. The fact that plaintiffs could sue in Canada was not relevant because Coca Cola was a U.S. company and it was “perfectly reasonable to sue in the US”.

Piper Aircraft Co.

v. Reyno

Facts: In July 1976, an airplane was involved in an accident in the Scottish Highlands while on a charter flight from Blackpool to Perth, killing the pilot and five passengers instantly. The aircraft was a Piper Aztec manufactured by Piper Aircraft Co. in the U.S. state of Pennsylvania, and Hartzell Propeller, Inc. manufactured the propellers in the U.S. state of Ohio. A British Department of Trade found no evidence of defective equipment and indicated that pilot error may have caused the accident. A California probate court appointed respondent Gaynell Reyno administratrix of the estates of the five passengers. She did not know nor was she related to any of the decedents, she was merely the legal secretary to the attorney who filed this lawsuit. Reyno admitted the choice of the United States as a venue was more favorable to her case.

Definition

Removal refers to the transfer of a civil action from state trial court to federal district court.

The legal terminology removal means any action brought in state court of which the federal courts would have had original jurisdiction may be removed by the defendant to federal district court. So, only cases which could originally have been brought in the federal courts may be removed.

Nature

Generally, any action brought in state court that the plaintiff could have brought in federal court may be removed by the defendant to federal district court. However, there are important exceptions to this rule.

• Example: P, from New Jersey, sues D, from New York, in New Jersey state court. The suit is a garden-variety automobile negligence case. The amount at issue is $100,000. D may remove the case to federal district court for the District of New Jersey.