Civil Procedure Outline

Part V: Venue
Venue
Venue in General:

Venue establishes which court the appropriate court for litigation to occur. There is no Constitutional provision
for venue. Rather, venue requirements are laid out by statutory provisions. Venue is waivable, and a defendant
may consent to venue. Generally, the defendant is the party that requests the change in venue. Venue may be
transferred from one federal district court to another federal district court. Removal is the process by which a
case is removed from state court to federal court. Generally, the plaintiff chooses the forum and this choice is
entitled to great weight by the court (Smith v. Colonial Penn). Policy: the purpose of venue is to help parties
bring their case to a convenient district; and forces plaintiffs to consider defendant’s convenience. Every state
has at least one judicial district, and many states have several juridical districts. District courts are named, while
the numbered districts correspond to the federal appellate courts.

Proper Venue:

Proper venue, governed by 28 USC 1391. According to 28 USC 1391(b), a civil action may be brought in:
A. A judicial district in which any defendant resides, if all defendants are residents of the state in which the
district is located;
B. A 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; (Uffner) OR
C. 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.

Residency for the purposes of venue is described in 28 USC 1391.

A. Residency for a person 28 USC 1391(c)(1): A natural person/alien lawfully admitted for permanent
residence resides in the judicial district in which the person is domiciled
B. Residency for a Corporation 28 USC 1391(c)(2): An entity with the capacity to sue and be sued in its
common name, whether or not incorporated, shall be deemed to reside:
a. If a defendant, in any judicial district in which the defendant is subject to the court’s personal
jurisdiction; and
b. If a plaintiff, only in the judicial district in which it maintains its principal place of business.
C. Residency for corporations in states with multiple districts is described in 28 USC 1391(d):
a. 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 will be
deemed to reside.

These rules (proper venue & res) do not apply in a case that is removed from State court to Federal court.
Transfer: Under both 28 USC 1404 and 28 USC 1406, the court to which the case is sent must be a proper
venue and must have jurisdiction over the defendant. The factors a court will consider in choosing to transfer a
venue includes the availability and convenience of the witnesses and parties, the location of the counsel,
location of books and records, cost of obtaining attendance of witnesses and other expenses, the place of the
alleged wrong, the possibility of delay, the possibility of prejudice if the transfer is granted, and the plaintiff’s
choice in forum.
A. When original venue was proper: A 1404 Transfer occurs when the plaintiff originally chose a proper
forum. Both the plaintiff and the defendant can choose to transfer under 28 USC 1404. The new transfer
must still be appropriate under 28 USC 1391, and the same law prior to the transfer is applied to the
new forum. (Ferens v. John Deere – same law)
B. When original venue was improper: A 1406 Transfer occurs when the plaintiff originally chose an
improper forum. 1406(a) permits the court to dismiss the case, leaving it to the plaintiff to find an
appropriate venue (this would fall under an FRCP 12(b) motion to dismiss). 1406(a) also permits the
case to be transferred to any district or division in which it could have been brought. After transfer, the
court will apply the law of the court to which the case is transferred.

Forum non conveniens is a common law device that allows courts to dismiss a case where another court,
or forum, is much better suited to hear the case. The case is dismissed because the forum is inappropriate or
oppressive to the defendant and transfer is possible (as in judicial systems in foreign countries) (Piper Aircraft).
Courts will attempt to transfer prior to dismissal for forum non conveniens. If the case is dismissed, the plaintiff
can re-file in a different location. Plaintiffs cannot be left without a remedy and must be able to recover in court.
A. Inadequate or unsatisfactory forum: If the remedy provided by the alternative forum is clearly
inadequate or unsatisfactory that it’s really not a remedy, the unfavorable law change will be given
substantial weight (Piper Aircraft).
B. Public and private factors: The court is interested in both public and private interest factors. Public
interest factors including jury confusion, forum shopping, interest in adjudicating the claim. Private
interest factors include the location of evidence, location of witnesses, the burdens the parties bear in the
case, and joining other cases.

