Sunday, August 17, 2014

The Top Five: Venue

It's important when studying Civil Procedure to understand well the difference between subject-matter jurisdiction and venue. Subject-matter jurisdiction is the power of the court to adjudicate the matter before it, while venue relates instead to a determination as to which district court should hear the case. Here are five things to know about venue when preparing for the MBE.

1. The general rule regarding venue is that venue is proper in any judicial district where any defendant resides if all defendants reside in the same state. In addition, venue is proper in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated.

2. There will be times when the standards above are not satisfied. In such instances, venue will be proper in a judicial district in which any defendant is subject to personal jurisdiction, but only if the action is based solely on diversity. If the action is not based solely on diversity, then venue will be proper in a judicial district in which any defendant may be found.

3. In determining if venue is proper it is sometimes necessary to determine the defendant's residency (such as in 1, above). For purposes of venue, an individual's residence is determined by that individual's domicile. A corporation resides in any jurisdiction in which it is subject to personal jurisdiction, and an unincorporated association (such as a partnership) resides wherever it does business.

4. Improper venue may be waived by the parties. And importantly, venue is considered waived unless timely objection is made to improper venue.

5. There are situations in which, although venue is proper, the court may still wish to transfer the case for the convenience of the parties. This is allowable under the federal rules provided that the case is transferred to a court where it could have originally been filed. The standard here is the "interest of justice," and the court to which the case is transferred must have subject-matter and personal jurisdiction over the defendant; otherwise, venue in the transferee court is improper.

No comments:

Post a Comment