CIVIL PROCEDURE II
Tutorial #1
Venue and Erie Doctrine
Tips and Reminders
■ Do not forget what you learned from last semester…it comes back!!
■ If you use outlines, make sure to update them with the correct rules or rule analysis
■ Remember what worked for your success or what did not work for you success last
semester
– Change study group
– Handwriting class notes
– Reviewing Panopto
– Meet with professors ***
– Use Barbri
– Outline
■ No Tutorial on January 29 – Week of First Assessments
Venue 101
What is Venue…
■ Determines which particular geographic district is proper for federal court
– EX: North Carolina has three judicial districts (Eastern, Middle, and Western)
■ Where will the litigation of the legal issues occur?! Which Court?!
■ As Professor Hauser says, “venue is like a menu”
– There is a choice of two or three things, but you can only order one!
■ “Judicial district” = venue
■ Need to think about jurisdiction!
– 1332, 1331
– State law claim
■ Remember: if venue is improper, it is up to the defendant to raise an objection.
– If the defendant does not file a 12(b)(3) motion in a timely manner, venue is waived!
The Trinity: SMJ, PJ, and Venue
■ Subject Matter Jurisdiction: Could I file in federal court?
– 1332, 1331, 1367
– Domicile  determine a party’s citizenship
■ Personal jurisdiction: which state?
– Who has power over the defendant?
– Minimum contacts…
■
■
Specific Jurisdiction (a specific claim)
General Jurisdiction (domicile)
– Domicile  indicates that the defendant can be sued in the state and therefore,
the court has personal jurisdiction over the defendant in that state.
■ Venue: where in the state?
– Must chose one location
– Place of trial, which court house?
– Domicile  determines if venue is proper because “an individual resides under
the venue statute in the judicial district where he is domiciled.”
Venue – 1391 (Generally)
Venue in General. A civil action may be brought in…
1. A judicial district in which any defendant resides, if all defendants are residents of the State
in which the district is located;
– THINK: If all defendants reside in the forum state, “lay venue” where anyone of the
defendants resides
– Domicile!
2. A judicial district in which a substantial part of the events or omission giving rise to the claim
occurred, or a substantial part of the property that is the subject of the action is situated; or
– THINK: where did the action happen, where the claim occurs?
– Must happen in the U.S.
3. If there is no district in which an action may be brought, any judicial district in which a
defendant is subject to the court’s personal jurisdiction with respect to such action.
– THINK: “Fall Back” Venue
– Use only if 1 or 2 cannot be satisfied in a different forum within the U.S.
– Personal Jurisdiction!
– EX: Two defendants. D1 resides in NC and D2 resides in VA. The action occurred in
Canada.
Residency – 1391
Residency. For all venue purposes…
■ Residency for natural persons: where she is domiciled (physical presence and intent to
remain)
– “shall be deemed to reside in the judicial district in which that person is domiciled”
– Even if the person is not a citizen, but lawfully residing in the U.S.
■ Residency for an entity (corporation): in any court where the entity is subject to the
court’s personal jurisdiction
– “shall be deemed to reside, if a defendant, in any judicial district in which such
defendant is subject to the court’s personal jurisdiction”
– EX: corporation, partnership, LLC
– Minimum contacts (specific and general)
■ A defendant not resident in the United States may be sued in any judicial district
– THINK: Not a U.S. citizen, can be sued (almost) anywhere
– Due Process
Residence of Corporations in States
with Multiple Districts – 1391
Such corporation shall be deemed to reside in any district in that State within which its
contacts would be sufficient to subject it to personal jurisdiction if that district was a
separate State
– Specific jurisdiction and/or principal place of business
– Corporations may have multiple residencies
What happens when the Venue is wrong?!
Cure or Waiver of Defects – 1406(a)
■ If a suit is filed in the wrong district court, the district court shall dismiss, or if it be in
the interest of justice, transfer such case to any district or division in which it could
have been brought.
– THINK: Venue is improper! BUT…. courts prefer transfer over dismissal!
Change of Venue -- 1404(a)
■ For the convenience of parties and witnesses, the interest of justice, a district court
may transfer any civil action to any other district or division where it might have been
brought or to any district or division to which all parties have consented.
– THINK: Venue is proper, BUT transferred for convenience of parties
– Case will be transferred, not dismissed
– May transfer to an improper venue if all parties agree to transfer
– Convenience of parties or for the “sake of justice”
Forum Non Conveniens
■ The court has jurisdiction to hear a case, but due to the circumstances, exercises its
discretion and dismisses the case.
■ Before a court will grant dismissal based on forum non conveniens, the court will require
both parties to agree in advance to waive the statute of limitations defense
■ The discretionary doctrine of FNC allows a federal court to:
– transfer a civil action to any other district where it might have been brought, or
– to dismiss if transfer is not possible
■ The federal court must evaluate both public and private factors in making its decision
■ Typically used when a person is injured in another country (EX: Professor Hauser’s white
water rafting picture)
■ THINK: if the plaintiff’s choice of forum was reasonable, the defendant must show a
compelling reason to change jurisdiction. If a transfer would simply shift the
inconvenience from one party to the other, the plaintiff’s choice of forum should not be
disturbed.
