Jurisdiction and venue - Venue, forum non conveniens, and tr...

Learning Outcomes

This article explains the principles governing venue in federal civil actions, emphasizing how to organize and execute exam-quality Civil Procedure analysis. It explains how to determine proper venue under 28 U.S.C. § 1391, including residency rules for individuals, corporations, entities, foreign defendants, and U.S. citizens domiciled abroad, and how to evaluate multi-defendant and multi-claim scenarios. It further explains how venue operates in removed cases, when specific venue statutes displace the general statute, and how to distinguish venue from subject matter and personal jurisdiction on multi-issue questions. The article also details how to challenge improper venue, preserve or waive venue objections under the Federal Rules, and select the correct transfer statute—§ 1404(a), § 1406(a), or § 1631—based on whether the original venue and jurisdiction are proper. Finally, it examines the doctrine of forum non conveniens, including its relationship to § 1404(a), the requirements for an adequate alternative forum, and the balancing of private and public interest factors, so that exam takers can choose accurately among keeping the case, transferring it, or seeking dismissal.

MBE Syllabus

For the MBE, you are required to understand jurisdiction and venue, with a focus on the following syllabus points:

• Distinguish venue from subject matter jurisdiction and personal jurisdiction.
• Apply the general federal venue statute (28 U.S.C. § 1391) to determine proper venue based on residency or where events occurred.
• Determine “residency” for venue purposes for individuals, corporations, other entities, and defendants not resident in the United States.
• Analyze venue when multiple defendants are involved, including when they live in different states or in different districts within the same state.
• Identify situations where specific venue statutes apply (e.g., certain federal question claims with special venue provisions) and how they interact with § 1391.
• Recognize how venue operates in removed cases.
• Analyze the rules governing transfer of venue under 28 U.S.C. § 1404 (convenience transfer) and § 1406 (improper venue transfer), and understand the distinct role of 28 U.S.C. § 1631 (transfer to cure lack of jurisdiction).
• Evaluate private and public interest factors relevant to convenience transfers and forum non conveniens dismissals.
• Apply the doctrine of forum non conveniens for dismissal when a more appropriate forum exists outside the federal system.
• Understand how venue objections are raised, preserved, or waived under the Federal Rules of Civil Procedure.
• Integrate venue analysis into broader exam problems involving removal, personal jurisdiction, and choice of law so that you apply these doctrines in the correct sequence.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Venue in federal court refers to the:
   1. Court's power over the subject matter of the case.
   2. Court's power over the defendant.
   3. Proper geographical federal district in which to bring the action.
   4. State law that will be applied in a diversity case.
2. Under the general federal venue statute, if all defendants reside in the same state, venue is proper in:
   1. Any district where a substantial part of the events occurred.
   2. Any district where any defendant resides.
   3. Only the district where the plaintiff resides.
   4. Only the district where the claim arose.
3. A motion to transfer venue under 28 U.S.C. § 1404(a) allows a transfer from a district where venue is proper to another district:
   1. Only if the original venue was improper.
   2. For the convenience of parties and witnesses, in the interest of justice, to any district where the action might have been brought or to which all parties consent.
   3. Only if the transferee court would apply more favourable law.
   4. Only if the plaintiff consents to the transfer.
4. Dismissal based on forum non conveniens is appropriate when:
   1. Venue is improper in the federal court where the action was filed.
   2. A federal court that is a proper venue finds that the case should be heard in a state court or a foreign court that is far more convenient and adequate.
   3. The defendant waives objection to personal jurisdiction.
   4. The plaintiff seeks transfer to a more convenient federal district.

Introduction

Once it is established that a federal court has both subject matter jurisdiction over the type of case and personal jurisdiction over the defendant, a third requirement, venue, must be satisfied. Venue concerns the proper geographic district within the federal court system where the action should be brought. It answers the question: “Assuming some federal court may hear this case, which particular district is the appropriate place?”

Venue is statutory, primarily governed by 28 U.S.C. § 1391 for general civil actions, though specific statutes may govern venue in particular types of cases (for example, actions involving certain federal officers, patents, or securities). Unlike subject matter jurisdiction, most venue rules are not constitutional in nature, and unlike personal jurisdiction, they focus more on geographic convenience and fairness than on sovereign power.

Venue requirements are:

• Concerned with convenience and fairness – where parties and witnesses are located and where events occurred.
• Separate from jurisdiction – a court may have subject matter and personal jurisdiction but still be an improper venue.
• Waivable – improper venue is a defense that can be forfeited if not timely asserted.

Key Term: Venue
Venue is the statutory specification of the proper federal district or districts in which a civil action may be brought. It allocates cases among federal districts based on geography and case connections, distinct from subject matter and personal jurisdiction.

For exam purposes, venue questions often appear after you have already determined that diversity or federal question jurisdiction exists and that the forum has personal jurisdiction. The fact pattern will then give you information about where the parties reside, where the events occurred, and sometimes about contractual forum selection clauses. Your task is to apply the statutory scheme precisely, and then, if needed, analyze transfer or forum non conveniens.

Distinguishing Venue from Jurisdiction

Venue is frequently tested together with subject matter jurisdiction and personal jurisdiction. You must keep them conceptually distinct:

• Subject matter jurisdiction asks: May any federal court hear this kind of case at all? (e.g., diversity, federal question).
• Personal jurisdiction asks: Does this court have power over this defendant? (minimum contacts, consent, etc.).
• Venue asks: Assuming some federal court can adjudicate the dispute and exercise power over the defendant, in which federal district should the case be filed?

On the MBE, answers that confuse these ideas are common distractors. For example, a choice might say “Venue is proper because the court has personal jurisdiction over the defendant.” That is incorrect: personal jurisdiction is relevant to venue only in the narrow fallback provision of § 1391(b)(3), and only after you have determined that venue is not proper under the usual residency or events-based tests.

It is also important to distinguish improper venue from lack of jurisdiction in terms of consequences. A court that lacks subject matter jurisdiction must dismiss (or in some circumstances transfer under § 1631), and the defect can never be waived. A court sitting in an improper venue, by contrast, may either dismiss or transfer under § 1406(a), and the defendant can waive the defect by failing to object in time.

