Forum Selection: Venue and Removal

• Author: Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman
• Pages: 349-406

Chapter 8

FORUM SELECTION:

VENUE AND REMOVAL

QUICK VIEW

Definitions: Venue means the geographic location (county) where an action is heard. Often, venue may properly

lie in more than one county. In those cases, the choice of venue is plaintiff’s.

In certain types of cases, special venue statutes require plaintiff to sue in a particular county. In cases not

covered by a special venue statute, plaintiff may sue in the county in which any party resides.

If plaintiff selects an improper venue, defendant may move to have the case transferred to a proper venue. Even

if the selection is proper, defendant may request the court change venue to promote witness-convenience and the

ends of justice, or to obtain an impartial trial.

A defendant may remove to federal district court any civil action brought in a state court over which the federal

district courts have original jurisdiction.

Scope of Chapter: Bases of venue. Venue statutes. Venue selection. Challenging improper venue. Change from

proper venue. Choosing between state and federal court. Removal to federal court.

Strategies and Tactics:

Venue. In theory, venue considerations should promote convenience, economy, and fairness. In practice,

however, plaintiffs use venue selection to pick a forum advantageous for them and onerous for defendants,

thereby enhancing plaintiffs’ prospects for settlement and award. Thus defendants must be ready to invoke

remedial procedures for transfer, if warranted.

Removal. Defendants use removal to force plaintiffs into a federal forum that is advantageous to them and

onerous to plaintiffs. Frequently defendants’ counsel have a tactical advantage in federal court because they

are more familiar with federal court practice than plaintiffs’ counsel. Plaintiffs may avoid removal by relying

only on state claims and by joining a local defendant. Defendants must follow removal procedures exactly. And

plaintiffs may have the case remanded to state court if defendants make a procedural misstep.

Statutes and Rules: CPLR 501-513, CPLR 7502, CPLR 7804(b); 28 U.S.C. §§1331, 1332, 1404, 1407, 1441,

1446, 1447.

Related Topics: Subject Matter Jurisdiction, Ch 6; Personal Jurisdiction, Ch 7; Motion Practice, Ch 16; Service

of Process, Ch 9, Forum non Conveniens, Ch 36.

NEW YORK CIVIL PRACTICE BEFORE TRIAL 8-2

FORMS: See digital access for the following forms:

• Form 8:10, Demand for Change of Venue.

• Form 8:20, Notice of Motion to Change Venue.

• Form 8:30, Affirmation in Support of Motion to Change Venue.

• Form 8:40, Affidavit in Support of Motion to Change Venue.

• Form 8:50, Affirmation in Opposition to Motion to Change Venue.

• Form 8:60, Affidavit in Opposition to Motion to Change Venue.

• Form 8:70, Notice of Removal (Diversity Action).

• Form 8:71, Notice of Removal (Diversity Action including language for fraudulent joinder argument).

• Form 8:72, Notice of Removal (Federal Question Jurisdiction).

• Form 8:80, Notice of Filing Notice of Removal.

TABLE OF CONTENTS

I. Overview

A. General Points

§8:01 Meaning

§8:02 Distinction: Level of Court Within County

§8:03 Venue in Lower Courts

§8:04 Compare: Forum non Conveniens

B. Jurisdiction Issues

§8:10 Nature of Jurisdiction

§8:11 Venue Is Not Jurisdictional

§8:12 Special Venue Statutes

C. Significance of Venue

§8:20 Basic Strategy

§8:21 Home-Turf Advantage

§8:22 Client Convenience

§8:23 Witness Convenience

§8:24 Favorable Precedent in Appellate District

§8:25 Demographics

§8:26 Notoriety

§8:27 Trial Backlog

§8:28 Commercial Divisions

D. Change of Venue

§8:40 Motion Generally Required

§8:41 Grounds for Transfer

II. Determining Venue

A. General Points

§8:50 Overview

§8:51 Multiple Claims or Parties

B. Venue Statutes

1. GENERAL STATUTE — VENUE BASED ON RESIDENCE

§8:60 Application

§8:61 Residence of Any Plaintiff or Any Defendant

8-3 FORUM SELECTION: VENUE AND REMOVAL

§8:62 No Resident Party

§8:63 Corporations and Unincorporated Businesses

2. SPECIAL STATUTES

§8:70 Application

§8:71 Article 5 Special Statutes

§8:72 List of Other Special Statutes

3. NON-JURY TRIALS

§8:80 Court’s Discretion

C. Determining Residence

1. INDIVIDUALS

§8:90 Governing Statute

§8:91 Time for Determining Residence

§8:92 Meaning of Resides

§8:93 Multiple Residences

§8:94 Facts Showing Residence

§8:95 Facts Not Showing Residence

§8:96 Plaintiff’s Residence a Sham

2. REPRESENTATIVES AND ASSIGNEES

§8:110 Personal Representatives

§8:111 Assignees

3. ENTITIES

a. Corporations

§8:120 Governing Statute

§8:121 Domestic Corporations

§8:122 Foreign Corporations

§8:123 Exception: Actual Office Location

§8:124 Relocation of Offices

§8:125 Professional Corporations

§8:126 Common Carriers

§8:127 Insurance Companies

b. Unincorporated Entities

§8:140 Limited Liability Companies

§8:141 Partnerships and Sole-Proprietorships

§8:142 Professional Practices

§8:143 Unincorporated Associations

D. Consumer Credit Transactions

§8:150 Governing Statute

§8:151 What Is a Consumer Credit Transaction

§8:152 Rejection of Summons for Misplaced Venue

E. Government Entities

1. COUNTIES AND MUNICIPALITIES

§8:160 Application of Governing Statute

§8:161 Actions Against Counties

§8:162 Actions Against Cities, Towns, and Villages

§8:163 Actions Against New York City

§8:164 Actions Against School Districts and District Corporations

§8:165 CPLR 504 Is Mandatory