4.4 Motions to Transfer

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

4.4 MOTIONS TO TRANSFER ¹⁰⁹⁶

4.401 Scope of 28 U.S.C. § 1404(a).

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.

4.402 Timing.

28 U.S.C. § 1404(a) sets no limit on the time at which a motion to transfer may be made. Courts have transferred cases several years after filing and have transferred cases after trial. ¹⁰⁹⁷

"Service of process on all named defendants is not a prerequisite to the court's power to transfer." ¹⁰⁹⁸

While delays have been permitted, the moving party should act with reasonable promptness. Delay may induce the court to refuse to transfer a case. ¹⁰⁹⁹

Tension exists between the duty to file a motion early in the action and the need to support the motion with affidavits identifying witnesses and materiality of information. ¹¹⁰⁰

4.403 Procedure.

The correct procedure is to file a motion supported by a brief and necessary documentation, including declarations. ¹¹⁰¹

A motion to transfer is typically made by the defendant, but it can be made by an additional party brought in after the original pleadings were served. ¹¹⁰²

Plaintiffs may also move to transfer venue; ¹¹⁰³ however, some courts have required a showing of a change in circumstance. ¹¹⁰⁴

"[Section] 1404(a) requires that a forum-selection clause be given controlling weight in all but the most exceptional cases." ¹¹⁰⁵ A motion to transfer venue pursuant to 28 U.S.C. § 1404(a) is the appropriate vehicle to enforce a forum selection clause, provided that the clause points to a particular federal district. ¹¹⁰⁶ When the clause points only to a particular state or a foreign forum, the court must dismiss the case pursuant to the doctrine of forum non conveniens. ¹¹⁰⁷ In either case, the court will apply the same "balancing-of-interests standard" to determine whether or not the forum selection clause warrants enforcement. ¹¹⁰⁸

Since the decision in Atlantic Marine Construction Co. v. United States District Court for Western District of Texas, ¹¹⁰⁹ lower courts have wrestled with its application. In jurisdictions that recognize both mandatory and permissive forum selection clauses, courts have tended to limit the application of Atlantic Marine's modified forum non conveniens test to mandatory clauses only. ¹¹¹⁰ The Fourth Circuit has recently joined those jurisdictions that apply the Atlantic Marine framework only to mandatory forum selection clauses. ¹¹¹¹ Similarly, the Fourth Circuit has held that, where a forum selection clause merely uses the term "in [a state]," jurisdiction is permitted in both state and federal courts. ¹¹¹²

To complicate things further, it appears to be an open question whether Fed. R. Civ. P. 12(b)(6) also presents a valid means of dismissal where there is a valid forum selection clause. ¹¹¹³

A court may transfer a case on its own initiative but, prior to transfer, the court should provide the parties with an opportunity to be heard. ¹¹¹⁴

The district court may sever claims against certain parties and transfer those claims to a more convenient forum and stay the claims against the remaining parties pending the outcome of the claims being transferred. ¹¹¹⁵

If a defendant's motion to transfer has been granted and plaintiff then seeks a voluntary dismissal under Fed. R. Civ. P. 41(a)(2), the district court may impose as a condition of the voluntary dismissal that the action must be refiled in the forum where the case had been transferred. ¹¹¹⁶

While the Eastern District of Virginia has ruled that filing a motion to transfer does not waive a defendant's objections to personal jurisdiction, ¹¹¹⁷ the Western District has reached the opposite result. ¹¹¹⁸

4.404 Burden.

When considering a motion to transfer venue, courts typically consider: "(1) whether the claims might have been brought in the transferee forum, and (2) whether the interest of justice and convenience of the parties and witnesses justify transfer to that forum." ¹¹¹⁹

The moving party has the burden of showing jurisdiction and venue would have been proper in the transferee forum, and the moving party cannot overcome this obstacle by agreeing to waive the venue or jurisdiction requirement. ¹¹²⁰

A party seeking a transfer under 28 U.S.C. § 1404(a) bears the burden of demonstrating that the balance of convenience among the parties and witnesses is strongly in favor of the forum to which transfer is sought. ¹¹²¹

Inconvenience to the movant alone is not sufficient; the plaintiff's choice of forum should rarely be disturbed unless the balance of hardships clearly favors transfer. ¹¹²²

District courts have been unwilling to shift the burden from one party to another. ¹¹²³

A party intervening in an action faces a difficult task in then seeking to have the case transferred to a different forum. ¹¹²⁴

