1L Civ Pro 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.

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

• 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).

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
• 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.

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—

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.

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