Removal is governed by 28 USC 1441: Removal happens when a case is removed from state court to federal
court. The claim must have original jurisdiction (either diversity or federal question). Only the defendants may
remove a case to federal court (plaintiffs may never remove – not even if there is a counterclaim). Defendants
do not need the plaintiff’s approval to do so. All defendants must agree to remove, or the claim will not be
removed. If a case gets removed from state court, it gets removed to the same DISTRICT AND DIVISION as
the state court. An in-state defendant cannot remove (if you don’t want a case removed, bring it in a state court
where any of the defendants reside). Generally, the defendant can remove if the case could have been brought in
federal court. This means that the case meets the requirements for diversity or federal question jurisdiction. The
defendant must remove within 30 days of service of process. All defendants who have been served with process
must consent to the removal. The 30 days for removal start again for each newly served defendant.
A. Removal in General: 28 USC 1441(a): “Any civil action brought in a State court of which the district
courts of the U.S. have original jurisdiction, may be removed by the D (or Ds) to the district court of
the U.S. for the district and division embracing the place where such action is pending.”

a. DIVERSITY CITIZENSHIP: 28 U.S.C § 1441(b)(2) A civil action otherwise removable

solely on the basis of the jurisdiction under 1332(a) may NOT be removed if any of the parties
in interest properly joined and served as Ds is a citizen of the State in which such action is
brought. A diversity case cannot be removed if any D is a citizen of the forum.
b. FEDERAL QUESTION: 28 USC 1441(c)(1) If the civil action includes: (A) a claim arising
under the Constitution, laws, or treatises of the U.S. (within the meaning of 1331), and (B) a
claim not within the original or supplemental jurisdiction of the district court or a claim that
has been made non-removable by statute, the entire action MAY be removed if the action would
be removable without the inclusion of the claim described in sub (B).
B. Removal procedure:
a. 28 USC 1446(a): A D or Ds desiring to remove any civil action from a state court shall (1) file
in the district court of the US for the district and division within which such action is pending;
(2) give a notice of removal signed pursuant to Rule 11; (3) containing a short and plain
statement of the grounds for removal; and (4) a copy of all process, pleadings, and orders (5)
served upon D or Ds in such action.
b. 28 USC 1446(b) (1) The removal of a civil action or proceedings shall be filed within 30 days
after the receipt by the D, through service or otherwise, of a copy of the initial pleading set forth
the claim for relief upon which such action or proceeding is based, or within 30 days after the
service of summons upon the D if such initial pleading has then been filed in court and is not
required to be served on the D, whichever period is shorter. (2) All Ds who have been properly
joined and served must join in or consent to the removal of the action. (3) Except as provided in
(c), if the case stated by the initial pleading is not removable, a notice of removal may be filed
within 30 days after receipt by the D, through service or otherwise, of a copy of an amended
pleading, motion, order, or other paper from which it may first be ascertained that the case is
one which is or has become removable.
c. 28 USC 1446(c) (1) A case may not be removed under (b)(3) on the basis of jurisdiction
conferred by 1332 more than one year after commencement of the action, unless the district
court finds that the P has acted in bad faith in order to prevent a D from removing the action.
(2) If the removal of a civil action is sought on the basis of jurisdiction conferred by section
1332(a), the sum demanded in good faith in the initial pleading shall be deemed to be in the
amount in controversy, except that: (A) The notice of removal may assert the amount in
controversy if the initial pleading seeks: (i) nonmonetary relief; or (ii) a money judgement, but
the State practice either does not permit demand for a specific sum or permits recovery of
damages in excess of the amount demanded
i. P must act in “good faith.” This may be determined through the discovery process. Why
remove? Hometown bias, efficiency of federal courts (i.e. claim takes shorter time),
court plays heavier role in discovery.
d. 28 USC 1446(d) Promptly after the filing of such notice of removal of a civil action the D or Ds
shall give written notice thereof to all adverse parties and shall file a copy of the notice with the
clerk of such State court, which shall effect the removal and the State court shall proceed no
further unless and until the case is remanded.
C. Procedure After Removal: 28 USC 1447(c): A motion to remand the case on the basis of any defect
other than lack of SMJ must be made within 30 days after the filing of the notice of removal under
1446(a). If at any time before final judgment it appears that the district court lacks SMJ, the case shall
be remanded. An order remanding the case may require payment of just costs and any actual expenses,
including attorney fees, incurred as a result of the removal. A certified copy of the order of remand
shall be mailed by the clerk to the clerk of the State court.
 Venue Flow Chart:

28 USC 1391(b): Venue in General

A civil action may be brought in:
o Any judicial district of a state if:
o At least one defendant resides in that judicial district; AND
o All defendants reside in that state

o A judicial district in which:

o Substantial part of the events giving rise to the claim occurred; OR
o A substantial part of the property that is the subject of the action is situated

o If there is no district satisfied above:

o Any judicial district in which any defendant is subject to court’s PJX in respect to the
claim

