Civ Pro Thursday 10/10/24 PDF

**CIV PRO THURSDAY 10/10/24** The elusive, the never applicable, right? And someone talked about misogyny, and I just want to be clear, because, I mean, that wouldn\'t be a situation where that would apply. I mean, even if, because first of all, in the original case, right, you had the guy, whatev...

**CIV PRO THURSDAY 10/10/24** The elusive, the never applicable, right? And someone talked about misogyny, and I just want to be clear, because, I mean, that wouldn\'t be a situation where that would apply. I mean, even if, because first of all, in the original case, right, you had the guy, whatever his name was, I can\'t remember his name, we\'ll call him Blaine. I mean, he\'s such Chang Shin, right? In California State Court, Chang Shin came to the side. Okay, so, I mean, I guess let\'s put this case in federal court. I think that was what the court, yeah, because we need the federal venue statute, what we\'re talking about. Well, first of all, in this case, B3 is going to help you, because the substantial part of the event is giving rise to the claim of California, so B3 wouldn\'t apply. So, I guess that question was, what if Chang Shin came to California in tsunami over their contract dispute? But the problem here is, so yeah, nobody\'s a resident, the defendant\'s not a resident, and a substantial part of the event is giving rise to that claim that didn\'t occur in the United States. So, maybe, but the problem here is you have two foreign citizens, so there\'s no subject matter jurisdiction, and furthermore, in order for B3 to have any, I mean, it\'s a separate issue, but remember that Chang Shin also needs personal jurisdiction over society, and there\'s not going to be any personal jurisdiction over society. So, I just want to be clear about that. That example doesn\'t work for B3, and it doesn\'t work in its original incarnation, and it doesn\'t work in the possible amended situation where Chang Shin, for some reason, comes to California and sues aside for multiple reasons. And in this case, they are reasons unrelated to venue, right? They\'re subject matter jurisdiction problems here, and personal jurisdiction problems here. So, B3 is for the situation where you have no defendant as a resident, and there is no judicial district where a substantial part of the event is giving rise to the claim occurred. But somehow, there\'s still personal jurisdiction over the defendants. It\'s very difficult. I mean, I have done a cursory look. I\'ve looked every year, for example, so I can never, I can never have an example, you know, maybe when I\'m done with all of the things I want to ask my research assistant to look up this year, maybe I\'ll ask them to find a case relating to B3, but, or you can, in your best, fair time. But it\'s not something I would advise you spending your best group time on. All right. Let\'s see. Is there anything else to catch up with? So, we\'re going to talk about change of venue, and then the standard for change of venue, and then we\'re going to talk about some of these special rules, all of which, like, play out in the paper, which is, in my end, view of many other, civil procedure professors, the greatest civil procedure case in all of history. Okay? So, and what your goal with Piper needs to be, and you may not leave this class with this, but this is what your assignment for Piper needs to be, is you need to be able to understand for yourself exactly why everything happened the way it did, and how that was permissible under the rules of civil procedure. Exactly, every step of the way. So, we\'re going to move through that. But, let\'s first of all talk about change of venue. Change of venue, we\'re going to continue to focus on the federal system. So, we have a case that is sitting in one of the 94 federal district courts. Let\'s call it the transferor district, which is the original federal district. And, the question is, can that case be, can the venue be changed, can the case be transferred, is the word, to a, to the transferring district. That\'s our terminology. So, transfer, venue transfers are always within a judicial system. There is such a thing as venue transfers within a state judicial system. But, that\'s governed by state venue law. The point is, venue transfers are always within a system, from one courthouse in a system to another courthouse in a judicial system. Each state is its own judicial system. 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 file district is proper in one case, and the original file 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. And, 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 is filed a case laying venue in the wrong division or district. Now, the first thing you should see is that 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 is 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 statute, possible under either of these situations. Both of them authorize transfer. So, 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, pursuant 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, and a motion to dismiss, 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, as 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 of transfer such case to where? To any district in which it could have been brought. The consent language is not present in 1406. As I just indicated, venue transfers are usually requested by the defendant, right? It only makes sense. The plaintiff chose a venue in the first place. Usually, not always, right? We saw Piper and Hartsell request a venue transfer in Piper. But, usually, the plaintiff, 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 ferrance. So, but usually, the defendant is making, is asking for venue transfer. But what you need to know is, plaintiffs can ask for venue transfer, see ferrance, 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 know, 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 on your 1404 or 1406. So, let\'s talk about our wonderful cases, Hoffman, Goldlauer, Van Dusen, and Klaxon. All of which are implicated in paper. 