Exam Approach to Venue Questions

On multi-issue Civil Procedure questions, adopt a consistent order of analysis:

• Subject matter jurisdiction – Does a federal court have authority to hear this type of case?
• Personal jurisdiction – Does the particular court have power over the defendant(s)?
• Venue – Which district or districts are proper under § 1391 or a specific venue statute?
• Service of process and notice – Has the defendant been properly notified?
• Transfer or dismissal – If venue is improper or inconvenient, what remedies are available (transfer under 1404/1406/1631, or dismissal under forum non conveniens)?

Keeping this sequence straight helps you avoid picking an answer that jumps to transfer or forum non conveniens before you have even determined whether the original venue is proper.

An additional exam discipline is to separate, in your head, three different questions that bar examiners love to blur in answer choices:

• Is the original district a proper venue under § 1391?
• If proper, should the case nonetheless be transferred to a different federal district under § 1404(a)?
• If improper, should it be transferred or dismissed under § 1406(a), or possibly under § 1631 for lack of jurisdiction?

The correct statute depends entirely on the answer to the first question.

Determining Proper Venue

The general federal venue statute, 28 U.S.C. § 1391, provides the primary rules for determining proper venue in civil actions brought in federal district court. Unless a more specific venue statute applies, you should assume § 1391 controls on the MBE.

General Rule – § 1391(b)

In most civil actions, venue is proper in a judicial district:

• Where any defendant resides, if all defendants reside in the same state; or
• Where a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
• If there is no district in which the action may otherwise be brought, where any defendant is subject to the court’s personal jurisdiction with respect to the action (fallback provision).

Each of these is an independent basis for venue; more than one district may satisfy the statute. On the MBE you are expected to test each option methodically, in order:

• Start with § 1391(b)(1) (residency).
• If that fails, move to § 1391(b)(2) (substantial events/property).
• Only if neither (b)(1) nor (b)(2) yields a proper district may you use § 1391(b)(3) (fallback).

A common exam trap is to jump straight to (b)(3) and choose an answer based solely on personal jurisdiction, even though at least one district qualifies under (b)(1) or (b)(2). If any district is proper under (b)(1) or (b)(2), the fallback cannot be used.

Some additional structural points about § 1391 that are easy to overlook on the exam:

• Venue rules apply only to civil actions. Criminal cases have separate venue rules.
• The § 1391 scheme applies to actions “brought in” federal district courts. It does not govern which cases may be removed from state court (removal has its own statute).
• Venue is assessed when the action is filed. Later changes in residence, corporate headquarters, or property location do not retroactively destroy proper venue.

Venue is also evaluated claim by claim. A district may be a proper venue for one claim (for example, a contract claim) but not for another (for example, a tort claim arising elsewhere). In practice, courts frequently exercise supplemental jurisdiction and keep logically related claims together, but on the MBE you may be asked to identify which claims are properly venued and which are not.

Residency for Venue Purposes – § 1391(c)–(d)

Section 1391(c) defines “residency” for venue purposes, and the definition varies by type of party. This is a technical but heavily tested area.

Individuals

An individual (including a U.S. citizen and a lawful permanent resident) resides in the judicial district where they are domiciled.

Domicile, in turn, is the state (and for venue, the specific federal district within that state) where the person has:

• Physical presence; and
• Intent to remain indefinitely (or to return when away).

A person has only one domicile at a time. Moving to a new state, without the necessary intent to stay, does not change domicile.

The domicile of a minor or an incompetent person follows the state law rules for domicile, usually the domicile of a parent or guardian. For MBE purposes, such detail is rarely tested directly; you are typically told where the person is “domiciled” or “a citizen.”

Corporate and Entity Residency

For venue, an entity with capacity to sue or be sued in its own name (whether or not incorporated) is treated as follows:

• If the entity is a defendant: It resides in any judicial district where it is subject to the court’s personal jurisdiction with respect to that action.
• If the entity is a plaintiff: It resides only in the judicial district where it maintains its principal place of business.

In a state with multiple federal districts, § 1391(d) instructs courts to treat each district as if it were a separate state for personal jurisdiction purposes. The steps are:

• Ask in which district(s) of that state the entity would be subject to personal jurisdiction if each district were a separate state.
• The entity is deemed to reside in any such district.
• If no district would have personal jurisdiction, the entity is deemed to reside in the district with the most significant contacts.

This “most significant contacts” fallback is rarely central on the MBE, but you should recognize the structure if a question highlights that a corporation does business throughout a multi-district state.

For exam purposes, distinguish carefully between:

• Corporate “citizenship” for diversity (state(s) of incorporation plus principal place of business); and
• Corporate “residence” for venue (any district where the corporation is subject to personal jurisdiction in that action as a defendant; only the principal place of business as a plaintiff).

A corporation can therefore “reside” in many districts for venue purposes even though it has only one or two states of citizenship for diversity.

Non-U.S. Residents (Aliens)

A defendant who is not a resident of the United States may be sued in any judicial district. [§ 1391(c)(3)] For purposes of determining venue with respect to other defendants:

• The presence of such a foreign defendant is disregarded entirely in applying § 1391(b)(1) (the “all defendants reside in the same state” rule).
• Venue must still be proper for any U.S. defendants under the usual rules.

On the MBE, answer choices that say venue is improper because a foreign defendant does not “reside” in the district are almost certainly wrong. The venue statute expressly allows such defendants to be sued anywhere in the federal system, subject to personal jurisdiction and subject matter jurisdiction.

U.S. Citizens Domiciled Abroad

A U.S. citizen domiciled outside the United States is not a “resident of any state” for venue purposes. That person therefore does not reside in any judicial district. The consequences:

• You cannot rely on § 1391(b)(1) to choose a venue based on that person’s residence.
• Venue must be based instead on § 1391(b)(2) (substantial events/property), or if that fails, on § 1391(b)(3).

The MBE likes this corner case because it tests whether you are reading § 1391(c) carefully rather than assuming that every citizen must “reside” somewhere in the United States.

Plaintiffs’ Residences

Importantly, the plaintiff’s residence is generally irrelevant to venue under § 1391(b). A district is not a proper venue simply because the plaintiff lives there or because it would be convenient for the plaintiff. The statute is written from the defendant’s standpoint and from the standpoint of where the claim is connected geographically.

There are limited exceptions in specific venue statutes, particularly some suits against the United States or federal agencies, which sometimes allow venue where the plaintiff resides. Unless the problem quotes such a statute, assume that plaintiff’s residence does not control.

