This episode is a tutorial lecture about the doctrine of venue. I first cover the federal venue statute, 28 USC 1391. In circumstances when venue is improper, there are two follow-on options: dismissal or transfer. In circumstances when venue is proper, there are three follow-on options: proceed, dismissal, and transfer.
This episode is a tutorial lecture about the doctrine of venue. I first cover the federal venue statute, 28 USC 1391. In circumstances when venue is improper, there are two follow-on options: dismissal or transfer. In circumstances when venue is proper, there are three follow-on options: proceed, dismissal, and transfer.
Welcome to the civil war senior podcast. I am your host Thomas Maine. And this episode is about venue, including the topics of transfers and forum, non conveniens dismissals. The doctrine of venue protects the defendant against the risk that a plaintiff is going to select an unfair or especially inconvenient place for trial. And so venue thus is another geographical based constraint on where litigation can take place. And in that broadest sense, it's like personal jurisdiction because like personal jurisdiction, the doctrine of venue is worried about the convenience and the fairness of litigation taking place here instead of there. And so like personal jurisdiction, we are going to be focusing here on some familiar details, like where companies are incorporated, where they have their headquarters, where individuals are domiciled, where a cause of action accrued and other facts that are very personal jurisdiction. Like, but one of the most important things that I need to convey in this lecture is that personal jurisdiction is not the same as venue. So as something of an antidote that also serves as a warmup, and to some extent, as an overview, I'm going to list a bunch of ways that venue differs from personal jurisdiction. Now you're certainly welcome to pause and think about each item on this list. As I say them, you're welcome to do that. But my real goal here is just to make sure that you appreciate that there are lots of differences, important differences, and a nice long list is going to make that point. Even if you don't ruminate on each of these differences. So let's hear the list first. There is nothing constitutional about venue, nothing at all, it's purely statutory. And for this reason, it's sort of the ugly duckling of the various jurisdictional objections. Next item on the list. Whereas personal jurisdiction is all about state boundaries. Venue is all district boundaries. Now in states that have only one district state and district boundaries would be the same thing, but naturally there are many states that have more than one federal district in them. And venue is all about district boundaries. Next, although venue is its own doctrine and is an independent basis for dismissing a case venue will sometimes piggyback it'll borrow on personal jurisdiction conclusions. So you'll always want to do your personal jurisdiction analysis before you do your venue analysis, because sometimes whether there is personal jurisdiction can affect your venue analysis, but the reverse is never true. It's a one way relationship personal jurisdiction never cares about whether venue is proper or not next. Whereas personal jurisdiction is mostly about protecting the defendant venue definitely has a wider lens than just that due process protection for defendants compared to personal jurisdiction. Venue cares a lot more about the plaintiff, the court, and even non-party witnesses. In addition to the concern that it shares with personal jurisdiction about inconvenience and fairness to defendants, next venue can only be attacked directly. Remember that personal jurisdiction can be attacked directly by showing up in the forum and raising a 12[inaudible] motion or personal jurisdiction can be attacked by allowing a default judgment to enter and then attacking personal jurisdiction collaterally at the enforcement stage. But there is no such thing as a collateral attack on venue. Venue can only be attacked directly next. Unlike personal jurisdiction, the doctrines for venue are completely different depending upon whether you're in state court or in federal court for personal jurisdiction. Most of the doctrines are the same, regardless of whether you're in state or federal court, but with venues, state courts only apply the corresponding state court statute and federal courts only apply the federal venue statutes. The federal statutes for venue are completely irrelevant. If you're in court next with personal jurisdiction, we gave every defendant, the full protections of the due process clause. And by every defendant, you will recall that we mean third party defendants parties added on crossclaims parties added by amendment. Truly every defendant received those personal jurisdiction protections with venue by contrast. And I would note that this isn't explicitly in the statute, but it's the way that it works in practice. We really only look at venue for the original main suit. Now that still might be multiple plaintiffs and multiple defendants. We do consider that whole picture, but courts generally don't worry about venue for all of the various permutations of claims that come after that, not third party claims and cross claims and counterclaims and all of that, no venue is really only about the original main suit. Next, the historical trends for personal jurisdiction and venue are sort of heading in opposite directions. Whereas the grounds for personal jurisdiction have tended to narrow in the past few decades, establishing venue has actually gotten easier. And finally, the last item that I want to put on this preliminary list of important distinctions between personal jurisdiction and venue is this when you're done with your personal jurisdiction analysis, you're done meaning if there's personal jurisdiction, that's great. Let's continue on. And if there isn't personal jurisdiction, then