C hapter F our
Venue
Selecting
a Court
with
Jurisdiction
Selecting a
Convenient
Court
Applicable
Law
Pleading
& Joinder
Trial
Discovery
Disposition
without Trial
Post-Trial
Motions
Judgment
& Appeals
The concept of venue is similar to personal jurisdiction—the subject of Chapter 2—in that it pertains to the geographical area within which a civil action may be
brought. However, venue is not concerned with the constitutional and
FYI
statutory limits of a court’s jurisdiction
FYI
FYI
A judicial system refers to the
over parties in an action, but with
court system within the governidentifying the most sensible and conment of a particular sovereign. Thus,
venient courts or “venues” within a
the federal courts are a separate judicial system from the courts of Virsystem in which to litigate a case. In
ginia, which in turn are a separate
other words, rules of venue function
judicial system from the courts of
as a means of allocating judicial busiGeorgia. Venue rules determine the
ness among different courts within the
proper court within a single judicial
system, not across different systems.
same judicial system. When a case is
to be filed in federal court, federal
venue rules govern which courts
within the federal system are sufficiently related to the parties or to the dispute such
that they will serve as a convenient forum in which to litigate the case.
FYI
FYI
FYI
Thus, after finding a court that is able to exercise personal jurisdiction over the parties in the action (see Chapter 2) and subject matter jurisdiction over the claims raised in
the dispute (see Chapter 3), the next step in choosing a proper forum within the federal
system is to identify the particular federal district or districts where the case may be
brought.* This chapter considers the standards governing venue in the federal system
If a case is being brought within a state court, state venue rules will have to be consulted to identify the
court within that state’s judicial system that serves as the proper venue for that case. Here we focus only
on the rules governing venue in the federal system. [Ed.]
*
282
Civil Procedure A Contemporary Approach
as well as the conditions under which an action may be transferred from one venue to
another or dismissed altogether when the preferred venue lies outside the federal system.
A. Original Venue
Proper venue in the federal system is determined by various provisions of Title
28 of the U.S. Code. After reviewing these basic provisions and how they are interpreted and applied generally, we will briefly consider how the venue rules deal with
more complex cases involving multiple claims.
1. The Basic Venue Rules Venue in the federal system is primarily a matter of statutory law. Ordinary
cases are governed by the general venue statute, 28 U.S.C. § 1391:
Venue generally: 28 U.S.C. § 1391
(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;
(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 with the capacity to sue and be sued in its common name
under applicable law, whether or not incorporated, shall be deemed to reside, if a
defendant, in any judicial district in which such defendant is subject to the court’s
personal jurisdiction with respect to the civil action in question * * * 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.
Chapter 4 Venue
283
(d) Residency of corporations in States with multiple districts. — For
purposes of venue under this chapter, 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.
Before attempting to parse this provision, let us take a look at a case that illustrates how courts interpret and apply the general venue statute.
Surface Supplied Inc. v. Kirby Morgan Dive Systems, Inc.
U.S. District Court for the Northern District of California
2013 WL 2355446 (N.D. Cal. May 29, 2013)
MAXINE M. CHESNEY, District Judge.
Before the Court is defendant Kirby Morgan Dive Systems, Inc.’s (“Kirby Morgan”) motion, filed April 5, 2013, to dismiss the above-titled action * * *.
BACKGROUND
Plaintiff Surface Supplied Inc. (“Surface Supplied”) is a California corporation,
established on June 30, 2011, whose principal place of business is the Northern
District of California, and whose three employees reside in said district. [Defendant
Kirby Morgan’s “principal facilities” and all but one of its employees are located in
the Central District of California.] Surface Supplied “is engaged in the business of
research, design, development and manufacture of digital gas analyzer and depth
gauge products . . . for the commercial diving industry.” Surface Supplied’s products
are “alpha stage products,” and, to date, none have been sold.
Surface Supplied maintains a website “on which it describes the external specifications of its products,” but through which it does not “sell or offer [them] for sale.”
On the home page of its website, Surface Supplied has used a “cropped version” of
“a public domain and well known photograph of an underwater water diver against
a backdrop of an American flag.” On three occasions in 2011, Surface Supplied used
the cropped version in advertisements appearing in the national publication Underwater Magazine, and on one occasion in the national publication, Marine Technology
Report, which publications were distributed to consumers in the Central District [of
California]. Surface Supplied also “maintains a presence on the social media sites
Civil Procedure A Contemporary Approach
284
Facebook and Twitter” on which it has used a photograph of “a fully outfitted diver
standing on seaside rocks.” Surface Supplied’s products are engraved with a logo of
a “highly fanciful abstract image of a helmet.” Surface Supplied has also “digitally
superimposed this logo over a picture of a tee shirt, which has been displayed on its
website and social media sites,” but Surface Supplied “has never printed or distributed any tee shirt bearing this logo.”
On January 22, 2013, Kirby Morgan, a corporation that sells commercial diving
helmets and surface gas controllers and analyzers sent Surface Supplied a cease and
desist letter, by which letter Kirby Morgan accused Surface Supplied of infringing its
trademarks by “using images and representations of Kirby Morgan’s helmets on its
website, Facebook page, t-shirts, Twitter and on the panels of Surface Supplied’s gas
analyzer equipment” and demanded that Surface Supplied cease its use of the
infringing images. The letter also demanded an answer no later than February 1,
2013, and stated, “If Kirby Morgan does not receive a suitable response by the aforementioned date, the company will have no choice but to take appropriate legal
action which may include immediately seeking a temporary restraining order . . . .”
Thereafter, Surface Supplied
requested, and Kirby Morgan granted,
Practice Pointer
a one week extension to February 8,
Notice that Surface Supplied pre2013. In lieu of replying, however,
empted the threatened action by
Surface Supplied, on February 8,
Kirby Morgan by taking the initiative
2013, filed the instant action, seeking
and filing a declaratory judgment
action first. This permitted Surface
a declaration of non-infringement of
Supply to attempt to control the
Kirby Morgan’s federally registered
location of the action, which is the
trademarks. Thereafter, on March 15,
subject of the procedural dispute addressed by this opinion. Were Sur2013, Kirby Morgan filed an action in
face Supplied’s actions appropriate?
the Central District [of California],
alleging, inter alia, federal trademark
infringement claims against Surface
Supplied. See Kirby Morgan Dive Systems, Inc. v. Surface Supplied, Inc., No. 13–1862
(C.D. Cal. filed Mar. 15, 2013) (“Central District action”).
?
?
?
?
?
?
DISCUSSION
What’s That?
The Declaratory Judgment Act gives
district courts discretion to entertain cases within their jurisdiction
that seek a declaration of legal rights
rather than any affirmative relief.
Doing so is discretionary, and courts
may decline such actions.
Kirby Morgan moves for dismissal of
the instant action pursuant to the Court’s
equitable powers under the Declaratory
Judgment Act, 28 U.S.C. §§ 2201 and
2202 * * *.
Chapter 4 Venue
285
I. Motion to Dismiss
“The exercise of jurisdiction under . . . 28 U.S.C. § 2201(a), is committed to
the sound discretion of the federal district courts[;][e]ven if the district court has
subject matter jurisdiction, it is not required to exercise its authority to hear the
case.” Huth v. Hartford Ins. Co. of the Midwest, 298 F.3d 800, 802 (9th Cir. 2002).
Kirby Morgan argues the instant action
Take Note!
is an anticipatory suit that should be disNotice how the venue challenge
missed in light of Kirby Morgan’s latercomes into play here: Venue in the
filed Central District action. In opposiNorthern District action is not betion, Surface Supplied argues venue is
ing challenged but, rather, Surface
Supplied is challenging venue in
not proper in the Central District. This
the Central District action. Be sure
Court will not exercise its discretion to
to understand how the question of
dismiss the instant action if the action
venue in the Central District action
is relevant to the dismissal motion in
in the Central District is not properly
the Northern District action.
venued therein, and, consequently, the
Court first addresses that issue.
Venue is proper in:
(1) a judicial district in which any defendant resides, if all defendants are
residents of the State in which the district is located;
(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.
See 28 U.S.C. § 1391(b). Kirby Morgan argues venue is proper in the Central District pursuant to the first two subsections of § 1391(b). The Court addresses each
in turn.
A. Judicial District in Which Any Defendant Resides
“A civil action may be brought in . . . a judicial district in which any defendant
resides, if all defendants are residents of the State in which the district is located.”
See 28 U.S.C. § 1391(b)(1). Surface Supplied is the defendant in the Central District
action, and, consequently, for purposes of determining venue for said action, the
Court must determine whether Surface Supplied resides in the Central District. “[I]n
a State which has more than one judicial district and in which a defendant that is a
286
Civil Procedure A Contemporary Approach
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 . . . .” See 28 U.S.C. § 1391(d). As a “California corporation”
with its “principal place of business” in California, Surface Supplied is subject to
personal jurisdiction in California, a state having more than one judicial district;
consequently, the Court next considers whether Surface Supplied would be subject
to personal jurisdiction in the Central District if such district were a separate state.
“Where, as here, there is no applicable federal statute governing personal jurisdiction, the district court applies the law of the state in which the district court sits.”
See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004).
“Because California’s long-arm jurisdictional statute is coextensive with federal due
process requirements, the jurisdictional analyses under state law and federal due
process are the same.” See id. at 800–01.
“There are two types of personal jurisdiction, specific and general.” * * * Surface
Supplied’s only contacts with the Central District are its advertisements in national
magazines, its passive website, and its accounts on Facebook and Twitter [and thus
insufficient to support general jurisdiction]. The Court thus turns to specific jurisdiction.
The Ninth Circuit has articulated a three-prong test for analyzing specific jurisdiction:
(1) The non-resident defendant must purposefully direct his activities or
consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege
of conducting activities in the forum, thereby invoking the benefits and
protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant’s
forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial
justice, i.e. it must be reasonable.
Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199, 1205–06
(9th Cir. 2006) (en banc). Under the first prong, a party “purposefully avails itself
of the forum if its contacts with the forum are attributable to (1) intentional acts;
(2) expressly aimed at the forum; (3) causing harm, the brunt of which is suffered—
and which the defendant knows is likely to be suffered—in the forum.” See Rio
Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1019 (9th Cir.2002) (citing Calder
v. Jones, 465 U.S. 783, 788–89 (1984)).
Chapter 4 Venue
287
The maintenance of a passive website alone does not constitute purposeful
availment, see Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418–20 (9th Cir. 1997);
rather, “‘something more’ [is] required to indicate that the defendant purposefully
directed its activity in a substantial way to the forum,” see Rio Properties, 284 F.3d at
1020 (quoting Cybersell, 130 F.3d at 418). Here, Kirby Morgan argues Surface Supplied’s advertising in Underwater Magazine and Marine Technology Report and its
presence on Facebook and Twitter constitute the “something more” required to
show purposeful availment.
Advertisements that “specifically
target[ ] consumers” in a forum conFood for Thought
stituting a trademark holder’s principal
place of business can constitute the reqRecall the discussion of jurisdiction
in the Internet context in Chapter 2
uisite “something more.” See Rio Propand note the requirement for “someerties, Inc., 284 F.3d at 1020 (holding
thing more” beyond an Internet presadvertisements that “demonstrate[d] an
ence in a state to support purposeful
availment. Would an analysis under
insistent marketing campaign directed
Calder v. Jones, 465 U.S. 783 (1984),
toward” forum constituted purposeyield a different conclusion, given
ful availment). Advertising in national
the Central District action alleges
trademark infringement?
publications or on Facebook and Twitter, however, is not sufficient to support
a finding of purposeful availment. See
Cascade Corp. v. Hiab–Foco AB, 619 F.2d 36, 37–38 (9th Cir. 1980) (finding no specific jurisdiction where defendant patent holder advertised in “national publications”
circulated in forum, visited forum on two occasions, and mailed accusatory letters to
plaintiff in forum).
Accordingly, Surface Supplied would not be subject to personal jurisdiction in
the Central District were such district a separate state, and, consequently, 28 U.S.C.
§ 1391(b)(1) does not provide for venue therein.
B. Judicial District in Which a Substantial Part of Events or Omissions Giving
Rise to the Claim Occurred
“A civil action may be brought in . . . a judicial district in which a substantial
part of the events or omissions giving rise to the claim occurred.” See 28 U.S.C.
§ 1391(b)(2). The “events or omissions giving rise to the claim[s]” in the Central
District action are the design and use of Surface Supplied’s logo and other images
that Kirby Morgan alleges infringes its trademarks. As all of Surface Supplied’s activities occurred in the Northern District of California, it cannot be said that a substantial part of the events or omissions giving rise to the claims occurred in the Central
District. Section 1391(b)(2) thus does not provide for venue in the Central District.
Accordingly, the Court will deny Kirby Morgan’s motion to dismiss.
***
_______________
288
Civil Procedure A Contemporary Approach
Points for Discussion
a. Three Introductory Points
Before getting into the nuts and bolts of how to conduct an analysis under the
general venue statute, it is important to clarify three significant points:
The Possibility of Multiple Proper Venues. First, the venue statute is not
designed to give you one venue or the best venue. Rather, several possible venues
may come out of an analysis under § 1391. For example, if all the defendants reside
in State A, but a substantial part of the events underlying the action happened in
State B, then venue would be proper in any federal judicial district within those
states where the defendants all reside or where the relevant events occurred. When
multiple venues are proper, the plaintiff is free to select among any of the options,
constrained only by the need to select a court that could exercise personal jurisdiction over all the defendants. This means that to a certain degree, plaintiffs are able to
engage in forum shopping, i.e., seeking the most strategically advantageous forum
for litigating the action. The plaintiff’s selection, however, is subject to the right of
parties to transfer the action to another venue, a topic covered in Section B of this
chapter below.