“All Defendants Reside in the Same State” – § 1391(b)(1)

Venue is proper in:

• Any judicial district where any defendant resides, if and only if all defendants reside in the same state.

This “residential venue” option is extremely useful in multi-defendant situations. Typical patterns:

• Two or more defendants reside in different districts within the same state.
• The plaintiff wants to sue in a district where at least one defendant resides, even if the events occurred elsewhere.

If all defendants are residents of State X (even in different districts), you may sue in any district in State X where any defendant resides.

Two subtleties matter for the exam:

• If at least one defendant resides in a different state, § 1391(b)(1) is unavailable; you must then evaluate venue under § 1391(b)(2), and only then consider (b)(3).
• In deciding whether “all defendants reside in the same state,” you ignore any foreign (non-U.S.) defendants altogether. Only U.S.-resident defendants count for this question.

You must also apply the residency definitions carefully. For a corporate defendant, ask where it would be subject to personal jurisdiction with respect to the action. If a corporation does business in multiple districts of the same state and the claim is related to that business, it may “reside” in multiple districts, expanding the number of districts that are proper under § 1391(b)(1).

Substantial Part of Events or Property – § 1391(b)(2)

Venue is proper in any judicial district where:

• A substantial part of the events or omissions giving rise to the claim occurred; or
• A substantial part of property that is the subject of the action is located.

Key points for the MBE:

• “Substantial” does not mean “the majority” or “the most.” More than one district can easily qualify under this provision. The key question is whether the district has a meaningful, non-trivial connection to the operative facts of the claim.
• The statute speaks in terms of “events or omissions giving rise to the claim,” not merely where the plaintiff ultimately felt economic loss. In contract cases, relevant places include where the contract was negotiated, executed, or supposed to be performed; in tort cases, where the injurious conduct occurred, and where the injury was sustained.
• The focus is on events relating to this claim, not the defendant’s overall business activities.

Examples of substantial connections:

• A defamation claim: where the allegedly defamatory statements were written, spoken, or widely published.
• A securities fraud claim: where misrepresentations were made or where the purchase or sale of securities occurred.
• A product liability claim: where the defective product was designed, manufactured, or caused injury, and sometimes where it was sold.

If at least one district satisfies § 1391(b)(2), you may not use the fallback in (b)(3). The existence of any proper venue under (b)(1) or (b)(2) blocks reliance on (b)(3).

For exam purposes, you should be alert to red herrings. Merely administrative or peripheral contacts – such as where a bill was mailed, or where payment was processed – will not usually qualify as “substantial” if the real operative events (the breach, the accident, the misrepresentation) occurred elsewhere.

Fallback Provision – § 1391(b)(3)

If, and only if, there is no district in the United States in which an action may otherwise be brought under § 1391(b)(1) or (b)(2), venue is proper in:

• Any district in which any defendant is subject to the court’s personal jurisdiction with respect to the action.

This is a true safety valve for unusual situations, most often when:

• The operative events took place outside the United States.
• Multiple defendants reside in different states, and there is no single state where they all reside.
• There is no U.S. district where a “substantial part” of the relevant events or property is located.

In such cases you identify at least one defendant who is subject to personal jurisdiction in some district and use that district as the venue under § 1391(b)(3).

On the MBE, examiners sometimes offer a (b)(3)-style answer even though a district is available under (b)(2). If any district qualifies under (b)(1) or (b)(2), you must reject the fallback and choose one of the proper venues.

Venue in Multi-Defendant and Multi-Claim Cases

In realistic litigation, venue often must accommodate multiple defendants and multiple claims. A few patterns matter on the exam:

• If multiple defendants all reside in the same state, § 1391(b)(1) gives broad flexibility: you can choose any district in that state where any one of them resides.
• If defendants reside in different states, § 1391(b)(1) cannot be used, and you must look to § 1391(b)(2). Focus on whether a substantial part of the events or property is in some particular district, even if one or more defendants do not reside there.
• When there are multiple claims arising from unrelated events (for example, a contract claim and a separate, unrelated tort claim), venue may be proper for one claim but not for another. Federal courts have substantial discretion to:
  • Keep all claims and parties together if venue is proper for the main claim and the others are sufficiently related, or
  • Sever and transfer or dismiss claims as to which venue is improper.

Venue for counterclaims, cross-claims, and third-party claims is usually not separately analyzed on the MBE. Most courts hold that once the original action has a proper venue, additional claims within the same case do not require their own independent basis of venue. You should therefore concentrate your venue analysis on the original plaintiff’s claims.

Venue in Removed Actions

When a defendant removes a case from state court to federal court:

• Venue is automatically proper in the federal district court that includes the place where the state action was pending, regardless of whether that federal district would have been a proper venue if the plaintiff had filed there initially. [28 U.S.C. § 1441(a)]
• Because venue is fixed by the removal statute, defendants cannot argue that venue is “improper” in that district under § 1391. A removed case may still be inconvenient, but not “wrong” as a matter of venue.

After removal, any party may seek transfer under § 1404(a) (convenience transfer). In rare situations, § 1406(a) may be relevant if the state court itself in which the action was filed was not located in the federal district that included the proper county under state venue law, but the MBE almost never tests such fine-grained state venue issues.

Common exam traps:

• A plaintiff who originally chose state court can never remove; only defendants may remove.
• You do not reapply § 1391 after removal to decide whether the federal district is a proper venue; § 1441 controls.
• Removal does not waive the defendant’s ability to raise other Rule 12 defenses in the first federal response (lack of personal jurisdiction, insufficient process or service). It simply fixes the federal venue.

If the removed federal district is inconvenient, the correct remedy is a § 1404(a) motion to transfer, not a motion to dismiss for improper venue.

Specific Venue Statutes

Certain types of federal claims have specialized venue provisions. These statutes override § 1391 to the extent of any inconsistency.

