Venue on the UBE in Fed Civ Pro - Proper Venue, Transfer of Venue, Waiver of Venue and Forum Non Conveniens for the MBE and MEE

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             Venue should in theory be an easy topic of Fed Civ Pro.  Removal, joinder, impleader and other nuanced areas of law are typically the tougher topics to memorize and retain.  That said, many of our students do struggle with the basic concepts of venue, the “little brother” of the jurisdiction analysis (SMJ, PJ, proper service, and finally – venue).   

                Therefore, let us tackle the five pivotal issues of venue – (1) the general rule pertaining to venue, (2) venue of/for a corporation, (3) transfer of venue (most oft tested area of venue), (4) waiver of venue, and (5) forum non conveniens. 

             At the outset, venue refers to the specific court in which a case is brought. In each city, county, state or country, there may be many courts in which a case may be brought, but one specific court may be more appropriate or proper than another.

 

The threshold question to ask ourselves is does the/this court have venue / is this the proper venue to hear this case?

 

BAR EXAM NOTE - To understand venue, it is crucial that you remember that all other jurisdictional requirements, such as diversity jurisdiction or federal question jurisdiction, and personal jurisdiction, must be satisfied before venue can even be discussed. In other words, for a court to be a proper venue, it first must have jurisdiction to hear the case.

 

1 – The General Venue Rule –


There are three permissible locales for proper venue.  BAR EXAM NOTE – They are separated by an OR and not an AND meaning that only one of these three needs to be satisfied.

 

1 - If all defendants reside in same st then venue is proper in a judicial district where any defendant resides OR

2 - In a judicial district in which a substantial part of the events or omission giving rise to a claim occurred or a substantial part of prop is subject and situated OR

3 - If there is no judicial district in which satisfies the two methods above, in a district where ANY defendant is subject to personal jurisdiction with respect to the action.

 

2 – Proper Venue for Corporations –


1 – Basic Residency Rule –  A corporation is treated differently for venue.  A corporate defendant is a resident in any judicial district in which it is subject to personal jurisdiction. A corporate plaintiff is a resident ONLY of a district of/with their PPOB (Principal Place of Business) OR

 

2 – If there is more than one Judicial District –  If a state has more than one judicial district, venue is proper in any district where there are enough contacts to give the federal court personal jurisdiction over the defendant.

 

3 – Transfer of Venue between Federal District Courts –


How can a defendant transfer from the venue selected by the plaintiff to a different venue?  To do so:


1 – Venue was originally improper OR

2 – They requested the transfer and the court considers FOUR factors: (1) where the parties are from, (2) where is the evidence at issue in the litigation,  (3) what law governs the matter(s), and (4) where are the witnesses located. This is the balancing test that the court will use.

 

4 – Waiving Objection to Venue –


Objections to venue are waivable.  Plaintiff may waive any venue issues by bringing suit in the district court where venue was originally improper.  The defendant may waive by submitting to litigation without objecting to venue by motion or as part of their answer.

 

5 – Forum Non Conveniens –


An argument that the forum is not convenient may be made.  Court must weigh the four factors in #3 above (the Balancing Test).

 

BAR EXAM NOTE – The burden of proof is normally placed on the defendant by the court when granting this motion.

           The doctrine of forum non conveniens can be employed when the venue, albeit proper, is inappropriate, inconvenient, or unacceptable for various reasons. It is for a court to determine, on a case by case basis, whether it is the proper venue in which to hear the action. This is true even though it has jurisdiction over the parties, jurisdiction over the subject matter of the case, and is a proper venue in which the action can be brought.

 

To exercise the doctrine, there must be an adequate alternative forum in which the case can be heard. The burden to prove the existence of such an alternate forum is on the party who moves to transfer the case for forum non conveniens, usually the defendant. Without an alternate forum, the case must remain in the original forum, no matter how inconvenient it may be.

 To determine whether another forum is an adequate alternative, the court must determine whether the alternate forum will hear the case, and whether the defendants may be served with process in the alternate forum. Usually, the latter depends on the jurisdiction of the alternate forum over the defendants. Because it is usually the defendants who move to transfer the case to the alternative forum, the defendants will often consent to such jurisdiction. If the defendants refused to consent, the case would remain in the original forum, which is exactly what the defendants were attempting to avoid.

 

In situations where the defendant seeks to employ the doctrine of forum non conveniens and names a court in a foreign country as an alternative forum, the original court will take many factors into consideration, such as: whether the foreign court will apply American substantive law; whether the plaintiff will be prejudiced by transfer to a foreign court; and whether the foreign court will be fair. 


It should be noted, however, that the plaintiff’s initial choice of forum is given deference. Even if there are more reasons to grant the motion for forum non conveniens than to deny it, the deference may still control and the court may hold on to the case. The reasons to grant the motion to move the case must be extremely persuasive.


Conclusion

  It is extremely important to understand the various rules concerning venue.  Success on the likely 2-3 MBE questions in this area of law, and perhaps success on a venue MEE issue depends on your knowledge of the law. For more information concerning this section of Fed Civ Pro, another area of Fed Civ Pro, or a different legal topic tested on the UBE, please do not hesitate to contact us at PassYourBarExam@gmail.com 

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