Civ Pro Question
Posted: 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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gbpackerbacker wrote:Do you have to do a 1391 analysis if the case is already in fed court via 1441?
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?gbpackerbacker wrote:Case was removed then P tried to transfer under 1404. The defendant claimed the venue was improper.
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.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.
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.acrossthelake wrote: I was taught that under Hoffman the defendant can't consent to an improper venue transfer.
Agree. And I should have realized that's what you were saying.acrossthelake wrote:I think I should've written "it doesn't help if the parties consent".Cade McNown wrote: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.acrossthelake wrote: I was taught that under Hoffman the defendant can't consent to an improper venue transfer.
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.
Let me reword: Wherever it's being transferred to, the venue has to actually be proper and can't be consented to instead.
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.gbpackerbacker wrote:Do you have to do a 1391 analysis if the case is already in fed court via 1441?
This is the answerorm518 wrote: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.gbpackerbacker wrote:Do you have to do a 1391 analysis if the case is already in fed court via 1441?
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.
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.acrossthelake wrote:I was taught that under Hoffman the defendant can't consent to an improper venue transfer.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.