Forks in the Road: Three Routes to Transfer A Lawsuit by Robby Dube
While attorneys understandably want to focus on the substantive merits of an action, the procedural question of what venue to litigate a case in can have substantial impacts on the likelihood of success.1 And, transferring a case after its been filed can keep an action lacking personal jurisdiction alive, or ensure that a case has a better chance of success than in the original jurisdiction. There are three statutes that empower a party to transfer their action: 28 U.S.C. ' 1404, 1406, and 1631. Sometimes multiple statutes will apply to a given action, although each has different factors that must be met which can be mutually exclusive of the other statutes. What's more, courts are split on particular requirements for each statute, specifically regarding personal jurisdiction.
28 U.S.C. ' 1404. Change of Venue
28 U.S.C. ' 1404 empowers courts, in their discretion, to transfer an action '[f]or the convenience of the parties and witnesses, in the interest of justice.' When exercising this discretion, a court looks at both public and private factors, including:
(1) the convenience of the parties;
(2) the convenience of the witnesses;
(3) the relative ease of access to the sources of proof;
(4) the availability of process to compel attendance of unwilling witnesses;
(5) cost of obtaining willing witnesses; and
(6) any practical problems associated with trying the case most expeditiously and inexpensively.2
These factors can cut both ways. Courts may evaluate not just how convenient a new forum may be for one party, but also how inconvenient that same forum may be for other parties.3 Additionally, the transfer must be to a court of competent jurisdiction, i.e., a court where the case could have originally been brought. Importantly ' 1404 presumes that venue in the original forum is proper, but that the case will nevertheless be more conveniently heard before another court.
And yet, the power of ' 1404 is limited because of this concession'the argument for transferring venues essentially is an argument, not that anything is improper with the venue, but that the forum is merely inconvenient. Thus, it can be harder to achieve transfer under this statute.
28 U.S.C. ' 1406. Cure or Waiver of Defects
28 U.S.C. ' 1406 permits courts to transfer any case to any district or division in which it could have been brought if the original venue is improper and the transfer is 'in the interest of justice.'4...