Common examples you might see in an exam question (typically because the question quotes or paraphrases them):

• Patent actions – 28 U.S.C. § 1400(b) provides that a patent infringement action may be brought only in the judicial district:
  • Where the defendant resides (for corporations, generally the district of incorporation after the Supreme Court’s TC Heartland decision); or
  • Where the defendant has committed acts of infringement and has a regular and established place of business.
• Suits against federal officers or agencies – 28 U.S.C. § 1391(e) and other provisions allow suit in a district where:
  • The plaintiff resides,
  • A substantial part of the events occurred, or
  • The agency or officer resides.
• Federal Tort Claims Act suits – 28 U.S.C. § 1402(b) provides venue in:
  • The judicial district where the plaintiff resides, or
  • The district where the act or omission occurred.
• Securities and other regulatory statutes – Some federal question statutes have their own venue rules, often allowing suit where the violation occurred or where the defendant is found or transacts business.

On the MBE:

• If a question explicitly sets out a specific venue statute, apply that statute first.
• Use § 1391 to fill gaps only if the specific statute does not speak to the issue.
• Do not assume that plaintiff’s residence is automatically relevant unless the quoted statute clearly makes it so.

Carefully reading the statutory language in the problem is important; bar questions frequently turn on a single phrase such as “where the cause of action arose” or “where the unlawful employment practice is alleged to have been committed.”

Venue in Special Situations

A few additional patterns occasionally appear:

• U.S. citizen domiciled abroad as the only defendant: § 1391(b)(1) is unavailable (they reside in no state), so venue must be based on (b)(2) or, if there is no substantial U.S. connection, (b)(3).
• Mixed U.S. and foreign defendants: Ignore the foreign defendant when deciding whether all defendants “reside in the same state” under (b)(1). Determine which districts are proper for the U.S. defendants, then note that the foreign defendant can be joined in any district that is proper for the domestic defendants.
• Property-focused actions: For disputes that are truly about real property (for example, actions to quiet title or enforce a lien), the district where the land lies will almost always satisfy § 1391(b)(2) because a substantial part of the property that is the subject of the action is located there.

Multi-District States and Venue

In states with more than one federal district (e.g., California, New York, Texas), you must be especially careful:

• Ask in which specific district a defendant resides for venue purposes.
• Remember that for entity defendants, you treat each district as if it were a separate state when applying personal jurisdiction to decide residency.
• If two corporate defendants both do business throughout a multi-district state and the claim relates to that business, each may reside in multiple districts, giving the plaintiff multiple proper venues under § 1391(b)(1).

Worked Example 1.1

Plaintiff (domiciled in the Southern District of Florida) sues Defendant 1 (domiciled in the Northern District of California) and Defendant 2 (domiciled in the Central District of California) in federal court based on diversity jurisdiction. The claim arose from a single car accident that occurred entirely within the Eastern District of California. Where is venue proper?

Answer:
Venue is proper in the Eastern District of California because a substantial part of the events giving rise to the claim occurred there (§ 1391(b)(2)). Venue is also proper in both the Northern and Central Districts of California under § 1391(b)(1). Although the defendants reside in different districts, they both reside in the same state (California). Therefore, venue is proper in any district within California where either defendant resides.

Worked Example 1.2

Plaintiff (citizen of Texas) sues Defendant 1 (citizen of Texas) and Defendant 2 (citizen of Ohio) in federal court. The claim arises from an accident that occurred in Kansas, where neither defendant resides and where no one is domiciled. Neither defendant is subject to personal jurisdiction in Kansas. Where is venue proper?

Answer:
Section 1391(b)(1) cannot be used because not all defendants reside in the same state. Section 1391(b)(2) cannot be used because, although the accident occurred in Kansas, no defendant is subject to personal jurisdiction there, so no Kansas district is available. If there is no district where venue is proper under (b)(1) or (b)(2), the fallback in (b)(3) allows venue in any district in which any defendant is subject to personal jurisdiction with respect to the action. Thus, venue is proper in a district in Texas where Defendant 1 is subject to personal jurisdiction and in a district in Ohio where Defendant 2 is subject to personal jurisdiction.

Venue and Multiple Defendants – Practical Patterns

On exam questions involving multiple defendants:

• First, ask whether all defendants reside in the same state; if so, you may rely on § 1391(b)(1) and choose a district where any defendant resides.
• If not, look to § 1391(b)(2) and identify every district with a substantial connection to the events or property.
• Only if no district qualifies under either test do you fall back on (b)(3), focusing on personal jurisdiction over at least one defendant.

Additional patterns:

• If a non-U.S. defendant is involved:

  • Ignore the foreign defendant when deciding whether all defendants “reside in the same state” for § 1391(b)(1).
  • Recognize that the foreign defendant can be sued in any district; they cannot object that venue is improper.

• If there are multiple distinct transactions:

  • A district may be proper for claims arising from one transaction but not another.
  • Courts may sever and transfer particular claims, especially when fairness and convenience are improved by doing so.

On the MBE, you are not expected to know detailed severance practice under Rule 21, but you should recognize that a court can drop or sever parties or claims that are improperly venued while retaining others.

Worked Example 1.3

Plaintiff sues Defendant in the District of Nevada, alleging breach of contract. Defendant timely files a Rule 12(b)(6) motion to dismiss for failure to state a claim but does not mention venue. The motion is denied. Defendant then files an answer asserting, for the first time, that venue is improper. Plaintiff moves to strike the venue defense as waived. How should the court rule?

Answer:
The court should grant the motion to strike. Improper venue is a Rule 12(b)(3) defense that must be raised in the first Rule 12 response (either in a pre-answer motion or in the answer if no pre-answer motion is made). Because Defendant filed a pre-answer motion under Rule 12(b)(6) and omitted the venue objection, the venue defense is waived under Rule 12(h)(1).

If, instead, the defendant had answered first (without filing a pre-answer motion) and had included a venue objection in that answer, the defense would be preserved.

Challenging Venue

Improper venue is a defense that must be raised by the defendant in a timely manner.

• It is raised by motion under Rule 12(b)(3) or in the answer.
• Under Rule 12(h)(1) and 12(g)(2), improper venue, lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process are waived if not included in the defendant’s first Rule 12 response (either a pre-answer motion or the answer, whichever is served first).

Consequences:

• A defendant who files a pre-answer motion to dismiss under Rule 12(b)(6) (failure to state a claim) but omits improper venue cannot later raise venue in the answer; the defense is waived.
• A defendant who answers without filing any pre-answer motion must include any venue objection in that answer or it is waived.
• Once waived, the objection cannot be revived simply because the plaintiff amends the complaint or adds new claims, unless the amendment itself creates a new venue problem that did not exist before.

