Civ Pro Tuesday Forum Non Conveniens PDF

**CIV PRO TUESDAY FORUM NON CONVINIENS** And the federal judicial system is a single judicial system comprised of 94 federal district courts. So there are two situations where transfer is possible. One is where venue is proper in the transferor district. So proper in the transferor. And one is whe...

**CIV PRO TUESDAY FORUM NON CONVINIENS** And the federal judicial system is a single judicial system comprised of 94 federal district courts. So there are two situations where transfer is possible. One is where venue is proper in the transferor district. So proper in the transferor. And one is where venue is improper in the transferor district. So the original filed district is proper in one case and the original filed district is improper under the rules that you already know. And the rules you already know are 1441 for removed cases and 1391 for cases filed originally in the federal district. So let\'s look at 1404 and 1406. Mercifully, they are very short. 1404 is at the bottom of page 236. It says, for the convenience of parties and witnesses in the interest of justice, a district court may transfer, may, may, discretionary, may, doesn\'t have to, may transfer any civil action, the whole case will go, we don\'t split up cases, the whole civil action will go, to any other district where it might have been brought, that\'s where the statute used to end. Now, as you read, it has been amended to also say or to any district or division to which all parties have consented. So we\'ll come back to that. Let\'s go up to the top of the page. Actually, let\'s just go right to 1406. 1406A, the district court of a district in which has filed a case laying venue in the wrong division or district. Now, the first thing you should see is that could never, this statute could never apply in a removed situation. I mean, unless somebody removes it to the wrong district, right? In which case, you don\'t even need this statute. The case is going to get kicked on the grounds of basically, you know, improper removal, no removal jurisdiction. But the district court of a district which is, in which has filed a case laying venue in the wrong district shall dismiss or, if it be in the interest of justice, transfer. So transfer is on the face of the statutes possible under either of these situations. Both of them authorize transfer. 1406 authorizes dismissal. And we\'re going to see that Rule 12 of the Federal Rules of Civil Procedure also authorizes a motion to dismiss for improper venue. But usually when a defendant starts, tries to complain under Rule 12 and says, I want to move to dismiss for improper venue, the plaintiff will immediately squawk, well, don\'t dismiss it, transfer it, pursue it to your 1406 authority. And so, whether a defendant invokes 1406, 28 U.S. Code 1406, or Rule 12 of the Federal Rules of Civil Procedure in a motion to dismiss attempt in the case of an improper venue, there\'s still a possibility that it will get transferred instead of dismissed. And in fact, as you read, the usual situation is it gets transferred. The book says, when wouldn\'t it be in the interest of justice, right? It\'s kind of always in the interest of justice. Well, I don\'t know about that. I don\'t know if I agree with that. But I do agree that here\'s where it\'s definitely in the interest of justice. Suppose by the time that the case is dismissed under 1406 or Rule 12 of the Federal Rules of Civil Procedure, the statute of limitations has expired. The plaintiff can\'t refile the case somewhere else. The claim is dead. So clearly in that case, it would be in the interest of justice for the district court to keep the case alive and transfer it instead of dismissing it. So interest of justice transfers are quite common under 1406. Notice 1406, or it would be in the interest to transfer such case to where? To any district in which it could have been brought. The consent language is not present in 1406. So there is that difference I want to call your attention to. As I just indicated, venue transfers are usually requested by the defendant. It only makes sense the plaintiff chose a venue in the first place. Usually, not always. We saw Piper and Hertzel request a venue transfer in Piper. But usually when a plaintiff puts a case in some federal district court, naturally it\'s the defendant who\'s unhappy about it. The plaintiff chose the venue in the first place. Unless they\'re doing something strategic like Ferens. But usually the defendant is asking for venue transfer. But what you need to know is plaintiffs can ask for venue transfer, see Ferens, another great civil procedure case, and the court can on its own motion order a venue transfer. Because remember, part of this is about the convenience of witnesses and parties, but part of it is about the workload of the court, where the sort of center of gravity is. You read Judge Kent\'s decisions in the requested transfer from Galveston to Houston. And you read his refusal to move venue in that case. And then you read his grant of venue in the Bolivia case. Now, look, those excerpts are magical in their genius. I will have to tell you, Judge Kent, I believe he was ultimately impeached. He definitely got himself in big trouble because he was allegedly, and I think, I believe, proved to be engaged in significant misconduct with regard to his personal staff. So Judge Kent is not a model for us to emulate in any way. But he did write a zinger of a decision on venue transfer. So, okay. So it\'s usually requested by the defendant, but it can be requested by the plaintiff or the court on its own motion, venue transfers, whether under 1404 or 1406. So let\'s talk about our wonderful cases, Hoffman, Goldlauer, Van Dusen, and Klaxen, all of which are implicated in Piper. Awesome. All right, so Hoffman is about that where it might have been brought language in 1404, and then the lower courts have extended it to the could-have-been-brought language in 1406. Language is pretty simple. And so you saw that the issue now is what is a proper transferee district? Obviously, a district judge is not going to transfer a case to an improper venue. So the transferee district has to be a proper venue. And not only that, the Supreme Court in Hoffman said, the phrase where it might have been brought means that personal jurisdiction has to be proper in that transferee venue too over the defendant\'s