Preliminaries 4: Venue, Transfer of Venue, Removal, Forum Non Conveniens

This unit begins with the third “ring” of the analysis of where a case may be brought: venue in the federal courts. It discusses the mechanism for shifting a case from one venue to another, called “transfer of venue.” It then discusses how to move a case from state to federal court, called “removal.” Finally, I will teach you about a common law doctrine called “forum non conveniens,” which is a way for a defendant to get a case dismissed from an inconvenient forum on the assumption that it will be brought in a better forum.  The commonality between the last three of these, and why I teach them in the same Unit, is they are all about moving cases from one place to another.

6.1 Venue: In this course I will only teach you about venue in the federal courts.[1] There are 94 separate districts in the federal system. There are states with a single venue for the entire state, such as Montana where there is the federal district court for the district of Montana. There are more populous states that have multiple available venues. For example, New York is divided between the Northern, Eastern, Western, and Southern districts.

This sub-unit will mostly be taught with the relevant statute, 28 U.S.C § 1291, which is the general federal venue statute (as I will explain there are some more specific ones for copyright and patent, for example). We will also see hypos illustrating how to read the seemingly simple language, and a case or two. The statute creates three different potential venues, which are commonly called “defendant residential venue,” “substantial part of the claim venue,” and the “fallback provision” (though, as we will discuss, this last one is rarely available).

6.2 Transfer of Venue will teach you under what circumstances a case can be transferred either from an improper venue to a proper one or from one proper venue to another proper venue. Here too, the material will be taught with statutes, a case, and some hypos. Importantly the transfer of venue rules you will learn only work for transferring from one federal court to another. We will also briefly raise the question of what law applies when a case is transferred, the law of the transferor or the transferee course. I will only touch lightly on that matter in this unit because we will discuss choice of law more generally in Unit 9 of this course, and we will return to the issue then.

6.3 Removal is a one-way street. It is the way to move a case from state court to federal court. There is no way to go in the opposite direction.[2] Using the relevant statutes, especially 28 U.S.C § 1441 and a set of hypos, I will teach you the rules of removal—happily this is a rule-based analysis, not standard-based. This sub-unit will also provide an opportunity to review subject matter jurisdiction.

6.4 Forum Non Conveniens is a discretionary common law (not statutory or constitutional) doctrine that allows a court to decline to hear a case even when there is personal jurisdiction, subject matter jurisdiction, and proper venue, because the forum is not convenient and there is a more convenient forum. It leads to a dismissal of the case and the ability to refile, not a remand or a transfer. This unit centers on the main Supreme Court case on the subject, Piper Aircraft v. Reyno, which we will use to both teach you the doctrine and to review some of what you have already learned in this and the last two units of the course.

[1] I have one reading listing the many many ways different state court systems divide up venues, but I ask you to read it just to get a sense of the breadth of the possibilities not because I expect you to know it.

[2] That said, if a case is removed that should not have been, you can return it back to a state court where it started through a procedure referred to as a “remand” to state court. Do not get confused this is not the same thing as a “remand” when an appellate court returns the case to a trial court, though the same term is used.