Unlike subject matter jurisdiction, which courts must police on their own initiative, venue is primarily a personal defense. A federal court is permitted but not required to raise improper venue sua sponte. In practice, courts rarely do so unless the venue defect is blatant and dismissal or transfer would clearly serve the interests of justice.

If there are multiple defendants, each must assert and preserve venue objections individually. One defendant’s waiver does not waive venue for others, although severing claims against different defendants may complicate case management.

Exam Tip on Waiver

On the MBE, you will often see a defendant file an initial motion or answer that omits one of the “disfavored” defenses (personal jurisdiction, venue, service, process). Once a party makes a Rule 12 motion but omits a Rule 12(b)(2)–(5) defense, that defense is waived.

• If the defendant’s first Rule 12 response is a pre-answer motion, all available Rule 12(b)(2)–(5) defenses must be consolidated in that motion.
• If the defendant’s first Rule 12 response is an answer (i.e., no pre-answer motion is filed), the answer must include any venue objection.

Do not confuse waiver with estoppel or consent. A contractual forum selection clause may itself waive objections to venue or personal jurisdiction if it is valid and enforceable, but waiver by litigation conduct arises from the defendant’s procedural choices under Rule 12.

Venue Objections in Removed Cases

After removal:

• The removing defendant may still raise personal jurisdiction and insufficient service defenses in the first federal response.
• There is no objection for “improper venue” in the sense of § 1391; venue in the federal court that includes the state court is fixed by § 1441 and considered proper.
• If the removed federal district is inconvenient, the remedy is a § 1404(a) motion to transfer for convenience, not a Rule 12(b)(3) motion to dismiss.

Failing to appreciate this distinction is a common test trap. An answer suggesting dismissal of a removed case for “improper venue” is almost certainly wrong unless the issue is that the state court itself was an improper venue under state law, and the question is explicitly about remand.

Worked Example 1.4

Plaintiff, a citizen of State A, sues Defendant, a citizen of State B, in the federal district court for State A. The suit arises out of an accident that occurred in State B, and Defendant has no contacts with State A. Venue is also improper in State A because no defendant resides there and no substantial part of the events occurred there. Defendant moves to dismiss for lack of personal jurisdiction and improper venue. What are the court’s options?

Answer:
The court lacks personal jurisdiction over Defendant and venue is improper. Under § 1406(a), the court may dismiss or, in the interest of justice, transfer to a district in State B where Defendant resides and where the accident occurred. The court may also rely on § 1631 to transfer the case to a federal district in State B to cure the lack of jurisdiction. Transfer is favored if dismissal might cause a limitations problem.

Transfer of Venue

Even if an action is filed in a district where venue is proper, or if venue is improper, the case may be transferred to another federal district court.

Two main statutes govern transfer:

• 28 U.S.C. § 1404(a) – transfer for convenience when the original venue is proper.
• 28 U.S.C. § 1406(a) – transfer or dismissal when the original venue is improper.

Additionally, 28 U.S.C. § 1631 allows transfer to cure lack of jurisdiction (usually personal or subject matter jurisdiction), which can overlap with venue issues.

Key Term: Transfer of Venue
Transfer of venue is the statutory mechanism, primarily under 28 U.S.C. §§ 1404, 1406, and 1631, by which a civil action is moved from one federal district court or division to another within the federal judicial system.

Transfers always occur within the federal system: from one district court (or division) to another district court (or division). A federal court cannot “transfer” a case to a state court or foreign court; in those situations, the only option is dismissal (often under forum non conveniens).

Transfer can be requested by any party and may also be ordered by the court on its own motion, so long as the statutory conditions are satisfied.

Transfer When Original Venue Is Proper – § 1404(a)

Under 28 U.S.C. § 1404(a), if the original venue is proper, the court may nonetheless transfer the case “for the convenience of parties and witnesses, in the interest of justice” to:

• Any other district or division where the action “might have been brought” (meaning a district that would have had subject matter jurisdiction, personal jurisdiction over the defendant(s), and proper venue at the time the case was filed); or
• Any district or division to which all parties have consented.

This is a discretionary decision. The moving party (usually the defendant) bears the burden of showing that the transferee district is clearly more convenient.

Private Interest Factors

Courts typically consider:

• Convenience of the parties (e.g., travel burdens, location of counsel).
• Convenience of witnesses, especially non-party witnesses whose attendance may depend on subpoena power.
• Location of relevant documents and physical evidence (less critical with modern electronic discovery, but still relevant in some contexts).
• Availability of compulsory process to secure the attendance of unwilling witnesses.
• Practical problems affecting access to proof, the possibility of viewing the premises, and the cost and efficiency of trial.

Public Interest Factors

Public interests include:

• The local interest in having localized controversies decided at home.
• The forum’s familiarity with the governing substantive law (state or federal).
• Court congestion and the relative speed to trial in the competing districts.
• Avoiding unnecessary conflict-of-laws or choice-of-law problems.
• Avoiding imposing jury duty on a community with little relation to the litigation.

Courts give substantial deference to the plaintiff’s choice of forum, especially when:

• The plaintiff resides in the chosen forum; and
• The events giving rise to the claim occurred there.

That deference is reduced when:

• The chosen forum has little connection to the dispute; or
• The plaintiff is foreign; or
• The parties have agreed to a valid forum selection clause choosing a different forum.

On the MBE, an answer that uses § 1404(a) to transfer from a district where venue is clearly improper under § 1391 is incorrect; that situation instead implicates § 1406(a).

“Might Have Been Brought” Requirement

Absent consent by all parties, the transferee court must be one in which, at the time the action was filed:

• Subject matter jurisdiction existed;
• The defendants were subject to personal jurisdiction; and
• Venue would have been proper under § 1391 or a specific venue statute.

The parties cannot use § 1404(a) to transfer a case to a district that lacked personal jurisdiction or proper venue at the outset, unless every party consents to that transfer.

Forum Selection Clauses and § 1404(a) – Atlantic Marine

Forum selection clauses are contract provisions specifying the forum in which disputes must or may be litigated.

In Atlantic Marine Construction Co. v. U.S. District Court, the Supreme Court held that:

• A valid, mandatory forum selection clause pointing to another federal district should ordinarily be enforced through a § 1404(a) transfer.