we dismiss not. So with a venue analysis on your exam, because as you will see, when you do your venue analysis, you're really only half done because if venue is proper, there are still some follow on questions. When venue is improper, there are some different follow on questions. So there are stages to your venue analysis, more sequential steps than are necessary for your personal jurisdiction analysis. So with that list of emphasizing differences between venue and personal jurisdiction behind us, let's focus on the doctrine of venue. Assuming you're in federal court, your venue analysis should always begin with 28 USC section 1391, if you're not in federal court, but are instead in state court, this whole lecture is helpful only by analogy because if you're in state court 1391, doesn't apply at all. You need to find a state venue statute and start there. So again, almost everything that I say from this point on assumes that you are in a federal court venue and federal court begins with the federal statute section 1391. That's the most important provision though. I do need to warn you that there are literally hundreds of special provisions that can govern venue in particular types of cases. Many of those provisions were written at a time when 1391 was much more restrictive. So Congress needed a bunch of tailored provisions for particular types of claims. To the extent that those special provisions are still relevant. Some of them provide options for venue. In addition to those that would be allowed by the general provision of 1391. But I do need to warn you that some of these special provisions are exclusive. And in those circumstances, they would provide the sole venue option for particular cases. Naturally, we can't cover everything in a first year of civil procedure course and covering all of these special venue. Provisions is just not that important in the grand scheme of things. So let's focus on the general provision of 1391 of title 28, section 1391. This is what you will be using. 95% of the time in your federal court practice within section 1391, the important stuff begins with paragraph B and you'll notice that there are three different ways that venue can be proper in a district. All three of these provisions are district specific, not state specific district. Specific venue is all about federal districts. Each state has between one and four federal districts. And that allocation depends roughly on the area and population of the state, but it is far from precise. Arizona has just one federal district, even though it has 150% of the population and about 300% of the land area of Louisiana, which has three federal districts, Massachusetts and West Virginia are about the same size, but Massachusetts has three times the population of West Virginia yet Massachusetts has one district in west. Virginia has two 15 of the 17 largest states by land area have just one district. This is interesting, not just as trivia. It's also kind of relevant because as you think about venue being about convenience, one might think that its distance from the courthouse that matters. And in some of these large states, a trip within a particular district could be 500 miles or more. You absolutely cannot do the venue analysis without getting clarity from the fact pattern or the file about in which federal district the case is pending or in which federal just strict this case will be filed. When, you know, in which district, the cases pending have already said that section 1,391 says that there are three different ways that the venue could be proper in that district. And we will refer to these three different ways as residential, transactional and back. And those three different ways refer to 1391 B one B2 and B3 respectively. So let's talk about residential venue first. And then after that we'll consider the transactional and fallback provisions. Residential venue provision can make venue proper in a district when two conditions are both satisfied, the two conditions are one. All of the defendants must reside in the state and to at least one of the defendants must reside in the district. That seems to be easy enough. We just need to have a definition of residents and then look at the fact pattern to see where the defendant or the defendants reside. Now, if there's just one defendant, she, he, or it just needs to reside in the district. And if there's more than one defendant, well, then I just need to make sure that at least one of them resides in the district and that all of them reside in the state. And of course, if we're in a state that has only one district and then all need to reside in the state, which has also the district noticed by the way here, that residential venue is all about the residences of the defendants, not the plaintiffs, the defendants. So where does a person reside? Where does a corporation reside and where do unincorporated associations like partnerships or limited liability companies or labor unions reside, paragraphs C and D of the statute. Answer those questions for natural persons. A person resides only where they are domiciled. That's an important shift because domicidal is a much narrower and even a slightly different concept than the more colloquial residents. Domicile is a term of art and it's a term that's defined so that people always have one, but only one domicile by contrast, a person might have multiple residences, a summer residence, a condo in the city, a house in the country, or they might have no residents if they're homeless, but you should think of the venue statute as redefining residents here to mean only domicidal persons always and only have one domicile often in a fact pattern on an exam, you will have already addressed each defendant's domicidal because we often need to figure out domicidal for subject matter jurisdiction, under diversity jurisdiction. We also might need to figure out domicidal for personal jurisdiction over persons under general