Legal Memorandum: Dismissal or Transfer Based on Improper Venue

Issue: What is the standard for an intervenor to dismiss or transfer a diversity action for improper venue?

Area of Law: Litigation & Procedure
Keywords: Dismiss or transfer a diversity action; Improper venue; Determining venue
Jurisdiction: Federal, Texas
Cited Cases: 934 F. Supp. 817
Cited Statutes: 28 U.S.C. § 1391, 1391(a); 28 U.S.C. § 1406(a); Fed. R. Civ. P. 12(b)(3); 28 U.S.C. § 1391(b)(2) and (e)(2); 28 U.S.C. § 1404, 1404(a)
Date: 12/01/2008

Under 28 U.S.C. § 1391, a civil action based on diversity of citizenship is proper in “a judicial district where any defendant resides” or “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.”  28 U.S.C. § 1391(a) (2008).  Venue “relates not to the power to adjudicate but to the place where that power is to be exercised.”  Jones v. United States, 407 F. Supp. 873, 876 (N.D. Tex. 1976).  It “is a concept oriented around the convenience of the litigants and the court system.  For this reason, the federal courts are given great discretion in determining venue.”  Id. at 876 (citations omitted).

When an action is filed in the wrong federal district, the district court in which the action is filed “shall dismiss, or if it be in the interest of justice, transfer such a case to any district or division in which it could have been brought.”  28 U.S.C. § 1406(a) (2008).  See Cevallos v. Toys “R” Us, Inc., No. 4:07cv242 (E.D. Tex. Jan 7, 2008) (setting forth the standard for determining proper venue and remedy when venue is improper).  See also Fed. R. Civ. P. 12(b)(3) (authorizing motion for dismissal based on improper venue).

In  Andrade v. Chojnacki, 934 F. Supp. 817, 827 n.18 (S.D. Tex. 1996), the federal district court interpreted and applied 28 U.S.C. § 1391(b)(2) and (e)(2), to determine that venue was proper only in the “judicial district in which a substantial […]

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