Full access allows:
- Solve all tests online without limits;
- Remove all advertisements on website;
- Adding questions to favorite list;
- Save learning progress;
- Save results of practice exams;
- Watching all wrong answered questions.
44. Should the court grant the motion to transfer to a federal court in State B?
Just before the statute of limitations ran on his claim, a pilot from State A sued a radiologist from State C in the federal judicial district in State A, an extremely busy court. The radiologist has never been to State A and a substantial part of the events giving rise to the claim did not occur in State A, but in State C. The radiologist moved to transfer the case to a federal court in State B because he travels to State B often for work. The pilot has family in State B and consented to the transfer.
Comments (0)
There are no comments at the moment. If you found an error or think question is incorrect, tell everyone about it
Only signed in users can write comments
Signin
Under § 1391(b), venue is proper in any district court where:
(i) any defendant resides, as long as all defendants reside in the same state; OR where
(ii) a substantial portion of the events giving rise to the claim occurred.
A third scenario for venue exists, which applies only if the first two avenues are not available: (iii) «if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction.»
Personal jurisdiction exists over a defendant who is present within the forum state when he is served with process.
28 U.S.C. § 1404(a) authorizes court-to-court transfers of federal cases from one federal district to another for the convenience of parties and witnesses. A district court may transfer any civil action to any other district or division where the action might have been brought, or to any district or division to which all parties have consented. However, this transfer provision only applies when the initial venue was proper. If an action is filed by the plaintiff in a district that is not a district in which venue is proper, the district judge may not use § 1404(a) as authority for transferring to a district where venue is correct.
When the original venue is improper, the court must use 28 U.S.C. § 1406(a), which provides that when a case is brought with improper venue, the district shall either dismiss the case or transfer the case to any district or division in which it could have been brought (if this transfer is in the interest of justice).
C correct. This case was brought in federal court in State A, which was an improper venue. The radiologist did not reside there, a substantial portion of the events did not occur there, and no facts indicate that the radiologist would be subject to personal jurisdiction there. As a result, the transfer issue is governed by § 1406, which does not authorize the transfer to a district based on the consent of the parties.
The only options available to the court are dismissal or transfer to a venue that would have been proper originally. The call asks whether the court should transfer to State B, but State B is not a district where the action could have initially been brought. Therefore, the court must deny the motion.
A is incorrect. Given that the case was originally filed in State A, an improper venue, and § 1406 governs, the parties' consent is not a basis for authorizing the transfer. The court may not grant the transfer, even with both parties' consent.
B is incorrect. The busy nature of the docket in State A's federal court is also not a basis for granting the transfer to State B's federal court under § 1406(a). As stated above, because the case was initially filed in an improper venue, and State B would not have been a proper venue originally, the court may not transfer the case to State B.
D is incorrect. This answer choice states the correct conclusion with incorrect legal reasoning. It is an incorrect statement of the law that transfer is only permitted from one proper venue to another. Transfer is permitted as an alternative to dismissal for improper venue, but only when the receiving court would have originally been a proper venue. Here, the court must deny the transfer because State B would not have been a proper venue when the case was originally filed.