jurisdiction. So if you've already done the analysis in your exam or your memo of these defendants domiciles, you can just cross-reference that analysis. When you're doing that analysis for purposes of determining the propriety of venue, whenever you're trying to figure out somebody's, domicidal what you're doing is trying to figure out where is the lab last place that they were both present and intending to remain indefinitely. Those are the two conditions for determining someone's domicidal. If they've been living in Indiana for the past five years, there's a good chance that there was some point during that five years when they had the thought, I think I'm going to stay here in Indiana indefinitely. One of the important things about domicidal is that you keep your domicidal, which again is a term of art. You keep your domicidal until you adopt a new to domicidal. So even if that Indianan changed their mind about it, staying in Indiana indefinitely and had made all sorts of plans to move to Idaho, imagine them selling all their belongings and making plans for their new home in Idaho. They are not domiciled in Idaho until they are both present and intending to remain in Idaho. Uh, for most ordinary people on exams and in life they're domiciled where they live right now, they're living somewhere and they intend to remain there. Definitely that's kind of standard, but for a student who is only in Tennessee to attend law school, or for someone who has been in the military for the past seven years, or for someone who has been part of a traveling circus since they were a child, domiciles can be a complex inquiry. And the key on a fact pattern is work backwards through someone's life, beginning with where they are right now and asking well, while you've been living here, have you ever had the state of mind that I'm going to stay here indefinitely? And if the answer to that question is no, I never had that state of mind will then you go to the place that they lived previously and ask the same question then. Well, during your time in that previous state or country, did you, while living there have the state of mind that I'm going to stay here indefinitely, it's that two part test presence, plus intent to remain indefinitely it's mind and your behind need to be United your butt and your gut. It's the combination of that presence, your body physical presence, also that notion of intending to remain indefinitely. So net net, we use domicidal to determine the residents of natural persons for purposes of establishing residential venue. If the fact pattern merely says that they're living somewhere, be suspicious just because someone lives somewhere. It does not necessarily follow that they are domiciled there. And in order to determine some natural persons residents for purposes of venue, we need to know their domicidal. Our venue statute prescribes a special treatment for persons who are not domiciled in the United States. So for example, imagine a French citizen who lives in Paris is a defendant or imagined an American citizen who is domiciled in Paris is a defendant. We also could imagine a foreign citizen who is in the United States, but is not lawfully admitted for permanent residence in the United States. They might be here legally or illegally, but they are not a permanent resident, according to immigration law, for any of these natural persons, they are deemed to reside everywhere in the United States. That makes it easy to do your residents analysis for those types of defendants, because they are deemed to reside in every judicial district of the United States. So that's how we treat natural persons. What about corporations and unincorporated associations, where do corporations and labor unions and partnerships and limited liability companies reside. When we are trying to establish residential venue, answer corporations and any entity that has the capacity to be sued in its common name is deemed to reside in any district in which it is subject to personal jurisdiction. Shizam that means if you've already concluded that defendant ABC Corp is subject to personal jurisdiction in North Carolina. Well then ABC Corp is also a resident of North Carolina. The common mistake that students tend to make here is that they will say that a corporation resides only in the state of its incorporation and in the state of its headquarters. Well, a corporation would be subject to jurisdiction in those states, and it certainly is a resident of those states, but it's a mistake when analyzing venue to say that a corporation resides only in those states, again, for venue purposes, a corporation resides anywhere everywhere that it is subject to personal jurisdiction, ditto for unincorporated associations that have the capacity to be sued. Now you might think that that would conclude our discussion of residential venue because once I know the residences of the defendants, I just have to plug that back into my residential venue provision, which said that venue was proper provided one defendant resides in the district and all defendants reside in the state. And we would be done here if all states had only one district, but they don't. So imagine a fact pattern where in federal court, a plaintiff files, a law lawsuit against two defendants in San Francisco, California and San Francisco is part of the Northern district of California. And imagine that the defendants that are named in the suit are described by me in the fact pattern. One of them is an individual that I say is a lifelong Californian and a second defendant that's named in the suit as a company. And I tell you that their headquarters are located in California, is residential venue proper? Well, of course, you know, that residential venue is proper. If at least one of these two defendants resides in the Northern district of California and both of them reside in the state of California. Well, the latter part is pretty clear. We can confidently say that both of these defendants