28 USC 1391(c): Determining a party’s residency

A party’s residency is determined by:

o Citizen/permanent resident:
o Judicial district in which she is domiciled

o Entity with capacity to sue (incorporated or not):

o If a D: any judicial district in which such D is subject to court’s PJX with respect to action
in question
o If a P: only in judicial district in which it maintains its principal place of business

28 USC 1391(d): Residency of Corporations in States with Multiple Districts

Applies if: (1) state has more than one district; AND (2) defendant is a corporation subject to state’s PJX at
time action is commenced

o Corporation resides in any district in that state within which its contact would be sufficient to
subject it to PJX if that district were a separate state; OR
o If no such district exists, the corporation shall be deemed to reside in the district within which
it has the most significant contacts

Remember: The sections of the statute above (b), (c), and (d) are correct, but the flow charts following
them do not always correspond to the actual numbers in the statute. THIS IS JUST AN EASY WAY OF
LOOKING AT THE REQUIREMENTS; NOT A COPY OF THE STATUTE.
Remember: Differences in Venue, SMJX, and PJX:

 SMJX: Court’s power to hear a type of claim

 PJX: Ensures state’s jurisdiction is fair to defendant
 Venue: Ensures federal court within the state is fair to the defendant
V. Venue: The Appropriate Court within a State for Litigation to Occur

A. Applicable Law: Nothing in Constitution about Venue

28 USC 1391: Statute that Governs Venue

o (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 the 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 D is subject to the court’s PJX w/ respect to such
action
o (c): “Residency”
 (1) A natural person, including an alien lawfully admitted for permanent residence in the US,
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,
o if a D, in any judicial district in which such D is subject to the court’s PJX with
respect to the civil action in question,
o if a P, only in the judicial district in which it maintains its principal place of business
o (d): “Residency of Corporations in States with Multiple Districts”
 In a state which has more than one judicial district and in which a D that is a corporation is
subject to PJX at the time an action is commenced, such corporation shall be deemed to reside
in any district in that State within which its contact would be sufficient to subject it to PJX if

28 USC 1404: Venue Transfer

o 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 of
division to which all parties have consented.

*Policy: convenience of the parties and witnesses, interest of justice.

*Original court is PROPER, legally
*New venue must still be appropriate under 1391

28 USC 1406: Venue Transfer

o (a) A district court 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.

*Original court is NOT PROPER

*New venue must still be appropriate under 1391
28 USC 1441: Removal from State Court to Federal Court, Only Defendant can remove

(a) …any civil action brought in a State court of which the district courts of the U.S. have original jurisdiction,
may be removed by the D or Ds to the district court of the U.S. for the district and division embracing the
place where such action is pending.*

(b) Removal based on diversity of citizenship.

(1) In determining whether a civil action is removable on the basis of the jurisdiction under 1332(a), the
citizenship of Ds sued under fictitious names shall be disregarded.**
(2) A civil action otherwise removable solely on the basis of the jurisdiction under 1332(a) may not be
28 USC 1446: PROCEDURAL REQUIREMENTS, Removal from State Court to Federal Court

(a) “Generally” A D or Ds desiring to remove any civil action from a State court shall:
 file in the district court of the United States for the district and division within which such action is
pending
 a notice of removal signed pursuant to Rule 11
 containing a short and plain statement of the grounds for removal, and
 a copy of all process, pleadings, and orders
 served upon such D or Ds in such action.

(b) “Requirements, generally”

(1) The removal of a civil action or proceedings shall be filed within 30 days after the receipt by the D,
through service or otherwise, of a copy of the initial pleading set forth the claim for relief upon which
such action or proceeding is based, or w/in 30 days after the service of summons upon the D if such
initial pleading has then been filed in court and is not required to be served on the D, whichever period is
shorter.
(2) All Ds must consent.
(3) Except as provided in (c), if the case stated by the initial pleading is not removable, a notice of
removal may be filed within 30 days after receipt by the D, through service or otherwise, of a copy of
an amended pleading, motion, order, or other paper from which it may first be ascertained that the case
is one which is or has become removable.

