§ 5.01 General Principles

 

Venue refers to the place within a judicial jurisdiction in which a case is to be tried.  Venue principles are aimed at the selection of the most convenient and logical court within a given court system. 

 

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

 

 

§ 5.02 Venue Under State Judicial Systems

 

Typically venue in state judicial systems may be based on some or all of the following factors:

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

 

 

§ 5.03 Venue Under the Federal Judicial System

 

Venue in federal courts is controlled by 28 U.S.C.  § 1391.  The statute provides two grounds for venue and a fallback provision.

 

[1] Defendant’s Residence

 

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

 

[2] Locus of Substantial Part of Events or Property at Issue

 

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

 

[3] Fallback Venue

 

If, based on the preceding grounds, there is no district in which the action may otherwise be brought:

 

(1) diversity actions may be brought in “a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced.” [28 U.S.C. § 1391(a)(3)]

 

(2) federal question cases may be brought in a judicial district “in which any defendant may be found.” [28 U.S.C. § 1391(b)(3)]

 

The fallback provision set forth in § 1391(a)(3) is largely invoked when there are defendants who do not reside in the same state and either the claim arose outside the United States or all of the defendants are not subject to personal jurisdiction where a substantial part of the claim-related events occurred.

 

 

§ 5.04 Change of Venue Outside of Judicial System; Forum Non Conveniens

 

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

 

(1) demonstrate that an adequate alternative forum is available. [Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947)]

           

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

 

 

§ 5.05 Transfer of Venue Within the Same Judicial System

 

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

 

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