reside in California, but that's not good enough. At least one of them must reside in the district, which in this back pattern means the Northern district of California. So we need to go to another level, the district level specifically, where is the so-called lifelong Californian, domiciled, California. Sure. But if they're domiciled in San Diego, which is in the Southern most part of California, the Southern district of California will that defendant is not domiciled in the Northern district of California. So if our individual defendant is a lifelong California who was domiciled in San Diego, then residential venue will be proper in the Northern district. Only if the corporation is a resident of the Northern district. Now we just established that corporations are residents wherever they are subject to personal jurisdiction, but being a resident of California, isn't good enough in order to satisfy the residential venue provision. We need this corporation to be a resident of the Northern district. Paragraph D of our venue statute says that in states with more than one district, to determine the specific district of a corporation's residents, you need to redo your personal jurisdiction analysis at the district specific level. In other words, this California corporation is a resident of the Northern district of California. If then only of this California corporation would be subject to personal jurisdiction in the Northern district of California. If the Northern district of California were its own state, if the corporation's headquarters are in San Francisco, you're all set slam dunk because they'd be subject to personal jurisdiction in the Northern district. Even if the Northern district were its own state. But if the corporation's headquarters are in San Diego, but imagine that they do lots of business in the Northern part of the state, well then you're off to the races of doing a new, personal jurisdiction analysis, pretending that the Northern district of California, where its own state think targeting and purposeful availment and the fairness factors you do a personal jurisdiction analysis, treating the Northern district as its own state. And if there would be personal jurisdiction under such a circumstance, then you can conclude that this corporation also resides in the Northern district. A bit of warning. Don't jump into this kind of analysis without making sure that you need to do it because this could involve a substantial investment of time on an exam to establish residential venue. Just one of the defendants needs to be a resident of the district. The rest can just be residents of the state. So the mistake would be doing an unnecessary analysis to establish that more than one defendant resides in the district. One of them needs to reside in the district. All of them need to reside in the state, that's it for residential venue. And that's one of the three bases for establishing proper venue. Naturally, there are going to be a whole bunch of suits where residential venue will not be possible. And that's why we have the next basis, which is commonly referred to as transactional venue. And this one's easier. All you need to do here is to establish that this is a district in which a substantial part of the events or omissions giving rise to the claim occurred. Or if this is a district where a substantial part of property, that is the subject of the action is situated. Appreciate that this framing means that there could be more than one district in which transactional venue is proper. When you are determining whether a substantial part of the events underlying a claim arose in the district, you're going to be using facts and making arguments that resemble the facts and arguments that you make when you're analyzing, whether under the specific jurisdiction analysis of personal jurisdiction, that the cause of action arises out of the defendant's conduct in the forum state. While similar notice that it's a little bit different because you need to restrict those facts and reshape those arguments to adjust for the fact that now you are talking only about the district, not the whole state, but in other respects, those arguments are similar sample. When answering the question, whether a substantial part of the events or omissions giving rise to the claim occurred in the district. Some courts consider only the activities of the defendant while others look at this more broadly and include plaintiff's activities like the place of injury. For example, that's the same kind of tension that we saw playing out with that element of the specific jurisdiction analysis in the context of personal jurisdiction. But the broader point remember with transactional venue is that venue is proper under this transactional. Then you provision provided this as a district or a substantial part of the events or omissions giving rise to the claim occurred. Now sometimes on an exam, you'll have multiple claims, maybe even entirely unrelated claims in a lawsuit, which raises the possibility that one claim in the complaint satisfies the transactional venue criteria. And, but the other claim doesn't, that's my sneak attack on an exam. If that happens, you can expect courts to be generous here. Remember that venue is that kind of ugly duckling of the jurisdictional defenses. There's nothing constitutional going on here by allowing venue over that second claim to, and if you wanted to be fancy, you could refer to the common law doctrine of pendant, P E N D E N T pendant venue. That is one way of describing that expansion of this transactional venue provision to allow the other claim to ride along. So those are our two provisions for establishing venue under 1391, if you can't satisfy either of those, you're probably out of luck, but there is one more possibility. It's just that this is very rarely satisfied. And this third provision is referred to as the fallback. So what is this one and why is it rarely going to be the basis