Jurisdiction III – Venue and Forum Non Conveniens Part 4

I. Introduction: From Jurisdiction to Venue

Once a court establishes subject matter jurisdiction (power to hear the type of case) and personal jurisdiction (power over the parties), a third question arises: which specific federal district is the proper location for the litigation? This is the inquiry of venue.

Venue is a statutory, not constitutional, concept. It addresses convenience and fairness—not the court’s authority but the suitability of the forum. A case might involve the correct type of dispute (SMJ) and the right parties (PJ) but still be filed in an improper district. For example, a breach of contract between citizens of Texas and California may fall within federal diversity jurisdiction, but filing the case in the District of Maine would almost certainly be improper for venue purposes.

Venue rules reflect two guiding principles:

1. Fairness to the defendant – preventing plaintiffs from dragging defendants into distant, unrelated forums.

2. Judicial efficiency – locating litigation where evidence and witnesses are most accessible.

This post explores venue under 28 U.S.C. §1391 and related transfer and dismissal doctrines under §§1404, 1406, as well as the common-law doctrine of forum non conveniens.

II. Statutory Framework: 28 U.S.C. §1391

A. General Venue Rule

The general venue statute, 28 U.S.C. §1391, governs civil actions in federal courts unless a more specific statute applies (e.g., special venue provisions for patent, admiralty, or securities cases). Section 1391(b) provides three bases for proper venue:

1. Residence of Defendants (§1391(b)(1))Venue is proper in a district where any defendant resides, if all defendants reside in the same state.

2. Location of Events or Property (§1391(b)(2))Venue is proper in a district where a substantial part of the events or omissions giving rise to the claim occurred—or where a substantial part of property subject to the action is situated.

3. Fallback Provision (§1391(b)(3))If no district satisfies (1) or (2), venue is proper in any district where any defendant is subject to personal jurisdiction with respect to the action.

B. Determining Residence for Venue

1. Individuals

For venue purposes, an individual “resides” in the judicial district of their domicile (physical presence + intent to remain indefinitely). This mirrors the citizenship test for diversity jurisdiction.

2. Corporations

A corporate defendant “resides” in any district where it is subject to personal jurisdiction for the action (1391(c)(2)). For states with multiple districts, a corporation resides in any district where its contacts would suffice for personal jurisdiction if that district were a separate state (1391(d)).

3. Non-U.S. Defendants

Aliens may be sued in any judicial district (1391(c)(3))—a reflection of the principle that venue statutes protect domestic, not foreign, defendants.

C. Special Venue Statutes

Certain claims have unique venue rules:

• 28 U.S.C. §1400(b) (patent cases): Venue lies where the defendant resides or has committed acts of infringement and has a regular place of business.

• Securities Act, antitrust, and other federal statutes include specialized venue provisions that may broaden or restrict options.

III. Relationship Between Venue and Jurisdiction

Venue, subject matter jurisdiction, and personal jurisdiction are distinct but interrelated:

• SMJ: Constitutional/statutory authority to hear the type of case.

• PJ: Power over the parties.

• Venue: Proper geographic location within the federal system.

A case may have SMJ and PJ but be in the wrong venue, requiring transfer or dismissal. Unlike PJ, venue can be waived by failing to timely object (Rule 12(b)(3), 12(h)).

IV. Improper Venue: Transfer or Dismissal

A. 28 U.S.C. §1406 – Cure or Waiver of Defects

When a case is filed in an improper venue:

• The court must dismiss or, if in the interest of justice, transfer to a proper venue.

• Transfer preserves the filing date and avoids statute-of-limitations issues.

B. Distinguish §1406 from §1404

• §1406: Used when venue is improper.

• §1404: Used when venue is proper but inconvenient (see below).

• MBE trap: Confusing these statutes—§1406 cures defects; §1404 balances convenience.

