1L Civ Pro Venue

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Author:
jesdixon
ID:
51603
Filename:
1L Civ Pro Venue
Updated:
2011-08-30 18:15:32
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1L Civ Pro Venue
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Description:
Civ Pro Venue
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  1. Define venue
    • place of trial in an action within a state; where
    • a lawsuit should be heard

    • A) Distinct from
    • a court’s authority to adjudicate a case

    Do not look at venue until PJ and SMJ have been established.
  2. NC venue statute?
    NCGS 1-82—

    I) Can be tried in any county in which P or the D or any of them reside at its commencement OR
  3. Biggest difference between federal and NC venue statutes?
    • A) NC Statute
    • considers where the P resides. Federal statute does not care about the P.

    • B) Federal
    • considers where a “substantial part of the events or omissions giving rise to the claim occurred or where a substantial part of property that is the subject of the action is situated”

    • C) NC allows
    • interlocutory appeals for venue! …(just
    • like for PJ)… it’s a SUBSTANTIAL right
  4. 1391(a)
    1391(a)—Diversity citizenship (1332) Proper venue

    • (1) District where
    • any D resides, if all D reside in the same state OR

    • (2) District where a substantial part of the
    • events or omissions giving rise to the claim occurred OR District where
    • a substantial part of property that is
    • the subject of the action is situated OR

    • (3) D where any D is subject to PJ at the time the
    • action is commenced (a last resort, catch-all).
  5. 2 important criteria/concerns for federal venue?
    1. Residence of D

    • 2. Location of the
    • transaction that gives rise to the dispute
  6. 1391(b)
    § 1391(b)—Federal question (1331) Proper Venue—

    • (1) District
    • where any D resides, if all D reside in
    • the same state OR

    • (2) District
    • where a substantial part of the events
    • or omissions giving rise to the claim occurred OR where a substantial part of property that is the
    • subject of the action is situated OR

    • (3) District
    • where any D may be found
  7. 1391(c)
  8. §1391(c)—Corporation: deemed to reside in any judicial district subject
    to PJ at the time of action is commenced (same as 1331 requirements).
  9. 1404
    Venue is proper --> Transfer by § 1404 (Convenience)

    • A) Either party
    • may request a transfer (or a court can by sua sponte). Can be raised at a reasonable
    • time.

    • B) The court can
    • consider justice and the convenience to the witnesses and the parties.

    • C) A case may be
    • transferred to any district where the action might have originally been
    • brought. ★

    • I) D can
    • NOT consent to a district where P
    • could not have brought action originally

    • D) Law of
    • original forum will control. There
    • is no opportunity for forum shopping.

    • E) Requirements—venue,
    • SMJ, and PJ must be proper in both venues.
  10. Forum non conveniens
    Venue is proper but inconvenient to D

    • I)
    • ★ The first requirement is that venue is proper in the initial forum
    • and there is an alternative proper venue available that is more convenient
    • where P can obtain relief.

    • (1) If not other
    • proper venue… the case must be heard at original venue

    • II) The case is
    • dismissed and must be re-filed in either another country or another state
    • court.

    III)Only available to the defendant.

    • B)
    • Special
    • considerations—

    • I)
    • Statute of
    • Limitations

    • II)
    • Service of
    • Process

    • III)
    • Personal
    • Jurisdiction over the D who filed
    • the motion

    • IV)
    • Law of new
    • forum applies

    • (1)
    • The fact that
    • a new venue might be less favorable to P is not a bar to FNC—
  11. 1406
    Venue IMPROPER--> Dismissal or Transfer to § 1406 (Right)

    • I) 12(b)(3) motion
    • to dismiss for improper venue—used by the defendant. This is a “use it or lose it” motion. The
    • right is waived if not within the initial response by D.

    II) Transfer to any district or division in which it could have been brought for the “interest of justice”

    • (1) Law of the
    • new forum will apply in this situation.

    • (2) Is used by
    • the plaintiff.

    • *Note: the P will make the argument that the SOL or PJ is waived (thus
    • having to remain in P’s chosen forum) because the D moves for FNC. Thus, the courts
    • may choose to condition FNC dismissals on a D's waiver of defense to being sued
    • in the foreign forum.
  12. NC Venue Statute:
    1-82

    1. If both D and P reside within the state--> venue proper in county of either

    2. D does not reside within the state --> county of P's residence

    3. Neither D and P reside within the state --> whatever county P files suit

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