Recent Amendments to the Venue Statutes. Several provisions of the federal
venue statutes were amended on December 7, 2011 by the Federal Courts Jurisdiction and Venue Clarification Act (JVCA). A principal reform was to eliminate
the duplicative provisions of § 1391(a) & (b). The standards formerly set forth in
these separate provisions are now found in § 1391(b) alone. Also, what used to
appear in § 1391(c) now appears in § 1391(d), with what was in § 1391(d) now
appearing in § 1391(c)(3). You will need to make note of these numbering changes
when researching cases that predate the JVCA. Minor substantive clarifications were
introduced throughout various parts of the venue statutes as well. For a very brief
synopsis of the legislation, see The Third Branch News, Long-Awaited Act Clarifies
Venue and Jurisdiction (December 2011).
The Fallback Provisions. Section 1391(b)(3)—which is referred to as the fallback provision—permits venue in any district having personal jurisdiction over any
defendant only if “there is no district in which the action may otherwise be brought.”
That means that application of the previous two subdivisions, (b)(1) and (b)(2) have
failed to yield any proper venue. This does not mean that venue can be obtained
under one of the fallback provisions if an analysis under the first two subdivisions
fails to produce a particularly desired venue. If an analysis under the first two subdivisions identifies any proper venue, even one that fails to match
a desired locale, there is no recourse to the fallback provision. See Daniel v. Am.
Bd. of Emergency Med., 428 F.3d 408, 434 (2d Cir. 2005) (“[V]enue may be based on
Chapter 4 Venue
289
[(b)(3)] only if venue cannot be established in another district pursuant to any
other venue provision.”). In what circumstances might you imagine that the fallback
provision would be available for laying venue?
b. Analysis under § 1391
Now, let’s parse the venue statute
Take Note!
to clarify how it lays venue in actions
Note that a plaintiff must ordinarfiled in federal court. Beginning with
ily establish proper venue as to each
subdivision (b)(1), this provision indiclaim and each defendant. See 14D
C. Wright & A. Miller, Fed. Prac. &
cates that venue is proper in “a judicial
Proc. 3d § 3808.
district in which any defendant
resides, if all defendants are residents
of the State in which the district is
located.” Thus, in an action by A against B and C, where B resides in the Eastern
District of Virginia and C resides in the Western District of Virginia, venue would be
proper under (b)(1) in either the Eastern or the Western Districts of Virginia, the
state the defendants have in common. Notice that here we are paying no attention
to the plaintiff’s state of residence. Why do you think the plaintiff’s residence is
irrelevant to a venue analysis under the general venue statute?
What if the defendants reside in
a state that has more than one federal
Go Online
judicial district, such as New York? Refer
A
map
showing
the current boundback to the discussion of federal judicial
aries of the federal districts can be
districts in Chapter 1. In states having
viewed by visiting http://www.usonly one district, the boundaries of the
courts.gov/uscourts/images/CircuitMap.pdf.
district are coextensive with those of
the state, and thus defendants who all
reside in such states will be amenable to
suit in the district that covers that state, without regard to where within the state
they reside. However, in states with multiple judicial districts, venue analysis under
§ 1391(b)(1) must identify both the defendants’ state of residence and the district
within that state in which the defendants reside. This is the analysis featured in the
Surface Supplied case above.
Hypo 4.1
In an action by X against Y and Z (two individuals), where Y lives in
the Southern District of New York and Z lives in the Eastern District of
New York, what would be the available proper venue or venues under
1391(b)(1)?
290
Civil Procedure A Contemporary Approach
Subdivision (b)(2) provides that venue is proper in “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.” 28 U.S.C.
§ 1391(b)(2). How is it determined where a “substantial” portion of the events or
omissions underlying the claim occurred? See, e.g., Gulf Ins. Co. v. Glasbrenner, 417
F.3d 353, 357 (2d Cir. 2005) (“[F]or venue to be proper, significant events or omissions material to the plaintiff’s claim must have occurred in the district in question,
even if other material events occurred elsewhere.”); First of Mich. Corp. v. Bramlet,
141 F.3d 260, 263 (6th Cir. 1998) (holding that “proper venue is not limited to
the district where the most substantial event giving rise to the complaint arose”
but instead that “the plaintiff may file his complaint in any forum where a substantial part of the events or omissions giving rise to the claim arose”). Should the
defendant’s experience of harm be considered an “event” giving rise to the claim for
purposes of (b)(2)? See Estate of Abtan v. Blackwater Lodge & Training Ctr., 611 F.
Supp. 2d 1, 8 (D.D.C. 2009) (“In tort cases, when determining whether a substantial
part of the events or omissions giving rise to the plaintiff’s claim occurred . . . in a
particular district for purposes of § 1391(b)(2), . . . courts focus on . . . the place
where the allegedly tortious actions occurred and the place where the harms were
felt.” (internal quotations and citations omitted)). How was this analysis conducted
by the court in Surface Supplied above?
Notice that the events or omissions that are analyzed are limited to those “giving rise to” the claim. What connection should exist between events or omissions
and the claim before treating those events or omissions as giving rise to the claim?
Should events and omissions only count if they were essential to the existence of the
claim under the relevant substantive law? Daniel v. Am. Bd. of Emergency Med., 428
F.3d 408, 433 (2d Cir. 2005) (“When material acts or omissions within the forum
bear a close nexus to the claims, they are properly deemed ‘significant’ and, thus,
substantial, but when a close nexus is lacking, so too is the substantiality necessary
to support venue.”); Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371 (11th Cir.
2003) (“Only the events that directly give rise to a claim are relevant. And of the
places where the events have taken place, only those locations hosting a ‘substantial
part’ of the events are to be considered [for determining venue].”).
c. Determining Residency for Purposes of Venue
Thus far, we have simply asserted that the defendants were residents of a given
state. However, an important question is how residency is determined for purposes
of venue. Recall that for personal jurisdiction and diversity jurisdiction, the relevant consideration for individuals was their state of citizenship, which was in turn
determined by domicile. For corporations, state citizenship for purposes of diversity
jurisdiction meant their states of incorporation and the state of their principal place
of business. Yet another set of rules covered the citizenship of non-corporate collective entities such as voluntary associations and partnerships. See Chapter 3. The
rules for determining the residency of these types of parties are reviewed below.
Chapter 4 Venue
291
Individuals. The 2011 Jurisdiction and Venue Clarification Act amended
§ 1391(c) to make clear that an individual’s residency for venue purposes is his or
her domicile, something that was not explicit in the previous version of this statute.
Recall from our discussion of domicile in Chapter 3 that domicile is the place where
a person is physically located and intends to remain for an indefinite period of time.
Note also that domicile is purely a concept for individual real persons, not entities.
Corporations. Under 28 U.S.C. § 1391(d) (formerly § 1391(c)), corporations
are residents of any district where they are subject to personal jurisdiction. If the state
has more than one district, then a corporation is a resident of any district in which it
could be subject to personal jurisdiction were that district a state. How does one analyze personal jurisdiction with respect to federal judicial districts? See, e.g., Honor
Plastic Indus. Co. v. Lollicup USA, Inc., 2006 WL 2792812, at *5 (E.D. Cal. Sept. 28,
2006) (“Title 28 U.S.C. § 1391 says any corporate defendant ‘shall be deemed to reside
in any judicial district in which it is subject to personal jurisdiction at the time the
action is commenced.’ This effectively
turns the venue question into a personal jurisdiction analysis, treating the
Food for Thought
Eastern District of California as a
Where can a corporation be said to
state.”). See also QRG, Ltd. v. Nartron
reside within the state where it is
incorporated, when such states have
Corp., 2006 WL 2583626, at *3 (W.D.
multiple federal districts? Compare
Pa. Sept. 7, 2006) (engaging in
Jackson v. Fugro Geoservices, Inc.,
§ 1391(d) analysis). How did the court
2005 WL 3543929, at *1–*2 (E.D.
La. 2005) (treating a corporation
in Surface Supplied, above, engage in
as a resident of all districts in the
this analysis?
Because corporate residency is
tied to personal jurisdiction, multiple
possible residencies exist beyond the
corporation’s place of incorporation
and principal place of business—
locales that would confer general
jurisdiction over the corporation. All
districts within which a corporation
would be subject to specific jurisdiction for the civil action in question
would also be districts in which a corporation resides for venue purposes.
state), with Horizon Mktg v. Kingdom
Int’l. Ltd., 244 F. Supp. 2d 131, 138
(E.D.N.Y. 2003) (treating a corporation as only resident in the district of
its official corporate address within
the state), with Tranor v. Brown, 913
F. Supp. 388, 390 (E.D. Pa. 1996)
(“[V]enue does not lie against a
corporation in a multi-district state
solely because of its corporate status.
. . . [Section 1391(c)] ensures that
corporate defendants cannot be sued
in districts within their state of incorporation with which they have no
contacts.” (citations omitted)).
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Civil Procedure A Contemporary Approach
Hypo 4.2
Bernard fell ill after consuming spinach from Williams Farms and sold by
Wholesome Markets. Williams Farms is not a corporation but is rather the
name under which Pete Williams, a California resident, does business. He
ships the spinach grown on his farm to retail outlets throughout the United
States including Wholesome Markets. Wholesome Markets is a Delaware
corporation with its principal place of business in New York. It operates
grocery stores in each of the 50 states. Bernard purchased the spinach that
made him sick at the Wholesome Markets store in his home neighborhood
in Portland, Oregon.
Bernard initiated an action against Williams and Wholesome Markets for
negligence in the U.S. District Court for the District of Oregon. Williams
moves to dismiss for improper venue. Should the court grant the motion?
Hypo 4.3
Bernard, an Oregon citizen, fell ill in Texas after consuming spinach from
Osage Farms and sold by Wholesome Markets. Osage Farms is a Delaware
corporation operating from a farm in Los Angeles, California (the Central District of California). Osage ships the spinach grown on its farm to
retail outlets throughout the United States including Wholesome Markets.
Wholesome Markets is a Delaware corporation with its principal place of
business in New York. It operates grocery stores in each of the 50 states.
Bernard purchased the spinach that made him sick at the Wholesome
Markets store in Houston, Texas (Southern District of Texas) during a business trip. Bernard initiated an action against Osage Farms and Wholesome
Markets for negligence in the U.S. District Court for the District of Oregon.
Osage moves to dismiss for improper venue. Should the court grant the
motion?
Unincorporated Entities. The Supreme Court has held that for purposes of a
venue analysis, the residence of an unincorporated association such as a partnership
or trade union is “determined by looking to the residence of the association itself
rather than that of its individual members.” Denver & Rio Grande W. R.R. Co. v.
Bhd. of R.R. Trainmen, 387 U.S. 556, 559 (1967). The 2011 Jurisdiction and Venue
Clarification Act codifies this treatment of unincorporated entities as defendants by
Chapter 4 Venue
293
providing that they reside “in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question.”
28 U.S.C. § 1391(c)(2). Why do you think this is the case? What justifies looking at the association to determine residence for purposes of venue but looking at
individual members to determine citizenship for purposes of diversity jurisdiction?
d. Venue in Removed Cases
The language of the general removal statute (see Chapter 3) indicates the federal
district in which removed cases must be heard, in effect making those federal districts the proper venue for removed cases. See 28 U.S.C. § 1441(a); Polizzi v. Cowles
Magazines, Inc., 345 U.S. 663, 665–66 (1953) (“The venue of removed actions is
governed by 28 U.S.C.A. § 1441(a). . . . Section 1441(a) expressly provides that the
proper venue of a removed action is ‘the district court of the United States for the
district and division embracing the place where such action is pending.’”). Thus,
for removed cases, a separate analysis under the venue statutes is unnecessary and
challenges to venue as improper are unavailable, provided the district indicated in
§ 1441(a) is where the removed case is now being heard. See 28 U.S.C. § 1390(c)
(“This chapter shall not determine the district court to which a civil action pending
in a State court may be removed. . . .”); Lundahl v. Pub. Storage Mgmt., Inc., 62 Fed.
App’x 217, 218–19 (10th Cir. 2003) (“[R]emoval venue is controlled by 28 U.S.C.
§ 1441(a) which provides that cases may be removed to ‘the district court of the
United States for the district and division embracing the place where such action is
pending.’ Thus, the dismissal based on § 1391(b) was improvidently granted, and
venue in the federal district court for the district of Utah is proper.”); Godfredson v.
JBC Legal Grp., P.C., 387 F. Supp. 2d 543, 555 (E.D.N.C. 2005) (“28 U.S.C. § 1391
does not apply when, as here, defendants remove a case to federal court from state
court.”).
e. Venue For Alien Defendants
The general venue statute contains a special provision governing the determination of venue in actions against aliens. Section 1391(c)(3)—formerly 1391(d)—
states, “a defendant not resident in the United States may be sued in any judicial
district . . . .” Thus, if there is a defendant who is not a U.S. citizen, or, presumably,
a U.S. citizen domiciled abroad, that defendant may be sued in any federal district
court anywhere in the country (as far as venue is concerned; personal jurisdiction
and subject matter jurisdiction would be separate matters). This provision also
applies to foreign corporations, not just individuals. See Go-Video, Inc. v. Akai Elec.
Co., 885 F.2d 1406, 1410–11 (9th Cir. 1989); O.S.C. Corp. v. Toshiba Am., Inc., 491
F.2d 1064, 1068 (9th Cir. 1974) (“[U]nder section 1391(d) as an alien corporation
it can be sued in any district.”). If an alien is one of several defendants, the alien is
disregarded for purposes of determining venue with respect to the non-alien defendants. 28 U.S.C. § 1391(c)(3).
294
Civil Procedure A Contemporary Approach
f. Venue and Personal Jurisdiction
Venue and personal jurisdiction
are not the same thing. Venue can be
proper in a district but that same court
can lack personal jurisdiction. See, e.g.,
World-Wide Volkswagen v. Woodson, 444
U.S. 286 (1980). Alternatively, a court
may be able to exercise personal jurisdiction over a defendant but venue may
be improper there. See Example 4.1.