• When such a clause exists:

  • The plaintiff’s choice of forum receives no weight, because the plaintiff has already agreed to litigate elsewhere.
  • The party opposing the clause bears the burden of showing that public-interest factors overwhelmingly disfavor transfer.
  • Private-interest factors (convenience of parties and witnesses) are presumed to favor the selected forum.

• When transfer is based on a forum selection clause, the transferee court applies its own choice-of-law rules, not the transferor’s, which is the opposite of the usual rule for § 1404(a) transfers.

If the clause points to a state or foreign court, transfer is not possible; enforcement then occurs through dismissal under forum non conveniens (discussed below).

A forum selection clause may be deemed invalid if it was procured by fraud, if enforcement would effectively deprive a party of their day in court, or if enforcement would contravene a strong public policy of the forum. On the MBE, however, you can typically assume that a clearly stated forum selection clause is valid unless the question tells you otherwise.

Worked Example 1.5

Plaintiff, a citizen of State X, sues Corporation (incorporated in State Y, principal place of business in State Z) in the federal district court for State X. The claim arises from a defective product that injured Plaintiff in State X. Corporation conducts substantial business in State X, and venue is proper there. Corporation moves to transfer the case to State Z, where its headquarters, engineers, and key witnesses are located. How should the court analyze the motion?

Answer:
Venue in State X is proper under § 1391(b)(2) because a substantial part of the events giving rise to the claim (the injury) occurred there, and likely also under § 1391(b)(1) because Corporation is subject to personal jurisdiction there and therefore “resides” there for venue purposes. The transfer request therefore falls under § 1404(a) (proper but inconvenient venue), not § 1406(a). The court will weigh private and public interest factors: the location of Corporation’s engineers and records in State Z, the convenience of Plaintiff and any local medical witnesses in State X, the local interest of State X in injuries to its residents, court congestion, and familiarity with governing law. The plaintiff’s choice of forum is entitled to substantial deference, so unless the balance strongly favors State Z, the court is likely to deny transfer.

Transfer When Original Venue Is Improper – § 1406(a)

Under 28 U.S.C. § 1406(a), if the case is filed in a district where venue is not proper under § 1391 or another applicable venue statute, the court must either:

• Dismiss the case; or
• Transfer it to any district or division in which it could have been brought, if transfer is “in the interest of justice.”

Key points:

• Transfer is generally favored over dismissal, especially where dismissal might cause the claim to be time-barred by the statute of limitations.
• A court may use § 1406(a) even if it lacks personal jurisdiction over the defendant, so long as another federal district would have personal jurisdiction and proper venue.
• The transferee court must be one in which the action could have been brought when filed (subject matter jurisdiction, personal jurisdiction, and venue).

On the MBE, when the plaintiff has clearly chosen an improper venue and the statute of limitations is close or has run, the “interest of justice” strongly supports transfer rather than dismissal.

Transfer to Cure Lack of Jurisdiction – § 1631

Section 1631 allows a federal court that finds a want of jurisdiction (usually personal or subject matter jurisdiction, not venue) to transfer the action to another federal court in which the action could have been brought, if transfer is in the interest of justice. The action then proceeds as if it had been filed in the transferee court on the date it was originally filed in the transferor court.

On the MBE, remember:

• § 1406(a) deals with improper venue.
• § 1631 deals with lack of jurisdiction.
• Both can be used to avoid dismissal and preserve claims that might otherwise be time-barred.

A court sometimes cites both § 1406(a) and § 1631 when it lacks both personal jurisdiction and proper venue, but the precise statutory label is less important for the exam than the idea that transfer is preferred to dismissal when limitations are a concern.

Choice of Law After Transfer

The effect of transfer on the applicable law is another frequent exam target, especially in diversity cases.

• Transfer under § 1404(a) (original venue proper):

  • The transferee court must apply the choice-of-law rules of the transferor court, as if the case had remained in the transferor court. [Van Dusen v. Barrack; Ferens v. John Deere Co.]
  • This rule prevents defendants from using § 1404(a) to obtain a more favorable substantive state law by moving the case to a different state’s federal court.
  • Exception: When transfer is ordered to enforce a valid forum selection clause (Atlantic Marine), the transferee applies its own choice-of-law rules, because the plaintiff effectively chose that forum in advance.

• Transfer under § 1406(a) (original venue improper) or § 1631 (lack of jurisdiction):

  • The transferee court applies its own choice-of-law rules.
  • The rationale is that the original court was not a proper place to litigate at all, so there is no reason to carry its state’s conflicts rules into the proper forum.

From an exam standpoint, a quick heuristic is:

• Proper but inconvenient → § 1404(a) → transferee applies transferor’s state law (including conflicts rules), except in forum-clause cases.
• Improper venue or lack of jurisdiction → § 1406(a) or § 1631 → transferee applies its own state law.

Worked Example 1.6

A contract between a New York software company and a Texas hospital contains a clause stating: “Any dispute shall be litigated exclusively in the federal courts of the Northern District of Texas.” The hospital sues the company in the Southern District of New York (SDNY), a district that has personal jurisdiction and proper venue under § 1391(b)(2). The company moves to transfer to the Northern District of Texas based on the forum selection clause. How should the court proceed?

Answer:
Venue in SDNY is proper, so § 1404(a) applies. The forum selection clause is mandatory and points to another federal district. Under Atlantic Marine, the court should give no weight to the plaintiff’s choice of SDNY and should treat all private-interest factors as favoring the Northern District of Texas. Only public-interest factors can justify denial of transfer, and such cases are rare. Unless there is an extraordinary public-interest reason to keep the case in SDNY, the court should grant the motion and transfer to the Northern District of Texas. The transferee court will then apply its own choice-of-law rules.

Forum Non Conveniens

Forum non conveniens (FNC) is a common law doctrine that allows a federal court to dismiss an action—even if venue, subject matter jurisdiction, and personal jurisdiction are proper—if it finds that the court is a seriously inconvenient forum and that an adequate alternative forum exists elsewhere in which the action should be heard.

Key Term: Forum Non Conveniens
Forum non conveniens is a discretionary doctrine under which a court with jurisdiction and proper venue may decline to exercise that power and dismiss the case when a foreign or state forum is substantially more convenient and appropriate, provided that an adequate alternative forum is available.

Applicability

The key structural point is that if the more convenient forum is another federal district court, the federal judge should transfer the case under § 1404(a) rather than dismiss it. Dismissal under FNC is not appropriate when § 1404(a) transfer is available.

