Civ Pro Question

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gbpackerbacker
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Civ Pro Question

Postby gbpackerbacker » Thu Dec 22, 2011 1:23 pm

Do you have to do a 1391 analysis if the case is already in fed court via 1441?

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Mce252
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Re: Civ Pro Question

Postby Mce252 » Thu Dec 22, 2011 1:28 pm

gbpackerbacker wrote:Do you have to do a 1391 analysis if the case is already in fed court via 1441?



You need to give more details. Was the case removed and then defendant is moving for transfer of venue? You don't necessarily have to do a venue analysis if the defendant is okay with what would otherwise be improper venue.

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gbpackerbacker
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Re: Civ Pro Question

Postby gbpackerbacker » Thu Dec 22, 2011 1:30 pm

Case was removed then P tried to transfer under 1404. The defendant claimed the venue was improper.

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Mce252
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Re: Civ Pro Question

Postby Mce252 » Thu Dec 22, 2011 1:36 pm

gbpackerbacker wrote:Case was removed then P tried to transfer under 1404. The defendant claimed the venue was improper.


You say P tried to transfer under 1404. Is the defendant challenging the venue of where it was removed to or where P is trying to transfer to?

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gbpackerbacker
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Re: Civ Pro Question

Postby gbpackerbacker » Thu Dec 22, 2011 1:40 pm

Haha sorry. P brings suit in state court, D successfully removes then argues that the venue (to which they were just removed) is improper. P is separately trying to transfer under 1404.

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Cade McNown
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Re: Civ Pro Question

Postby Cade McNown » Thu Dec 22, 2011 1:40 pm

It doesn't matter who is invoking 1404. The language of the statute is that a judge may transfer a case to a court "where it might have been brought," which refers any venue in which the plaintiff could have filed suit under 1391.

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acrossthelake
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Re: Civ Pro Question

Postby acrossthelake » Thu Dec 22, 2011 1:42 pm

Mce252 wrote:
gbpackerbacker wrote:Do you have to do a 1391 analysis if the case is already in fed court via 1441?



You need to give more details. Was the case removed and then defendant is moving for transfer of venue? You don't necessarily have to do a venue analysis if the defendant is okay with what would otherwise be improper venue.


I was taught that under Hoffman the defendant can't consent to an improper venue transfer.

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Mce252
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Re: Civ Pro Question

Postby Mce252 » Thu Dec 22, 2011 1:45 pm

OP didn't mention transfers in the original statement. I just meant that if a plaintiff sues a defendant with proper SMJ AND PJ and defendant never complains about venue, I don't think theres any major problem.

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acrossthelake
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Re: Civ Pro Question

Postby acrossthelake » Thu Dec 22, 2011 1:47 pm

Mce252 wrote:OP didn't mention transfers in the original statement. I just meant that if a plaintiff sues a defendant with proper SMJ AND PJ and defendant never complains about venue, I don't think theres any major problem.


Ah yeah. I can't quite tell what the OP is talking about. Yeah agreed.

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Mce252
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Re: Civ Pro Question

Postby Mce252 » Thu Dec 22, 2011 1:50 pm

gbpackerbacker wrote:Haha sorry. P brings suit in state court, D successfully removes then argues that the venue (to which they were just removed) is improper. P is separately trying to transfer under 1404.


If I was analyzing the problem, I would do a venue analysis to first determine whether the original forum is improper. If it is improper, it would be a 1406 transfer to remedy. If it is proper venue, then you would do the venue analysis on the proposed forum to see if a 1404 would work.

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Cade McNown
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Re: Civ Pro Question

Postby Cade McNown » Thu Dec 22, 2011 1:55 pm

acrossthelake wrote:I was taught that under Hoffman the defendant can't consent to an improper venue transfer.


In Hoffman it was the defendant who attempted the transfer, so I'm not sure what it would be consenting to. The point of Hoffman was to clarify that the passive voice in 1404 "where it might have been brought" meant where the plaintiff might have brought the case.

Under OP's hypo though, it doesn't matter who the actor is. If 1404 (or 1406) is involved, then OP can't avoid a 1391 analysis.

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acrossthelake
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Re: Civ Pro Question

Postby acrossthelake » Thu Dec 22, 2011 2:01 pm

Cade McNown wrote:
acrossthelake wrote:I was taught that under Hoffman the defendant can't consent to an improper venue transfer.


