Ignoring venue could lead to the waiver of arguments, the wrong choice of law, or, in rare circumstances, the dismissal of the case. This post provides guidelines on how best to determine proper venue when litigation looms.

First, what is venue? Proper venue is simplistically defined as the correct location for a lawsuit to proceed.[2] While due process concerns may arise related to venue, venue is largely a creature of statute.[3] Venue, unlike jurisdiction, does not relate to a court’s power to hear a particular case. Instead, it relates to where that power may be properly exercised.[4]

Second, what makes a given venue the proper place? This question becomes somewhat trickier. A proper venue must have a connection to the facts of the lawsuit or the defendants.

When filing a lawsuit, a plaintiff may bring suit in:

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;

(2) a judicial district in which 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

(3) 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 with respect to such action.[5]

As long as the venue selection satisfies one of these three requirements, courts generally defer to the plaintiff’s choice of where to bring their case.[6]

To satisfy option one, a plaintiff must prove their case meets the residency requirement. Courts have defined residency according to the same standards used to satisfy the diversity of citizenship requirement in federal diversity cases.[7] In other words, residency works the same as domicile. So, if any defendant resides in a district for purposes of diversity of citizenship, venue would be proper in that state (though you would still need to determine the proper district based on that defendant’s address).

For option two, the test relating to “a substantial part of the events” is a bit flimsier, and the finer points can be argued if you want to keep your case in a specific venue. For example, in Jalloh v. Underwood,[8] a plaintiff brought a claim in the District of Columbia district court against Maryland officers for Fourth Amendment violations based on excessive force during a traffic stop and ensuing pursuit. The officers moved to dismiss or transfer the case for improper venue. All parties were Maryland residents, and the alleged excessive force was exercised in Maryland. But it was enough for the D.C. district court that the initial pursuit of the plaintiff began in D.C. and the facts giving the police cause to follow the plaintiff occurred in D.C. as well. Thus, venue was proper even though the “most substantial” part of the events occurred elsewhere.

The third option is only available in situations where neither of the first two requirements can be satisfied.

When plaintiffs do not satisfy the venue requirements, even a contractual forum-selection clause will not make venue proper.[9] But, since the requirements are not jurisdictional, venue objections can also be waived if not timely raised.[10]

Establishing proper venue requires foresight. Even though a case will not always be dismissed if filed in an improper venue, litigation over where a case can proceed wastes time and resources without getting much in return. And all that effort and expense can be saved simply by working through the statutory requirements ahead of time.

[1] See, e.g., Jonas Anderson, Judge Shopping in the Eastern District of Texas, 48 Loyola Univ. L. Rev. 539 (2016); see also Steve Vladeck, The Growing Abuse of Single-Judge Divisions, https://stevevladeck.substack.com/p/18-shopping-for-judges.

[2] Venue, Black’s Law Dictionary (11th ed. 2019).

[3] 28 U.S.C. § 1391(b).

[4] Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 167–168 (1939).

[5] 28 U.S.C. § 1391(b).

[6] Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981) (“[T]here is ordinarily a strong presumption in favor of the plaintiff’s choice of forum, which may be overcome only when the private and public interest factors clearly point towards dismissal and trial in the alternative forum.”).

[7] See, e.g., Lee v. Hunt, 410 F. Supp. 329, 332 (M.D. La. 1976).

[8] 300 F. Supp. 3d 151 (D.D.C. 2018).

[9] See Atl. Marine Const. Co., Inc. v. U.S. Dist. Court for the W. Dist. of Tex., 571 U.S. 49, 57 (2013).

[10] Johnson v. Bryson, 851 F. Supp. 2d 688, 704 (S.D.N.Y. 2012)

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