without regard to whether the defendant is consenting to it or not. So a defendant, you know, that\'s what the language where it might have been brought means. It means that the consent of the defendant to personal jurisdiction and venue, and for that matter, the consent of the plaintiff, if the plaintiff is asking for venue transfer to a new venue, where it might have been brought means that venue and personal jurisdiction have to be proper in that transferee venue without regard to the consent of the parties. And so that is our rule for 1406, right, because the consent language does not appear in 1406. Our rule for 1406, for a 1406 transfer, and this is one of the areas where it makes a difference, right? You might think these statutes, gosh, I don\'t even see why we\'re talking about them both. They seem to be identical. No, they are not identical. This is one, this is a civil procedure danger zone. For a 1406 transfer where the original venue was improper, the transferee district has to be one where there is personal jurisdiction over the defendants and venue is proper under 1391 regardless of the consent of the parties. They cannot consent their way into the transferee venue for 1406. They can consent their way into a venue and transfer a proper transferee venue under 1404 because Congress in 2011, a lot changed in 2011, 2011 changed the statute and now it says, 1404 says, transfer any civil action to any other district where it might have been brought or to any district to which all parties have consented. I see. So, you can imagine the exam question. I\'ll give you an exam question. The first thing you\'ve got to figure out is whether the original venue is proper or not because you have to know whether it\'s a 1404 transfer or a 1406 transfer and then you have to know the difference between that rule. The exam question practically writes itself. Not really, none of them do. I wish. All right, so that\'s what it means. That\'s the Hoffman rule. Goldlauer, fascinating. It\'s a little mind-blowing. It\'s a little, you can hear like the needle scratch on the record with this one, right? Goldlauer says that a transferor court, the original court, can order a transfer, a venue transfer, and this is true for 1404 and 1406, even if it doesn\'t have personal jurisdiction over the defendants. And the reason that\'s inconsistent, right, you would think that in order for a court to order anything about a defendant, it would have to have personal jurisdiction over the defendant. Wrong. Goldlauer, as you read, as you already know, bottom of page 259, 1406, permits transfer of case in which a transferee is an improper venue. That\'s not right. It\'s the transferor is an improper venue. Suppose, however, the case is filed in a district in which not only venue is improper, but which also lacks personal jurisdiction. Can the court order transfer? That\'s how you know that\'s a typo in the book. Even though it lacks personal jurisdiction over the defendant, in Goldlauer in 1962, the court said yes. Allowing a transfer of such cases was consistent with the objective of removing whatever obstacles may impede an expedition\'s and orderly adjudication of cases and controversies on their merits. So the transferor court doesn\'t have to have personal jurisdiction over the defendant, but in a 1406 transfer, the transferee district does. We just talked about it. That\'s Hogwarts. Goldlauer, Hoffman, with regard to personal jurisdiction. Questions about that? Back up. Hoffman is the transferee district that has to have personal jurisdiction? In a 1406 transfer. And then the same transfer, the 1406, for the transferor, the transferor court does not have to have personal jurisdiction? Over the defendants, right. And that\'s true for 1404 too. For Goldlauer. For both cases? For Goldlauer. No. For the\... Goldlauer. Okay. Okay? And that rule has been extended to\... You can see that\'s the last sentence on page 239. 259, excuse me. Lower courts have extended the Goldlauer holding to transfers under 1404. All right. Van Dusen and Claxon. Claxon came first. So let\'s go back to the beginning. 1938, as we will study, Erie Railroad versus Tompkins is decided by the Supreme Court. That is the case that holds that a federal district court deciding a state law, claim, issue, or defense has to apply the law of the state in which it sits. That is the law. That is the Erie Doctrine. Maybe we\'ll even skip it. No, we won\'t skip it. Erie Railroad versus Tompkins is the Supreme Court case, 1938, that says that a federal district court that is adjudicating a federal law claim or a federal law defense or, for that matter, a federal law issue within a claim or defense. But we can just focus on claims or defenses. Has to apply the law of the state to that, because it\'s a state law defense. There\'s no federal law that applies in that situation. There\'s no federal law for the court to apply. It\'s a state law defense. It has to apply the law of the state in which it sits. That\'s the Erie Railroad case in 1938. Then comes Claxon. Claxon is 1941. So a mere three years later, Claxon is decided. And the Supreme Court in Claxon says, the Erie statement, including that state\'s choice of law, law. Right? It is Claxon that says that a federal court deciding a state law claim or defense has to apply the law, the state law, of the state in which that federal courthouse building sits, including, one might say, starting with, that state\'s choice of law rules. In other words, whatever law the state courts would apply. That\'s Claxon. You know about choice of law. I was reading a little summary of a case last night. I may or may not post it. I want to make sure it\'s not going to create more confusion. But the scenario was basically that there was a state law defamation claim brought. I think it was actually brought to state court, but we could put it in federal court for our purposes. And it was brought in Alabama. But right where the court begins is it says that Alabama state courts apply a choice of law rule in defamation cases that reaches out and applies the law where the injury occurred. That\'s their choice of law rule for defamation cases. That\'s the Alabama choice of law rule for defamation cases. The defamation here occurred, or is alleged to have occurred, if defamation occurred anywhere, it occurred in Mississippi. So the Alabama court applies its choice of law rule