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 that could have been brought language in 1406. Kind of just 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 defendants. 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. 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 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. So, I, you know, 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. So 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 the transfer of such cases was consistent with the objective of removing whatever obstacles may impede in expeditions and order of 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 awkward. Goldlauer? With regard to personal jurisdiction. Questions about that? Often, is the transferee district asked to have a personal jurisdiction? And a 1406 transfer. And then the same transfer of the 1406 for the transferor court does not have to have personal jurisdiction? Over the defendants, right. And that\'s true for 1404 too. For Goldlauer. For Goldlauer. No. 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 Klaxon. Klaxon came first. So let\'s go back to the beginning. 1938, as we will study, Erie Railroad vs. 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\'s the Erie Doctrine. Maybe we\'ll even skip it. No, we won\'t skip it. Erie Railroad vs. 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 playing with 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 Klaxon. Klaxon is 1941, so a mere three years later, Klaxon is decided, and the Supreme Court in Klaxon says the Erie Statement, including that state\'s choice of law, law. It is Klaxon that says in a federal court deciding a state law, claim, or defense, has to apply 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 Klaxon. 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 in state court, but we could put it in federal court for our purposes. It was brought in Alabama, but the 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 Klaxon, 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 Klaxon. Van Dusen says, okay, what about when a case is transferred in the federal system, and a venue transfer? And here\'s the bottom line for what Van Dusen means. I mean, the rule of Van Dusen is that a plaintiff who chose in the first place, a proper venue, where venue was proper under 1391, and that transfer or court had personal jurisdiction over the defendants. So the notion is that the plaintiff has done everything right. Right? They picked a place that\'s proper under 1391 for venue purposes, and that original transfer or court, the court where they filed, had jurisdiction over the defendant or defendants. In that case only, does that plaintiff get to keep this benefit of the transfer or 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 this Van Dusen has to do with state law. Okay, so the only time that the law of the transfer, the state, the law that would have been applied in the transfer or district gets to travel with the case is when the, I think of it in my head, is when the plaintiff did everything right. But by that I mean, chose a district that was 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. Yes, Claxton, always Claxton, 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 transfer or district 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 transfer or district court sat, including that state\'s choice of law rules. All right, so Farron\'s. Farron\'s is talked about on page 261. You know, this is a masterful use of the tools in the civil procedure tool kit. Masterful. So Farron\'s plaintiff lost his right hand when it was caught in his John Deere harvester accident occurred in Pennsylvania, which has two-year statute of limitations in tour 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 over what it looks like. 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 have applied 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 got to take advantage of the 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 transfer or 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 Goldlowers. Because the court in Mississippi had personal jurisdiction over John Deere. Next. Going back to the Goldlowers case, where would venue be proper and there would 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. I was thinking the exact same question. 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 event, the product exploding in my face in New York, then you would be proper in New York, but personal jurisdiction would not, because there\'s no directed contact from that company. No purposeful availment. Yeah, no purposeful availment. And that\'s not the only example, but it came in handy just then, not for sure. 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 where the product was designed or sold. That\'s a question of state choice of law, law. We teach a whole course on it, so. Okay. Andy. 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 did they consider it proper? Like, so they couldn\'t have brought it in Pennsylvania to begin with because the statute of limitations expired. The statute of limitations has nothing to do with proper venue. Proper venue is the rules of 1391. And the injury occurred there, a substantial part of the investigating rights of 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 removal statute. I just want to clarify that. Remind me of your name. 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. Oh, gosh. Well, you may have just saved yourself. Ask your question. So because it was a 1404 transfer there, I didn\'t 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. 