that you would use on an exam or in practice? The fallback provision applies. If there is no district that could satisfy the residential venue or transactional venue provisions yet the defendant is subject to personal jurisdiction in this district. There are two conditions there and notice that the ladder is super broad establishing venue anywhere that the defendant is subject to personal jurisdiction would be essentially eliminating the venue requirement altogether. So that second condition is going to be almost always satisfied. It's the first condition that's tricky. And what was that first condition? I said that there can't be any district in the United States that would satisfy either the residential or the transactional venue provisions as a practical matter. The only case that could ever meet this fallback venue provision would be a claim that arose outside of the United States. And there is no district in the United States that could satisfy residential venue. It would have to be a claim arising elsewhere because if a substantial part of the events giving rise to the claim occurred somewhere, anywhere in the United States. Well then transactional venue would be proper in that district. So the fallback provision is only gonna work if there is no district anywhere in the federal system that could satisfy transactional venue or residential venue. This fallback venue provision was crafted to fill a gap gap where a court had personal jurisdiction and subject matter addiction, but not venue, but it is not enough that the district doesn't satisfy residential or transactional venue. If you're using the fallback to establish venue, you've also analyzed and rejected. The possibility that any of the 90 plus districts in the United States would have venue under either 1,391[inaudible] residential venue or 1391 V2 transactional venue. You're just not likely to see it. And if B3, this fallback provision, if it hard enough to establish notice that even reference to personal jurisdiction is a little bit sneaky there. Section 1391, B3 requires personal jurisdiction in the judicial district, not merely in the state in which the federal court sits accordingly. When the forum state is a state with multiple federal districts, the personal jurisdiction assessment would have to be based upon contacts with the district and not with the state a whole. So let's recap all of this when you're given a fact pattern, identify the federal district in which the case is pending, evaluate the propriety of venue in that district under section 1391, if venue is proper under the residential or transactional venue provisions, or in the rare case, the fallback provision, then you conclude that venue is proper in this district. And conversely, if none of those provisions establish venue in this district, then you announce right here in your analysis, that venue is improper. But whichever of those conclusions you reach meaning venue is proper or venue is improper. You are not done. Unfortunately, indeed, there's a lot more work to do. Let's talk first about what happens next, when venue is improper after we do all of that, we'll talk about what happens next. When venue is proper, when venue is improper, one of two things are going to happen next and you need to argue or to decide which of the two things that might happen next is more appropriate. When venue is improper, the court will either dismiss or trance for dismissal seems like a pretty good option, kind of obvious. And in fact, that's exactly what 12 B3 contemplates. There it is right in our federal rules, 12 B3, dismissal, or improper venue, but dismissal is not the only option that judges have. The other option is transfer. And this is an available option because of section 1406 of title 28. And this is a place where you should probably remember the number, the number 14 0 6 28, USC 1406. It says that when venue is improper, the district court, and let me just quote shall dismiss. Or if it be in the interest of justice, Trey it's for such case to any district in which it could have been brought when there is some other federal district court in which this case could have been brought, which is to say some other federal district court where venue would be proper and where that other court would have personal jurisdiction, that there, there is some other district in which this case could have been brought. Well then generally speaking courts will often translate spirit to that other court rather than outright dismissing it, noticing it. We are another opportunity for a sneak attack on an exam, a court shouldn't transfer for it to that other federal district court, without making sure that venue and personal jurisdiction it'd be proper in that other court that transfer E court notice here also that the transfer each court has to be another federal district court. You cannot transfer it to a state court, cannot transfer it to an arbitral forum, cannot transfer it to some foreign tribunal, section 1406 talks about it being transferred to another district. Now second, 1406 says the courts can transfer when it is quote in the interest of justice close quote. The problem you're most likely to see in practice or on an exam is that the statute of limitations has run since the plaintiff filed the suit. So if the court where venue is, is improper, dismisses the action, the statute of limitations as run this plaintiff will not be able to refile the action in another forum, but if the court instead transfers the case, well, then the action is still timely. The case file just gets moved. It gets transferred word to the other court. Notice that that equates the interest of justice with the interests of the plaintiff. A more charitable characterization of that would be to say that transfer ensures that the case will be resolved on the merits rather than it being resolved on a technicality, the statute of limitations. And you could certainly imagine an argument by a defendant that the