to invoke the Mississippi substantive law of defamation. In other words, what constitutes defamation? What makes somebody liable for defamation? It\'s governed by Mississippi law. And it\'s pulled in either to an Alabama court, where if that defamation claim is pending in Alabama, or pursuant to Erie and Claxon, the federal court sitting in Alabama would apply Alabama\'s choice of law rule, which might mean we\'re going to decide the defamation case based on Mississippi\'s defamation law. So that\'s Claxon. Van Dusen says, okay, what about when a case is transferred in the federal system, in a venue transfer? And here\'s the bottom line for what Van Dusen means. I mean, the role of Van Dusen is that a plaintiff who chose in the first place a proper venue, where venue was proper under 1391, and that transferor court had personal jurisdiction over the defendants. So the notion is that the plaintiff has done everything right. They picked a place that\'s proper under 1391 for venue purposes, and that original transferor court, the court where they filed, had jurisdiction over the defendant or defendants. In that case only, does that plaintiff get to keep the benefit of the transferor state\'s law when the case gets transferred. She gets to keep the law she was bargaining for by choosing a proper venue that had personal jurisdiction over the defendant or defendants. In all other cases, the law of the transferee district applies. So if both personal jurisdiction and venue are improper, or if either one is improper, the law of the transferee district applies. And this is only an issue when we\'re talking about state law claims and defenses, because federal law claims are governed by federal law. And theoretically, there is only one federal law. We know there are circuit splits, but we\'re not\... Van Dusen has to do with state law. So the only time that the law of the state, the law that would have been applied in the transferor district, gets to travel with the case is when the\... I think of it in my head as when the plaintiff did everything right. But by that I mean, chose a district where venue was proper and there was personal jurisdiction over the defendants. In all other cases, the law that the state courts would have applied in the transferee district applies. That\'s Van Dusen. Brandon? That includes the choice of law. Yes, Claxon, always Claxon, yes. Always. The federal district court has to apply the law of the state in which it sits, starting with or including its choice of law rules. So whatever law the state court would have applied gets applied to the federal court. And of course, in a Van Dusen situation, or in a situation where\... I don\'t remember which way Van Dusen came out, but I know the rule from Van Dusen, right, which is that the transferor district\'s law gets applied in the transferee district if the plaintiff laid venue where venue was proper and where the court had personal jurisdiction over the defendants, then that transferee federal district court has to apply the law of the state where the transferor district court sat, including that state\'s choice of law rules. All right, so Ferens. Ferens is talked about on page 261. This is a masterful use of the tools in the civil procedure toolkit, masterful. So Ferens, plaintiff lost his right hand when it was caught in his John Deere harvester, accident occurred in Pennsylvania, which has a two-year statute of limitations in tort cases. After that period expired, the plaintiff brought suit against John Deere in federal court in Mississippi. At the time, John Deere was subject to general personal jurisdiction because it did continuous business there, right? That wouldn\'t be the case anymore under Goodyear, right? It\'s probably why, right again, it\'s probably again why Audi didn\'t object to personal jurisdiction on Worldwide Volkswagen. They thought they were generally amenable under the same kind of theory, right? I know that\'s all been kind of upended. All right, so it was too late to bring this claim in Pennsylvania. The claim was dead in Pennsylvania. So the plaintiff filed suit against John Deere where John Deere was amenable in Mississippi. The Mississippi statute of limitations was six years. If the case had been in Mississippi state court, Mississippi would have applied its statute of limitations to this case. Therefore, it was undisputed if the case were litigated in federal court in Mississippi, the federal court would apply the six-year limit. The case did not stay in Mississippi. The plaintiff, having laid venue in Mississippi, requested a 1404 transfer. Venue was proper. Requested a 1404 transfer and convinced the federal court that under the standard we\'re about to discuss, the case should be in Pennsylvania. But the court held that the federal court in Pennsylvania should apply the law that the federal court in Mississippi would have applied the Mississippi statute of limitations, thus the plaintiff had to take advantage of Mississippi law without having to litigate there. Because it shows Mississippi where, on the facts of the case, both venue and personal jurisdiction were proper. It gets to keep the law of the transferor district. It had to convince the court that venue transfer was appropriate under 1404. So it\'s a dramatic case. It shows skillful use of the tools of civil procedure. It shows the plaintiff making a request to transfer venue, even though the plaintiff chose the venue in the first place. It shows the effects of Van Dusen, and Hoffman, and Erie, and not Goldlauer. Because the court in Mississippi had personal jurisdiction over John Deere. Next. Going back to the Goldlauer case, where would venue be proper and there not be personal jurisdiction? We had somebody, Brandon, Evan, came to my office yesterday with an example. So I\'m going to let him roll that out for you. Okay. I was thinking the exact same question. So think of me going on vacation to California and picking up a product from a company that only sells the product in California, only advertises it in California. I come back to New York. It\'s defective. It blows up in my face. There would be personal jurisdiction in California for that product. Venue would be proper in California, and because a substantial part of the events, the product exploding in my face in New York, venue would be proper in New York, but personal jurisdiction would not because there\'s no