Civil Procedure Class Notes 10/1/03


We finished up last time with Dee-K as a case.  The main thing we got out of it was the fact that different provisions of the venue statutes may apply to different defendants.


Why venue?


Why do we have venue?  Stevie Y. thinks this is a good question.  What’s the need to have a separate statute that just seems to mirror personal jurisdiction?  It helps select where a case can be properly brought.  Isn’t that precisely what personal jurisdiction does?


Fairman says we do it because it’s the law!  “There’s a statute, so we have to follow it.”


But Yeazell has a point: if we eliminated venue altogether, we wouldn’t have too many problems since personal jurisdiction is pretty well-developed.


Where does venue fit into our decision tree of jurisdiction?  What about notice and forum non conveniens?  Are they preliminary matters, or matters to be determined after the jurisdictional analysis?  Fairman says that it doesn’t matter much.


He says that venue will almost always come after jurisdiction because no jurisdiction usually means no venue either.  In other words, the venue test often collapses into the tests for personal jurisdiction.


What about notice?  There is constitutional notice, but there are also state and federal service rules.


Piper Aircraft v. Reyno


What’s the factual background?  “This is a superb case to end this unit on because it’s absolutely chock-full of neat stuff related to procedure.”


A plane full of Scots crash in Scotland and they die.  The plane and its parts were manufactured in the United States.  The pilot was British or Scottish.  The wreckage of the plane is in Scotland.


What other companies were involved?  There are some companies in Scotland involved too.


We start out in California.  Apparently, under California law, anyone can be the administrator or administratrix of the estates of the dead people.  That’s how Reyno gets involved.  She first sues in the Superior Court of California.  Why in the world would we have a case like this litigated in California?


Why is the United States a good place for the plaintiffs to sue?  Why is California the best in particular?  It’s the place with the laws that are the most favorable to the plaintiffs.


Is there any connection to the United States other than the manufacturer and parts supplier?  No way!  Everything else about this case is Scottish or British.


This is a classic case of forum shopping!  The plaintiffs’ attorneys specialize in looking for plane crashes all over the world and litigating them in the United States.  Probably this law firm went over to Scotland to solicit the business of the decedents.  These aren’t just ambulance-chasers, they’re airborne ambulance chasers!


A catalog of strategic maneuvers


The defense lawyers make three brilliant procedural moves:


1.     The defendants removed the case from state court to federal court under 28 U.S.C. §§ 1441-52.  Removal is something the defendants do when the claim is something over which federal courts would have original jurisdiction.  Why did the plaintiffs file this lawsuit in state court instead of federal court?  We know that the plaintiffs are forum shopping.  But both courts will apply the same law.  What is so great about state court?  In World-Wide, the composition of the Oklahoma jury pool was more desirable than that in New York.  What element of law does matter?  If you file it in state court, it can’t get transferred to a court in another state.  If the case stays in state court, it gets stuck in state court.  It might be dismissed under California’s version of forum non conveniens, but it can’t be transferred.  However, procedure doesn’t always allow plaintiffs who choose venue to keep that choice.[1]

2.     The defendants won a transfer from federal district court in California to district court in Pennsylvania under 28 U.S.C. § 1404(a).  There is broad authority for a federal district court to move a case to another other district where the case could have been brought.

3.     The defendants move for dismissal based on forum non conveniens under 28 U.S.C. § 1406.  They win!  The case goes to Scotland.


The case started in California state court.  It was removed to California federal court.  Then it was transferred to Pennsylvania federal court.  Finally, it was dismissed, but that dismissal was reversed by the Third Circuit.  Then the Supreme Court reverses again and let the case go to Scotland.  The victory of the defense at the trial court level is vindicated and the case is indeed dismissed on the basis of forum non conveniens.


So this is procedurally complicated!  It’s exciting!


What did the Third Circuit do wrong, according to the Supreme Court?  The Third Circuit reversed on the ground that the law would be less favorable to the plaintiffs in Scotland than in the United States.


Marshall says that you can’t weigh “change of law” that heavily.  He says that it can be an element, but it’s not the end of the story.


Marshall says, therefore, that you can argue for a more convenient forum even when that forum would have law that is less favorable to the plaintiff.


The Gilbert balancing test


This is the black letter law of forum non conveniens.  It weighs “private” and “public” factors.


The private factors are:


1.     Relative ease of access to proof

2.     Availability of witness subpoenas

3.     Cost of getting witnesses

4.     Possibility of view of premises if called for


The public factors are:


1.     Court congestion

2.     Local interest in having local controversies decided at “home”

3.     Forum familiarity with substantive law

4.     Unfairness of burdening citizens with jury duty for case unrelated to forum


This is similar to the “five factor” test for “fair play” that comes out of World-Wide.  Notice that Gilbert is a really old case.  It’s from 1947.


Next time, we’ll start talking about the choice of law issue.  Keep mentally in touch with Piper.


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[1] Notice that the defendants did not challenge jurisdiction at this point, or really at any other point.