When do you use transfer of venue vs. FNC?
Posted: Mon Dec 12, 2011 3:26 pm
Also, are the private/public factors only applicable to FNC?
In Federal Court, there are three things you're probably talking about.RR320 wrote:Also, are the private/public factors only applicable to FNC?
Transfer of venue (28 USC 1406). In this, venue must actually be improper. That means the factors are irrelevant to this since it relies on whether venue is improper under the venue statute (I think it's 28 USC 1391 but I can't remember exactly.)
The codified FNC (28 USC 1404), which allows transfer but must there must be another domestic forum to transfer to. This uses the factors.
The old common law FNC which is still in existence, but is only used when the only suitable forum is a foreign one and thus the case can't be transferred under 1404. Important to note this dismisses a case, it doesn't transfer it, since federal courts can't really transfer to foreign courts. This uses the factors.
Note that both 28 USC statutory provisions both are about transferring the case, while the common law FNC requires dismissal of the case.