directed contact from that. Yeah. No personal availment. Okay. And that\'s not the only example, but came in handy just then. I\'m not too sure. Do you want? I just had a question regarding that. What if the company was domiciled in Delaware and you brought up this suit in Delaware, what choice of law would they apply? Would it be New York or would it be California or would it be Delaware? I don\'t know. I don\'t know anything about Delaware\'s choice of law rules. So it would be based on Delaware\'s choice of law. Erie says that a federal court deciding a state law claim must apply the law of the state in which it sits. Even though it didn\'t occur in Delaware? Well, it\'s going to apply Delaware\'s choice of law rules, and I don\'t know anything about Delaware\'s choice of law rules. I don\'t know if they call in the law of the injury or they call in the law of where the product was designed or sold. It\'s a question of state, choice of law, law. We teach a whole course on it, so. Okay. Anthony. I\'m confused on Farron\'s in how the, so under 1404A where it says in any other district or division where it might have been brought, if Pennsylvania\'s where it ended up, but Pennsylvania\'s the limiting factor because the statute of limitations expired, how do they consider it proper? Like, so they couldn\'t have brought it in Pennsylvania to begin with because the statute of limitations expired? Statute of limitations has nothing to do with proper venue. Right. Proper venue is the rules of 1391. And the injury occurred there. A substantial part of the events giving rise to the claim occurred in Pennsylvania. So venue was unquestionably proper in Pennsylvania. And there was personal jurisdiction over John Deere in Pennsylvania. But that\'s a good, I mean, it\'s a good question because you\'ve got to, what makes venue proper? 1391 makes venue proper. Or in the case of a removed case, the removable statute. Yes. I just want to clarify that. Remind me of your name. Cameron. Cameron. Okay. Yeah, I\'ve been hiding that. Yeah, I\'ve been looking for you, Cameron. You\'re on my radar. Nice to meet you. Okay. You are definitely in my sights, so. Well, you may have just saved yourself. Look at it that way. Ask your question. In the Ferris case, so because it was a 1404 transfer, they\'re hiding consent by both parties. No, no, no, no, no. This was actually before the statute was amended to say that. Okay. And remember, 1404 says, for the convenience of parties and witnesses, in the interest of justice, the district court may transfer any civil action to any other district where it might have been brought. That was the way the statute read then. Okay. But because there was personal jurisdiction over John Deere in Pennsylvania and venue was proper in Pennsylvania, it was a district where the case might have been brought. Now the statute says, or to any district where there\'s been consent. But we don\'t need consent, right? Because you\'re thinking, why would John Deere have consented to that? That\'s what you\'re thinking. We didn\'t need John Deere\'s consent. And you don\'t need it today. You just need to, you know, it\'s or. It\'s or, where it might have been brought, or. Okay, so now let\'s go on to talk about, oh, standard. We\'re going to kind of do Piper and the standard at the same time here. But the standard, as you see, turns on the public and private interest factors. You got to see how those play out to some extent in the Piper case. Twice, you got to see what the Supreme Court says about how the district court applied the private and public interest factors. And in the later section of the opinion, the Supreme Court talks about how it is applying. What it sees as the most important public and private interest factors. So let\'s look. So the good news is, the same sort of legal test for when venue transfers should be ordered and when form non-convenience dismissals, as they usually are, as you read, are ordered, is the same. It\'s the same test. So let\'s look at, let\'s look at the key footnote in Piper. Bottom of page 267. The factors pertaining to the private interests of litigants. So first of all, pay attention to the language. Private interests of the litigants, right? That\'s what we\'re talking about. So what, if you\'re a litigant in a case, are you worried about? All right. Relative ease of access to sources of proof, right? If you\'re a plaintiff or a defendant who has, a plaintiff on their claim, a defendant who has brought an affirmative defense, you have the burden of proof. You need proof. Can you get it in this district? Can you get it in the other district? Because remember, and you read a lot about this in Piper, and we\'ve talked about it before, state boundaries matter, and a federal district court cannot compel a witness from another state. It just has no jurisdiction over that from another state. Now, parties are different. Parties can be compelled in civil actions, but witnesses cannot be compelled if they\'re outside the state lines or with a little bit of give. There\'s a kind of a small exception to that, but we\'re not going to worry about that exception. So relative access, availability of compulsory process for the attendance of unwilling and the cost of obtaining the attendance of willing witnesses. Possibility of the view of the premises, right? That might become important in a case involving, like, a plane crash. If view would be appropriate to the action, and all of the practical problems that make trial of a case easy, expeditious, and expensive from the standpoint of the parties, the private interest factors. The public interest factors, the administrative difficulties flowing from court congestion. That can be a factor. A district court that is overwhelmed with cases can take that into account. The local interest in having localized controversies decided at home, the interest in\... And that has to do with, you know, like in the Piper case. It really didn\'t have anything to do with the United States. Or at least it might not have, right? Remember that in Piper, the cause of the crash might have been the pilot. The pilot might have crashed a perfectly good plane. So the interest in having the trial of a diversity case in a forum that is home with the law, right? The familiarity with the law, that became a factor in Piper. None of these are controlling. None of them are, you know, none of them