Example 4.1
P v. D & DNY. All events giving rise
to P’s claim arose in California. Under
the general venue statute, although
DDE would be subject to personal jurisdiction in Delaware and DNY would be
subject to personal jurisdiction in New
York, venue would not be proper in
either state but would be proper in the
relevant district in California.
FL
DE
The distinction between the two concepts does not mean that they will not often
coincide, however. Indeed, because corporations reside in any district in which they
are subject to personal jurisdiction for purposes of venue, when a court has personal
jurisdiction over all the defendants, and all the defendants are corporations, venue will
always be proper there because by definition all defendants will “reside” in that jurisdiction. See Example 4.2. Of course, when there is only one corporate defendant,
venue is proper wherever that defendant could be subjected to personal jurisdiction.
Example 4.2
Polly wants to sue ABC, Inc. and XYZ Corp. in California federal court. ABC has substantial
operations related to the suit in the Northern District of California and XYZ has the same level
of operations in the Southern District of California. Because both defendants are corporations and they would each be subject to personal jurisdiction in the districts where they have
related corporate operations, the defendants all reside within the same state (California) and
venue would be proper in either the Northern or Southern Districts of California.
g. Challenging Venue
If a defendant feels that the district in which the plaintiff has brought the action
is improper under the applicable venue statute, the proper recourse for challenging
venue is a motion to dismiss for improper venue. See Fed. R. Civ. P. 12(b)(3). This is
one of the waivable defenses, meaning that under the Federal Rules the motion must
be made in a defendant’s initial response to the plaintiff’s complaint or it is waived.
See Fed. R. Civ. P. 12(g) & (h). The rules governing the waivable defenses will be
covered in greater detail in Chapter 6.
Chapter 4 Venue
295
h. Venue and Forum-Selection Clauses
Federal courts must enforce mandatory forum-selection clauses unless the
objecting party can “clearly show that enforcement would be unreasonable and
unjust, or that the clause [is] invalid for such reasons as fraud or overreaching.”
M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 15 (1972). Thus, if there is a valid
mandatory forum-selection clause that applies to the dispute before the court, it
can provide the basis for proper venue (based on consent) or serve as the basis for a
motion to dismiss if the court where the claim has been filed is not the one indicated
in the clause. See Magi XXI, Inc. v. Stato della Città del Vaticano, 714 F.3d 714, 720–21
(2d Cir. 2013).
_______________
2. Pendent Venue
Thus far we have considered actions in which venue was proper for each claim
under the general venue statue. What happens in cases where there are multiple
claims against multiple defendants filed in a particular forum, some of which are
properly venued in that forum and others that are not? The next case wrestles with
this situation.
PKWare v. Meade
U.S. District Court, Eastern District of Wisconsin
79 F. Supp. 2d 1007 (E.D. Wis. 2000)
ADELMAN, District Judge.
Plaintiff PKWare, Inc. is a Milwaukee company which develops and licenses
various software products. Plaintiff is the originator of certain software known as
PKZIP software, and owns a patent, trademarks and copyrights on some of the technology related to the software. Defendant Timothy L. Meade is an Ohio resident in
the business of translating and reselling software. In September 1992 plaintiff and
Meade entered into a contract (the “agreement”) under which Meade would convert
some of plaintiff’s software so that it could be used in environments other than those
for which it was designed. At the time Meade entered into the agreement he was a
sole proprietor doing business under the name “Ascent Solutions.” In 1993 Meade
incorporated his business in Ohio under the name Ascent Solutions, Inc. (“ASI”)
and became ASI’s majority shareholder, president and CEO.
Civil Procedure A Contemporary Approach
296
In 1999 plaintiff commenced this action against both defendants alleging a variety of claims under both state and federal law. These claims include (1) breach of
contract, (2) copyright infringement,
(3) patent infringement, (4) trademark
infringement, (5) false designation of
origin, (6) common law trademark
Make the Connection
infringement, (7) common law unfair
False designation of origin involves the
competition, (8) dilution of mark, and
use of some mark or design in connection with a product that gives an
(9) breach of duty of good faith and
erroneous impression of the source
fair dealing. Pursuant to Fed. R. Civ. P.
of the product. This is a trademark
12(b)(2) and 12(b)(3), defendants
concept that would be covered in an
Intellectual Property course.
moved to dismiss for lack of personal
jurisdiction and improper venue * * * .
I now address defendants’ motions.
I. Factual Background
Plaintiff alleges that “on information and belief some time after the effective date of
the Agreement, Meade . . . purported to assign his rights and duties under the Agreement
to [ASI].” The agreement, however, provides that neither party may assign it without
the other party’s written consent. The record contains no evidence that Meade formally
assigned his interest to ASI or that plaintiff
?
?
consented in writing to such an assign?
?
ment. The parties agree, however, that ASI
What’s That?
performed Meade’s responsibilities under
According to Black’s Law Dictionary,
the agreement. Further ASI does not disallegations based on information and
pute that it was a party to the agreement
belief are those “based on secondhand information that the declarant
despite Meade’s having signed it while he
believes to be true.” Rule 11 permits
was a sole proprietor. ASI agrees that it had
parties to make allegations on this
a “business relationship [with] PKWare . . .
basis.
from September 1992 to the present.”
?
?
Under the agreement Meade was to convert or “port” plaintiff’s software so that
it could have wider use. Porting is generally accomplished by rewriting a component
of the software known as source code. Upon completion of the porting Meade was
to send PKWare copies of the resulting software known under the agreement as
“Resulting Programs and Software Collections.” Also, under the agreement plaintiff
granted Meade a license to resell the converted software in return for a thirty percent
royalty which was to be paid monthly. Under the agreement Meade could license
the source code to third parties and subcontract the conversion work with plaintiff’s
consent but was responsible for the work of subcontractors. Meade’s royalty payments were to be accompanied by monthly reports setting forth the sales for each
environment for which the software had been converted during the period that the
agreement was in effect. Defendants sent plaintiff some royalty payments and sales
reports.
Chapter 4 Venue
297
Meade and plaintiff negotiated the agreement after lengthy communications by
telephone, e-mail and writings between Meade in Ohio and plaintiff in Wisconsin.
During the course of the agreement Meade communicated with plaintiff’s employees about matters related to the agreement on numerous occasions via telephone
and e-mail. Meade also visited Milwaukee once to attempt to hire one of plaintiff’s
employees, Steven Burg, during which visit and subsequently “the ongoing relationship between PKWare and ASI was occasionally discussed.” The agreement provided
that it would be governed by Wisconsin law.
ASI operates an interactive website with an on-line store where users from
around the world can place orders for ASI products including some PKZIP products
and other software. ASI sells software products all over the world including in Wisconsin. ASI has also provided products
and/or services to at least eighty-six
different customers in Wisconsin over
the course of the last several years with
Food for Thought
the majority of these sales occurring in
The court has listed here the defendants’ contacts with the forum state,
the Eastern District of Wisconsin. ASI
Wisconsin. Based on your underalso advertises on the internet search
standing of personal jurisdiction, do
engine “AltaVista” and in Computeryou think that the court—which is
located in Wisconsin—has personal
World magazine and the SciTech Scijurisdiction over the defendants?
ence catalogue, all of which have
Wisconsin subscribers. * * *
III. Venue
Defendants argue that venue is improper in this judicial district. The burden of
showing that venue is proper is on the plaintiff. Grantham v. Challenge-Cook Bros.,
Inc., 420 F.2d 1182, 1184 (7th Cir. 1969). For venue to lie it must be proper as to
both defendants and as to all claims. Payne v. Marketing Showcase, Inc., 602 F. Supp.
656, 658 (N.D. Ill. 1985); Georgene
M. Vairo, Determination of Proper
Venue, in 17 Moore’s Federal Practice
Take Note!
§ 110.05 (Daniel R. Coquillette et
The court here states a general rule:
al. eds., 3d ed. 1997). Here, plaintiff
In the face of a defendant’s challenge
brings a breach of contract and other
to venue, it is the plaintiff who has
the burden of showing that venue is
state law claims as well as federal
proper, not the defendant who must
claims for trademark, copyright and
show that venue is improper. Why
patent infringement. Because of the
do you think the burden is allocated
variety of plaintiff’s claims, several
in this way?
venue statutes are relevant.
298
Civil Procedure A Contemporary Approach
A. State Law Claims and Federal Trademark Claims
Venue for plaintiff’s state law claims is governed by the general venue statute,
28 U.S.C. § 1391. The same is true of plaintiff’s federal trademark related claims
because the Lanham Act has no special venue provision. Woodke v. Dahm, 70 F.3d
983 (8th Cir. 1995). Section 1391(b) provides that where, as here, subject matter
jurisdiction is not founded solely on diversity, venue exists in “(1) a judicial district
where any defendant resides, if all defendants reside in the same State, [or] (2) a
judicial district in which a substantial part of the events or omissions giving rise to
the claim occurred.” ASI can be regarded as residing in this district because, under
28 U.S.C. § 1391(c), a corporation is deemed to reside in a district in which it is
subject to personal jurisdiction.* Meade, however, is not a corporation and resides
in Ohio. Therefore, venue is not proper as to either defendant under § 1391(b)(1).
However, § 1391(b)(2) provides that venue exists in this district if “a substantial part of the events or omissions giving rise to the claim occurred” here. Section
1391(b)(2) is the result of a 1990 amendment which changed the law to the extent
that prior law had encouraged an approach that a claim could generally arise in only
one venue. Under the amended law, however, venue may be proper in more than one
district as long as a “substantial” part of the key events or omissions occurred in the
district. In determining where substantial parts of the underlying events occurred I
focus on the activities of the defendant and not those of the plaintiff.
In applying the “substantial part” test provided in amended § 1391(b)(2) to
breach of contract cases, courts consider a number of factors including where the
conduct underlying the breach occurred and where performance under the contract was to take place. Consolidated Ins. Co. v. Vanderwoude, 876 F. Supp. 198, 202
(N.D. Ind. 1995). The “substantial part of the events or omissions” standard may be
satisfied by a communication transmitted or not transmitted to or from the district
in which the cause of action was filed, given a sufficient relationship between the
communication and the cause of action. In contract cases courts have held that
the delivery or non-delivery of goods and the payment or non-payment of money
were significant events providing a basis for venue in the district where they were
to occur. See American Carpet Mills v. Gunny Corp., 649 F.2d 1056, 1059 (5th Cir.
1981) (place where goods were to be delivered was place of performance); Gardner
Eng’g Corp. v. Page Eng’g Co., 484 F.2d 27, 33 (8th Cir. 1973) (venue existed at site
where delivery was to be made); Decker Coal Co. v. Commonw. Edison Co., 805 F.2d
834, 843–44 (9th Cir. 1986) (venue for claim based on breach of contract is in place
of intended performance rather than place of repudiation); Oce-Industries, Inc. v.
Coleman, 487 F. Supp. 548, 552 (N.D. Ill. 1980) (place where orders accepted and
payment to be made important for venue purposes).
In an omitted portion of the opinion, the court concluded that personal jurisdiction was proper with
respect to ASI in Wisconsin. [Ed.]
*
Chapter 4 Venue
299
In the present case defendants were obliged under the agreement to deliver
copies of software, make royalty payments and send sales reports to plaintiff in
this district and allegedly failed to do so. Defendants were also supposed to obtain
approval for sublicensing and distributing in this district and allegedly failed to
do so. Further, defendants allegedly attempted unsuccessfully to cure their default
here. These alleged failures constitute a substantial part of the events or omissions
giving rise to plaintiff’s claim. Thus, based on the facts of the case and the foregoing
authority, it is reasonable to conclude that venue exists in this district with respect
to plaintiff’s state law and trademark claims.
B. Federal Copyright Claims
Title 28 U.S.C. § 1400(a) governs
venue in copyright claims and provides that venue is proper in a district
in which the defendant “resides” or
“may be found.” Under this provision, a defendant “may be found” in
a district if the defendant is subject to
personal jurisdiction in that forum.
Because I have found that defendants
are subject to personal jurisdiction
here venue is proper under 28 U.S.C.
§ 1400(a) with respect to plaintiff’s
copyright claims.
Take Note!
As mentioned earlier, there are
special venue statutes that govern
certain types of cases. When these
statutes apply, they indicate proper
venues for their respective claims.
Thus, the court here applies the special statute governing venue in federal copyright claims and the patent
action venue provision to the patent
infringement claim below.
C. Patent Infringement Claim
Title 28 U.S.C. § 1400(b) governs plaintiff’s patent infringement claim. It provides that an action may be brought in a district “where the defendant resides or
where the defendant has committed acts of infringement and has a regular and
established place of business.”
1. Claim Against ASI
It is not disputed that ASI has no “regular and established place of business” in
this district. The question, therefore, is whether for § 1400(b) purposes ASI “resides”
in the Eastern District of Wisconsin. ASI argues that it resides in Ohio where it is
incorporated. Title 28 U.S.C. § 1391(c), however, provides that “[f]or purposes of
venue under this chapter, a defendant that is a corporation shall be deemed to reside
in a judicial district in which it is subject to personal jurisdiction” (emphasis added).
Read in conjunction with § 1400(b)—because § 1400(b) is also part of chapter 87
of title 28—§ 1391(c) expands the definition of “resides.” Braden Shielding Sys. v.
Civil Procedure A Contemporary Approach
300
Shielding Dynamics, 812 F.Supp. 819, 820 (N.D. Ill. 1992). Thus, it would appear
that for purposes of §1400(b), ASI resides in this district. ASI, however, contests this
proposition and argues that Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222
(1957), provides that § 1400(b) by itself governs venue in patent infringement cases.
The identical issue was addressed in Braden, which I believe analyzed it correctly.