In Hoffman it was the defendant who attempted the transfer, so I'm not sure what it would be consenting to. The point of Hoffman was to clarify that the passive voice in 1404 "where it might have been brought" meant where the plaintiff might have brought the case.

Under OP's hypo though, it doesn't matter who the actor is. If 1404 (or 1406) is involved, then OP can't avoid a 1391 analysis.


I think I should've written "it doesn't help if the parties consent".
Let me reword: Wherever it's being transferred to, the venue has to actually be proper and can't be consented to instead.

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Cade McNown
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Re: Civ Pro Question

Postby Cade McNown » Thu Dec 22, 2011 2:03 pm

acrossthelake wrote:
Cade McNown wrote:
acrossthelake wrote:I was taught that under Hoffman the defendant can't consent to an improper venue transfer.


In Hoffman it was the defendant who attempted the transfer, so I'm not sure what it would be consenting to. The point of Hoffman was to clarify that the passive voice in 1404 "where it might have been brought" meant where the plaintiff might have brought the case.

Under OP's hypo though, it doesn't matter who the actor is. If 1404 (or 1406) is involved, then OP can't avoid a 1391 analysis.


I think I should've written "it doesn't help if the parties consent".
Let me reword: Wherever it's being transferred to, the venue has to actually be proper and can't be consented to instead.


Agree. And I should have realized that's what you were saying.

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gbpackerbacker
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Re: Civ Pro Question

Postby gbpackerbacker » Thu Dec 22, 2011 2:46 pm

Thank you guys. Sorry about the ambiguity.

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orm518
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Re: Civ Pro Question

Postby orm518 » Thu Dec 22, 2011 2:54 pm

gbpackerbacker wrote:Do you have to do a 1391 analysis if the case is already in fed court via 1441?


The thing to note is that any case removed via 1441 only has one destination: the federal court embracing the place where the state court action was filed. This is true even if that federal court wouldn't have been proper venue in the first place. As long as ANY federal court would have had subject matter jurisdiction, it can be removed.

From there, yes either party could file a 1404 venue transfer for convenience. But they don't have to change venues unless they want to because 1391 doesn't apply to removed cases via 1441. If they do want to do a 1404 transfer than yes the new venue would need to comply with 1391. This is not true anymore after the Jurisdiction and Venue Clarification Act of 2011. Under the JVCA, a case can be transferred via §1404 to any venue to which all parties consent, even if it would not have been proper originally according to §1391. Note also, you wouldn't use 1406, that's where the case is in an improper venue, because removed cases only have one destination and that venue is always proper.
Last edited by orm518 on Mon Apr 30, 2012 2:17 pm, edited 1 time in total.

BeachandRun23
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Re: Civ Pro Question

Postby BeachandRun23 » Thu Dec 22, 2011 8:46 pm

orm518 wrote:
gbpackerbacker wrote:Do you have to do a 1391 analysis if the case is already in fed court via 1441?


The thing to note is that any case removed via 1441 only has one destination: the federal court embracing the place where the state court action was filed. This is true even if that federal court wouldn't have been proper venue in the first place. As long as ANY federal court would have had subject matter jurisdiction, it can be removed.

From there, yes either party could file a 1404 venue transfer for convenience. But they don't have to change venues unless they want to because 1391 doesn't apply to removed cases via 1441. If they do want to do a 1404 transfer than yes the new venue would need to comply with 1391. Note also, you wouldn't use 1406, that's where the case is in an improper venue, because the district to which the case is removed is a proper venue.


This is the answer

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orm518
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Re: Civ Pro Question

Postby orm518 » Mon Apr 30, 2012 2:23 pm

acrossthelake wrote:
Mce252 wrote:
gbpackerbacker wrote:Do you have to do a 1391 analysis if the case is already in fed court via 1441?



You need to give more details. Was the case removed and then defendant is moving for transfer of venue? You don't necessarily have to do a venue analysis if the defendant is okay with what would otherwise be improper venue.


I was taught that under Hoffman the defendant can't consent to an improper venue transfer.


In case someone stumbles across this thread, I'd just point out that the Jurisdiction and Venue Clarification Act rewrote the venue statutes. Hoffman is essentially overruled. I edited my answer above to point out the difference.

"The JVCA further abrogates the Supreme Court decision in Hoffman v. Blaski, 363 U.S. 335 (1960), by authorizing transfer of venue to a district where the action could not have been brought initially, as long as all parties consent." http://prawfsblawg.blogs.com/prawfsblawg/2011/12/updated-jurisdiction-and-venue-clarification-act.html




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