(c) “Requirements, Removal Based on Diversity of Citizenship”

 P must act in “good faith.” This may be determined through the discovery process.
 Policy: Why remove? Hometown bias, efficiency of federal courts (i.e. claim takes shorter time), court
plays heavier role in discovery.
(1) A case may not be removed under (b)(3) on the basis of jurisdiction conferred by 1332 more than one
year after commencement of the action, unless the district court finds that the P has acted in bad faith in
order to prevent a D from removing the action.
(2) “Amount in Controversy” If the removal of a civil action is sought on the basis of jurisdiction
conferred by section 1332(a), the sum demanded in good faith in the initial pleading shall be deemed to
be in the amount in controversy, except that:
(A) The notice of removal may assert the amount in controversy if the initial pleading seeks:
(i) nonmonetary relief; or
(ii) a money judgement, but the State practice either does not permit demand for a specific
sum or permits recovery of damages in excess of the amount demanded

(d) “Notice to Adverse Parties and State Court” Promptly after the filing of such notice of removal of a civil
action the D or Ds shall give written notice thereof to all adverse parties and shall file a copy of the notice with
the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless
and until the case is remanded.

28 USC 1447: Procedure After Removal (pertains to Plaintiff)

(c) A motion to remand the case on the basis of any defect other than lack of SMJ must be made within 30
days after the filing of the notice of removal under 1446(a). If at any time before final judgment it appears
that the district court lacks SMJ, the case shall be remanded. An order remanding the case may require payment
of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified
copy of the order of remand shall be mailed by the clerk to the clerk of the State court.
B. About Venue in General: GOVERNED BY 1391
1. Purpose:
a. Helps parties bring their case to a convenient district;
b. Forces plaintiffs to consider defendants’ convenience
2. Plaintiff originally chooses forum
3. Different states have different numbers of judicial districts; new districts can be shifted
4. Every state has AT LEAST one judicial district
a. Cincinnati is in the Southern District of OH (federal district court)
b. Numbered districts correspond to the federal appellate courts; district courts are named
5. State venue statutes are ONLY for state courts.
a. State venue takes you to a county; we are dealing with federal districts
6. Venue can be waived or transferred.

C. Venue Transfer: GOVERNED BY 1404 AND 1406

1. 1404 Transfer: P chose a proper forum
a. Both P and D can choose to transfer under 1404
b. New transfer must still be appropriate under 1391
c. KEEP THE SAME LAW THAT WOULD’VE APPLIED PRIOR TO TRANSFER
2. 1406 Transfer: P chose an improper forum
a. Court may dismiss case, leaving it to P to find appropriate venue (12(b) motion to dismiss)
b. APPLY LAW OF THE COURT TO WHICH THE CASE IS TRANSFERRED
3. Factors a court will consider in choosing to transfer a venue:
o Availability and convenience of the witnesses and parties
o Location of counsel
o Location of books and records
o Cost of obtaining attendance of witnesses and other trial expenses
o The place of the alleged wrong
o The possibility of delay
o The possibility of prejudice if the transfer is granted
o Plaintiff's choice of forum

D. Forum Non Conveniens: Common law device

1. Plaintiff’s choice in venue is given substantial weight
2. Forum non conveniens is a discretionary power that allows courts to dismiss a case where another
court, or forum, is much better suited to hear the case
a. Forum is oppressive to defendant
b. Another forum exists that is more convenient to the defendant
3. P can re-file in a different location.
4. Courts will attempt to transfer prior to dismissal for forum non conveniens.
5. Plaintiffs cannot be left without a remedy. They must be able to recover in a court.
6. Factors court is interested in:
(1) Public interest factors: Jury confusion, forum shopping, interest in adjudicating this claim
(2) Private interest factors: Evidence, Getting witnesses, Private in as much as they relate to
the parties (burdens the parties bear in the case), joining the other cases
E. Removal: 28 USC 1441, Removal in General
1. Moving a case from state court to federal court
2. Claim must have original jurisdiction (diversity or federal question)
3. Only the defendant may remove, but defendants DO NOT need plaintiff’s approval
4. All defendants must agree to remove, or their claim will not be removed
5. If a case gets removed from state court, it gets removed to the same DISTRICT AND DIVISION as
the state court.
6. Fictitious names: Defendant is a protected individual (like a minor)
7. You cannot remove if you’re an in-state defendant. In-state Ds are better off in state court.
a. If you don’t want a case removed, bring it in a state court where any of the defendants reside.
8. Jurisdictional spoiler: defendant is joined solely to get into federal court; not a good thing.
9. Snap Removal: usually not accepted. Treating “and” as literal in 1441(b)(2). Party is of interest but
hasn’t been served yet.

