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Legal Memorandum: Dismissal or Transfer for Improper Venue

Issue: What principles guide a court in determining whether to transfer of venue in a wrongful death/products liability action?

Area of Law: Litigation & Procedure, Personal Injury & Negligence
Keywords: Transfer venue; Private and public interest factors; Products liability action
Jurisdiction: Federal
Cited Cases: 244 F. Supp. 2d 720
Cited Statutes: 28 U.S.C. § 1391(a)(1), § 1391(a)(2), § 1391(a)(3); Federal Rule of Civil Procedure 12(b)(3); 28 U.S.C. § 1406, 1404, § 1404(a)
Date: 01/01/2009

Simply because a civil action based on diversity of citizenship “may” be brought in “a judicial district in which any defendant is subject to personal jurisdiction,” 28 U.S.C. § 1391(a)(3),*FN1 and therefore an argument can be made that venue is proper in that district—does not mean that the Court should accept venue.  A request for dismissal or transfer for improper venue may be brought under Federal Rule of Civil Procedure 12(b)(3), and 28 U.S.C. § 1406 and § 1404.

To determine where venue is the most proper, the Court must determine whether transfer is warranted pursuant to 28 U.S.C. § 1404(a),*FN2 considering factors relating to the litigants’ and witnesses’ convenience, and “‘the public interests in the fair and efficient administration of justice.'”  Reuter v. Jax, Ltd., 251 F.R.D. 231, 235 (E.D. Tex. 2007) (quoting Hanby v. Shell Oil Co., 144 F. Supp. 2d 673, 676 (E.D. Tex. 2001)).  The private interest factors are:

  • the plaintiff’s choice of forum;
  • convenience of witnesses and parties;
  • the place of the alleged wrong;
  • the cost of obtaining attendance of witnesses and other trial expenses;
  • the accessibility and the location of sources of proof; and
  • the possibility of delay and prejudice if the transfer is granted.

Id. at 235.  In addition, public interest factors are considered which include:

  • administrative difficulties that might be caused by court congestion;
  • a local interest in adjudicating local disputes;
  • the fact that it […]

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