Braden began by pointing out that district courts are bound by the decisions of the
federal circuit in patent cases and that
the federal circuit had recently
FYI
FYI
addressed the issue in VE Holding Corp.
The Federal Circuit is the federal FYI
v. Johnson Gas Appliance Co., 917 F.2d
appellate court that has juris1574, 1578 (Fed. Cir. 1990). The VE
diction over appeals involving patent
matters. This means that such cases
Holding court found that amended
in the federal district courts through§ 1391(c) “re-defines the meaning of
out the country must be appealed to
the term ‘resides’” in § 1400(b) for corthis court rather than the relevant
regional circuit court in which those
porate defendants. Braden then went
district courts are located. Visit www.
on to show how the conflict between
cafc.uscourts.gov/ for more informaFourco and VE Holding was more appartion.
ent than real and that both cases used
the same analytic framework:
FYI
FYI
FYI
The amendments to § 1391 required the court in VE Holding to decide
whether Congress sought to change the established substance of § 1400(b)
by requiring the specific patent venue provision to be read in conjunction
with the general venue provision. The court emphasized two things: (1) the
statutory language added in 1988 to § 1391(c), “[f]or purposes of venue
under this chapter,” referred clearly to §§ 1391–1412 (and, necessarily,
§ 1400(b)), and thus amounted to the “exact and classic language of incorporation” that was missing in the 1948 version of § 1391(c) construed
in Fourco; and (2) the drafters of the amendment were well aware of the
issue of incorporation and so the obvious meaning of the words they chose
should be respected.
Braden, 812 F. Supp. at 821.
Thus, for purposes of venue, ASI “resides” in this district if it was subject to
personal jurisdiction here when the action was commenced. As I have already determined that ASI is subject to personal jurisdiction, venue in this district for plaintiff’s
patent infringement claim is proper.
2. Meade
Section 1400(b) also governs venue with respect to plaintiff’s patent infringement claim against Meade. Meade is not a corporation and resides in Ohio. Venue,
Chapter 4 Venue
301
therefore, is not proper here under the “resides” clause of § 1400(b) and will only lie
under § 1400(b) if Meade “committed acts of infringement” and has a “regular and
established place of business” in this district. “Having a ‘regular and established place
of business’ involves more than ‘doing business.’” Brunswick Corp. v. Suzuki Motor Co.,
575 F. Supp. 1412, 1423 (E.D. Wis. 1983). Meade does not have a regular and established place of business in this judicial district. He neither owns nor rents property,
nor employs sales agents here. Therefore, venue is not proper in this district under
§ 1400(b) with respect to the patent infringement claim against Meade.
Plaintiff, however, asks the court to exercise pendent venue over the improperly
venued claim. Meade objects pointing out both that patent infringement claims are
governed exclusively by § 1400(b) and that venue must generally be established
for each separate cause of action. Courts have sometimes relied on a theory of pendent venue analogous to the doctrine of supplemental jurisdiction. See, e.g., Travis
v. Anthes Imperial Ltd., 473 F.2d 515, 528–29 (8th Cir. 1973) (when venue is proper
on federal claims, it is also proper on pendent state claims); Beattie v. United States,
756 F.2d 91, 101 (D.C. Cir. 1984) (the doctrine of “pendent venue” is now well
established). Generally, pendent venue will be applied if a court may also exercise
supplemental jurisdiction.
However, there is no practical reason to limit the application of pendent venue
to pendent jurisdiction cases, and judges have recognized this by utilizing pendent
venue in other situations. In Zenith Radio Corp. v. Matsushita Elec. Ind. Co., 402 F. Supp.
262 (E.D. Pa. 1975), plaintiff brought claims under two different federal statutes, one
of which was properly venued and one of which was not. The court retained jurisdiction of both, holding that it would be senseless to bifurcate the case by dismissing or
transferring some counts while retaining the others, since the facts underlying both
claims were essentially the same. See also Seamon v. Upham, 563 F. Supp. 396, 399
(E.D. Tex. 1983), where the court noted that pendent venue could be exercised if it
furthered the goals of judicial economy, convenience and fairness to the litigants.
However, courts have been less willing to accept venue of a claim for patent
infringement based on the doctrine of pendent venue. Patent infringement cases are
governed by a specific venue statute, § 1400(b), and courts have expressed the view
that application of the doctrine of pendent venue is inconsistent with the specific
requirements of the statute. See Bradford Novelty Co. v. Manheim, 156 F. Supp. 489,
491 (S.D.N.Y. 1957) (Congress saw fit to narrowly confine the venue provisions
applicable to this type of action). The Supreme Court’s comments about § 1400(b)
also counsel caution in regard to applying pendent venue to patent infringement
cases. See Schnell v. Peter Eckrich & Sons, 365 U.S. 260, 264 (1961) (“The requirement of venue is specific and unambiguous; it is not one of those vague principles
which, in the interest of some overriding policy, is to be given a liberal construction.”). Additionally, no Seventh Circuit case authorizes the application of pendent
venue in this case.
302
Civil Procedure A Contemporary Approach
Thus, I decline to apply the doctrine of pendent venue to plaintiff’s patent
infringement claim against Meade. Therefore, venue with respect to the claim is
improper in this district. Pursuant to Fed. R. Civ. P. 12(b)(3), Meade has moved to
dismiss this claim. His motion will be granted.
* * *
_______________
Points for Discussion
a. Pendent Venue
When a plaintiff asserts multiple claims in an action, venue must ordinarily be
proper for each of those claims. Centerville ALF, Inc. v. Balanced Care Corp., 197 F.
Supp. 2d 1039, 1046 (S.D. Ohio 2002) (“Plaintiffs bear the burden of establishing
that venue is proper . . . and must demonstrate that venue is proper for each claim
asserted in their complaint.”). However, many courts have recognized an exception
to this general rule in the doctrine of pendent venue, “according to which venue
may be proper with respect to an improperly venued claim if the claim is joined to
a properly venued claim, and the claims arise out of a common nucleus of operative
fact.” 14D C. Wright, A. Miller & E. Cooper, Fed. Prac. & Proc. Juris. 3d § 3808.
See also High River Ltd. P’ship v. Mylan Lab., Inc., 353 F. Supp. 2d 487, 493 (M.D. Pa.
2005) (“Pendent venue is an exception to the rule that venue must be established for
each cause of action asserted in the complaint.”). But see McCaskey v. Cont’l Airlines,
Inc., 133 F. Supp. 2d 514, 525 (S.D. Tex. 2001) (“Simply put, there is no pendant
[sic] venue under 28 U.S.C. § 1391(a)(2).”).
What do you think is the rationale for this judicially-recognized exception? Is the
notion of pendent venue consistent with the general venue statute? With respect to
claims governed by specialized venue statutes, should the doctrine of pendent venue
be available to lay venue in forums not approved by those statutes? See, e.g., Price v.
Countrywide Home Loans, Inc., 2005 WL 2354348, at *5–*6 (S.D. Ga. Sept. 26, 2005).
b. Venue for Subsequently Joined Claims
How should courts assess venue for claims that are asserted against the original
parties by way of counterclaims, crossclaims, or by outsiders seeking to intervene in
the case? Generally speaking, courts have not required an independent assessment
of venue for such additional claims. See 14D C. Wright, A. Miller & E. Cooper, Fed.
Prac. & Proc. Juris. 3d § 3808 (“When these additional claims are asserted against
parties to the original suit, no venue objection should be available. Since the main
action satisfied the venue statutes, these additional claims asserted later need not.”).
Chapter 4 Venue
303
c. Special Venue Statutes
The general venue statute, by its own terms, applies “except otherwise provided
by law.” As illustrated in PKWare, there are indeed other venue provisions for specific
types of cases that might trump the general venue provisions of § 1391 when they
apply. See, e.g., 28 U.S.C. § 1400 (copyright and patent cases). Thus, in assessing
venue it is important first to determine whether one of these special statutes applies
before moving on to an analysis of venue under the general venue statute. Note,
however, that the alien venue provision, § 1391(c)(3) (formerly § 1391(d)), itself
trumps special venue statutes. See Brunette Mach. Works, Ltd. v. Kockum Indus., Inc.,
406 U.S. 706, 714 (1972) (holding that § 1391(d) is “a declaration of the long-established rule that suits against aliens are wholly outside the operation of all the federal
venue laws, general and special”). Courts have also held that when the general venue
statute and the special venue statute are not in conflict, and the special venue statute
is not exclusive, litigants may be able to lay venue by satisfying either standard that
applies. See 14D C. Wright, A. Miller & E. Cooper, Fed. Prac. & Proc. Juris. 3d
§ 3818 (“[T]he Supreme Court has now held that special venue statutes are supplemented by, and are to be read in the light of, the liberalizing provisions of the general
venue statutes, at least in the absence of contrary restrictive indications in the special
venue statutes.” (citing Pure Oil Co. v. Suarez, 384 U.S. 202 (1966))).
_______________
B. Change of Venue What happens if the court where the plaintiff files its case is not a proper venue
under the applicable venue statute? Or, what recourse does a defendant have if she
simply finds the selected venue to be too inconvenient, even though venue may be
proper? Taking the latter situation first, federal law provides courts with the power
to transfer cases to another federal judicial district—even though venue in the first
district may be proper—on the ground that doing so is “in the interest of justice” or
better for the “convenience of parties and witnesses”:
Change of Venue: 28 U.S.C. § 1404(a)
(a) For the convenience of parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other district or division where
it might have been brought or to any district or division to which all parties have
consented.
304
Civil Procedure A Contemporary Approach
Thus, a defendant who feels that
the plaintiff’s chosen venue is too
inconvenient or otherwise unduly
burdensome may seek a transfer of the
case to another federal judicial district
(or division within the initially chosen
district).
Take Note!
Both § 1404 and § 1406 below permit transfer to a “district.” A district
refers to one of the federal judicial
districts discussed above. Thus, under the federal venue transfer statutes, an action may not be transferred
from federal court to a state court.
On the other hand, if the plaintiff initially files an action in a forum
that is not a proper venue under the
applicable venue statute, then the defendant may still seek to transfer the case but
pursuant to a separate venue transfer provision:
Curing Defective Venue: 28 U.S.C. § 1406(a)
(a) The district court of a district in which is filed a case laying venue in the
wrong division or district shall dismiss, or if it be in the interest of justice, transfer
such case to any district or division in which it could have been brought.
In this section, we will cover two issues presented by these venue transfer provisions: (1) To which federal districts may an action be transferred, and (2) What
standards govern transfer under § 1404 and § 1406?
1. Determining Available Transferee Courts
Hoffman v. Blaski*
Supreme Court of the United States
363 U.S. 335 (1960)
Mr. Justice WHITTAKER delivered the opinion of the Court.
* * *
The instant cases present the question whether a District Court, in which a civil
action has been properly brought, is empowered by § 1404(a) to transfer the action,
on the motion of the defendant, to a district in which the plaintiff did not have a
right to bring it.
This case was resolved along with a companion case, Sullivan v. Behimer, which raised the same question
as Hoffman v. Blaski. Discussion of the facts of Sullivan is omitted here. [Ed.]
*
Chapter 4 Venue
305
Respondents, Blaski and others, residents of Illinois, brought this patent
infringement action in the United States District Court for the Northern District of
Texas against one Howell and a Texas corporation controlled by him, alleging that
the defendants are residents of, and maintain their only place of business in, the City
of Dallas, in the Northern District of Texas, where they are infringing respondents’
patents. After being served with process and filing their answer, the defendants
moved, under § 1404(a), to transfer the action to the United States District Court
for the Northern District of Illinois.2 Respondents objected to the transfer on the
ground that, inasmuch as the defendants did not reside, maintain a place of business, or infringe the patents in, and could not have been served with process in, the
Illinois district, the courts of that district lacked venue over the action3 and ability
to command jurisdiction over the defendants; that therefore that district was not
a forum in which the respondents had a right to bring the action, and, hence, the
court was without power to transfer it to that district. Without mentioning that
objection or the question it raised, the District Court found that “the motion should
be granted for the convenience of the parties and witnesses in the interest of justice,”
and ordered the case transferred to the Illinois district. Thereupon, respondents
moved in the Fifth Circuit for leave to file a petition for a writ of mandamus directing the vacation of that order. That court, holding that “(t)he purposes for which
§ 1404(a) was enacted would be unduly circumscribed if a transfer could not be
made ‘in the interest of justice’ to a district where the defendants not only waive
venue but to which they seek the transfer,” denied the motion.
Upon receipt of a certified copy of the pleadings and record, the Illinois District
Court assigned the action to Judge Hoffman’s calendar. Respondents promptly moved
for an order remanding the action on the ground that the Texas District Court did
not have power to make the transfer order and, hence, the Illinois District Court was
not thereby vested with jurisdiction of the action. After expressing his view that the
“weight of reason and logic” favored “retransfer of this case to Texas,” Judge Hoffman,
with misgivings, denied the motion. Respondents then filed in the Seventh Circuit a
petition for a writ of mandamus directing Judge Hoffman to reverse his order. After
hearing and rehearing, the Seventh Circuit, holding that “(w)hen Congress provided
(in § 1404(a)) for transfer (of a civil action) to a district ‘where it might have been
brought,’ it is hardly open to doubt but that it referred to a district where the plaintiff
* * * had a right to bring the case,” and that respondents did not have a right to bring
this action in the Illinois district, granted the writ, one judge dissenting.
* * *
The asserted basis of the motion was that trial of the action in the Illinois District Court would be more
convenient to the parties and witnesses and in the interest of justice because several actions involving
the validity of these patents were then pending in that court, and that pretrial and discovery steps taken
in those actions had developed a substantial amount of evidence that would be relevant and useful in
this action. Defendants also stated in the motion that, if and when the case be so transferred, they would
waive all objections to the venue of the Illinois District Court over the action and would enter their
appearance in the action in that court.
