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Civil Procedure I venue analysis ...

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VENUE ANALYSIS § § §

Waivable, like PJ/unlike SMJ, if D fails to raise a timely objection. Can limit tag jurisdiction Local v. Transitory Actions § Local action: involves claims concerning real property § Transitory action: everything else § Local actions must be brought where the real property is location § Still applies in state courts § Eliminated in federal courts

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State venue provisions o Most states provide 1. General Rule for civil actions 2. Special Venues for particular types of cases (usually includes “local” actions o All states have transfer provisions (from one state court to another in the same state) General Federal Venue Statue: § 1391 (there are specialized venue provisions for fed banks, fed interpleader act, fed taxes, etc. cts must determine which statutes apply.)

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(B) VENUE IN GENERAL.—A civil action may be brought in—’ 1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; OR 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) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action. (c) RESIDENCY.—For all venue purposes— 1) a natural person, including an alien lawfully admitted for permanent residence in the United States, shall be deemed to reside in the judicial district in which that person is domiciled; 2) an entity (corps, LLC’s, and partners) with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, 1) if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction (PPB and states of incorporation… you will do pj analysis first) with respect to the civil action in question and

2) if a plaintif, only in the judicial district in which it maintains its principal place of business; and 3) a defendant not resident in the United States may be sued in any judicial district, and the joinder of such a defendant shall be disregarded in determining where the action may be brought with respect to other defendants. 

TRANSFER of Venue in Federal Court o Case is not dismissed o Apply to transfers within the same court system “INTRA-sovereign transfer” § Transfers in state courts follow state venue provisions and are only between state courts within the state § Federal transfers follow Fed venue provisions that allow transfers between federal district courts. o Transfer for Convenience; venue proper under §1391 § §1404 (a) – Permits transfer to any district where suit might have been brought (Proper venue + PJ) §

OR to any district division to which ALL parties have consented. (PJ can also be waived/consented to)

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In deciding whether to transfer a court shall consider:

Private Factors Access to and subpoena power over witnesses Evidence

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Public factors Judicial convenience Ability to consolidate with other cases Plaintiff’s initial choice Need to apply foreign law

WHAT LAW APPLIES? 

Law of the TRANSFEREE Court

o Transfer for Improper Venue under §1391 §

§1406 (a) – Permits transfer of cases filed in improper venues

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“Goldlawr Transfers”: Even if that court lacks PJ, they still have to power to transfer case.

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A court shall dismiss, or if it is in the proper interest of justice, transfer.

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NO FACTORS

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WHAT LAW APPLYS? 

Use the law of the TRANSFEROR court o This is because transfers should change the court room, not the law o This is to prevent the D from defeating advantages P would have accrued in their chosen forum, although inconvenient proper venue

o Mass Torts/MULTI-DISTRICT LITIGATION §

§1407 – Permits cases of mass torts to be transferred to one federal district and consolidated for pretrial proceedings

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Decide by judicial panel of 7

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After pretrial, remanded back to district from which they came

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Remain separate actions

Forum Non Conveniens o Federal CL created by Piper Aircraf o Transfer from one sovereign to a different one § Federal to foreign court § State court to foreign court § CANNOT go from state to federal (this is removal) § Not a transfer but a DISMISSAL, P must refile Forum Selection Clauses o FSC’s of contracts are enforced if not product of overreaching or unconscionable behavior o Valid FSCC does not render venue improper in other districts o Party may seek enforcement of FSC through motion to transfer under §1404 (proper venue transfer) o WHAT LAW APPLIES? § the law of the TRANSEREE COURT (this is the opposite of the norm) o FACTORS ARE NOT CONSIDERED because parties have already agreed § Justice satisfied by holding them to their word...