plaintiff's filing of the complaint was because of her inexcusable incompetence or faith. Even in which case, the interest of justice may not warrant absolving her of filing an action in a forum where venue was improper. After all a court should discourage this behavior, not rewarding it by transferring him. So watch for the expiration of the statute of limitations to be the issue there. So those are the two follow on options. When you've concluded that venue in federal court under 1391 is improper. Those two options again are missile or transfer under 1406. Now let's talk about the three one options. When you've concluded that venue in federal court under 1,391 is proper. The first of the three options is to continue on with the case. That's what we do in personal jurisdiction. Action is proper. It's what we do when subject matter jurisdiction is proper. Yeah, we engage in the inquiry, but if the case belongs there, then we move on to the next issue or the next stage or the next motion. And that certainly is possible here, but it's just one, the three possible options. The second option is transfer that's right, even though venue is proper, the courts still might transfer the case to another federal district court here. The authority is 28, USC 1404. The earlier authority to transfer was 1406. This is 1404. And it provides that for the convenience of parties and witnesses in the interest of justice. A district court may transfer the case to some other federal district court where the action might have been brought. Again, the authority extends only for this federal district court to transfer it to some other federal district court. Again, I've got the opportunity for us sneaky question, because you shouldn't be trying and spring this action to another district without analyzing the propriety of venue and personal jurisdiction in that transferee forum. Although notice that the language in 1404 is not identical to the language in 1406, under 1404, a court can also transfer to a court, provided all the parties consent, but you aren't likely to see that because all parties would require the consent of the plaintiff to, so the standard under section 14, Geno four allows the court to transfer, not withstanding the propriety of venue to transfer the case to some other district, for the convenience of parties and witnesses. And in the interest of justice, transfers are not common. We like to respect plaintiff's choice of forum, to the extent that we can. And 1404 transfers are, are impinging on that. But the authority is here and 1404 lists, three factors that a court should consider when evaluating whether to transfer. And those three factors are the convenience of parties, the convenience of witnesses and the interest of justice, especially with that very broad, third factor, the interest of justice. It's clear that a court can really consider anything, everything as part of its decisional calculus. So it should be looking at facts like, well, where are the parties and the witnesses and the evidence located are some of these things more mobile than others. And consider also whether there's some reason that the transferee court or a judge in the transferee forum would have some comparative advantage, any reason to think that they would do a better job with this case to reach a better or quicker resolution anticipate some reluctance to transfer a, court's not going to transfer. If it just shifts the inconvenience from one party to the other, you're going to need more than that. And it's also not just counting exercise. You might start there by saying, Hey, look, there are four witnesses here versus two witnesses there, but it really is more qualitative after all, some witnesses, some evidence, some things are just more important than others. Now with respect to the interest of justice in particular, one really strong factor can be getting related or similar cases into a single district. Courts tend to be receptive to efficiency arguments. So if you have a good argument that a transfer can save time, energy, or money, that can be a strong factor. Such efficiency arguments might work when cases share major issues, or maybe they arise out of the same transaction or event, or maybe a defendant would like to assert an employee leader against a third party defendant who is not subject to personal jurisdiction in this forum. But that third party defendant would be subject to personal jurisdiction. In the transferee forum we'll transfer then would avoid the prospect of a second suit. It allows you to make an efficiency argument. I'll have a bit more to say about these 1404 factors in a couple of minutes, but for now let's wrap up the second of these follow on options when venue is proper. So to recap where we are when the venue statute section 1391 is satisfied, the judge has three options. One proceed, number two, transfer under 1404. And now we are ready for the third option, which is dismiss. Yes, that's right. Even when venue is proper, there is the possibility that a judge might still dismiss this case. And we call this form of dismissal, a forum, non conveniens, a bit of terminology. This is not a 12 B3 dismissal for improper venue. Venue is proper. This is a dismissal based, not on the federal rules, but rather in the ancient common law doctrine of forum, non conveniens. Your thought process should lead you to seriously consider this third option. The forum non conveniens dismissal when the second option the transfer. When that second option seems to make a whole lot of sense, except for the fact that the better, more convenient, more appropriate forum is not another federal district court, but as instead say some foreign court, because remember that, that second option, the transfer option, you can transfer only to another federal district court. Can't transfer it to a state court. Can't transfer it to an arbitral forum. Can't transfer it to some foreign tribunal, but although a court can't transfer it