3
See 28 U.S.C. § 1400(b).
2
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Civil Procedure A Contemporary Approach
Petitioners’ “thesis” and sole claim is that § 1404(a), being remedial, should be
broadly construed, and, when so construed, the phrase “where it might have been
brought” should be held to relate not only to the time of the bringing of the action,
but also to the time of the transfer; and that “if at such time the transferee forum has
the power to adjudicate the issues of the action, it is a forum in which the action
might then have been brought.” (Emphasis added.) They argue that in the interim
between the bringing of the action and the filing of a motion to transfer it, the defendants may move their residence to, or, if corporations, may begin the transaction
of business in, some other district, and, if such is done, the phrase “where it might
have been brought” should be construed to empower the District Court to transfer
the action, on motion of the defendants, to such other district; and that, similarly,
if, as here, the defendants move to transfer the action to some other district and
consent to submit to the jurisdiction of such other district, the latter district should
be held one “in which the action might then have been brought.” (Emphasis added.)
We do not agree. We do not think the § 1404(a) phrase “where it might have
been brought” can be interpreted to mean, as petitioners’ theory would required,
“where it may now be rebrought, with defendants’ consent.” This Court has said,
in a different context, that § 1404(a) is “unambiguous, direct [and] clear,” Ex parte
Collett, 337 U.S. 55, 58 (1949), and that “the unequivocal words of § 1404(a) and
the legislative history * * * (establish) that Congress indeed meant what it said.”
United States v. National City Lines, Inc., 337 U.S. 78, 84 (1949). * * * [W]e think
the dissenting opinion of Judges Hastie and McLaughlin in Paramount Pictures, Inc.
v. Rodney, 186 F.2d 111, 119 (3d Cir. 1951), correctly answered this contention:
But we do not see how the conduct of a defendant after suit has been
instituted can add to the forums where ‘it might have been brought.’ In
the normal meaning of words this language of Section 1404(a) directs the
attention of the judge who is considering a transfer to the situation which
existed when suit was instituted.
It is not to be doubted that the transferee courts, like every District Court, had
jurisdiction to entertain actions of the character involved, but it is obvious that they
did not acquire jurisdiction over these particular actions when they were brought
in the transferor courts. The transferee courts could have acquired jurisdiction
over these actions only if properly brought in those courts, or if validly transferred
thereto under § 1404(a). Of course, venue, like jurisdiction over the person, may be
waived. A defendant, properly served with process by a court having subject matter
jurisdiction, waives venue by failing seasonably to assert it, or even simply by making default. But the power of a District Court under § 1404(a) to transfer an action
to another district is made to depend not upon the wish or waiver of the defendant
but, rather, upon whether the transferee district was one in which the action “might
have been brought” by the plaintiff.
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The thesis urged by petitioners would not only do violence to the plain words of
§ 1404(a), but would also inject gross discrimination. That thesis, if adopted, would
empower a District Court, upon a finding of convenience, to transfer an action
to any district desired by the defendants and in which they were willing to waive
their statutory defenses as to venue and jurisdiction over their persons, regardless
of the fact that such transferee district was not one in which the action “might have
been brought” by the plaintiff. Conversely, that thesis would not permit the court,
upon motion of the plaintiffs and a like showing of convenience, to transfer the
action to the same district, without the consent and waiver of venue and personal
jurisdiction defenses by the defendants. Nothing in § 1404(a), or in its legislative
history, suggests such a unilateral objective and we should not, under the guise of
interpretation, ascribe to Congress any such discriminatory purpose.
* * *
Inasmuch as the respondents (plaintiffs) did not have a right to bring these
actions in the respective transferee districts, it follows that the judgments of the
Court of Appeals were correct and must be affirmed.
Affirmed.
[A concurrence by Justice STEWART and dissents by Justices FRANKFURTER,
HARLAN, and BRENNAN have been omitted.]
_______________
Points for Discussion
a. Proper Transferee Courts under § 1404 & § 1406
Under Hoffman, only those disFYI
tricts where the plaintiff could have
FYI
The JVCA also amended § 1404 FYI
initially filed the action properly, withto bar transferring cases to the
out consent of the defendant, are perDistrict Courts for Guam, the Northmissible transferee courts for purposes
ern Mariana Islands, and the Virgin
of § 1404. However, the 2011 JurisIslands. 28 U.S.C. § 1404(d). A
similar amendment was not made to
diction and Venue Clarification Act
§ 1406.
(JVCA) amended § 1404(a) to permit
a transfer “to any district or division
to which all parties have consented.”
Does this language overrule Hoffman completely? If not, what is the continuing
relevance of the case, if any? Under what circumstances would all parties, including
FYI
FYI
FYI
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Civil Procedure A Contemporary Approach
the plaintiff, have consented to litigating in a district? See, e.g., Atl. Marine Constr.
Co. v. U.S. Dist. Court for W. Dist. of Tex., 134 S. Ct. 568, 579 (2013) [FLEX Case®
4.A], (noting that the jurisdiction identified in a forum-selection clause would be a
district to which all parties have consented under 1404(a)). To which districts may
a case be transferred under § 1406, which limits transferee districts to those where
the case “could have been brought”?
b. Forum-Selection Clauses
Parties to contracts are free to identify the forum in which any disputes that
arise under the contract will be litigated. If a plaintiff initiates an action in a federal
judicial district different from the one identified in a governing forum-selection
clause, the defendant may seek to enforce the forum-selection clause by a motion to
transfer under § 1404(a). See Atl. Marine, 134 S. Ct. at 579 (“Although a forumselection clause does not render venue in a court ‘wrong’ or ‘improper’ within the
meaning of § 1406(a) or Rule 12(b)(3), the clause may be enforced through a motion
to transfer under § 1404(a).”). Indeed, the Supreme Court recently held that when
forum-selection clauses are the basis for a § 1404 transfer motion, “a district court
should transfer the case unless extraordinary circumstances unrelated to the
convenience of the parties clearly disfaTake Note!
vor a transfer.” Id. at 575. However, if
The Supreme Court in Atlantic Marine
the forum-selection clause points to a
expressly did not consider the question of whether a defendant can seek
state or foreign court as the agreed forum
dismissal under Rule 12(b)(6) if the
for a dispute, the appropriate way to
plaintiff files suit in a district other
enforce such a clause would be through
than the one specified in a valid fothe doctrine of forum non conveniens, see
rum-selection clause.
id. at 580, a topic covered later in this
chapter.
c. Transfers in the Absence of Personal Jurisdiction
It is quite possible that a plaintiff will file an action in a federal district court that
is an improper venue and lacks personal jurisdiction over the defendants. Should
the district court be able to transfer the case even though it lacks jurisdiction over
the defendants, or should the court only be able to dismiss the action for lack of
personal jurisdiction and permit the plaintiff to refile in another court? See Goldlawr,
Inc. v. Heiman, 369 U.S. 463, 466 (1962) (“The language of § 1406(a) is amply
broad enough to authorize the transfer of cases, however wrong the plaintiff may
have been in filing his case as to venue, whether the court in which it was filed had
personal jurisdiction over the defendants or not.”).
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309
Alternatively, when the initial venue is improper, what if the prospective transferee court has proper venue but would lack personal jurisdiction over the defendant? In that case, per Hoffman, the court would not be one “where it might have
been brought” and thus the case could not be transferred there. Is the transferor
court required to determine the amenability of the defendant to personal jurisdiction before granting a transfer? Which party should bear the burden on this issue?
See Mellor v. Moe, 2006 WL 1644877, at *1 n.2 (D.N.J. June 14, 2006) (noting that
“a finding of personal jurisdiction over [the defendant] in the proposed transferee
court is a prerequisite to transfer pursuant to § 1406(a),” and that the moving party
must present proof that personal jurisdiction is proper in the transferee court).
d. Multidistrict Litigation
There is a special venue provision that enables cases to be transferred outside of
§ 1404 or § 1406 to any federal district court selected by a special panel of judges
who are appointed to oversee such transfers. Under 28 U.S.C. § 1407, civil actions
sharing common questions of fact pending in different federal districts may be transferred to any district for consolidated pretrial proceedings. Such transfers are determined and implemented by a special
body called the Judicial Panel on Multidistrict Litigation (JPML). If there is
Go Online
a trial in such cases, however, they
are to be remanded to their respective
Students interested in learning more
about the JPML can visit its website
original transferor courts. See Lexecon
at www.jpml.uscourts.gov.
Inc. v. Milberg Weiss Bershad Hynes &
Lerach, 523 U.S. 26 (1998).
2. Standards for Venue Transfers
Having reviewed the methods of identifying proper transferee courts, we now
turn to a consideration of the standards that transferor courts use to determine
whether a case should be transferred. These standards are illustrated in the two
cases that follow.
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Civil Procedure A Contemporary Approach
Smith v. Colonial Penn Insurance Co.
U.S. District Court for the Southern District of Texas
943 F. Supp. 782 (S.D. Tex. 1996)
KENT, District Judge.
This is a breach of contract case
based on an insurance contract entered
into by Plaintiff and Defendant.
Now before the Court is Defendant’s
October 11, 1996 Motion to Transfer
Venue from the Galveston Division to
the Houston Division of the United
States District Court for the Southern
District of Texas pursuant to 28 U.S.C.
§ 1404(a). For the reasons set forth
below, the Motion is DENIED.
FYI
FYI
FYI
FYI
Judge Kent, the author of this FYI
opinion, was impeached by the
U.S. House of Representatives after
being criminally charged for sexually
harassing his employees. He resigned
rather than face conviction and removal from office by the Senate and
subsequently was sentenced to 33
months imprisonment for obstructing the criminal investigation into his
sexual misconduct. See en.wikipedia.
org/wiki/Samuel_B._Kent.
FYI
Section 1404(a) provides: “For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil action to any other district
or division where it might have been brought.” 28 U.S.C. § 1404(a). The defendant
bears the burden of demonstrating to the District Court that it should, in its sound
discretion, decide to transfer the
action. The Court weighs the following factors to decide whether a transfer
is warranted: the availability and conTake Note!
venience of witnesses and parties, the
In this paragraph, the court sets forth
several factors that are relevant to a
location of counsel, the location of
determination of whether a transfer is
books and records, the cost of obtainwarranted. Make a note of these facing attendance of witnesses and other
tors because they can help give subtrial expenses, the place of the alleged
stance to your analysis of whether a
transfer would be “in the interest of
wrong, the possibility of delay and
justice” or promote the convenience
prejudice if transfer is granted, and the
of the parties and witnesses.
plaintiff’s choice of forum, which is
generally entitled to great deference.
Defendant’s request for a transfer of venue is centered around the fact that Galveston does not have a commercial airport into which Defendant’s employees and corporate representatives may fly and out of which they may be expediently whisked to the
federal courthouse in Galveston. Rather, Defendant contends that it will be faced with
the huge “inconvenience” of flying into Houston and driving less than forty miles to
the Galveston courthouse, an act that will “encumber” it with “unnecessary driving
time and expenses.” The Court certainly does not wish to encumber any litigant with
such an onerous burden. The Court, being somewhat familiar with the Northeast,
Chapter 4 Venue
311
notes that perceptions about travel are different in that part of the country than they
are in Texas. A litigant in that part of the country could cross several states in a few
hours and might be shocked at having
to travel fifty miles to try a case, but in
this vast state of Texas, such a travel
Take Note!
distance would not be viewed with any
Although the plaintiff has the burden
surprise or consternation. Defendant
of showing that venue is proper in the
should be assured that it is not embarkface of a challenge to venue, when a
defendant seeks a change of venue,
ing on a three-week-long trip via covthat defendant bears the burden of
ered wagons when it travels to Galvesdemonstrating that the court should
ton. Rather, Defendant will be pleased
transfer the case. Why do you think
the burden is allocated in this way?
to discover that the highway is paved
and lighted all the way to Galveston,
and thanks to the efforts of this Court’s
predecessor, Judge Roy Bean, the trip should be free of rustlers, hooligans, or vicious
varmints of unsavory kind. Moreover, the speed limit was recently increased to seventy miles per hour on most of the road leading to Galveston, so Defendant should be
able to hurtle to justice at lightning speed. To assuage Defendant’s worries about the
inconvenience of the drive, the Court notes that Houston’s Hobby Airport is located
about equal drivetime from downtown Houston and the Galveston courthouse.
Defendant will likely find it an easy, traffic-free ride to Galveston as compared to a
congested, construction-riddled drive to downtown Houston. The Court notes that
any inconvenience suffered in having to drive to Galveston may likely be offset by the
peacefulness of the ride and the scenic beauty of the sunny isle.
The convenience of the witnesses
and the parties is generally a primary
concern of this Court when considerFood for Thought
ing transfer motions. However, vague
The court makes the argument that
statements about the convenience of
modern innovations that make travel
and communications more convenient
unknown and unnamed witnesses is
undermine the defendants’ arguments
insufficient to convince this Court that
regarding the inconvenience of travelthe convenience of the witnesses and
ing to Galveston rather than Houston.
Is this a valid point? Couldn’t one
the parties would be best served by
make the same argument about traveltransferring venue. In the Court’s view,
ing to anywhere in the country, that as
even if all the witnesses, documents,
long as it only takes a flight and a cab
ride to get there, convenience is not
and evidence relevant to this case were
an issue? At what point does travel
located within walking distance of the
become sufficiently inconvenient to
Houston Division courthouse, the
warrant a transfer in this “age of coninconvenience caused by retaining the
venient travel”?
case in this Court would be minimal
at best in this age of convenient travel,
communication, discovery, and trial testimony preservation. The Galveston Division
courthouse is only about fifty miles from the Houston Division courthouse. “[I]t is
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Civil Procedure A Contemporary Approach
not as if the key witnesses will be asked to travel to the wilds of Alaska or the
furthest reaches on the Continental United States.”