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, 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, the 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\'ve got to see how those play out to some extent in the Piper case. Twice, you\'ve got to see what the Supreme Court says about how the district court applied to 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 is 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 foreign non-convenience dismissals, as they usually are, as you read, are ordered, it\'s 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 won 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 about 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 other, 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 kind of a small exception to that, but we\'re not going to worry about that exception. So relative access to 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 you would be appropriate to the action, and all of the practical problems that make trial of the 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 was home with a law, 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 kind of a factor in Piper. Or in the application of foreign law, factor in Piper, right? Could be a factor in a domestic case. If Alabama\'s choice of law and 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 form of jury duty. That\'s a factor. So, that has to do with the sort of the public interest 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 the 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, 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 use 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\'ve got to manage this workload. Cases got to get out of here, right? So one of the things that the district judge said to us is, he said, this courthouse sits in the eastern district of New York. 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 come into trial for seven years. So maybe you want to factor that in when you consider your settlement, right? So there\'s nothing with venue transfer, but it\'s an example of court congestion, being something that litigants have to think about. And 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 paper is, it\'s discretionary, right? And you saw that form non-convenience is 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 abusive discretion standpoint. And abusive 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 non-convenience 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 a law order? I don\'t know. You don\'t watch law. I mean, or any of the other police proceed, 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 econos. Okay. She\'s with me. She\'s on my side. All right, let\'s talk about. So this is my. Okay, so this, believe it or not, is going to be the United States of America. And I ran out of it to turn them in. We\'re certainly thinking about the people in Florida this morning. The Big Ben. There\'s Florida. Okay, we go up this way. I\'m going to leave that aside now. Come back across the top. Top\'s kind of easy. You get about here. You\'ve got a whole bunch of lakes. And then you\'ve got like New York. I don\'t know. Then we\'re going to go put them up here gradually. Then we\'re going to go kind of steep up here. Maine\'s pretty big. I don\'t know what happened. See, we\'ve got some stuff happening here. And then up here, we\'ve got like Long Island. And then, you know, this is kind of just a big mystery right here. Terry, that\'s not bad. That may be one of the better United States of America that I\'ve ever drawn. 130 years of doing this. So, we\'re going to let Cameron off the hook because she was wise to\... Thank you. You\'re so cool, 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? I know. Yeah. You might have to let you up, too, for today. That\'s so for somebody who doesn\'t speak very much. All that comes worrying now. How about Chandler? All right, Chandler. Piper! Okay, so what happened to Piper? Who\'s your number one? Okay. So, there was a small commercial aircraft that crashed in the Scottish by-land. 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 parcel. 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 UK\... So, it was both\... It was owned by a UK party, operated by a UK party. And then, Rayna, the respondent with the plane is\... I don\'t know how you say it. Admin strength tricks. Yeah, yeah. Of the estates of the five deceased passengers by the California probate court. And then, Rayna commits several wrongful death suits against the petitioners in the Superior Court of California, claiming negligence is strict liability. And then\... So, the reason Rayna did that is because the US has laws on liability of damages that are more favorable for her position, then such claims couldn\'t be brought in often. All right. So, she filed a 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 could possibly recover for the estate. Go ahead. My question is, why was she chosen to be, like, ahead of the estates? Because these people\... So, why was she chosen? All I can tell you why she was chosen. Why does\... Why did 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 Piper, but\... Let\'s see. 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 is Daniel Cathcart, his prominent LA 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 in court to appoint his legal secretary, Gaynell Reyno, as local administrative tricks of the passengers\' 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 in 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. And, go ahead, what else? Uh, then paper transferred it to the U.S. District Court for the middle district. Well, let\'s stop there. Uh, Hartzell made another motion. Uh, move to dismiss for lack of personal jurisdiction. Can everyone see why Hartzell might have moved to dismiss for lack of personal jurisdiction? Why would Chandler would put Hartzell and move to dismiss for lack of personal jurisdiction? Uh, because personal jurisdiction over both the positioners was proper in people who knew. 