anywhere except to another federal district court, it can dismiss the case with the suggestion that the plaintiff file the case, a new in that alternative forum, I'm going to separate the forum, non conveniens analysis into three steps. You'll need to March through all three steps to get a forum, non conveniens and F N C let's use abbreviations. The FNC dismissal. These three steps are somewhat overlapping, but it's always better to be overly comprehensive in tackling a fact pattern than to risk having some gaps. Step one, make sure that there is an adequate alternative forum available. A court will not, or at least should not dismiss on FNC without playing out the scenario of what will happen. If this case is dismissed, this plaintiff will need to revile their case where, and this step one asks is that where adequate, imagine for example, that a judge is inclined to think that this case should be litigated in Venezuela. A federal district judge can't transfer it there, but it could dismiss on FNC, even though venue in the forum is proper under 1391. But step one is to ensure that the courts of Venezuela are and adequate alternative forum. Importantly, an alternative forum is not inadequate merely because the procedures will be different or the remedies will be different, or because the outcome will be different. If that were the standard, we'll then know alternative forum, whatever be adequate, because of course things will be different, maybe even very different in some alternative forum. In fact, it's probably fairly safe to assume that the plaintiff who was filing in the United States district court instead of in Venezuela, made this very calculation in the first place. And they were trying for good reason to avoid the Venezuelan courts on this first step. The courts generally have a pretty low threshold, meaning it's pretty easy to satisfy the adequacy of the alternative. Merely he saying that things are different in the alternative forum. Again, that's not enough. Many courts say that the alternative forum is inadequate. Only the plaintiff truly will be deprived of any opportunity to remedy the grievance asserted or where it is clear that the plaintiff is going to be treated on fairly in the other court to thwart and FNC the dismissal on this step one, then plaintiffs need to show that they won't have any opportunity to litigate, or they need to show that they won't be treated fairly in that alternative system. But if the alternative forum is adequate, then you go on to step two in step two, you use the so-called public and private interest factors to evaluate the appropriateness of the dismissal. Those terms come from a famous case called Gulf oil, where the Supreme court enumerated some factors that it clustered into public interests and private interests concerns that district judges should consider on FNC motions. The point of this balancing is the same as what we discussed with regard to transfers under 1404, where we said that courts should consider the convenience of parties, the convenience of witnesses in the interest of justice. So this is the same kind of inquiry. It's just the Gulf oil group, them into these public interest and private interest labels. As an indication of the similarity of the 1404 transfer in the forum, non conveniens analysis, you should know that courts now often use these private interest in public interest factors from the FNC context when they are doing a 1404 analysis. And so if you find this characterization useful, you can do the same thing too. In both instances, we're talking about cases that are pending here, where a venue as here yet, there is some reason to believe that they might be better litigated elsewhere. Now, of course, the consequences are much more de-stabilizing for plaintiffs. When we're talking about dismissing a case with the expectation that they can refile in Venezuela, for example, that's much more de-stabilizing than when we are talking about transferring a case to the Eastern district of Virginia, but it is the same type of inquiry in both instances, even though we're more demanding in the FNC context than we are with transfers. So what are these private and public interest factors that courts use to analyze FNC dismissals and the judges in turn have, since cobbed into the 1404 analysis, the private interest factors are about the difficulties associated with proving your case. In this sense, private refers essentially to the lawyers tasks. Think very practically here. If I'm a plaintiff resisting the forum, non conveniens, I'm arguing that there are very practical problems that make trial easier, cheaper, fairer, and faster here he evidence is here. I'm not sure if I'm even going to be able to get the witnesses to appear there under the procedures of that other system. I don't even know if I can make them appear here and answer questions under oath. Of course, if I'm the defendant arguing in favor of the forum, non conveniens dismissal, well, then I'm challenging plaintiff's assessment of these comparative advantages of litigating here versus there. The public interest factors focus, not on the lawyers, but rather on the courts, the system, the judges, and again, a comparative exercise here versus there. So for example, when the defendant moves for an F N C dismissal, well, let's think about this is this case, a good use of this forum court systems, finite resource of dispute resolution services. What's the state's interest in the outcome of this litigation. You might imagine that some cases are very important locally cases that implicate the health safety, or our welfare of things that happen in this state, or involve people that live in this state or things that are manufactured in this state in circumstances where there is a local interest allocating. Some of our finite resource of dispute resolution services might make sense. Yes, let's allocate a courtroom. Yes, let's spend the time shepherding a jury through this process