As to Defendant’s argument that Houston might also be a more convenient
forum for Plaintiff, the Court notes that Plaintiff picked Galveston as her forum of
choice even though she resides in San Antonio. Defendant argues that flight travel
is available between Houston and San Antonio but is not available between Galveston and San Antonio, again because of the absence of a commercial airport. Alas,
this Court’s kingdom for a commercial airport! The Court is unpersuaded by this
argument because it is not this Court’s concern how Plaintiff gets here, whether
it be by plane, train, automobile, horseback, foot, or on the back of a huge Texas
jackrabbit, as long as Plaintiff is here at the proper date and time. Thus, the Court
declines to disturb the forum chosen by the Plaintiff and introduce the likelihood of
delay inherent in any transfer simply to avoid the insignificant inconvenience that
Defendant may suffer by litigating this matter in Galveston rather than Houston.
For the reasons stated above, Defendant’s Motion to Transfer is hereby DENIED.
_______________
Bolivia v. Philip Morris Companies, Inc.
U.S. District Court for the Southern District of Texas
39 F. Supp. 2d 1008 (S.D. Tex. 1999)
KENT, District Judge.
Plaintiff, the Republic of Bolivia, brings this action to recover from numerous
tobacco companies various health care costs it allegedly incurred in treating illnesses
its residents suffered as a result of tobacco use. This action was originally filed in the
District Court of Brazoria County, Texas
* * * and removed to this Court on
February 19, 1999, by certain DefenTake Note!
dants alleging jurisdiction under 28
The judge in this case, Judge Kent
U.S.C. § 1331 and 28 U.S.C. § 1332.
is the same judge that decided the
For the following reasons, the Court
previous case, Smith v. Colonial Penn
exercises its authority and discretion
Ins. Co. Ask yourself whether Judge
Kent’s determination in this case is
pursuant to 28 U.S.C. § 1404(a) to sua
consistent with his resolution of the
sponte TRANSFER this case to the
previous case.
United States District Court for the
District of Columbia.
This is one of at least six similar actions brought by foreign governments in various courts throughout the United States. The governments of Guatemala, Panama,
Chapter 4 Venue
313
Nicaragua, Thailand, Venezuela, and Bolivia have filed suit in the geographically
diverse locales of Washington, D.C., Puerto Rico, Texas, Louisiana, and Florida, in
both state and federal courts. Why none of these countries seems to have a court system their own governments have confidence in is a mystery to this Court. Moreover,
given the tremendous number of United States jurisdictions encompassing fascinating
and exotic places, the Court can hardly imagine why the Republic of Bolivia elected to
file suit in the veritable hinterlands of Brazoria County, Texas. The Court seriously
doubts whether Brazoria County has ever seen a live Bolivian . . . even on the Discovery Channel. Though only here by removal, this humble Court by the sea is certainly
flattered by what must be the worldwide renown of rural Texas courts for dispensing
justice with unparalleled fairness and alacrity, apparently in common discussion even
on the mountain peaks of Bolivia! Still, the Court would be remiss in accepting an
obligation for which it truly does not have the necessary resources. Only one judge
presides in the Galveston Division—which currently has before it over seven hundred
cases and annual civil filings exceeding such number—and that judge is presently
burdened with a significant personal situation which diminishes its ability to always
give the attention it would like to all of its daunting docket obligations, despite genuinely heroic efforts to do so. And, while Galveston is indeed an international seaport,
the capacity of this Court to address the complex and sophisticated issues of international law and foreign relations presented by this case is dwarfed by that of its esteemed
colleagues in the District of Columbia who deftly address such awesome tasks as a
matter of course. Indeed, this Court, while doing its very best to address the more
prosaic matters routinely before it, cannot think of a Bench better versed and more
capable of handling precisely this type of case, which requires a high level of expertise
in international matters. In fact, proceedings brought by the Republic of Guatemala
are currently well underway in that
Court in a related action, and there is a
request now before the Judicial Panel
Food for Thought
on Multidistrict Litigation to transfer
Should the size of the court’s docket
to the United States District Court for
or the judge’s personal problems be
the District of Columbia all six tobacco
legitimate grounds for transferring a
case away from a proper venue seactions brought by foreign governlected by the plaintiff?
ments, ostensibly for consolidated
treatment. Such a Bench, well-populated with genuinely renowned intellects,
can certainly better bear and share the burden of multidistrict litigation than this single
judge division, where the judge moves his lips when he reads. . . .
* * * [I]t is the Court’s opinion that the District of Columbia, located in this
Nation’s capital, is a much more logical venue for the parties and witnesses in this
action because, among other things, Plaintiff has an embassy in Washington, D.C.,
and thus a physical presence and governmental representatives there, whereas there
isn’t even a Bolivian restaurant anywhere near here! * * * [T]he Court is virtually
314
Civil Procedure A Contemporary Approach
certain that Bolivia is not within the four counties over which this Court presides,
even though the words Bolivia and Brazoria are a lot alike and caused some real, initial confusion until the Court conferred with its law clerks. Thus, it is readily apparent, even from an outdated globe such as that possessed by this Court, that Bolivia, a
hemisphere away, ain’t in south-central Texas, and that, at the very least, the District
of Columbia is a more appropriate venue (though Bolivia isn’t located there either).
Furthermore, as this Judicial District bears no significant relationship to any of the
matters at issue, and the judge of this Court simply loves cigars, the Plaintiff can be
expected to suffer neither harm nor prejudice by a transfer to Washington, D.C., a
Bench better able to rise to the smoky challenges presented by this case, despite the
alleged and historic presence there of countless “smoke-filled” rooms. Consequently,
pursuant to 28 U.S.C. § 1404(a), for the convenience of parties and witnesses, and
in the interest of justice, this case is hereby TRANSFERRED to the United States
District Court for the District of Columbia.
_______________
Points for Discussion
a. Standards for Deciding Whether to Transfer
What standards did the court use
to evaluate whether a venue transfer
was appropriate? Where do you think
the court got these considerations from
since they are not in the statute? Section 1404 permits transfers whenever
it is “in the interest of justice” to do
so, consistent with convenience to the
parties and witnesses; is such a standard too indeterminate? See Perspective
& Analysis below. Do you think that
Judge Kent was justified in denying a
transfer in Smith but forcing a transfer,
sua sponte, in Philip Morris? These cases
involved transfers under § 1404(a).
Should the standards that apply to
transfers under § 1406(a) be the same?
See Sinclair v. Kleindienst, 711 F.2d 291,
294 (D.C. Cir. 1983) (finding it “in the
interests of justice” to allow transfer
FYI
FYI
FYI
FYI
When a § 1404 transfer is sought FYI
pursuant to a forum-selection
clause, the Supreme Court has instructed that the clause is to be given
controlling weight, meaning the
plaintiff’s choice of forum is given no
weight and the convenience interests
of the parties and witnesses is similarly ignored. Atlantic Marine Const.
Co., Inc. v. U.S. Dist. Court for Western
Dist. of Texas, 134 S. Ct. 568, 581–82
(2013) [FLEX Case® 4.A]. Transfers
under these circumstances can only
be defeated if there are public-interest
factors such as court congestion or a
special need to have localized controversies decided at home in courts
familiar with the applicable law. Id.
at 581 n.6.
FYI
Chapter 4 Venue
315
under § 1406(a) where cause of action would be barred by statute of limitations without a transfer, personal jurisdiction could be obtained over defendants, and venue
is proper in transferee court); see also Loeb v. Bank of Am., 254 F. Supp. 2d 581, 588
(E.D. Pa. 2003) (“[T]he standard for transfer pursuant to § 1404(a) is lower than the
standard for transfer pursuant to § 1406(a).”). See 14D C. Wright & A. Miller, Fed.
Prac. & Proc. 3d § 3808 for a fuller discussion of the factors courts use to evaluate
whether a transfer is in the interest of justice.
– Perspective & Analysis –
Scholars have criticized the “in the interest of justice” standard of the
venue transfer statute as so open-ended that it fosters unpredictability
and delay in the handling of motions to transfer:
[T]he law governing section 1404 motions . . . is in chaos. The ad hoc balancing
employed by the district courts precludes any prediction on whether a particular
transfer motion will succeed. This lack of standards invites a defendant to seek a
transfer even when the plaintiff has chosen a reasonable forum. Today, the motion
to transfer often has little relationship to the “interests of justice.” Instead, such
motions have become a vehicle for defendant delay and an increasing burden on
the already backlogged federal courts.
David E. Steinberg, The Motion to Transfer and the Interests of Justice,
66 Notre Dame L. Rev. 443, 446–47 (1990).
b. “Divisions” within Districts
Note that in Smith the issue was whether the court would transfer the case from
the “Galveston Division” to the “Houston Division” of the United States District
Court for the Southern District of Texas. Divisions are simply administrative subunits within federal districts divided by geographical location. Both of the federal
venue transfer provisions apply to transfers to other divisions within a district and
the same standards governing whether to grant a transfer to another district apply.
c. Why Allow Transfers at All?
Shouldn’t plaintiffs be entitled to bring and keep their case in the forum of their
choice if it is a proper venue under the applicable venue statute? See In re Nat’l Presto
Indus., Inc., 347 F.3d 662, 662 (7th Cir. 2003). If an action is brought in a jurisdiction having personal jurisdiction over all defendants, why should courts permit a
change of venue?
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Civil Procedure A Contemporary Approach
d. What Law Applies after a Transfer?
When diversity actions are litigated in federal court, the court follows the
choice-of-law rules for the state in which it sits to determine which state’s law to
apply. Once a case is transferred to a different federal district court in another state
pursuant to § 1404(a), should the transferee court apply the law that would have
applied had the case remained with the transferor court or is it free to apply the
choice-of-law rules applicable within the transferee court’s state? The Supreme
Court has stated that state-law claims transferred under § 1404(a) are to be governed by the same law that would have been applicable in the transferor courts. See
Ferens v. John Deere Co., 494 U.S. 516
FYI
(1990); Van Dusen v. Barrack, 376 U.S.
FYI
FYI
FYI
612 (1964). See also Note, Choice of
FYI
When a court has to resolve the
Law in Federal Court After Transfer of
substance of a dispute based on
state law, it first has to determine
Venue, 63 Cornell L. Rev. 149, 156
which state’s substantive law to ap(1977). However, if the § 1404 transply. Courts make this determinafer was made pursuant to a forumtion by reference to the forum state’s
choice-of-law rules.
selection clause, the Van Dusen rule
will not apply, meaning the law that
would have applied in the transferor
court will not follow the case to the
transferee district identified in the forum-selection clause. See Atl. Marine Constr. Co.
v. U.S. Dist. Court for W. Dist. of Tex., 134 S. Ct. 568, 582 (2013) [FLEX Case® 4.A]
(“[W]hen a party bound by a forum-selection clause flouts its contractual obligation
and files suit in a different forum, a §1404(a) transfer of venue will not carry with it
the original venue’s choice-of-law rules.”).
FYI
In federal question cases, courts are to apply governing federal law, which can
vary among the district courts depending upon which federal circuit embraces their
district. When a case is transferred under § 1404(a) from a district in one circuit to
another district in a different circuit, which circuit’s law should the transferee court
apply? See In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171 (D.C. Cir.
1987) (indicating that transferee court is not bound by transferor circuit law).
_______________
C. Forum Non Conveniens
As we have just learned, the federal change of venue provisions only permit the
transfer of a case to another federal court. However, it may sometimes be the case
that the forum that would be more just or convenient is not within the federal system. What mechanism is available to federal courts once they have determined that
a case before them would be better located in a court outside of the federal system,
Chapter 4 Venue
317
such as a state court or a court in a foreign country? The next case involves the doctrine of forum non conveniens, a common law (judicially-created or non-statutory)
doctrine for handling cases that would be better tried in a different judicial system.
Piper Aircraft Co. v. Reyno
Supreme Court of the United States
454 U.S. 235 (1981)
Justice MARSHALL delivered the opinion of the Court.
These cases arise out of an air crash that took place in Scotland. Respondent,
acting as representative of the estates of several Scottish citizens killed in the accident, brought wrongful-death actions
against petitioners that were ultimately
transferred to the United States DisMake the Connection
trict Court for the Middle District of
Wrongful-death actions are suits by
Pennsylvania. Petitioners moved to
the survivors of a person who has
dismiss on the ground of forum non
been killed (or by the representative of the decedent’s estate) that
conveniens. After noting that an alterseek compensation for the loss of
native forum existed in Scotland, the
that person’s life. You may study this
District Court granted their motions.
cause of action further in your firstyear Torts course.
The United States Court of Appeals for
the Third Circuit reversed. The Court
of Appeals based its decision, at least
in part, on the ground that dismissal is automatically barred where the law of the
alternative forum is less favorable to the plaintiff than the law of the forum chosen
by the plaintiff. * * *
I
A
In July 1976, a small commercial aircraft crashed in the Scottish highlands
during the course of a charter flight from Blackpool to Perth. The pilot and five passengers were killed instantly. The decedents were all Scottish subjects and residents,
as are their heirs and next of kin. There were no eyewitnesses to the accident. At the
time of the crash the plane was subject to Scottish air traffic control.
The aircraft, a twin-engine Piper Aztec, was manufactured in Pennsylvania by
petitioner Piper Aircraft Co. (Piper). The propellers were manufactured in Ohio by
petitioner Hartzell Propeller, Inc. (Hartzell). At the time of the crash the aircraft
was registered in Great Britain and was owned and maintained by Air Navigation
and Trading Co., Ltd. (Air Navigation). It was operated by McDonald Aviation, Ltd.
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Civil Procedure A Contemporary Approach
(McDonald), a Scottish air taxi service. Both Air Navigation and McDonald were
organized in the United Kingdom. The wreckage of the plane is now in a hangar in
Farnsborough, England.
The British Department of Trade investigated the accident shortly after it occurred.