V. Transfer of Venue: 28 U.S.C. §1404

A. Purpose and Scope

Section 1404(a) allows transfer “for the convenience of parties and witnesses, in the interest of justice,” even if venue is proper. This codifies the doctrine of forum non conveniens for domestic transfers.

B. Requirements

• Case must have been brought in a proper venue initially.

• Transferee court must be one where the case could have been filed originally (i.e., proper SMJ, PJ, and venue).

C. Factors Considered (Private and Public Interests)

Private factors:

• Convenience of parties and witnesses

• Access to evidence

• Cost of obtaining attendance of witnesses

Public factors:

• Local interest in having localized controversies decided at home

• Familiarity with governing law

• Court congestion and administrative burdens

D. Choice-of-Law Implications

When a case is transferred under §1404:

• The transferee court applies the choice-of-law rules of the transferor court (Van Dusen v. Barrack, 376 U.S. 612 (1964)).

• Prevents parties from using transfer to gain more favorable substantive law.

VI. Forum Non Conveniens (FNC)

A. Nature of the Doctrine

Forum non conveniens is a common-law doctrine allowing courts to dismiss cases—even with proper jurisdiction and venue—if another forum is substantially more convenient and adequate (often foreign).

Example: A plane crash in South America involving U.S. plaintiffs and defendants; courts may dismiss in favor of litigation in the crash site’s jurisdiction.

B. Standard: Gulf Oil Balancing Test

In Gulf Oil Corp. v. Gilbert (330 U.S. 501 (1947)), the Court established factors for FNC dismissal:

Private interest factors:

• Relative ease of access to evidence

• Availability of compulsory process

• Cost of witness attendance

Public interest factors:

• Court congestion

• Local interest in dispute

• Avoiding application of foreign law

Dismissal is appropriate only if the alternate forum is adequate (e.g., provides some remedy and due process).

C. Distinguishing FNC from §1404 Transfer

• FNC: Used when the alternative forum is outside the U.S. (e.g., foreign courts). Remedy is dismissal.

• §1404: Domestic transfer within federal courts; remedy is transfer, not dismissal.

VII. Policy and Libertarian Commentary

Venue and FNC reflect competing principles:

• Plaintiff’s Choice vs. Defendant’s Burden: Venue rules traditionally favor the plaintiff’s choice of forum, but transfer and FNC temper this by considering fairness to defendants and witnesses.

• Federalism and Local Interests: Venue ensures disputes are litigated where they are most connected—promoting local accountability and respecting state sovereignty.

• Libertarian Critique: Broad venue statutes and permissive transfers risk forum shopping and strategic manipulation, undermining predictability and increasing litigation costs.

• Efficiency vs. Justice: FNC dismissals, while efficient, may deny plaintiffs access to U.S. courts—raising concerns when foreign forums lack comparable procedural protections.

VIII. Exam Alerts and Common Pitfalls

• Improper vs. inconvenient venue: Improper venue → §1406 dismissal/transfer; inconvenient venue → §1404 transfer.

• Waiver: Venue objections must be raised in the first Rule 12 motion or answer (Rule 12(h)); otherwise, waived.

• Fallback venue: Use §1391(b)(3) only if no district satisfies (b)(1) or (b)(2).

• Choice-of-law after transfer: Transferee court applies transferor’s law in §1404 transfers (but not §1406).

• Forum non conveniens: Applies only to foreign alternative forums or state courts—not federal court-to-federal court transfers.

IX. Conclusion: Venue as Fairness and Efficiency

Venue provisions complement jurisdictional doctrines by refining the geographic appropriateness of federal litigation. They protect defendants from oppressive forum selection, ensure cases are tried where evidence and witnesses are concentrated, and promote efficient judicial administration. The doctrines of transfer and forum non conveniens, in turn, provide flexible mechanisms to adjust venue post-filing, balancing litigant convenience with systemic concerns.

In the next post, we turn to the Erie Doctrine—the foundational framework governing the interplay of federal procedural law and state substantive law, a perpetual source of exam traps and doctrinal complexity.