Forum Non Conveniens: Balancing Test
Does it make more sense to transfer venue or keep venue?
■ Private interest factors to consider in FNC motion…
– Location of the events giving rise to the case
– Ability to implead other parties in the court
– Ability to take a view of premises involved in the dispute
– Location of relevant witnesses and documentary evidence
■ Public interest factors to consider in FNC motion…
– Whether the dispute involves local people or events
– Whether it is likely to be decided under local law (if foreign law, FNC is almost
always appropriate)
The Defendant’s actions…
Defendant may file if venue improper…
– 12(b)(3)  the case would be dismissed
– 1406(a)  dismissed or transferred
Defendant may file if venue is proper…
– May be transferred to another court in the state
– 1404(a)  transfer
Defendant may file if Personal Jurisdiction improper…
– 12(b)(2)  Case would be dismissed
– 1631  Transfer, if no personal jurisdiction and file to a venue where there is proper
personal jurisdiction
Defendant wants the case file in another country…
– Forum Non Conveniens (FNC) AKA a forum that is not convenient
– Motion to dismiss
REMEMBER  the plaintiff has the burden to show venue is proper, if challenged!
A Good Venue Analysis
■ Case: Thompson v. Greyhound Lines, Inc.
Venue is also proper in “a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred.” 28 U.S.C. §1391(b)(2). Under this provision, “[o]nly the
events that directly give rise to a claim are relevant.” … The only event that occurred in this
District was that the plaintiff changed buses here, and that event did not “directly give rise to a
claim.” The plaintiff does not allege that the transfer constituted a breach of contract, only that
Greyhound had not told him, when he purchased the ticket to Tunica the previous day, that he
would be transferring to a Colonial Trailways bus. Greyhound’s alleged negligence and breach
of contract, according to the complaint, derive from its failure to safely and successfully
transport the plaintiff to Tunica, and nothing that occurred in Alabama caused or contributed to
such failure. According to the complaint, Greyhound contracted to get him to Tunica at 5:05
P.M. on March 15, and taking the Colonial Trailways bus to Jackson would have (but for his
sleeping through the transfer) gotten him to Tunica at precisely that time. The mere fact that
the plaintiff passed through this District and changed buses here is not a “part of the events or
omissions giving rise to the claim,” much less a “substantial” part. Accordingly, venue is not
proper under Section 1391(b)(2).
Question 1
Paul sued Dan (a resident of the Western District of North Carolina) and Dolly (a
resident of the Eastern District of Virginia). Paul’s claim arises from a car accident that
occurred in Canada.
Where will venue certainty lie if Paul sues Dan and Dolly in a Federal court?
A.
Any federal district in the United States
B. The Western District of North Carolina
C. The Eastern District of Virginia
D. Both B and C
Question 1: Answer
Where will venue certainty lie if Paul sues Dan and Dolly in a Federal court?
What do we know?!
■ Dan is a resident of the Western District of North Carolina
■ Dolly is a resident of the Eastern District of Virginia
■ Paul’s claim arises from a car accident that occurred in Canada
■ SOOOO we have two defendants domiciled in two different states (North Carolina and Virginia)
AND a cause of action from Canada, a foreign country.
That makes us think of …. FALL BACK VENUE  If there is no district in which an action may be
brought, any judicial district in which a defendant is subject to the court’s personal jurisdiction
with respect to such action.
What is the most correct answer?!
A.
Any federal district in the United States
WHY?!  We know the cause of action occurred in a Foreign Country!!
Question 2
Pascal, a resident of the Central District of California, sued Dante, a resident of the
Southern District of New York, for injuries suffered in a car accident that occurred in the
Eastern District of North Carolina. Pascal filed the lawsuit in a federal court in the
Central District of California. Dante has filed a motion to have the case transferred to
another court pursuant to 28 U.S.C. §1404.
If the court grants Dante’s motion, to which of the following courts could Pascal’s case
be transferred?
A.
A state court in California
B. The federal court in the Eastern District of North Carolina
C. The federal court in the North District of New York
D. All of the above
Question 2: Answer
If the court grants Dante’s motion, to which of the following courts could Pascal’s case be
transferred?
What do we know?!
■ Pascal is a resident of the Central District of California
■ Dante is a resident of the Southern District of New York
■ Cause of action, car accident, occurred in the Eastern District of North Carolina
■ Pascal filed the lawsuit in a federal court in the Central District of California
■ Dante files a motion to have the case transferred to another court pursuant to 28 U.S.C. §1404
– WHAT DOES THIS MEAN….venue is proper BUT defendant wants transfer for convenience or
sake of justice
What is the most correct answer?!
B. The federal court in the Eastern District of North Carolina
WHY?!  The action occurred in the Eastern District of North Carolina!
Erie Doctrine 101
The Erie issue  what law – state or federal – should the court apply?!
■ “What law should the court apply?”
■ THINK: you should NOT get a different result in federal vs. state court. We want similar outcomes!
■ Basic Proposition: A federal court hearing a state law claim – whether in a diversity case (1332) or a
federal question case with a supplemental state law claims (1367) – must apply the law of the
relevant state to the state law claim, not make “general common law.”