A preliminary report found that the plane crashed after developing a spin, and suggested that mechanical failure in the plane or the propeller was responsible. At Hartzell’s request, this report was reviewed by a three-member Review Board, which held a
9-day adversary hearing attended by all interested parties. The Review Board found no
evidence of defective equipment and indicated that pilot error may have contributed
to the accident. The pilot, who had obtained his commercial pilot’s license only three
months earlier, was flying over high ground at an altitude considerably lower than the
minimum height required by his company’s operations manual.
In July 1977, a California probate
court appointed respondent Gaynell
Reyno administratrix of the estates of
Food for Thought
the five passengers. Reyno is not
Why is the attorney’s legal secretary
being used as the administratrix in
related to and does not know any of
this case? Does this arrangement
the decedents or their survivors; she
raise any concerns for you?
was a legal secretary to the attorney
who filed this lawsuit. Several days
after her appointment, Reyno commenced separate wrongful-death actions against Piper and Hartzell in the Superior
Court of California, claiming negligence and strict liability. Air Navigation, McDonald, and the estate of the pilot are not parties to this litigation. The survivors of the
five passengers whose estates are represented by Reyno filed a separate action in the
United Kingdom against Air Navigation, McDonald, and the pilot’s estate. Reyno
candidly admits that the action against Piper and Hartzell was filed in the United
States because its laws regarding liability,
capacity to sue, and damages are more
favorable to her position than are those
Make the Connection
of Scotland. Scottish law does not recogStrict liability is a Tort concept that
nize strict liability in tort. Moreover, it
refers to the rule that permits liability
permits wrongful-death actions only
to be established based solely upon a
showing of causation, without havwhen brought by a decedent’s relatives.
ing to establish fault or culpability.
The relatives may sue only for “loss of
support and society.”
On petitioners’ motion, the suit was removed to the United States District Court
for the Central District of California. Piper then moved for transfer to the United
States District Court for the Middle District of Pennsylvania, pursuant to 28 U.S.C.
§1404(a). Hartzell moved to dismiss for lack of personal jurisdiction, or in the
Chapter 4 Venue
319
alternative, to transfer.5 In December 1977, the District Court quashed service on
Hartzell and transferred the case to the Middle District of Pennsylvania. Respondent
then properly served process on Hartzell.
B
In May 1978, after the suit had been transferred, both Hartzell and Piper moved
to dismiss the action on the ground of forum non conveniens. The District Court
granted these motions in October 1979. It relied on the balancing test set forth by
this Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) * * * . In those decisions,
the Court stated that a plaintiff’s choice of forum should rarely be disturbed. However, when an alternative forum has jurisdiction to hear the case, and when trial in
the chosen forum would “establish . . . oppressiveness and vexation to a defendant
. . . out of all proportion to plaintiff’s convenience,” or when the “chosen forum [is]
inappropriate because of considerations affecting the court’s own administrative and
legal problems,” the court may, in the exercise of its sound discretion, dismiss the
case. To guide trial court discretion, the Court provided a list of “private interest factors” affecting the convenience of the litigants, and a list of “public interest factors”
affecting the convenience of the forum. Gilbert, 330 U.S. at 508–09.6
* * * [T]he District Court analyzed the facts of [this case]. It began by observing that an alternative forum existed in Scotland; Piper and Hartzell had agreed to
submit to the jurisdiction of the Scottish courts and to waive any statute of limitations defense that might be available. It then stated that plaintiff’s choice of forum
was entitled to little weight. The court recognized that a plaintiff’s choice ordinarily
deserves substantial deference. It noted, however, that Reyno “is a representative
of foreign citizens and residents seeking a forum in the United States because of
the more liberal rules concerning products liability law,” and that “the courts have
been less solicitous when the plaintiff is not an American citizen or resident, and
particularly when the foreign citizens seek to benefit from the more liberal tort rules
provided for the protection of citizens and residents of the United States.”
The District Court next examined several factors relating to the private interests
of the litigants, and determined that these factors strongly pointed towards Scotland
The District Court concluded that it could not assert personal jurisdiction over Hartzell consistent with
due process. However, it decided not to dismiss Hartzell because the corporation would be amenable to
process in Pennsylvania.
6
The factors pertaining to the private interests of the litigants included the “relative ease of access to
sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining
attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the
action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.”
Gilbert, 330 U.S. at 508. The public factors bearing on the question included the administrative difficulties flowing from court congestion; the “local interest in having localized controversies decided at home”;
the interest in having the trial of a diversity case in a forum that is at home with the law that must govern
the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law;
and the unfairness of burdening citizens in an unrelated forum with jury duty. Id. at 509.
5
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Civil Procedure A Contemporary Approach
as the appropriate forum. Although evidence concerning the design, manufacture,
and testing of the plane and propeller is located in the United States, the connections with Scotland are otherwise “overwhelming.” The real parties in interest are
citizens of Scotland, as were all the decedents. Witnesses who could testify regarding
the maintenance of the aircraft, the training of the pilot, and the investigation of the
accident-all essential to the defense-are in Great Britain. Moreover, all witnesses to
damages are located in Scotland. Trial would be aided by familiarity with Scottish
topography, and by easy access to the wreckage.
The District Court reasoned that because crucial witnesses and evidence were
beyond the reach of compulsory process, and because the defendants would not be
able to implead potential Scottish third-party defendants, it would be “unfair to
make Piper and Hartzell proceed to trial in this forum.” The survivors had brought
separate actions in Scotland against the pilot, McDonald, and Air Navigation. “[I]t
would be fairer to all parties and less
costly if the entire case was presented
?
?
to one jury with available testimony
?
?
from all relevant witnesses.” Although
What’s That?
the court recognized that if trial were
The term implead means to bring a
held in the United States, Piper and
nonparty into the action (thereby
making it a third-party defendant)
Hartzell could file indemnity or conunder Rule 14, which will be covtribution actions against the Scottish
ered in Chapter 7.
defendants, it believed that there was a
significant risk of inconsistent verdicts.
?
?
The District Court concluded that the relevant public interests also pointed
strongly towards dismissal. The court determined that Pennsylvania law would
apply to Piper and Scottish law to Hartzell if the case were tried in the Middle
District of Pennsylvania.8 As a result, “trial in this forum would be hopelessly complex and confusing for a jury.” In addition, the court noted that it was unfamiliar
with Scottish law and thus would have to rely upon experts from that country. The
court also found that the trial would be enormously costly and time-consuming;
that it would be unfair to burden citizens with jury duty when the Middle District
of Pennsylvania has little connection with the controversy; and that Scotland has a
substantial interest in the outcome of the litigation.
Under Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487 (1941), a court ordinarily must apply the choiceof-law rules of the State in which it sits. However, where a case is transferred pursuant to 28 U.S.C.
§ 1404(a), it must apply the choice-of-law rules of the State from which the case was transferred. Van
Dusen v. Barrack, 376 U.S. 612 (1964). Relying on these two cases, the District Court concluded that
California choice-of-law rules would apply to Piper, and Pennsylvania choice-of-law rules would apply
to Hartzell. It further concluded that California applied a “governmental interests” analysis in resolving
choice-of-law problems, and that Pennsylvania employed a “significant contacts” analysis. The court used
the “governmental interests” analysis to determine that Pennsylvania liability rules would apply to Piper,
and the “significant contacts” analysis to determine that Scottish liability rules would apply to Hartzell.
8
Chapter 4 Venue
321
In opposing the motions to dismiss, respondent contended that dismissal
would be unfair because Scottish law was less favorable. The District Court explicitly rejected this claim. It reasoned that the possibility that dismissal might lead to
an unfavorable change in the law did not deserve significant weight; any deficiency
in the foreign law was a “matter to be dealt with in the foreign forum.”
C
On appeal, the United States Court of Appeals for the Third Circuit reversed
and remanded for trial. The decision to reverse appears to be based on two alternative grounds. First, the Court held that the District Court abused its discretion
in conducting the Gilbert analysis. Second, the Court held that dismissal is never
appropriate where the law of the alternative forum is less favorable to the plaintiff.
The Court of Appeals began its review of the District Court’s Gilbert analysis by
noting that the plaintiff’s choice of forum deserved substantial weight, even though
the real parties in interest are nonresidents. It then rejected the District Court’s balancing of the private interests. It found that Piper and Hartzell had failed adequately
to support their claim that key witnesses would be unavailable if trial were held in
the United States: they had never specified the witnesses they would call and the
testimony these witnesses would provide. The Court of Appeals gave little weight
to the fact that Piper and Hartzell would not be able to implead potential Scottish
third-party defendants, reasoning that this difficulty would be “burdensome” but
not “unfair.” Finally, the court stated that resolution of the suit would not be significantly aided by familiarity with Scottish topography, or by viewing the wreckage.
The Court of Appeals also rejected the District Court’s analysis of the public
interest factors. It found that the District Court gave undue emphasis to the application of Scottish law: “the mere fact that the court is called upon to determine and
apply foreign law does not present a legal problem of the sort which would justify
the dismissal of a case otherwise properly before the court.” In any event, it believed
that Scottish law need not be applied. After conducting its own choice-of-law analysis, the Court of Appeals determined that American law would govern the actions
against both Piper and Hartzell. The same choice-of-law analysis apparently led it
to conclude that Pennsylvania and Ohio, rather than Scotland, are the jurisdictions
with the greatest policy interests in the dispute, and that all other public interest
factors favored trial in the United States.
The Court of Appeals concluded as part of its choice-of-law analysis that the
United States had the greatest policy interest in the dispute. It apparently believed
that this conclusion necessarily implied that the forum non conveniens public interest
factors pointed toward trial in the United States.
In any event, it appears that the Court of Appeals would have reversed even if the
District Court had properly balanced the public and private interests. The court stated:
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Civil Procedure A Contemporary Approach
[I]t is apparent that the dismissal would work a change in the applicable law so
that the plaintiff’s strict liability claim would be eliminated from the case. But . . . a
dismissal for forum non conveniens, like a statutory transfer, “should not, despite its
convenience, result in a change in the applicable law.” Only when American law is
not applicable, or when the foreign jurisdiction would, as a matter of its own choice
of law, give the plaintiff the benefit of the claim to which she is entitled here, would
dismissal be justified.
In other words, the court decided that dismissal is automatically barred if it
would lead to a change in the applicable law unfavorable to the plaintiff.
* * *
II
The Court of Appeals erred in holding that plaintiffs may defeat a motion to
dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the
plaintiffs than that of the present forum. The possibility of a change in substantive
law should ordinarily not be given conclusive or even substantial weight in the
forum non conveniens inquiry.
* * *
In fact, 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.
* * *
The Court of Appeals’ approach is not only inconsistent with the purpose of
the forum non conveniens doctrine, but also poses substantial practical problems. If
the possibility of a change in law were given substantial weight, deciding motions to
dismiss on the ground of forum non conveniens would become quite difficult. Choiceof-law analysis would become extremely important, and the courts would frequently
be required to interpret the law of foreign jurisdictions. First, the trial court would
have to determine what law would apply if the case were tried in the chosen forum,
and what law would apply if the case were tried in the alternative forum. It would
then have to compare the rights, remedies, and procedures available under the law
that would be applied in each forum. Dismissal would be appropriate only if the
court concluded that the law applied by the alternative forum is as favorable to the
plaintiff as that of the chosen forum. The doctrine of forum non conveniens, however,
Chapter 4 Venue
323
is designed in part to help courts avoid conducting complex exercises in comparative law. As we stated in Gilbert, the public interest factors point towards dismissal
where the court would be required to “untangle problems in conflict of laws, and in
law foreign to itself.”
Upholding the decision of the Court of Appeals would result in 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,
which are already extremely attractive to foreign plaintiffs,18 would become even
more attractive. The flow of litigation into the United States would increase and
further congest already crowded courts. * * *
We do not hold that the possibility of an unfavorable change in law
should never be a relevant consideration in a forum non conveniens inquiry.
Of course, if the remedy provided
by the alternative forum is so clearly
inadequate or unsatisfactory that it
is no remedy at all, the unfavorable
change in law may be given substantial
weight; the district court may conclude that dismissal would not be in
the interests of justice.22 In these cases,
however, the remedies that would be
provided by the Scottish courts do not
fall within this category. Although the
relatives of the decedents may not be
able to rely on a strict liability theory,
and although their potential damages
award may be smaller, there is no danger that they will be deprived of any
remedy or treated unfairly.
Take Note!
The Court here indicates that the
district court did not abuse its discretion. Make note that this is a reference
to the standard of review applicable
here: the district court’s application of
the Gilbert factors is entitled to deference and may only be overturned by
appellate courts if the district court
abused its discretion. See Part III.B of
the Opinion below. Contrast this with
the de novo standard of review, which
permits appellate courts to make their
own independent analysis of the matter at hand without giving any deference to the district court’s analysis.
Why do you think an abuse of discretion standard is appropriate for the
review of a district court’s application
of the Gilbert factors? Standards of
review will be covered more fully in
Chapter 11.
First, all but 6 of the 50 American States—Delaware, Massachusetts, Michigan, North Carolina, Virginia, and Wyoming—offer strict liability. * * * [S]trict liability remains primarily an American innovation. Second, the tort plaintiff may choose, at least potentially, from among 50 jurisdictions if he decides
to file suit in the United States. Each of these jurisdictions applies its own set of malleable choice-of-law
rules. Third, jury trials are almost always available in the United States, while they are never provided in
civil law jurisdictions. * * * Fourth, unlike most foreign jurisdictions, American courts allow contingent
attorney’s fees, and do not tax losing parties with their opponents’ attorney’s fees. Fifth, discovery is more
extensive in American than in foreign courts.