and let's spend local taxpayers money to do so because it makes sense in this particular circumstance, but at the other extreme, there may be no local interest or no local stake in the outcome of a particular suit. That is to say there isn't a strong public interest factor in keeping the litigation local, the other public interest factors focus on the applicable law. So let's imagine a case is pending in an Arkansas federal district court. Only if the Arkansas federal judge isn't going to be applying Arkansas law or federal law. Well, then a judge might wonder whether the action would be better litigated elsewhere. That's especially likely if this federal judge in Arkansas would need to be applying Venezuelan law. We could imagine a judge thinking, I don't want to wait into that. I don't want to have to deal with translations and expert on Venezuelan law. I'm not competent to do that. Maybe this case would be better litigated somewhere else. That is all part of this second step of our F N C inquiry evaluating the appropriateness of dismissal in contemplation of it being litigated elsewhere and frame that evaluation with the private interest factors and the public interest factors. If the second step also suggests the appropriateness of an FNC dismissal, that leaves step three. And that is to ask how much deference is really do the plaintiff's choice of forum. As a starting point. This second Preme court has said, quote, 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 toward dismissal and trial in the alternative forum close quote. So you should remember those words, strong presumption, but that is merely the starting point because the courts have also said that the plaintiffs forum Joyce is entitled to less deference when the plaintiff is not a United States citizen wrapping up this discussion of forum, non conveniens dismissals under FNC used to be quite rare, but in recent decades, judges have become more amenable with particular skepticism towards plaintiffs, seek access to American courts to get favorable law and to assert claims that have only a remote connection to this country. Think human rights claims mass torts products, liability claims arising from injuries in foreign countries. And that skepticism towards plaintiffs who are drawn to American courts, that skepticism resembles scorn when the plaintiffs themselves are foreign. So that wraps up our three steps for forum, non conveniens and the FNC dismissal of course, was also our third follow on option. First circumstances when venue is proper under 1391, those three options. One last time proceed transfer under 1404 or dismiss under the common law doctrine of forum, non conveniens. We're almost done with venue, but there is a little more doctrine yet to cover. Including venue can be waived. If you fail to assert it properly, then the objection is waived. So the cautious move is to include any venue, objection in your first filing as defendant, put it in there with your objection to personal jurisdiction and service. Another way to waive venue is with a forum selection clause. We typically talk about forum selection clauses in the context of personal jurisdiction. And I don't want you to confuse personal jurisdiction and venue because they are separate doctrines. But once again, they intersect right here. A forum selection clause is consent to personal jurisdiction. It is also consent to venue. If the forum selection clause establishes venue in the forum, some lawyers refer to this as an inbound forum selection clause, inbound in the sense that the clause is aligned with where the litigation is taking place and establishes venue, that district that can be helpful terminology because it allows us to talk next about outbound forum selection, clauses that is litigation is taking place in say the Eastern district of Oklahoma, but the parties contract selects West Virginia as the Citus for litigation. When you have an outbound clause like this, you should ignore it. When, when you're determining whether venue is proper under 1,391, it doesn't influence that analysis. However, once you've completed your 1391 analysis and you're addressing the follow on questions, a forum selection clause becomes extremely relevant and courts essentially have a near obligation to respect a forum selection clause. So let me back up just a little bit to reinforce this. A forum selection clause is a contractual provision by which the parties selected a forum for the resolution of a particular set of disputes. If, and only if the forum selection clause applies to the disputed hand, that's an important and often overlooked inquiry. That depends on the terms of that forum selection clause. But assuming that the forum selection clause applies to the particular dispute between the parties, this forum selection clause will be very important, nearly dispositive with risk back to transferring to the selected forum or when transferred to the selected forum is not possible. Then dismissal on grounds of forum, non conveniens. I've given away the ending by referring to the near obligation and the nearly dispositive nature of forum selection clauses in the calculus of transfers and dismissals. And that's because I want your intuition to lean heavily in that erection because of the forum selection clause treat the private interest factors as necessarily pointing toward or transfer or dismissal as the case may be only the public interest factors then can Trump the private interest factors and the court has said, these will rarely defeat a tree transfer or forum non conveniens motion. That's the overview venue. So remember assuming you're in federal court, you'd start with 1391, determine the propriety of venue. And then depending on the propriety of venue, evaluate the follow-on options for improper venue and for proper venue that conduct clues. Finally, this episode of the civil procedure
Speaker 2:Podcast, I appreciate your attention. And I hope that you have a very.