4.405 Factors Considered.

In exercising its discretion under 28 U.S.C. § 1404(a), a district court must first determine whether the claims might originally have been brought in the transferee forum. ¹¹²⁵ Once the district court determines that transfer is possible, the court must next "consider and balance" several factors when deciding whether transfer is warranted, including: (i) ease of access to sources of proof; (ii) the convenience of the parties and witnesses; (iii) the cost of obtaining the attendance of witnesses; (iv) the availability of compulsory process; (v) the interest in having local controversies decided at home; (vi) in diversity cases, the court's familiarity with the applicable law; and (vii) the interest of justice. ¹¹²⁶ Notably, the Eastern District of Virginia has repeatedly observed that, while each of those factors may be weighed, "[t]he principal factors to consider . . . are plaintiff's choice of forum, witness convenience, access to sources of proof, party convenience, and the interest of justice." ¹¹²⁷

A. Plaintiff's Choice of Forum.

The plaintiff's choice of forum is generally accorded substantial weight, and the moving party has the burden of demonstrating that the chosen forum is "clearly outweighed by other factors." ¹¹²⁸ But courts likely will give little deference to a plaintiff's choice of forum "where that forum is neither the plaintiff's home forum nor a forum with any significant connection to the dispute." ¹¹²⁹ The level of deference courts will give to a plaintiff's forum choice "varies with the significance of the contacts between the venue chosen by plaintiff and the underlying cause of action." ¹¹³⁰ For instance, "if a plaintiff chooses a foreign forum and the cause of action bears little or no relation to that forum, the plaintiff's chosen venue is not entitled to such substantial weight." ¹¹³¹

B. Party Convenience.

Courts will presume that the chosen forum is the most convenient one for the plaintiff. ¹¹³² When granting a motion to transfer would only serve to shift the "balance of inconvenience" from the movant to the plaintiff, courts will deny the motion. ¹¹³³

C. Witness Convenience.

To support a motion to transfer based on the convenience of witnesses, the movant must identify the prospective witnesses and the specific details of their proposed testimony so that the court can determine "how much weight to give a claim of inconvenience." ¹¹³⁴ Although convenience to witnesses is a factor, inconvenience to "party witnesses" is not afforded the same weight as inconvenience to "non-party witnesses." ¹¹³⁵

D. Access to Sources of Proof.

This factor primarily concerns the availability of physical evidence, and courts give little weight to the location of documents that can easily be transmitted electronically. ¹¹³⁶

E. Interest of Justice.

The courts have defined the "interest of justice" to include "circumstances such as the pendency of a related action, the court's familiarity with the applicable law, docket conditions, access to premises that might have to be viewed, the possibility of unfair trial, the ability to join other parties and the possibility of harassment." ¹¹³⁷ More broadly, this factor concerns the advancement of "systemic integrity and fairness." ¹¹³⁸

The most prominent elements of systemic integrity are judicial economy and the avoidance of inconsistent judgments. Fairness is assessed by considering factors such as docket congestion, interest in having local controversies decided at home, knowledge of applicable law, unfairness with burdening forum citizens with jury duty, and interest in avoiding unnecessary conflicts of law. ¹¹³⁹

Which community would be the most affected by the action may be a factor that a court considers in analyzing public interest. ¹¹⁴⁰

In addition to the six factors discussed above, the Eastern District has recognized the twenty factors described in Questions as to Convenience and Justice of Transfer Under Forum Non Conveniens Provisions of Judicial Code (28 U.S.C. § 1404(a)), 1 A.L.R. Fed. 15 (1969). ¹¹⁴¹

Prompt resolution of a case can also be a factor to consider in the analysis. ¹¹⁴² As noted by the Eastern District,

docket conditions, while a consideration, cannot be the primary reason for retaining a case in this district. This court cannot stand as a willing repository for cases which have no real nexus to this district. The "rocket docket" certainly attracts plaintiffs, but the court must ensure that this attention does not dull the ability of the court to continue to act in an expeditious manner. ¹¹⁴³

When a plaintiff with no significant ties to the Eastern District of Virginia chooses to litigate in the district primarily because it is known as the "rocket docket," the interest of justice "is not served." ¹¹⁴⁴

Convenience of counsel is not a factor to be considered. ¹¹⁴⁵

A court may decide to transfer a case to a forum where another action is pending between the same parties. ¹¹⁴⁶ Similarly, a court may transfer a case to a forum where another action is pending concerning the same facts. Judicial economy and...