2.9 Venue

• Library: Federal Civil Practice in Virginia (Virginia CLE) (2023 Ed.)

2.9 VENUE

2.901 General Rules and Provisions.

28 U.S.C. § 1391 is the general venue statute.

Subject matter jurisdiction restrictions differ from venue rules in that, unlike venue rules, they may not be waived by the parties.

The statute provides for venue based on residence of the defendants and where the events giving rise to the action took place.

A civil action may now be brought in (i) any judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located; (ii) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred or a substantial part of the property that is the subject of the action is situated; or (iii) if there is no district in which an action may otherwise be brought, as provided by 28 U.S.C. § 1391(b)(1) or (2), then in any judicial district in which the defendant is subject to the court's personal jurisdiction with respect to the action. ⁶³¹

A. "Residency" Provisions.

The statute provides that, for all venue purposes:

1. A natural person, including an alien lawfully admitted for permanent residence in the United States, shall be deemed to reside in the judicial district in which that person is domiciled;

2. An entity with the capacity to sue or be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which that defendant is subject to the court's personal jurisdiction with respect to the civil action in question, and, if a plaintiff, only in the judicial district in which it maintains its principal place of business; and

3. A defendant not resident in the United States may be sued in any judicial district, and the joinder of that defendant shall be disregarded in determining whether the action can be brought with respect to the other defendants. ⁶³²

B. Determination of the Residency of Corporations in States with Multiple Districts.

In a state that has more than one judicial district, and in which a defendant that is a corporation is subject to personal jurisdiction at the time the action is commenced, the corporation will be deemed to reside in any district in that state within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate state. If there is no such district, the corporation will be deemed to reside in the district in which it has its most significant contacts. ⁶³³

A defendant corporation is deemed to "reside" in a judicial district in which it is subject to personal jurisdiction at the time the action is commenced. ⁶³⁴ Simply because a corporation is incorporated in a particular state (making the corporation subject to personal jurisdiction based on residence in every division within the Commonwealth) is not enough because "residence," as defined in 28 U.S.C. § 1391(c), makes no reference to the district in which the corporation is incorporated or licensed to do business. ⁶³⁵ Personal jurisdiction over a corporation is not proper in a state merely because the corporation is incorporated in that state, and courts must examine whether personal jurisdiction is proper in the judicial division selected based upon the corporation's contacts with that division. ⁶³⁶

Venue may be proper in more than one district under the general venue statute. ⁶³⁷

When a defendant timely objects to venue, "the plaintiff bears the burden of establishing that venue is proper." ⁶³⁸ Unless the balance is strongly in favor of the defendant, the plaintiff's choice forum is generally accorded great weight and should rarely be disturbed, especially where the forum chosen is the plaintiff's home state. ⁶³⁹

Local Civil Rules 3(A) and 3(B) describe the area and divisions of the Eastern District of Virginia. Local Civil Rule 3(C) governs the division in which suits are to be instituted. Local Rule 2(a) of the Western District of Virginia describes the divisions of the court. Local Rule 2(b) of the Western District of Virginia discusses proper venue in civil cases.

In a criminal matter, the Fourth Circuit has ruled that when a Las Vegas executive filed a 10-Q form via the SEC's EDGAR (Electronic Data Gathering, Analysis, and Retrieval) system server in Alexandria, Virginia, venue for a criminal indictment under the federal securities laws could be laid in the Eastern District of Virginia, even though the executive argued that he could not have reasonably foreseen that he could be hauled into court in the Eastern District of Virginia when he transmitted the form in Nevada. ⁶⁴⁰ The executive was later convicted on all counts.

A case brought in an improper venue may be dismissed altogether under Fed. R. Civ. P. 12(b)(3) or, more usually, transferred pursuant to 28 U.S.C. § 1406(a). ⁶⁴¹

2.902 Venue Transfer for Convenience: 28 U.S.C. § 1404(a) and Forum Non Conveniens.

A. 28 U.S.C. § 1404(a) Convenience Transfer.

Transfer of a case to a different venue may sometimes be appropriate, even if the original venue was proper. 28 U.S.C. § 1404(a) states that "[f]or 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."

The decision to transfer a case lies within the sound discretion of the district court. ⁶⁴² For an excellent discussion that comprehensively analyzes all relevant factors in deciding to transfer a case from the Eastern District of Virginia to the District of Maryland, see Yancey v. International Fidelity Insurance Co. ⁶⁴³

Courts generally use a four-factor test to determine whether a transfer of venue is appropriate based on the particular facts and circumstances of the case. ⁶⁴⁴ These factors are:

1. The plaintiff's choice of venue.

2. The convenience of the witnesses and access to sources of proof.

3. The convenience of the parties.

4. The interests of justice. ⁶⁴⁵

To decide if a transfer of venue is appropriate, the court must (i) determine whether the suit could have been brought in the venue to which transfer is sought, and (ii) whether the balance of convenience to the parties and considerations of the interests of justice justify transfer to another venue. ⁶⁴⁶

"The burden is on the movant to show that a transfer under 28 U.S.C. § 1404(a) is warranted." ⁶⁴⁷

The plaintiff's choice of forum is generally entitled to great deference, and the burden is on the defendant to show that another forum is clearly more convenient than the transferor forum. ⁶⁴⁸ This presumption in favor of the plaintiff's choice of forum is not applicable, however, when the plaintiff proposes to represent a nationwide class. ⁶⁴⁹ The plaintiff's choice of venue is also entitled to less deference when a suit is not filed in the district and division in which the plaintiff resides. ⁶⁵⁰ This is also the case when little exists to connect the chosen forum with the cause of action. ⁶⁵¹...