22
At the outset of any forum non conveniens inquiry, the court must determine whether there exists an
alternative forum. Ordinarily, this requirement will be satisfied when the defendant is “amenable to
process” in the other jurisdiction. Gilbert, 330 U.S. at 506–507. In rare circumstances, however, where
the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate
alternative, and the initial requirement may not be satisfied. Thus, for example, dismissal would not be
appropriate where the alternative forum does not permit litigation of the subject matter of the dispute.
18
324
Civil Procedure A Contemporary Approach
III
The Court of Appeals also erred in rejecting the District Court’s Gilbert analysis.
The Court of Appeals stated that more weight should have been given to the plaintiff’s choice of forum, and criticized the District Court’s analysis of the private and
public interests. However, the District Court’s decision regarding the deference due
plaintiff’s choice of forum was appropriate. Furthermore, we do not believe that the
District Court abused its discretion in weighing the private and public interests.
A
The District Court acknowledged that there is ordinarily a strong presumption in favor of the plaintiff’s choice of forum, which may be overcome only when
the private and public interest factors clearly point towards trial in the alternative
forum. It held, however, that the presumption applies with less force when the
plaintiff or real parties in interest are foreign.
The District Court’s distinction between resident or citizen plaintiffs and foreign
plaintiffs is fully justified. * * * When the home forum has been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however,
this assumption is much less reasonable. 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.
B
The forum non conveniens determination is committed to the sound discretion of
the trial court. It may be reversed only when there has been a clear abuse of discretion;
where the court has considered all relevant public and private interest factors, and
where its balancing of these factors is reasonable, its decision deserves substantial
deference. Here, the Court of Appeals expressly acknowledged that the standard of
review was one of abuse of discretion. In examining the District Court’s analysis of the
public and private interests, however, the Court of Appeals seems to have lost sight of
this rule, and substituted its own judgment for that of the District Court.
(1)
In analyzing the private interest factors, the District Court stated that the connections with Scotland are “overwhelming.” This characterization may be somewhat exaggerated. Particularly with respect to the question of relative ease of access
to sources of proof, the private interests point in both directions. As respondent
emphasizes, records concerning the design, manufacture, and testing of the propeller and plane are located in the United States. She would have greater access to
Chapter 4 Venue
325
sources of proof relevant to her strict liability and negligence theories if trial were
held here. However, the District Court did not act unreasonably in concluding that
fewer evidentiary problems would be posed if the trial were held in Scotland. A large
proportion of the relevant evidence is located in Great Britain.
The Court of Appeals found that the problems of proof could not be given any
weight because Piper and Hartzell failed to describe with specificity the evidence
they would not be able to obtain if trial were held in the United States. It suggested that defendants seeking forum non conveniens dismissal must submit affidavits
identifying the witnesses they would call and the testimony these witnesses would
provide if the trial were held in the alternative forum. Such detail is not necessary.
Piper and Hartzell have moved for dismissal precisely because many crucial witnesses are located beyond the reach of compulsory process, and thus are difficult
to identify or interview. Requiring extensive investigation would defeat the purpose
of their motion. Of course, defendants must provide enough information to enable
the District Court to balance the parties’ interests. Our examination of the record
convinces us that sufficient information was provided here. Both Piper and Hartzell
submitted affidavits describing the evidentiary problems they would face if the trial
were held in the United States.
The District Court correctly concluded that the problems posed by the inability
to implead potential third-party defendants clearly supported holding the trial in
Scotland. Joinder of the pilot’s estate, Air Navigation, and McDonald is crucial to
the presentation of petitioners’ defense. If Piper and Hartzell can show that the
accident was caused not by a design defect, but rather by the negligence of the pilot,
the plane’s owners, or the charter company, they will be relieved of all liability. It is
true, of course, that if Hartzell and Piper were found liable after a trial in the United
States, they could institute an action for indemnity or contribution against these
parties in Scotland. It would be far more convenient, however, to resolve all claims
in one trial. The Court of Appeals rejected this argument. Forcing petitioners to rely
on actions for indemnity or contributions would be “burdensome” but not “unfair.”
Finding that trial in the plaintiff’s chosen forum would be burdensome, however, is
sufficient to support dismissal on grounds of forum non conveniens.
(2)
The District Court’s review of the factors relating to the public interest was also
reasonable. On the basis of its choice-of-law analysis, it concluded that if the case
were tried in the Middle District of Pennsylvania, Pennsylvania law would apply to
Piper and Scottish law to Hartzell. It stated that a trial involving two sets of laws
would be confusing to the jury. It also noted its own lack of familiarity with Scottish
law. Consideration of these problems was clearly appropriate under Gilbert; in that
case we explicitly held that the need to apply foreign law pointed towards dismissal.
The Court of Appeals found that the District Court’s choice-of-law analysis was
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Civil Procedure A Contemporary Approach
incorrect, and that American law would apply to both Hartzell and Piper. Thus,
lack of familiarity with foreign law would not be a problem. Even if the Court of
Appeals’ conclusion is correct, however, all other public interest factors favored trial
in Scotland.
Scotland has a very strong interest in this litigation. The accident occurred in
its airspace. All of the decedents were Scottish. Apart from Piper and Hartzell, all
potential plaintiffs and defendants are either Scottish or English. As we stated in Gilbert, there is “a local interest in having localized controversies decided at home.” 330
U.S. at 509. Respondent argues that American citizens have an interest in ensuring
that American manufacturers are deterred from producing defective products, and
that additional deterrence might be obtained if Piper and Hartzell were tried in the
United States, where they could be sued on the basis of both negligence and strict
liability. However, the incremental deterrence that would be gained if this trial were
held in an 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 here.
IV
The Court of Appeals erred in holding that the possibility of an unfavorable
change in law bars dismissal on the ground of forum non conveniens. It also erred in
rejecting the District Court’s Gilbert analysis. The District Court properly decided
that the presumption in favor of the respondent’s forum choice applied with less
than maximum force because the real parties in interest are foreign. It did not act
unreasonably in deciding that the private interests pointed towards trial in Scotland.
Nor did it act unreasonably in deciding that the public interests favored trial in
Scotland. Thus, the judgment of the Court of Appeals is
Reversed.
Justice POWELL took no part in the decision of these cases.
Justice O’CONNOR took no part in the consideration or decision of these cases.
[The concurring opinion of Justice WHITE and the dissenting opinion of Justice
STEVENS joined by Justice BRENNAN are omitted.]
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Chapter 4 Venue
327
Points for Discussion
a. Standards for Deciding Whether to Dismiss for Forum Non Conveniens
Based on what you have read in Piper Aircraft, what are the requirements for
dismissing a case on forum non conveniens grounds? What role do the factors set forth
by the Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), and quoted by the
Piper Aircraft Court in footnote 6 above play in the analysis?
b. An Adequate Alternative Forum
An important element of granting a forum non conveniens dismissal is that there
is an adequate alternate forum where the plaintiff may proceed with the case. What
issues are relevant to determining whether an adequate alternate forum exists? In
Piper Aircraft the Court rejected using the fact that less favorable substantive law
would apply as a basis for denying a forum non conveniens dismissal. Do you agree
with that decision?
Consider whether the decision in this case would have changed if Scotland
did not permit recovery for wrongful death under these circumstances or if its legal
system failed to provide basic due process protections available in the United States.
Alternatively, what if the damages for wrongful death in Scotland were capped at an
unusually low figure, such as $10,000 per person; would Scotland still be viewed as
an adequate alternate forum? See Gonzalez v. Chrysler Corp., 301 F.3d 377, 382–83
(5th Cir. 2002) (holding that the adequacy analysis for forum non conveniens dismissals may not include an evaluation of whether it makes economic sense for the plaintiff to proceed in an alternate foreign jurisdiction). At what point should differences
in substantive law impact the forum non conveniens analysis?
c. Forum Non Conveniens Dismissals Prior to Jurisdictional Determinations
The Supreme Court recently determined that courts need not resolve other
threshold objections—such as whether the court has subject matter jurisdiction
or personal jurisdiction—prior to addressing a defendant’s forum non conveniens
motion and dismissing the case on that basis. Sinochem Int’l Co. v. Malaysia Int’l
Shipping Corp., 549 U.S. 422 (2007).
d. After Dismissal
What happens after a court dismisses a case on forum non conveniens grounds?
Plaintiffs then have the option to refile their cases in an alternate forum. However,
there could be difficulties associated with doing so. For example, the alternate forum
may lack personal jurisdiction over the defendant or the statute of limitations period
may have run. When there is a possibility or probability that the plaintiff will face
such challenges to refiling its case in the wake of a forum non conveniens dismissal,
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Civil Procedure A Contemporary Approach
the dismissing court typically dismisses the case only on the condition that the
defendant will not contest the ability of the subsequent court to hear the case. See,
e.g., Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64 (2d Cir. 2003), cert.
denied, 540 U.S. 1149 (2004) (affirming district court’s dismissal of case filed in New
York against defendant British bank, when defendant had agreed as a condition to
submit to the jurisdiction of British courts).
Do courts have authority to impose such conditions on defendants when granting forum non conveniens dismissals if they have not first determined whether they
have subject matter jurisdiction over
the claims and personal jurisdiction
over the defendants, a determination
the Supreme Court in Sinochem said
Practice Pointer
courts do not have to make? The
As counsel for a plaintiff facing a
forum non conveniens dismissal, be
Court avoided this issue in Sinochem
sure to pursue and secure conditions
itself. See Sinochem, 549 U.S. at 435
of the dismissal from the court that
(“We . . . need not decide whether a
require the defendant to waive all
jurisdictional, venue, statute of limicourt conditioning a forum non convetations, and other challenges to the
niens dismissal on the waiver of jurisability of a subsequent court to hear
dictional or limitations defenses in the
your client’s case.
foreign forum must first determine its
own authority to adjudicate the case.”).
If federal court dismisses a claim on forum non conveniens grounds in favor of
litigating the case in the court of another country, may the plaintiff refile the case in
a state court instead? If the plaintiff does so, may the defendant get a federal court
injunction prohibiting the state court action as contrary to the previous forum non
conveniens dismissal? See Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 146 (1988)
(rejecting such an injunction entered after a federal forum non conveniens dismissal
and holding that state court was free to conduct its own forum non conveniens analysis
because “whether the Texas state courts are an appropriate forum for [the plaintiff’s]
Singapore law claims has not yet been litigated”).
e. Forum Non Conveniens and the Erie Doctrine
As you will learn in Chapter 5, under the doctrine of Erie R.R. Co. v. Tompkins,
304 U.S. 64 (1938), federal courts sitting in diversity are obligated to apply the
substantive state law that would be applied to a claim in the state where the federal
court hearing the case is located. Does this requirement apply to the law of forum
non conveniens? In other words, may federal courts follow federal forum non conveniens doctrine or must they apply the relevant state approach to forum non conveniens?
The Supreme Court has suggested, but not held, that the federal law of forum non
conveniens is a procedural doctrine that federal courts must apply but that state
courts may ignore. See Am. Dredging Co. v. Miller, 510 U.S. 443, 453 (1994) (stating
that “forum non conveniens . . . is procedural rather than substantive”).
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Chapter 4 Venue
329
Executive Summary
Basic Venue. 28 U.S.C. § 1391 is the general venue statute. Careful application of its provisions is necessary to determine whether venue is proper in cases
where the statute applies.
n
n Special Venue Statutes. When there are special venue statutes that apply,
they generally serve to supplement the general venue statute unless the special statute is exclusive or somehow conflicts with the general venue statute.
Pendent Venue. Although
venue must be proper with respect
to each claim, many courts recognize
the concept of pendent venue, which
will permit proper venue for one
claim to establish proper venue for all
claims that share a common nucleus of
operative fact. This, however, is not a
universally accepted principle.
n
Change of Venue (Transfer). 28 U.S.C. § 1404 permits courts
to transfer a properly venued case to
another federal district or division
in which the case could have been
brought initially, if doing so furthers
the convenience of the witnesses
and parties and is in the interests of
justice. 28 U.S.C. § 1406 permits
courts to transfer improperly venued
cases to other federal districts where
they could have been brought if the
interests of justice suggest that such a
transfer is warranted.
n
Major Themes
Keep in mind two overarching
themes at work within the area of
venue:
a. Forum Shopping—the venue
statute may often give plaintiffs an
array of proper venues in which to
file their actions. Although this decision will ultimately be constrained
in part by personal jurisdiction considerations, plaintiffs here have some
ability to identify the forum that is
best for their interests from a strategic perspective.
b. Defendant Veto—although the
defendant does not have an absolute “veto” over the forum selection
of the plaintiff, the venue transfer
provisions along with the doctrine of
forum non conveniens do enable the
defendant to attempt to convince the
court that the action should be heard
in a court other than that selected
initially by the plaintiff.
n Applicable Law after Transfer. When state law claims are transferred
from proper venues, the law that would have applied in the transferor court applies
in the transferee court. When federal question claims are transferred, the transferee
court is not bound by the circuit law of the transferor court.
n Forum Non Conveniens. When the analysis of the Gilbert private and public interest factors indicates that a more appropriate and adequate alternate forum
exists for the action, but the alternate forum is within a separate judicial system, a
330
Civil Procedure A Contemporary Approach
court may dismiss the case on forum non conveniens grounds. When doing so, courts
typically will condition the dismissal on the defendant agreeing to permit the case to
be litigated in the alternate forum, waiving any jurisdictional or other challenges to
the alternate court’s authority to adjudicate the dispute.
For More Information
Students interested in obtaining more information about venue may consult the following resources:
•14D C. Wright, A. Miller & E. Cooper, Fed. Prac. & Proc. Juris. 3d § 3801 et seq.
• Mary Garvey Algero, In Defense of Forum Shopping: A Realistic Look at Selecting a Venue,
78 Neb. L. Rev. 79 (1999).
• Kimberly Jade Norwood, Shopping for a Venue: The Need for More Limits on Choice, 50
U. Miami L. Rev. 267 (1996).
i