control. They\'re just factors that a court can take into account. The avoidance of unnecessary problems and conflicts of laws, that became kind of a factor in Piper. Or in the application of foreign law, a factor in Piper, right? Could be a factor in a domestic case. If Alabama\'s choice of law in a given dispute says we\'ve got to apply Argentinian law, but California wouldn\'t, that could be a factor. And the unfairness of burdening citizens in an unrelated forum with jury duty, right? That\'s a factor. So that has to do with the sort of the public interest factors, separating out the court systems factors. And just, you know, this has nothing to do with venue transfer, but in terms of court congestion, one time I was involved in a mandatory mediation case at a patent case in the Eastern District of New York. So I was in the courthouse in Brooklyn, and we were required, as district judges can do, require you to bring your client to a mediation. And, you know, as you read in the first chapter, mediations typically work with the judge or maybe a magistrate judge, sit there, maybe even a court-appointed mediator. I\'ve served as a court-appointed mediator in a patent case in Burlington, Vermont. So I was the mediator. But in this case, it was the judge himself. And, you know, mediation, you start with everybody in the room, then, you know, the one side gets kicked out, and the judge turns his sights on you and basically starts telling you all the weaknesses of your case that he sees, right? You know, here\'s all the problems with your case. You might want to consider settling. Here\'s the problems I see from my view. Of course, you know, I mean, I haven\'t studied it exhaustively, and you haven\'t done your briefing, but from where I sit, I see some problems with your case, right, trying to incentivize you to settle, right? Then they kick you out of the room, and they bring the other side in and tell the other side how crappy their case is, right? And the idea is to promote interest in settlement, right? This is the managerial role that district judges now exercise in a way they didn\'t used to. They used to be in the balls and strikes, calling balls and strikes category. Now they\'re in the calling balls and strikes category and the we got to manage this workload. Case has got to get out of here, right? So one of the things that this district judge said to us is, he said, this courthouse sits in the Eastern District of New York. Do you know what else sits in the Eastern District of New York? JFK Airport. This court gets all of the drug cases out of JFK, and there\'s a lot of them. And he said, so, and because of the speedy trial right of defendants under the Constitution, criminal cases take priority. So one of the things you might want to consider is this case ain\'t coming to trial for seven years. So maybe you want to factor that in when you consider your settlement, right? So I didn\'t know you had venue transfer, but it\'s an example of court congestion being something that litigants have to think about in civil actions, right? Because they take a back seat as a general matter to criminal cases. All right. And then, so those are the factors that are going to govern a venue transfer. And the last thing I\'m going to say about it before we start talking about Piper is it\'s discretionary, right? And you saw the form of nonconveniences too. And so if you\'re going to try to appeal a case, appeal a venue transfer order, good luck. Because the appellate court is going to review that order from an abuse of discretion standpoint. And abuse of discretion is the most deferential appellate review standard there is. And it was one of the problems with the Third Circuit in this Piper case reversing the district court. The Supreme Court says, first of all, we think the district court was right. And the Third Circuit was wrong for each of its two reasons why it denied, why it reversed the district court. But secondly, the district court has tremendous discretion in both form nonconvenience and venue transfers. Alana. Sorry, just real quick. Could you repeat what you said about view of the premises? What does that mean? View of like where the accident occurred. Like you might take the jury out. You never saw that on law and order? I don\'t know. You don\'t watch law and order? I mean, or any of the other police, many police procedurals that I watch that are always on in the background when I\'m doing my work. Yeah, no, they sometimes like take the jury out to see my Econose. She\'s with me. She\'s on my side. All right, let\'s talk about, so this is my, so this, believe it or not, is going to be the United States of America. I ran out of room down here. We\'re certainly thinking about the people in Florida this morning. There\'s the Big Bend. There\'s Florida. Okay, we go up this way. I\'m gonna leave that aside for now. Come back across the top. Top\'s kind of easy. If you get about here, you got a whole bunch of lakes. And then you got like New York. I don\'t know. Then we\'re gonna go, we\'re gonna go up here gradually. We\'re gonna go and kind of keep up here. You stick Maine. Maine\'s pretty big. I don\'t know what happens. We got some stuff happening here. And then up here we got like Long Island. And then, you know, this is kind of just a big mystery right here. That\'s not bad. That may be one of the better United States of America that I\'ve ever drawn. 30 years of doing science. So, we\'re gonna let Cameron off the hook because she was wise to. Thank you. You\'re so welcome, Cameron. It\'s just such a delight to meet you. Just kidding. All right. Let\'s see. Where\'s Juliana? Juliana! Although I think you\'ve actually volunteered in the past, haven\'t you? Yeah. You might have to let you off the hook too. Let\'s look for somebody who doesn\'t speak very much. Oh, everybody\'s worrying now. How about Chandler? All right, Chandler. Piper. Okay. So, what happened to Piper? Who sued him for what? So, there was a small commercial aircraft that crashed in the Scottish Highlands. And the pilot and five passengers were killed. The plane involved in the crash was manufactured in Pennsylvania by Petitioner Piper. And the propellers were manufactured in Ohio by the other petitioner that wasn\'t mentioned in the case name, and then the plane had been operated by a Scottish air taxi service and was registered in Great Britain. The respondent\... And