Forum non conveniens dismissal is appropriate only when the alternative forum lies outside the federal system, such as:

• A state court; or
• A foreign court (or comparable foreign tribunal, including some arbitral forums).

Thus, FNC and § 1404(a) perform similar functions (channeling cases to appropriate forums) but in different domains:

• § 1404(a): transfers within the federal system.
• FNC: dismisses in favor of non-federal forums.

On the MBE, if an answer suggests forum non conveniens to move a case from one federal district to another, you should reject it in favor of an answer discussing § 1404(a).

Adequate Alternative Forum

An alternative forum is generally considered “adequate” if:

• The defendant is amenable to service of process there; and
• The forum offers some remedy for the type of dispute at issue, even if the remedy is less generous than U.S. law.

A forum is not considered inadequate merely because:

• The substantive law is less favorable to the plaintiff; or
• Damage awards are lower; or
• Discovery or procedural mechanisms are more limited.

However, a forum might be inadequate if:

• The plaintiff has effectively no realistic chance of obtaining relief (for example, if the claim is time-barred under foreign law and the defendant is unwilling to waive that defense); or
• The judiciary is corrupt or the procedures are fundamentally unfair.

To ensure that the alternative forum is genuinely available and adequate, a defendant seeking FNC dismissal often agrees to:

• Submit to jurisdiction in the alternative forum;
• Accept service of process there; and
• Waive any statute of limitations defense that became available after the U.S. filing.

On the exam, facts describing such stipulations by the defendant are a strong signal that the alternative forum is adequate and available.

Private and Public Interest Factors

Courts balance private and public interest factors similar to those considered in § 1404(a) analyses, but the standard is often framed in terms of whether the plaintiff’s chosen forum is so inconvenient as to be “oppressive and vexatious” to the defendant, out of proportion to the plaintiff’s convenience.

• Private interest factors:

  • Ease of access to sources of proof (documents, physical evidence).
  • Availability of compulsory process for unwilling witnesses.
  • Cost of obtaining attendance of willing witnesses.
  • Possibility of viewing the premises, if relevant.
  • Practical problems affecting the ease, expeditiousness, and expense of trial.

• Public interest factors:

  • Administrative difficulties and court congestion.
  • Local interest in having localized controversies decided at home.
  • Avoiding imposing jury duty on a community with little relation to the litigation.
  • Choice-of-law considerations and the forum’s familiarity with the governing law.
  • Avoiding unnecessary problems in conflict of laws or application of foreign law.

There is a strong presumption in favor of the plaintiff’s choice of forum, especially when the plaintiff is a U.S. resident suing at home. That presumption is weaker when:

• The plaintiff is foreign; or
• The chosen forum has only a slight connection to the dispute.

Forum Non Conveniens vs. Transfer – Key Distinctions

• Result:
  • FNC leads to dismissal. The plaintiff must refile in the alternative forum.
  • § 1404(a) leads to transfer. The case continues without refiling.
• Domain:
  • FNC is used when a more appropriate forum is foreign or state.
  • § 1404(a) is used for transfers between federal district courts.
• Standard:
  • Both involve similar convenience and public interest factors, but FNC usually requires a stronger showing because dismissal is a more drastic remedy.
• Appellate review:
  • Both are reviewed under an “abuse of discretion” standard, but the deference to trial courts is particularly strong in FNC decisions.

Worked Example 1.7

A citizen of France sues a Delaware corporation (principal place of business in New York) in the Southern District of New York (SDNY) for injuries sustained in a factory accident in Brazil. All witnesses to the accident and all relevant physical evidence are located in Brazil. Brazilian law will apply. Defendant moves to dismiss based on forum non conveniens, stipulating it will submit to jurisdiction in Brazil and waive any statute of limitations defense there. Should the SDNY court likely grant the motion?

Answer:
Yes. Venue and jurisdiction are proper in SDNY, but Brazil appears to be a far more convenient and adequate forum. The private interest factors (location of witnesses and physical evidence) strongly favor Brazil. The public interest factors (local interest, application of Brazilian law, and avoiding overburdening a New York jury with a dispute centered in Brazil) also favor Brazil. Because the alternative forum is foreign, dismissal under forum non conveniens, conditioned on the defendant’s stipulations, is appropriate.

Worked Example 1.8

A U.S. citizen domiciled in California is injured in a bus accident in Country X, allegedly caused by the negligence of Country X’s state-owned bus company. All eyewitnesses, bus maintenance records, and investigating officers are in Country X. The plaintiff sues the bus company in the Central District of California, where the bus company conducts some business and is subject to personal jurisdiction. Country X’s courts recognize tort claims of this kind but cap damages far below what U.S. law would allow. The bus company moves to dismiss on forum non conveniens grounds, agreeing to submit to jurisdiction in Country X and waive any limitations defenses. How should the court analyze the motion?

Answer:
The plaintiff’s choice of a U.S. forum as a U.S. resident is entitled to significant deference. The court must balance private and public interest factors. Private factors (location of witnesses and evidence in Country X) favor dismissal, while the convenience to the plaintiff favors retaining the case. Public factors (local interest in Country X, application of Country X’s law, potential need to translate documents and testimony) also favor dismissal. The mere fact that Country X caps damages at a lower level does not make it an inadequate forum. Given the strong connections to Country X and the defendant’s agreement to litigate there, the court may well grant the FNC dismissal despite the plaintiff’s home forum choice, but it must carefully weigh the strong presumption in favor of that choice.

Interplay of Venue, Transfer, and Forum Non Conveniens on the Exam

Many bar questions present a sequence of possible issues. A sensible exam plan is:

• First, identify whether the original federal district is a proper venue under § 1391.
• If venue is proper but there is a more convenient federal forum, analyze § 1404(a).
• If venue is improper, analyze dismissal or transfer under § 1406(a), and consider § 1631 if the court also lacks jurisdiction.
• If venue is proper but the best forum is a state or foreign court, analyze forum non conveniens.
• Always keep waiver in mind: a defendant who fails to raise improper venue in the first Rule 12 response cannot later get dismissal or transfer on that ground.

Being explicit about these steps helps you distinguish among similar-sounding doctrines in answer choices.