– What does this even mean?!
– Federal “diversity court” (AKA a federal court hearing a diversity claim) must apply whatever
state law the courts of the state in which it sits would apply.
■ How to spot an Erie question  Is there a conflict between state and federal law?!
■ LOOK WHERE THE LAWSUIT WAS FILED!!!
■ All cases where a federal court is exercising jurisdiction solely because of diversity, the outcome of
the litigation in the federal court should be substantially the same, so far as legal rules determine
the outcome of a litigation, as it would be if tried in a State court.
Substantive or Procedural Law
■ Substantive law is the law that governs rights or obligations.
– Rights and obligations
– Claims and defenses
– Must follow state law
– Substantive law is outcome determinative!
– Includes any state law that may change the outcome of the claim, such as: choice of
law rules, statute of limitations, and special pleadings
■ Procedural law is the law that governs the methods and means of enforcing rights
– Forum and mode
– Rules of litigation
– How you enforce the substantive law
– Federal courts have power over their own procedure
– State procedure and Federal procedure
Vertical or Horizontal Choice of Law
Vertical Choice of Law
Horizontal Choice of Law
■ THINK: State Court to Federal Court
■ THINK: State Court to State Court
Federal Court
(North Carolina)
■ The choice is between the law of two states
State Court
(North Carolina)
State Court
(Florida)
■ Conflicts rules tell the Court when they must
follow the substantive law of another state.
State Court
(North Carolina)
■ A federal court exercising diversity
jurisdiction/supplemental jurisdiction must
apply the substantive law of the state in which
the federal court is located.
■ When a case is transferred to a federal court in
another state it takes with it the substantive law
and choice of law rules of the state where it was
originally filed
■ The law will follow you!
■ THINK: torts, contracts, state claims
Case Law for Erie Issues
28 U.S.C. § 1652. Rules of Decision Act (RDA)  “The laws of the several states, except where the
Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be
regarded as the rules of decision in civil actions in the courts of the United States, in cases where they
apply.”
– AKA The federal court will apply the state’s laws to state issues
Erie  A federal court hearing a state law claim – whether in a diversity case or a federal question case
with a supplemental state law claims – must apply the law of the relevant state to the state law claim,
not make “general common law.”
– The RDA must be interpreted to require federal courts to apply not only the state statutes, but
also common law of the state in a diversity case.
Guaranty Trust Co. v. York  If the outcome is substantively the same then the federal court can apply
federal rules instead of state rules
– THINK: If the outcome will be different, follow state rules
– Used to ensure that the outcome of the federal court's application of law would not be
different than the outcome if the state had heard the case
– AKA Outcome Determinative Test
Byrd v. Blue Ridge Rural Electric  If a law is not clearly substantive, the federal court should follow
state law unless the federal court system has interest in doing it differently
– AKA Balance of Interest Test
– Usually federal interest outweighs state interest when deciding procedure
Question 3
Plaintiff brought a civil action against Defendant in New York federal court. Plaintiff’s
action arose out of a car accident that occurred in Maine. Subject Matter jurisdiction
was based on 28 U.S.C. § 1332, and Plaintiff’s claims are based on tort law.
What substantive law applies to this case?
A.
The law of New York, because the civil action was filed in New York.
B. The law of Maine, because the accident occurred in Maine.
C. Federal common law applies because this case was filed in federal court.
D. The federal judge has discretion to choose to apply the law of Maine or the law of
New York.
Question 3: Answer
What substantive law applies to this case?
What do we know?!
■ Plaintiff brought a civil action against Defendant in New York federal court.
■ Plaintiff’s action arose out of a car accident that occurred in Maine.
■ Subject Matter jurisdiction is based on 1332
■ Plaintiff’s claims are based on tort law
■ RULE: A federal court hearing a state law claim – whether in a diversity case or a federal question
case with a supplemental state law claims – must apply the law of the relevant state to the state
law claim, not make “general common law.
What is the most correct answer?!
A. The law of New York, because the civil action was filed in New York.
WHY?!  Here, the case was filed in New York federal court SOOO the substantive law of New
York must be applied!
Question 4
Plaintiff filed a civil action against defendant in a Florida federal court. Plaintiff’s action arose out
of a car accident that occurred in North Carolina. Subject matter jurisdiction is based on 28 U.S.C.
§ 1332, and Plaintiff’s claims are based on tort law. A Florida statute requires the courts of Florida
to apply the tort law of the state where the tort occurred. Florida does not recognize the defense of
contributory negligence. North Carolina, on the other hand, does recognize the defense of
contributory negligence.
Can Defendant use contributory negligence as a defense to Plaintiff’s tort claim?
A.
No. Florida tort law applies to this case, because the case was filed in Florida.
B. No. The federal court will apply the majority rule, which recognizes comparative negligence--not
contributory negligence.
C. Possibly. The federal judge has discretion to choose whether to apply the law of Florida or the
law of North Carolina.
D. Yes. Defendant can use contributory negligence as a defense because the Florida federal
court must apply North Carolina law to this case.