it was owned by a U.K. So, it was owned by a U.K. party, operated by a U.K. party. And then Reino, the respondent, was the plane\'s admin\... I don\'t know how you say it. Administratrix. Yeah, that. Of the estates of the five deceased passengers by the California probate court. And then Reino commenced several wrongful death suits against the petitioners in the Superior Court of California claiming negligently strict liability. And then\... So, the reason Reino did that is because the U.S. has laws on liability advantages that are more favorable for her position than such claims couldn\'t be brought in Scotland. All right, so she filed suit in California State Court on behalf of the\... She\'s the estate. She represents the estate. She\'s trying to recover for the estate all the money she can possibly recover for the state. Go ahead. Sorry. My question is, why was she chosen to be, like, head of the estates? So, why was she chosen? I can tell you why she was chosen. Why does\... Anyone know why she was chosen? Anyone have any ideas why she was chosen? I don\'t have time to read you the whole story of paper, but let\'s see. Paper. Go ahead. I think it says on 266, she\'s not related to and does not know any of the decedents or their survivors. She was a legal secretary to the attorney who filed this suit. Right. His name was Daniel Cathcart, his prominent L.A. law firm, specialized in aviation injury cases from its office at 1801 Avenue of the Stars. Indeed, Cathcart, then a 44-year-old USC law graduate and a certified pilot, is the author of the book Air Crash Litigation Techniques. So, as is not unusual in connection with wrongful death suits, on behalf of foreigners, Cathcart arranged for a California probate court to appoint his legal secretary, Gaynelle Reno, as local administratrix of the passenger\'s estates. Within a couple of weeks, she sued Piper and herself for compensatory and punitive damages for wrongful death, unspecified in amount, which state courts sometimes let them do, but for millions of dollars in effect. Right? Because in her complaint, she said things like, all of their lost earnings, you know, right? A lifetime of lost earnings. In the superior court of the state of California for the, and probably the pain and suffering, I think, comes up, too, in this case, right? I mean, it wasn\'t fun on the way down to the ground. And who knows, maybe some of them survived for a time, right? I mean, whatever they can prove. In the superior court of the state of California for the county of Los Angeles, the plaintiff\'s lawyer showed his preference for the state court of California by selecting it, right? So he chose state court. So then what happened? So the suit was removed to the U.S. District Court for the Central District of California. Right, so like, for our purposes, we\'re going to imagine that it sat across the street from the federal court. Right? Central District of California. Federal District Court. So it gets removed. I need some more colors here. It gets removed. That way. Ann, go ahead. What else? Then Piper transferred it to the U.S. District Court. Let\'s stop there. Hertzel made another motion. Moved to dismiss for lack of personal jurisdiction. Can everyone see why Hertzel might have moved to dismiss for lack of personal jurisdiction? Why? Why would Chandler, would Hertzel have moved to dismiss for lack of personal jurisdiction? Because personal jurisdiction over both the petitioners was proper in Pennsylvania. Yeah, but that doesn\'t make it improper in California. I mean, that\'s the grounds for a motion to dismiss for lack of personal jurisdiction, right? Why was personal jurisdiction not proper over Hertzel in California? Nick? The claims didn\'t arise from anything they did there. Where did they do whatever they did? I think it was Pennsylvania for both of them where they manufactured. Or one was Ohio. Yeah, Hertzel made a propeller here. Sent the propeller to Pennsylvania. So, Hertzel is amenable here, maybe, you know, presumably, right? And it\'s amenable here. It has nothing to do with California. Why didn\'t Piper move to dismiss for lack of personal jurisdiction? Kyle? I think that this was before Dymer. So great of an answer. Finish your sentence, Kyle. Say it loud and proud. It was before Dymer, so they thought they were generally amenable Piper Aircraft sells a ton of airplanes into California. And they probably have, like, facilities in California and people in California and they maintain planes. So they thought, and, you know, they might have been. They didn\'t contest, so we\'ll never know. They didn\'t contest personal jurisdiction just like Audi didn\'t contest it in Worldwide Volkswagen and John Deere didn\'t contest it in Mississippi. It\'s all because it was before Goodyear and then Dymer. Yes. Ari, did you have a question? Well, I do remember it, like, said in the case that there was, like, another case where they ruled some general amenability. I was trying to look for it. Well, let me know when you find it. Okay. I mean, if you have a question, let me know. All right. So, then what happened? So, we got a motion to dismiss by Hertzel along with a motion to transfer. Hertzel filed two motions. Piper filed one motion, motion to transfer. Was venue, was it a 1404 transfer or a 1406 transfer? Wrong. Why was it a 1404 transfer? Evan? Venue was proper. Why was venue proper? Because substantial of the defendant resided. Anastasia? Because the seat was the purpose for the estate to be started in California and that was the entity which would be able to under, like, a residence. It was a residence. The estate was a residence. It has nothing to do with why venue was proper. Why was venue proper in the California District Court? Jawad knows. I think I know, but I might not be right. It\'s because if they are, for corporations and personal jurisdiction. That\'s not why. Nobody knows. Venue was proper in the California District Court because it was a removed case and there\'s only, what makes venue proper in a removed case? It goes to the district or division embracing the state courthouse. 