2.2 Venue, Transfer & Forum Non Conveniens
Key Takeaways
- Under 28 U.S.C. § 1391(b), venue lies where any defendant resides if all defendants reside in the same state, where a substantial part of the events or property is located, or—only if neither works anywhere—where any defendant is subject to personal jurisdiction.
- A § 1404(a) transfer from a proper venue may go to any district where the case might have been brought or to which all parties consent, and the transferee applies the transferor's choice-of-law rules (Van Dusen).
- Under Atlantic Marine (2013), a valid forum-selection clause is enforced through § 1404(a) or forum non conveniens, the plaintiff's choice of forum gets no weight, and only public-interest factors can defeat enforcement.
- A court may dismiss for forum non conveniens when an adequate alternative forum exists abroad or in a state system and private and public interest factors strongly favor it; less favorable law there is not ordinarily enough to defeat dismissal (Piper Aircraft).
- Removed cases go to the federal district embracing the place where the state action was pending, and § 1391 does not govern their venue.
2.2 Venue, Transfer & Forum Non Conveniens
Venue identifies the specific federal district where a case may be heard. Unlike subject-matter jurisdiction, improper venue is a personal privilege of the defendant: it is waived if not raised in the first Rule 12 response. The MBE tests the three statutory prongs, how entities "reside," and the difference between transferring a case and dismissing it.
Venue (28 U.S.C. § 1391)
Venue identifies the specific geographic judicial district within the federal court system where a case may properly be heard. Venue is determined purely by statute under 28 U.S.C. § 1391(b):
| Venue Prong | Statutory Rule | Application Notes |
|---|---|---|
| 1. Residential Venue (§ 1391(b)(1)) | Any judicial district in which any defendant resides, IF all defendants reside in the same state | If defendants reside in different states, Prong 1 is completely unavailable. |
| 2. Transactional Venue (§ 1391(b)(2)) | A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or substantial property is situated | Multiple districts can satisfy this standard; venue is proper in all of them. |
| 3. Fallback Venue (§ 1391(b)(3)) | If there is no district anywhere in the U.S. where the action may otherwise be brought, any district where any defendant is subject to personal jurisdiction | Only applies if Prongs 1 and 2 yield zero proper districts nationwide. |
Residency for Venue Purposes (28 U.S.C. § 1391(c))
- Natural Persons: District of domicile.
- Entities (Corporations, LLCs, Partnerships): Resides in any judicial district where it is subject to the court's personal jurisdiction with respect to the action. In multi-district states, a corporate defendant resides in any district where its contacts would subject it to PJ if that district were a separate state.
- Non-Residents of U.S.: A non-U.S. resident (foreign national or non-domiciled citizen) may be sued in any judicial district.
Venue Transfer and Forum Non Conveniens
| Mechanism | Governing Law | Initial Venue | Standard & Choice of Law Applied |
|---|---|---|---|
| Transfer for Convenience | 28 U.S.C. § 1404(a) | PROPER | Transferred for convenience of parties and witnesses, in interest of justice, to any district where it might have been brought. Transferee applies the choice-of-law rules of the transferor court (Van Dusen v. Barrack). Exception: Under a valid forum selection clause, transferee applies its own law (Atlantic Marine). |
| Cure of Defective Venue | 28 U.S.C. § 1406(a) | IMPROPER | Court must dismiss or, in the interest of justice, transfer to a proper district. Transferee applies its own choice-of-law rules (no Van Dusen protection). |
| Forum Non Conveniens | Federal Common Law | Proper or Improper | Court dismisses because the far more appropriate forum is in a foreign country or state court system where inter-district transfer is impossible (Piper Aircraft Co. v. Reyno). Requires adequate alternative forum and balancing of private and public interest factors. |
Applying the Transfer and Dismissal Rules
Convenience Transfer Under § 1404(a)
- Where the case may go: Any district where the action "might have been brought"—meaning venue would have been proper and the defendants subject to personal jurisdiction there when the suit was filed (Hoffman v. Blaski, 1960)—or any district to which all parties consent.
- How the court decides: The court weighs private-interest factors (convenience of parties and witnesses, access to proof, availability of compulsory process, and cost) and public-interest factors (court congestion, local interest in the dispute, and familiarity with the governing law). The plaintiff's choice of forum ordinarily receives deference.
