1L Civ Pro Venue
Home > Preview
The flashcards below were created by user
on FreezingBlue Flashcards.
- 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.
NC venue statute?
I) Can be tried in any county in which P or the D or any of them reside at its commencement OR
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
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).
2 important criteria/concerns for federal venue?
1. Residence of D
- 2. Location of the
- transaction that gives rise to the dispute
§ 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
§1391(c)—Corporation: deemed to reside in any judicial district subject
to PJ at the time of action is commenced (same as 1331 requirements).
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
- 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.
Forum non conveniens
Venue is proper but inconvenient to D
- ★ 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
III)Only available to the defendant.
- II) The case is
- dismissed and must be re-filed in either another country or another state
- Jurisdiction over the D who filed
- the motion
- Law of new
- forum applies
- The fact that
- a new venue might be less favorable to P is not a bar to FNC—
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.
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.
NC Venue Statute:
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
What would you like to do?
Home > Flashcards > Print Preview