Venue, Transfer, and Forum Non Conveniens
Key Takeaways
- Federal venue under 28 U.S.C. 1391 is proper where any defendant resides if all reside in the same state, or where a substantial part of the events or property is located.
- Transfer under 28 U.S.C. 1404(a) moves a case to another district where it could have been brought (or to which all parties consent) for convenience and the interest of justice; the original district was proper.
- Transfer under 28 U.S.C. 1406(a) cures a venue defect by transferring or dismissing when the original venue was improper.
- Forum non conveniens lets a court dismiss (not transfer) when the far more convenient forum is in a different judicial system, such as a foreign country, that no Section 1404 transfer can reach.
- In California, venue generally lies in the county where the defendant resides or where the contract was to be performed or the injury occurred; CCP 396b lets a defendant move to transfer from an improper county.
Federal Venue Under 28 U.S.C. 1391
Venue identifies the proper district (or, in state court, county) for the litigation. It addresses convenience and locale, not power — venue is waivable and is forfeited if not timely raised. Under 28 U.S.C. 1391(b), venue is proper in:
- A district where any defendant resides, IF all defendants reside in the same state; OR
- A district where a substantial part of the events or omissions giving rise to the claim occurred, or where a substantial part of the property at issue is situated; OR
- (Fallback only) if no district qualifies under (1) or (2), any district where any defendant is subject to personal jurisdiction.
Residence for venue
- A natural person resides in the district of domicile.
- An entity (corporation) resides in any district where it is subject to personal jurisdiction with respect to the action.
- A non-resident of the United States may be sued in any district.
Trap: The 'substantial part of the events' prong can make venue proper in more than one district simultaneously — the plaintiff need not pick the district with the most contacts, only one with a substantial part.
Transfer of Venue: 28 U.S.C. 1404 vs. 1406
A case may be moved between federal districts. The governing statute depends on whether the original venue was proper.
| Statute | Original venue | Purpose | Choice-of-law effect |
|---|---|---|---|
| 1404(a) | Proper | Transfer for the convenience of parties and witnesses and the interest of justice | Transferee court applies the law (including choice-of-law rules) of the transferor court (Van Dusen v. Barrack; Ferens) |
| 1406(a) | Improper | Cure a venue defect by transferring or dismissing | Transferee court applies its own law |
- Under 1404(a) the case may be transferred to any district where it could have been brought (proper venue + PJ + SMJ) OR to any district to which all parties consent.
- A valid forum-selection clause is given controlling weight: the court treats the contractually selected forum as presumptively appropriate and will not consider the plaintiff's choice or private-interest factors (Atlantic Marine).
- Under 1406(a) the court may transfer 'in the interest of justice' even though the original court lacked PJ; transfer is usually preferred over dismissal to preserve the statute of limitations.
Forum Non Conveniens and California Venue
Forum non conveniens (FNC)
Forum non conveniens is a common-law doctrine allowing a court to dismiss (or stay) a case when an adequate alternative forum in a separate judicial system — typically a foreign country, or a state court that no Section 1404 transfer can reach — is far more convenient. Because transfer statutes only move cases within the federal system, FNC fills the gap.
The court weighs private-interest factors (access to proof, witnesses, enforceability of judgment) and public-interest factors (court congestion, local interest, applicable law, jury burden) (Gulf Oil v. Gilbert; Piper Aircraft v. Reyno). The plaintiff's choice of home forum gets strong deference; a foreign plaintiff's choice gets less. A mere difference in substantive law (e.g., lower damages abroad) does not defeat dismissal.
California venue
In California superior court, venue (a county question) generally lies:
- For a transitory action (most contract/tort claims): the county where the defendant resides at filing — the default 'defendant's residence' rule.
- Contract actions: also where the contract was entered into or to be performed.
- Tort actions: also where the injury occurred.
- Local actions involving real property: the county where the property is located.
Under CCP 396b, a defendant may move to transfer an action filed in the wrong county, and under CCP 397 the court may transfer for the convenience of witnesses or to ensure an impartial trial. California also recognizes forum non conveniens by statute (CCP 410.30), allowing a stay or dismissal when the action would more appropriately be heard elsewhere.
Worked venue hypothetical and traps
Suppose a plaintiff domiciled in Illinois sues two defendants — one a Texas citizen, one a Florida citizen — over a contract negotiated and breached in Georgia. Under 1391(b)(1) there is no single state where all defendants reside (Texas and Florida differ), so that prong fails. But under 1391(b)(2), a 'substantial part of the events' occurred in Georgia, so venue lies in the appropriate Georgia federal district. Note how venue and personal jurisdiction are separate inquiries: a forum can have PJ over a defendant yet be an improper venue, and vice-versa.
Common traps: (1) Venue is about the district (or county), not the state — diversity satisfies SMJ but says nothing about which district is proper. (2) A valid forum-selection clause does not make a contrary venue 'improper' under 1406; instead it is enforced through a 1404(a) transfer (or FNC), with the clause given controlling weight (Atlantic Marine). (3) Forum non conveniens dismisses; transfer relocates — never confuse the two, because FNC applies only when the better forum is outside the federal system.
(4) A plaintiff who chooses a proper but inconvenient venue has not committed any 'error' — the remedy is a discretionary 1404 transfer, not mandatory dismissal.
A plaintiff properly files suit in the Northern District of California, but later both parties agree that the Southern District of New York would be far more convenient for witnesses. Which mechanism applies?
An action is properly venued in District A, then transferred under 28 U.S.C. 1404(a) to District B. Whose state law and choice-of-law rules govern?