LAW 521-002 – Civil Procedure I

Changing Venue


There are three ways for defendants to change the venue of a suit:

  1. Transfer of Venue

    Transfer of venue moves a case from one court to another within the same court system.

    28 U.S.C. § 1404:

    1. For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.
    1. Convenience of parties and witnesses
      • Most important factor
    2. Interests of justice
      1. Private factors:
        1. Where the claim arose
        2. Location of physical evidence like documents and property
        3. Whether a forum selection clause involved
      2. Public factors:
        1. Comparative ease between two courts in enforcing any judgment
        2. If one of the two courts is more familiar with the governing law to apply
        3. Whether the judicial economy is best served by keeping or transferring
        4. Local interest in the case

    Plaintiff's selection of the initial forum is also afforded considerable weight.

    Transfers between districts in a state are freely granted upon showing the convenience of witnesses, parties, and evidence.

    A district court can transfer to cure venue. 28 U.S.C. § 1406

    A district court can transfer to cure want of jurisdiction. 28 U.S.C. § 1631

  2. Forum Non Conveniens

    Forum non conveniens is when a court with jurisdiction declines to exercise it due to the fact that another court with equal jurisdiction is significantly more convenient for the parties.

    Forum non conveniens causes a dismissal of a case despite the court having jurisdiction with the expectation that it will be re-filed in a more convenient court system.

    It is usually only used in state courts as they lack the power to transfer to other states.

    • The plaintiff's choice of forum gives a strong presumption. Piper.
    • The law being better in the forum court is not enough to avoid forum non conveniens, but if a "remedy" is not available in the new forum, then substantial weight is given. Piper.
    • It is up to the sound discretion of the court and reversed only if the court clearly abused that discretion.
      • Private Factors:
        1. Relative ease of access to sources of proof
        2. Cost of litigation
        3. Availability and cost of compelling witnesses
        4. Ability to enforce the judgment
        5. Other problems like language issues
      • Public Factors:
        1. Choice of law issues and familiarity of the court with the law to be applied
        2. Local interest in the case
        3. Backlog of respective courts
        4. Burden on local court and community in hearing a case not related to their forum
  3. Removal

    Removal allows defendants to move the entire case from a state court to a federal court. 28 U.S.C. § 1441.

    Removal is only allowed if the district court would have had jurisdiction if the plaintiff chose district court. 28 U.S.C. § 1441.

    Removal is to the district court in the location where the state action was filed. 28 U.S.C. § 1441.

    Hometown Rule

    If based solely upon diversity, defendant cannot remove if he is a citizen of the state where action is brought. 28 U.S.C. § 1441(b)(2).

    If based upon federal question and state law claims are also present, state claims which do not have subject matter jurisdiction are remanded back to state court. 28 U.S.C. § 1441(c).

    All defendants must agree to removal. 28 U.S.C. § 1446(b)(2).

    Each defendant has 30 days from their service of complaint to remove. 28 U.S.C. § 1446(b).

    The amount is controversy for diversity after removal is the amount pled in the complaint unless it seeks non-monetary relief, the state court does not allow the inclusion of a dollar amount, or the state allows recovery beyond what is demanded in the complaint. 28 U.S.C. § 1446(c).

    Venue is automatic for the district court sitting in the locale of the state court action. 28 U.S.C. § 1441(f). But any party can file a motion to transfer the venue of the case to another district court. 28 U.S.C. § 1404.