Forum Selection: Venue, Forum Non Conveniens, and Removal

• Author: Scott Brister (Ret.)/Dan S. Boyd
• Pages: 415-492

9-1

Chapter 9

FORUM SELECTION: VENUE,

FORUM NON CONVENIENS,

AND REMOVAL

QUICK VIEW

Definitions:

Venue

• 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 in the first instance is the plaintiff’s.

• In certain types of cases, special mandatory venue statutes require the plaintiff to sue in a particular county.

In cases not covered by a mandatory venue statute, the plaintiff may sue in the county where any defendant

resides or has a principal office, or where the events or omissions giving rise to the claim occurred, or where

the plaintiff resides if no defendant resides or has a principal office in Texas and the events at issue did not

occur in Texas.

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

venue.

• Even if the plaintiff’s venue selection is proper, the defendant may request the court to change venue to

promote party and witness convenience and the ends of justice, or to obtain an impartial trial.

Interstate forum non conveniens

Under the doctrine of forum non conveniens, the courts will refuse to exercise jurisdiction, even if venue is

technically proper, when a venue outside Texas is required by the interests of justice and the convenience of the

parties and witnesses.

Removal

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; choos-

ing proper court within county; doctrine of interstate forum non conveniens; choosing between state and federal

court; removal to federal court; sample forms.

Strategies and tactics:

Venue

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

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

thereby enhancing the plaintiffs’ prospects for an advantageous settlement or judgment. Thus defendants must

be ready to invoke remedial procedures for transfer, if warranted.

(Rev. 10, 4/13)

TEXAS PRETRIAL PRACTICE 9-2

Interstate forum non conveniens

Any party may request the court to stay or dismiss an action on forum non conveniens grounds, but in practice

usually the defendant makes the request. The court will grant the motion only if an alternative forum exists in

which the action may be tried. In ruling, the court balances the benefits and burdens to the parties, witnesses,

court systems, and citizens of litigating the action in Texas or in the alternative forum. An action cannot be

stayed or dismissed on forum non conveniens grounds if the plaintiff is a Texas resident.

Removal

Defendants use removal to force plaintiffs into a federal forum that is advantageous to them, or at least less dis-

advantageous than the state forum selected by plaintiffs. Differences in the rules of practice and procedure, the

personalities and abilities of the judges, or the familiarity of opposing counsel with federal court practice may

recommend this change. 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 removal is unwarranted or defendants make a procedural misstep.

Statutes and rules:

Venue

CPRC §§15.001-15.066, 65.023, 71.051, 101.102, 171.024, 171.096; TRCP 84, 86-89, 255, 257-259, 261; Bus

& Comm C §§17.42, 17.56; C Crim P art 55.002; Elec C §232.006; Fam C §§6.301, 45.101, 103.001; 152.207;

155.201; Gov C §§81.077, 554.007, 2001.176; Ins C art 506-1; Lab C §410.252; Nat Res C §91.404; Prp C

§§21.013, 92.007, 115.002.

Interstate forum non conveniens

CPRC §71.051

Removal

§§28 U.S.C. §§1331, 1332, 1404, 1407, 1441, 1446, 1447

Related topics: Personal Jurisdiction, Ch 8; Motion Practice, Ch 16; Citation and Service of Process, Ch 10.

TABLE OF CONTENTS

I. Overview

A. General Points

§9:01 Meaning and Purpose

§9:02 Venue Is Not Jurisdictional

§9:03 Distinction: Personal Jurisdiction

§9:04 Distinction: Subject Matter Jurisdiction

B. Significance of Venue

§9:10 Basic Strategy

§9:11 Home-Turf Advantage

§9:12 Client Convenience

§9:13 Witness Accessibility

§9:14 Favorable Precedent in Appellate District

§9:15 Demographics

§9:16 Notoriety

§9:17 Trial Scheduling and Backlog

9-3 FORUM SELECTION: VENUE, FORUM NON CONVENIENS, AND REMOVAL

II. Determining Venue

A. General Points

§9:22 Overview

§9:23 Mandatory Venue

§9:24 Permissive Venue: Plaintiff’s Choice

§9:25 Permissive Venue: Who Is the “Real” Plaintiff?

§9:26 Relevant Time: Occurrence, Not Filing

§9:27 Venue Established by Waiver

§9:28 Multiple Claims or Parties

B. Mandatory Venue

1. LAND

§9:34 Title, Boundaries, and Damage to Land

§9:35 Landlord/Tenant

§9:36 Eminent Domain

§9:37 Where Realty Is “Located”

§9:38 Mineral Interests

2. GOVERNMENT ENTITIES

§9:42 Head of State Department

§9:43 Counties

§9:44 Political Subdivisions With Populations of 100,000 or Less

§9:45 Claims Under Tort Claims Act

§9:46 More Than One Mandatory Venue

3. INJUNCTIONS AND PRIOR LITIGATION

§9:52 Injunction Against Texas Residents

§9:53 Injunctions Regarding Litigation

§9:54 Bill of Review

4. OTHER MANDATORY VENUE STATUTES

§9:58 List of Special Mandatory Venue Statutes

§9:59 Family Law Cases

§9:60 Probate Cases

§9:61 Guardianship Cases

§9:62 Inmate Suits

§9:63 Expunction of Records

§9:63.1 Forcible Entry & Detainer (Eviction)

§9:63.2 Administrative Appeals

5. FORUM SELECTION CLAUSES

§9:64 Major Transactions

§9:65 Clause in Conflict With Mandatory Venue Statute

C. Permissive Venue

1. INDIVIDUAL DEFENDANT’S RESIDENCE

§9:72 Governing Statute

§9:73 Meaning of “Residence”

§9:74 Multiple Residences

§9:75 Facts Showing Residence

§9:76 Facts Not Showing Residence

§9:77 Transients

§9:78 Nonresidents

(Rev. 10, 4/13)