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 Hartzell in California? Hey, Nick? The claims didn\'t arise from anything they did there. Where did they do whatever they did? Uh, I think they, I think it was Pennsylvania for both of them where they manufactured, or one was Ohio. Yeah, Hartzell made a propeller here. Sent a propeller to Pennsylvania. So, Hartzell\'s amenable here, maybe, you know, presumably, right? And it\'s amenable here. There\'s nothing to do with California. Why didn\'t Piper move to dismiss for lack of personal jurisdiction, Kyle? So great of an answer. Finish your sentence, Kyle. Say it loud and proud. Piper aircraft sells a ton of airplanes into California, right? 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 a world like Volkswagen, and John Deere didn\'t contest it in Mississippi. It\'s all because it was before Goodyear and then Daimler, 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 inability of trying to look for it. Well, let me know when you find it, Michael. I mean, if you have a question, let me know. All right. So then what happens? So we\'ve got a motion to dismiss by Hartzell, along with a motion to transfer. Hartzell filed two motions. Piper filed one motion, motion to transfer. Was venue, was it a 1404 transfer or a 1406 transfer? Um, 1404. Wrong. Why was it a 1404 transfer? Evan? Venue was proper. Why was venue proper? Because substantial. No. Was the defendant resided? Uh, Anastasia? Uh, because the state was started in the Calvary. That 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. Um, it\'s because if they are, um, for corporations and personal jurisdiction. No. 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, there was no other place this case could have been removed to. Venue, proper venue in removal is that federal district court. So it\'s a 1404 transfer that is requested by both parties. And is it granted? Uh, Chandler? Uh, to transfer to P.N.? Yes. Yes. All right. So 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. Uh, 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 claim was manufactured. This is where Hartzell shipped its propeller to, purposely. Uh, and venue would have been proper here because the plaintiff\'s claim is it was effectively designed and manufactured and that\'s where that happened. Plus, well, yeah, that\'s why. Um, and probably under, because if Hartzell\'s a corporation, under both residential and substantial 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? Uh, the petitioner is moved to have the suit dismissed on the grounds of forum non-convenience. Forum non-convenience. All right. So first of all, you\'ve noticed they\'re asking for the case to be dismissed. Forum 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. Forum non-convenience is a dismissal from the system. The case is kicked out of the system. It is dismissed. And in order for forum 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 forum non-convenience. There is no proper venue within the system. So the district court here in ordering forum non-convenience dismissal and the Supreme Court of the United States in upholding forum non-convenience dismissal has concluded that there is no appropriate one of the 94 federal district courts for this case. That\'s what forum 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 forum 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 forum 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 the 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? Can you clarify, you were saying that jurisdiction in the state would come with items that are more so, I guess, that there\'s someone that\'s an alternative court that tends to be better? No. Or 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? And they chose the forum in the first place. So forum non-convenience, first of all, is a, you know, the plaintiff chooses state court in central district of California and ends up in federal court in central district of California, gets thrown over to Pennsylvania, and then gets kicked out of the country. So 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 fact that the first thing that you could do in 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 of the defendants in this case. Yes, 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 one thing. 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 the issue in this case. Adequate form was not an issue. Another big issue was choice of law, which gets us to collection in 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 Clackson play a huge role. So look on page 268. Let\'s start with the footnote. Under Clackson, footnote 8. Under Clackson, 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, it\'s a federal law claim that 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 contacts analysis, and that results in the application, the need to require Scottish law to Hartzell. So first of all, you see that 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 courts 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, right? 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 it\'s one of them is foreign law. It\'s just a factor, right? 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 could 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. So, Venue and California was proper for both? Yes, because of the removal rules. Yes, but the reason that California law could be applied to Hartzell in Pennsylvania is because they weren\'t first thing amenable in California? 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, if 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. All right, thank you. We\'re going to move on big shift. We\'re going to be moving on to starting a civil election.