Transfer
The crucial question to ask for transfer if the original venue is proper or improper. If the venue is proper, then the choice of law of the original venue goes with the transfer. If the venue is improper, then the choice of law of the original venue does not go with the transfer.
Transfer will always occur from one federal district court to another federal district court.
28 USC § 1404 allows a court a transfer from a proper venue to another proper transfer.
Why would a party want to transfer? We want the litigation to be convenient for the parties and their witnesses. In other words, we want the evidence to be easy to collect. For instance, if a venue is proper in both Minnesota and Wisconsin, and an accident occurred in Minnesota and the case is filed in Wisconsin. They might want to transfer to Minnesota under 1404 because there is more evidence there.
28 USC § 1406 allows a court a court to transfer from an improper venue to a proper transfer. This is an alternative to a 12(b)(3) motion to dismiss. Most courts prefer a 1406. Why? Because it saves the paper work, and keeps things sufficient.
28 USC § 1631 allows a court to transfer a case where it was filed in an improper venue with a lack of personal jurisdiction to a proper venue. This is a way for the courts to avoid the running of statute of limitations.
MacMunn v. Eli Lilly Co.
559 F. Supp. 2d 58 (D.D.C. 2008).
Question
Can the defendant transfer?
Rule
Must show that venue is proper in the forum state and consider private and public interest factors.
Private:
- Plaintiff’s choice of forum
- The defendant’s choice of forum
- Whether the claim arose elsewhere
- Convenience for the parties
- Convenience of witnesses
- Ease of access to proof
Public:
- Tranferee’s familiarity with governing law
- Congestion of the courts
- Local interest in resolving local conflicts.
Holding
Transfered.
Facts
The plaintiff’s mother took DES while pregnant which caused several defects within the plaintiff. The claim was filed in the state court of D.C. The defendant’s removed to the federal court of D.C. because there was diversity. Afterwards, the defendant’s filed a motion to transfer seeking venue in Massachusetts.
The mother was from Massachusetts, that’s where the she ingested DES.
Analysis
As far as the private interest factors are concerned, all the evidence is located in Massachusetts. Therefore, it makes sense to transfer to Massachusetts.
As far as the public interest factors are concerned, D.C. choice of law provisions would apply Massachusetts law anyways. For this reason, there is not change in law that would be applied by the transfer.
Additional Notes
Removal always happens before transfer. You remove from state to federal within the same jurisdiction. Then you can transfer.
It is important to note that D.C. was a valid venue. Therefore, when it was transferred, Massachusetts will still be applying D.C. law. It is interesting that the D.C. law would then choose to apply Massachusetts law anyways.
Transferee court is where the party is seeking to transfer to. The transferor court is the original venue.
Smith v. Colonial Ins. Co.
943 F. Supp. 782 (S.D. Tex. 1996).
Question
Should this case be transferred?
Holding
Transfer denied
Facts
The plaintiff filed this case in the Southern district and the Galveston division of Texas. The defendant’s wanted to transfer to the Houston division. The defendant’s were flying in from the eastern United States into Houston (Galveston does not have an airport) and would have to drive the 40 miles from the airport in Houston to the Galveston courthouse.
Analysis
The judge makes fun of the attorneys saying that this was not really an inconvenience for them.
Additional Notes
This court shows that transfer won’t simply be transferred.
A division is a subset of a district.
Note that this case was about whether the court should transfer for the benefits of the attorney’s not even considering the evidence.
Forum Non Conveniens
Piper Aircraft Co. v. Reyno
453 U.S. 235 (1981).
Question
Can this be dismissed for Forum Non Conveniens?
Holding
Dismissed for Forum Non Conveniens
Facts
There was a plane crash in Scotland that killed several Scottish citizens. However, the plane was manufactured in the United States by Piper (Pennsylvania). The propeller was manufactured by Hartzell (Ohio). The plaintiff filed a wrongful death tort in California state court against the defendant’s in the United States. This is because the United States has expanded tort law where the plaintiffs would receive a much greater remedy for a positive result, especially in California.
This was then transferred to Pennsylvania.
The trial court dismissed because there was another valid forum in Scotland. The Circuit court reversed saying that the choice of law in Scotland would be unsatisfactory for the plaintiffs.
Additional Notes
Here, the defendant’s remove to California federal court and then wish to transfer to Pennsylvania. They then move to dismiss believing the only good venue is in Scotland.
Forum non conveniens is the only motion to dismiss that is a common law dismissal.
The defendant argues that all the evidence is in Scotland (crash occurred, witnesses are present, the material is present in Scotland).
So, even though all the requirements for venue is met, this can be dismissed for forum non conveniens. This only applies to foreign claims. This is because you can’t transfer a case to another country, so you need to dismiss the case.
Disclaimer
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.