F. Removal: 28 USC 1446, Removal Procedure

1. Requirements:
2. Part a: A defendant or defendants desiring to remove any civil action from a State court shall
• file in the district court of the United States for the district and division within which such
action is pending
• a notice of removal signed pursuant to Rule 11
• containing a short and plain statement of the grounds for removal, and
• A copy of all process, pleadings, and orders
• served upon such defendant or defendants in such action.
3. Part b(3): Notice of removal must happen within 30 days of when it is “first ascertained” that it is
removable. (sometimes it doesn’t look like it’s removable, but it is, like if diversity is found after
discovery).
4. Part c(1): Applies only to diversity cases. Needs good faith. Depends on court’s interpretation.
Defendants cannot remove after a year based on diversity unless the plaintiff withheld information
so that diversity wasn’t discovered (or bad faith).
5. Part (c)(2)(A)-(B): Sum demanded in good faith must be greater than $75,000, based on pleading. If
there’s non-monetary relief involved, or plaintiff doesn’t allege a specific amount of damages, court
may allow some discovery to determine what the amount in controversy is.
F. Cases:

1. Uffner v. La Reunion Francaise: Under 28 USC 1391, venue in federal court is proper in any
district where a SUBSTANTIAL PART of the events giving rise to the claim occurred.
o Facts: P had insurance policy on his yacht through D. P’s yacht sank near Puerto Rico. D refused
to give insurance claim because the yacht did not have a “current out-of-water survey.” P sued D
in Puerto Rico for bad-faith denial of insurance claim. District court dismissed Ps claim for
improper venue because “triggering event” was the contract, which was not in Puerto Rico.
Appellate court said that any “substantial event” was sufficient for proper venue.
o Holdings:
 There may be more than one proper venue
 Proper venue is satisfied with where a SUBSTANTIAL event took place; need not be a
“triggering event.”

2. Smith v. Colonial Penn Ins. Co: Plaintiff gets great deference with choice of venue, and venue
transfer may be granted with a consideration of factors.
o Facts: D filed a motion to transfer venue from Galveston to Houston. Sarcastic judge ridiculed
D’s attorney for requesting a transfer without adequate reasoning.
o Holdings:
 Plaintiff’s choice gets a lot of deference, but sometimes venue transfer is appropriate
 Factors a court will consider in choosing to transfer a venue:
 Availability and convenience of the witnesses and parties
 Location of counsel
 Location of books and records
 Cost of obtaining attendance of witnesses and other trail expenses
 The place of the alleged wrong
 The possibility of delay
 The possibility of prejudice if the transfer is granted
 Plaintiff's choice of forum

3. Ferens v. John Deere Co.: After 1404 transfer, federal court will apply the law that the original
court would’ve applied. After a 1406 transfer, apply the law of the court to which the case is
transferred. Prior to this case (before 1990), courts were changing law with 1404 transfer.
o Holdings:
 After a section 1404 transfer, a federal court will apply the law that the original court
would have applied.
 After a 1406 transfer, apply the law of the court to which the case is transferred.
4. Piper Aircraft v. Reyno: 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. FORUM NON CONVENIENS case.
o Facts: Plane crashed in Scotland. Deceased were all Scottish residents. Plane was manufactured
by Piper (located in PA) and Hartzell (location in OH) (Ds). Estates of deceased (P) filed
wrongful death suit against Ds in CA State Court. Case was removed to CA Federal Court. Piper
transferred the forum to PA Federal Court through 1404(a). Hartzell transferred the forum to PA
Federal Court through 1406(a). Ds both argue forum non conveniens.
o Holdings:
 Factors court is interested in:
 (1) Public interest factors
o Jury confusion
o Forum shopping would create an increased flow of litigation into the US
o Scotland has an increased interest in adjudicating this claim
 (2) Private interest factors
o Evidence
o Getting witnesses
o Private in as much as they relate to the parties (burdens the parties bear in the
case)
o Joining the other cases (more convenient to join them once - joinder rule in
1367)
 Plaintiffs cannot be left without a remedy when forum non conveniens comes up.
However, there is a potential remedy here. U.S. forces companies to submit to
Scottish jurisdiction, where the more acceptable forum is.
 Plaintiffs had to get into federal court to motion to dismiss on forum non conveniens
 Courts will try to transfer if at all possible, rather than dismissing.