1441A and 1446. They both say that a removed case can only go to one venue. It goes to the federal court. There was no other place this case could have been removed to. Venue, proper venue in removal is that federal district court. It\'s a 1404 transfer that is requested by both parties and is it granted? Chandler? To transfer to PA? Yes. All right. It\'s a 1404 transfer over to the middle district of Pennsylvania. It\'s a 1404 transfer. For the convenience of the parties and the witnesses. Okay. And this was a state where the case might have been brought because there was personal jurisdiction over both Hartzell and Piper in this case which is where the plane was manufactured. This is where Hartzell shipped its propeller to purposely. And venue would have been proper here because the plaintiff\'s claim is it was defectively designed and manufactured and that\'s where that happened. Plus, well, yeah, that\'s why. And probably under, because if Hartzell\'s a corporation, under both residential and transactional venue, venue\'s proper. Given the definition of residence for entities which does have to do with personal jurisdiction. All right. Then what happened? Chandler? The petitioner is moved to have the suit dismissed on the grounds of form non-convenience. Form non-convenience. All right. So first of all, you\'ve noticed they\'re asking for the case to be dismissed. Form non-convenience is a doctrine in the main, we\'ll come back and talk about stays, but in the main it is a doctrine of dismissal. Notice it is not a doctrine of transfer. Venue is a doctrine of transfer within a system. Form non-convenience is a dismissal from the system. The case is kicked out of the system. It is dismissed. And in order for form non-convenience to be appropriate, in other words, in a federal court, the federal court has to conclude that there is no other judicial district in the United States that would be appropriate. Because if there is, there\'s just going to be a venue transfer. So that\'s a precondition for the application of the somewhat rarely invoked and rarely applied doctrine of form non-convenience. There is no proper venue within the system. So the district court here in ordering form non-convenience dismissal and the Supreme Court of the United States in upholding form non-convenience dismissal has concluded that there is no appropriate, one of the 94 federal district courts for this case. That\'s what form non-convenience is. That is, you are telling the court, when you make that motion, you are telling the court, there is no appropriate venue for this case in the entire court system. So on a state level, if you make a form non-convenience dismissal in an Oklahoma state court, you\'re telling the state court there\'s no appropriate venue in Oklahoma. Dismiss this case. Remember what a judicial system is. Federal judicial system is the 94 federal district courts. The Oklahoma judicial system is the state of Oklahoma. So that\'s the first thing to see. The second thing to see is that, and so you can see why it\'s kind of a rare doctrine, particularly in the federal courts, because you\'ve got to convince the judge that there\'s no place in the entire United States of America for this case. Second thing to notice is what law governs this motion. The private and public interest factors govern it. No one factor is controlling. But again, I\'m not going to spend time on it, but you can read on page 268, actually 267, the middle of the page, this is the analysis of the form non-convenience motion, the application of the public and private. This is what the Supreme Court says the district court did. The district court examined several factors relating to the private interests. So the private interest is that paragraph and the next paragraph that bridges over to 268. The district court then, top of page 268, concluded that the relevant public interests, this is how the district court reached its decision, and similarly, if you look over on page 272, under number one, that\'s the beginning of the Supreme Court\'s discussion of whether the district court was correct in its private interest analysis. That goes all the way, that\'s the entirety of number one, which bridges over into 273, and then under number two, the district court\'s review of the factors relating to the public interest was also reasonable. I strongly encourage you to study those and make sure you understand. We can talk as there\'s time, but Nick? You clarified, but you were saying that you\'re convinced that there\'s no jurisdiction in the state. I understood it more so, I guess, that there\'s someone that\'s an alternative court that\'s potentially better. No. Just strictly, it cannot be tried in this venue. It\'s not merely that there\'s a better place. Certainly, from the plaintiff\'s perspective, Scotland wasn\'t a better place, right? They chose the forum in the first place. Forum nonconvenience, first of all, is a, I mean, look how the plaintiff chooses state court in Central District of California, ends up in federal court in Central District of California, gets thrown over to Pennsylvania, and then gets kicked out of the country. This is like a lot of, you know, not very much respect for the plaintiff being the master of her complaint, right? But, it\'s dramatic circumstances. I mean, certainly, it is a requirement that there be an alternative adequate forum. That\'s where we\'re going to get to next. So, is it more about the trial there at all? Is that kind of\... Yeah, it\'s more about the convenience. It\'s about the inconvenience that\'s being imposed in terms of private interest factors on the defendants in this forum. It\'s not about there being a better place. Right, and that is such a strong detriment to the defendants. Yes, right. Right, because they can\'t point the finger at the pilot, who, you know, right? They can\'t point the finger at the maintenance. They can\'t point the finger at the owner. They can\'t point the finger at the operator who had this pilot, you know, doing 16 hour shifts. I mean, whatever it is, they can\'t do it. They are hamstrung. Piper and Hartzell are hamstrung here by this situation. All right, so let\'s talk a little bit about these factors in terms of how they play out in this case, a few of them anyway. Well, first of all, let\'s pick up where I was just saying with Nick. So, you can see that a prerequisite for a successful motion to dismiss that Piper and Hartzell made is they have to identify an adequate alternative form. They have to convince the court. They want the case dismissed. They have the burden of proof. They have to, on this issue of dismissal, they\'re the ones who are asking. They brought the motion. They bear the burden of proof on the motion. So they have to convince the court that there is an adequate alternative form. And adequate is not necessarily better certainly not from the plaintiff\'s perspective here, right? As Chandler noted, the plaintiffs freely admitted that they sued to take advantage of the U.S.