- Choice of law: The transferee court applies the choice-of-law rules the transferor court would have applied (Van Dusen v. Barrack), so a defendant cannot use transfer to change the governing law. The same rule applies when a plaintiff moves for the transfer (Ferens v. John Deere Co., 1990).
Forum-Selection Clauses (Atlantic Marine Construction Co. v. U.S. District Court, 2013)
A valid forum-selection clause does not make the plaintiff's chosen venue "improper" under § 1391, so the defendant cannot dismiss under § 1406(a) or Rule 12(b)(3). Instead:
- If the clause selects another federal district, the defendant moves to transfer under § 1404(a).
- If the clause selects a state or foreign court, the defendant moves to dismiss for forum non conveniens.
- In either case, the plaintiff's choice of forum gets no weight, the court treats private interests as favoring the chosen forum, and only public-interest factors—which rarely win—can defeat enforcement.
- The transferee court does not apply the original court's choice-of-law rules.
Cure of Improper Venue Under § 1406(a)
When venue is improper, the court must dismiss or, in the interest of justice, transfer to a district where the case could have been brought. A court may transfer under § 1406(a) even if it lacks personal jurisdiction over the defendant (Goldlawr, Inc. v. Heiman, 1962). A separate statute, 28 U.S.C. § 1631, allows a court that lacks jurisdiction to transfer the case to a court where it could have been filed.
Forum Non Conveniens
Forum non conveniens survives in federal court for cases whose better forum is in a foreign country or, rarely, a state court system, because § 1404(a) cannot transfer a case outside the federal system. Under Piper Aircraft Co. v. Reyno (1981):
- The defendant must identify an adequate alternative forum where it is amenable to process and where the remedy is not so clearly inadequate that it is no remedy at all.
- The court balances private and public interest factors; a foreign plaintiff's choice of a U.S. forum receives less deference than a domestic plaintiff's choice of home forum.
- The possibility that the alternative forum's substantive law is less favorable to the plaintiff is not ordinarily a reason to deny dismissal.
- A court may dismiss on forum non conveniens grounds before resolving jurisdiction if that is the simpler path (Sinochem International Co. v. Malaysia International Shipping Corp., 2007).
Venue in Removed Cases and Other Details
- Removal venue: A removed case goes to the federal district and division embracing the place where the state action was pending (§ 1441(a)); the general venue statute does not apply to removed cases (Polizzi v. Cowles Magazines, Inc., 1953).
- Local actions abolished: Section 1391(a)(2) directs that venue be determined without regard to whether an action is "local" or "transitory," so a federal court may hear a claim about land located elsewhere if venue is otherwise proper.
- Waiver: An objection to venue is waived if not included in the first Rule 12 motion or, absent a motion, in the answer (Rule 12(h)(1)).
| Situation | Proper Tool | Governing Law After the Move |
|---|---|---|
| Venue proper; another federal district is more convenient | § 1404(a) transfer | Transferor's choice-of-law rules |
| Venue improper | § 1406(a) dismissal or transfer | Transferee's choice-of-law rules |
| Valid clause selects another federal district | § 1404(a) transfer under Atlantic Marine | Transferee's choice-of-law rules |
| Better forum is abroad, or a clause selects a state or foreign court | Forum non conveniens dismissal | Law of the new forum |
A plaintiff domiciled in State A filed a diversity action in federal district court for the District of State A against two individual defendants. Defendant 1 is domiciled in the Northern District of State B. Defendant 2 is domiciled in the Southern District of State B. The lawsuit arises out of an automobile accident that occurred entirely within the Western District of State C. In which of the following federal judicial districts is venue proper under 28 U.S.C. § 1391(b)?
A contractor and a subcontractor signed a valid construction subcontract providing that all disputes 'shall be litigated only in the state or federal courts located in Norfolk, Virginia.' After a payment dispute, the subcontractor sued the contractor in the federal district court for the Western District of Texas, where the project was located and where venue is proper under 28 U.S.C. § 1391. The contractor moved to transfer the case to the Eastern District of Virginia under § 1404(a). The subcontractor argued that most witnesses live in Texas and that its choice of forum deserves deference. How should the court approach the motion?