Worked Example 1.9

Plaintiff (a U.S. citizen domiciled in Germany) sues Corp A (incorporated and headquartered in Illinois) and Corp B (incorporated and headquartered in Texas) in federal court. The suit alleges a defective machine designed in Illinois, manufactured in Mexico, and installed at Plaintiff’s workplace in Germany, where the accident occurred. Corp A’s engineers worked in the Northern District of Illinois; Corp B never had operations in Illinois. Where is venue proper?

Answer:
Plaintiff is a U.S. citizen domiciled abroad and therefore “resides” in no state for venue. Section 1391(b)(1) is unavailable because not all defendants reside in the same state. Under § 1391(b)(2), the operative events in the U.S. are primarily the design work in the Northern District of Illinois; that district has a substantial connection to the claim. The manufacturing and injury abroad do not create any U.S. district with more substantial events. If the question limits you to U.S. districts, venue is therefore proper in the Northern District of Illinois under § 1391(b)(2), and also in any district in Texas where Corp B is subject to personal jurisdiction under § 1391(b)(3) if no district were available under (b)(2). Because the design work is a substantial part of the events, (b)(2) applies, and the fallback (b)(3) is not needed.

Additional Transfer Example – Distinguishing § 1404 and § 1406

On the MBE, a common trap is to misidentify a § 1404(a) transfer when venue is actually improper, or vice versa. Always:

• Apply § 1391 to determine if the original district is a proper venue.
• If yes, think § 1404(a); if no, think § 1406(a) or § 1631.
• Ask whether the transferee court is one where the action could have been brought originally.

Worked Example 1.10

A Canadian tourist is injured in a skiing accident at a resort in Colorado, allegedly due to a defective ski binding designed and manufactured by a French company in France. The tourist sues the French manufacturer in the District of Colorado, invoking diversity jurisdiction. The company has no offices in Colorado but distributes its products in the United States through a U.S. subsidiary; the court finds specific personal jurisdiction based on sale of the bindings in Colorado. The defendant moves to dismiss for forum non conveniens, arguing that France is a more convenient forum. How should the court analyze the motion?

Answer:
Venue and personal jurisdiction are proper in the District of Colorado. Because the alternative forum (France) is foreign, transfer under § 1404(a) is unavailable; the only mechanism is forum non conveniens. The court must first determine that France is an adequate alternative forum (the defendant is amenable to suit there and French law provides some remedy). It then weighs private and public interest factors. Most witnesses and evidence regarding design and manufacture are in France, but medical witnesses and accident-scene evidence may be in Colorado. Public factors include Colorado’s interest in product safety for skiers and France’s interest in regulating its manufacturers. Because the plaintiff is foreign, the plaintiff’s choice of a U.S. forum receives reduced deference. The court could reasonably conclude that France is significantly more convenient overall and grant a conditional FNC dismissal (conditioning it on the defendant’s submission to French jurisdiction and waiver of limitations defenses).

Key Point Checklist

This article has covered the following key knowledge points:

• Venue refers to the proper federal district within the court system and is distinct from subject matter and personal jurisdiction.
• The general venue statute (§ 1391) bases venue primarily on defendant residency or the location of events/omissions or property giving rise to the claim.
• Residency for venue purposes:
  • Individuals reside where they are domiciled (in a specific district).
  • Corporate and entity defendants reside in any district where they are subject to personal jurisdiction for the action; as plaintiffs, they reside only in the district of their principal place of business.
  • Non-U.S. residents may be sued in any district, and their presence is disregarded when determining venue as to other defendants.
  • U.S. citizens domiciled abroad are residents of no state for venue; § 1391(b)(1) cannot be used for them.
• When all defendants reside in the same state, venue is proper in any district in that state where any defendant resides.
• Venue is also proper in any district where a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the subject property is located; multiple districts may satisfy this standard.
• The fallback venue provision in § 1391(b)(3) applies only if no district qualifies under the residency or substantial-events provisions.
• Venue is evaluated at the time the action is filed and is determined claim by claim; a district may be proper for some claims and not others.
• In removed cases, venue is automatically proper in the federal district court that includes the state court from which the case was removed, under 28 U.S.C. § 1441(a), and § 1391 is not re-applied after removal.
• Specific venue statutes for certain federal claims (such as patents, FTCA, or certain suits against federal officers) can override § 1391 and must be applied when they exist.
• Venue objections are waived if not timely raised in the defendant’s first Rule 12 response (pre-answer motion or answer) under Rule 12(h)(1) and must be consolidated with other Rule 12(b)(2)–(5) defenses.
• Section 1404(a) allows transfer from a proper venue to another district where the action might have been brought, or to which all parties consent, based on convenience and the interest of justice. Private and public interest factors guide this discretionary decision, and the plaintiff’s choice of forum ordinarily receives substantial weight.
• A valid forum selection clause pointing to another federal district is typically enforced through a § 1404(a) transfer and significantly changes the transfer analysis, largely eliminating the weight of the plaintiff’s forum choice and changing which choice-of-law rules apply.
• Section 1406(a) allows dismissal or transfer from an improper venue to a proper one, with transfer favored when dismissal may cause prejudice, such as loss of claims to limitations periods.
• Section 1631 permits transfer to cure lack of jurisdiction (often personal jurisdiction), with the action treated as filed in the transferee court on the original filing date.
• After a § 1404(a) transfer from a proper venue, the transferee court ordinarily applies the transferor court’s choice-of-law rules (Van Dusen/Ferens); after transfer under § 1406(a) or § 1631, the transferee’s choice-of-law rules apply.
• Forum non conveniens allows dismissal (rather than transfer) when another adequate and more convenient forum exists outside the federal system (typically a foreign or state court), and transfer within the federal system is unavailable.
• Courts assessing forum non conveniens balance private and public interest factors, apply a presumption in favor of the plaintiff’s chosen forum (especially when the plaintiff is domestic), and often condition dismissal on the defendant’s submission to the jurisdiction of the alternative forum and waiver of certain defenses.
• When analyzing venue and related issues on the MBE, you should first determine whether venue is proper under § 1391, then consider whether transfer (§ 1404 or § 1406) or forum non conveniens dismissal is appropriate, always keeping waiver rules in mind and distinguishing venue from subject matter and personal jurisdiction.

Key Terms and Concepts

• Venue
• Transfer of Venue
• Forum Non Conveniens