\'s liberal liability and discovery and damages awards relative to the rest of the world. So, there has to be an adequate alternative form. So, what is an inadequate form? Well, you read a couple of examples. One was, well, first of all, if the country doesn\'t have a functioning court system, that\'s not an adequate form. If the country has a corrupt, you know, demonstrably, like, you know, not U.S. style court corruption, but like, okay, the whole next level of court corruption. And I\'m not saying U.S. courts are corrupt, but some people say that there\'s some corruption. Some people say that. People say that. Many people say that. So, or, you know, I guess if, you know, a forum doesn\'t apply basic, not again, not U.S. style, not Cadillac style due process, like in the U.S., but like basic litigation rights. But that wasn\'t the case for Scotland, right? So that wasn\'t an issue in this case. Adequate form was not an issue. Another big issue was choice of law, which gets us to Claxton and Van Dusen. Oh, and by the way, Goldlauer, right, this was a Goldlauer transfer as to Hartzell, because this court had no personal jurisdiction over Hartzell. Right? This was a Goldlauer transfer. So we see the application of Goldlauer. Then we move on to, and we see the application of Hoffman to a district where it might have been brought. Right? The consent provision wasn\'t in the statute at that time. Hoffman is in play here. And Van Dusen and Claxton play a huge role. So look on page 268. Let\'s start with the footnote. Under Claxton, footnote eight. Under Claxton, 1941, a court ordinarily must apply the choice of law rules of the state in which it sits. A federal district court must apply the choice of law to a state law claim. Now, if it\'s a federal law claim, then we\'re not applying state law. We\'re applying federal law. But this is a state law products liability claim, tort claim. However, when a case is transferred pursuant to 1404, it must apply the choice of law rules of the state from which the case was transferred as to Piper only. Right? Because venue was proper because of the removal venue and personal jurisdiction was proper as to Piper because Piper didn\'t object. So the plaintiffs get to keep the state law, the state choice of law, law of California, as to Piper. But as to Hartzell, because personal jurisdiction wasn\'t proper here, the Pennsylvania choice of law rules applied to the claim against Hartzell. So right off the bat, you have a complication. Not the end of the world for a federal district court by any means. And it gets a little more complicated. Right? Because California applies a governmental interest analysis in resolving choice of law problems which ends up pointing to the law of Pennsylvania. But Pennsylvania employs a significant context analysis and that results in the application and the need to require Scottish law to Hartzell. So first of all, you see the different states have different choice of law rules and you don\'t have to know anything about what governmental interests are or significant contacts. Those are choice of law doctrines. But the reality is you do need to understand why the plaintiff gets to keep California law as to Piper. She did everything right as to Piper. Venue and personal jurisdiction were proper in California. But California\'s choice of law requires the application of Pennsylvania law to Piper. The transferee court\'s choice of law rules, Pennsylvania\'s choice of law rules govern the claim against Hartzell. And Pennsylvania\'s choice of law rules invokes Scottish law. And again, it\'s not insurmountable but it becomes a factor in this case. The fact that the district court is going to have to apply Scottish law. It\'s going to have to apply two different law. And one of them is foreign law. It\'s just a factor. Along with the hamstringing of Piper and Hartzell. Along with why are we going to have Pennsylvania jurors decide this case. Notice the Third Circuit did not reverse the district court because it said there can never be a foreign non-convenience dismissal where the result would be a change in the law in the direction of unfavorable to the plaintiff. And the Supreme Court says that is not the law. Right? That can be taken into account but it is not the law. It is just one fact. Emma. So, then you and California were proper to vote. Yes, because of the removal rule. Yes, but the reason that California law couldn\'t be applied to Hartzell in Pennsylvania is because they weren\'t the first thing enabled in California. Yes. Okay. That\'s Van Dusen. All right. So, we are out of time. I want to do\... We\'ll wrap this up in the first five minutes of Tuesday. These notes afterwards. I\'m going to pause for a brief public service announcement from Presley. Hi, everybody. Okay, so she let me make this announcement because we talked a lot about domicile and a lot about differences in state law in this class. So, if you\'re living under a rock, we have an election in about 25 days, 26 days, which is way closer than you think. And I know I am not a permanent resident in New York. I am a resident of Texas, which means I have to apply for a vote-by-mail ballot. But Texas has voter ID laws. So, I had to mail in a request for a vote-by-mail ballot. And you have to do that 11 days before the election. And I was helping Mia look for her vote-by-mail kind of situation in California. They send one to every California voter. So, you can\'t request one to your new address. So, just make sure you look and do it tonight while you\'re taking a break from LCR or tomorrow so that if you need to mail it, you can mail it tomorrow before next week because we\'re getting very close to the election. And my quick spiel on why you should vote is it\'s your civic duty as an American, greatest privilege you have. And if you don\'t vote, you can\'t complain for four years. And personally, I would like to complain about whoever is president. So\... All right. Thank you. We\'re going to move on. Big shift. We\'re going to be moving on to meeting and starting a civil action after the record.