Introduction to 28 U.S.C. 1404
Updated: Mar 29, 2019
Litigants faced with suit in another city, or even another state, understandably feel some frustration. However, it is possible that a litigant’s inconvenience is so great that it would legally justify having a court move the case. Congress, in recognition of the fact that broad venue provisions in federal Acts often lead to inconvenient forums, decided to statutorily create a change of venue motion, 28 U.S.C. 1404:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.[i]
The purpose of this statute is “to prevent the waste of time, energy and money [and] to protect litigants, witnesses and the public against unnecessary inconvenience and expense.”[ii] Essentially, it means that the law allows for the transfer of a case from a legally proper, but inconvenient, location to another legally proper, but more convenient, location under certain circumstances.[iii]
After the enactment of Section 1404(a), the common law doctrine of forum non coveniens, where the courts could refuse to take jurisdiction over matters when a more appropriate forum was available (resulting in dismissal, not a transfer), only applies when the alternative forum is abroad or, in rare instances, when the forum is a state or territorial court. Additionally, 28 U.S.C. 1404 vests courts with broader discretion "to grant transfers upon a lesser showing of inconvenience" than is required to obtain dismissal under the doctrine of forum non conveniens.[iv]
A plaintiff, as well as a defendant, may move to transfer venue on convenience grounds. Usually, the defendant will be seeking to change the venue because the plaintiff is the one who gets to choose the venue in the first place. Though a plaintiff seeking to change the venue is unusual, there can certainly be valid reasons for the change, usually resulting from an unexpected change in circumstances. It is imperative that a plaintiff be able to justify that circumstances have changed, though; otherwise, the plaintiff could appear to be taking advantage of a favorable rule of law in a proper, but inconvenient, forum, in the hopes of transferring that favorable law to a proper, but convenient, forum, a practice called “forum shopping.”[v]
There are two requirements for a transfer under 28 U.S.C. 1404. First, the court must determine that the transfer will enhance the convenience of the parties and witnesses and is in the interests of justice. Second, the district where a party is proposing to move the suit (i.e. the more convenient location) must be a district where the suit could have been brought originally, meaning the court will have proper jurisdiction, or a district to which all parties consent to move the suit.
Assuming the court to which the case is transferred (the transferee court) has proper jurisdiction, the real question will be whether the transfer would be convenient to the parties and witnesses and “in the interests of justice.” There is no clear formula for determining what is “in the interests of justice.” Thus, this determination really falls within the broad discretion of the judges; however, the courts have laid down a non-exhaustive list of factors that they will balance when ruling on a transfer motion.
The three main factors have already been listed in the statute: convenience of the parties, convenience of the witnesses[vi], and the interests of justice. Other notable factors include, but are not limited to: the plaintiff’s original choice of forum; where the event at issue took place; the location of physical evidence; costs and expediency of the trial (the court prefers transfer over dismissal); court congestion; financial means of the parties; existence of a forum selection clause in a contract[vii]; whether unwilling, key witnesses can be subpoenaed to that court (there is a radius outside of which a court cannot force a witness to travel); and many more.
Here, in the Fourth Circuit, as seen in Verosol B.V. v. Hunter Douglas, Inc., the plaintiff’s choice in forum is entitled to considerable deference.[viii] However, if the plaintiff does not actually reside in the forum and/or the choice in forum bears little to no relation to the cause of action, the plaintiff’s choice is not entitled to substantial weight. Thus, in the absence of this deference ordinarily given to the plaintiff, a defendant’s transfer motion, supported by a factual showing of greater convenience in the transferee court, can properly be found to be in the interests of justice.
When considering the possibility of a transfer, it is important to keep in mind that the moving party has the burden of proving that the interests of justice are best served by a transfer and that the action could properly be brought in the transferee court.[ix] Additionally, motions to transfer will usually only be granted if the balance weighs strongly in favor of the moving party.
Once it is decided that a transfer motion is appropriate, time is of the essence! While there is no formal time limit within which you must make a motion under 28 U.S.C. 1404, a party must still move “with reasonable promptness” after discovering factors in favor of a convenience transfer.[x] Otherwise, a delay may become a factor weighed against the moving party by the court.
If you find yourself in need of a transfer to a Virginia court, or even out of a Virginia court, contact the knowledgeable, experienced attorneys at Davis Law, PLC today for more information.
[i] 28 U.S.C 1404(a).
[ii] Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26 (1960).
[iv] Norwood v. Kirkpatrick, 349 U.S. 29, 32, 99 L. Ed. 789, 75 S. Ct. 544 (1955).
[v] 17 Moore's Federal Practice - Civil § 111.16 (2018).
[vi] Arguably, this is the most important factor. See Dicken v. United States, 862 F. Supp. 91, 93 (D. Md. 1994).
[vii] See Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253, 1258 (4th Cir. 1991) (forum selection clause favored retention of action in contractual forum because convenience of witnesses and parties did not weigh in favor of either forum).
[viii] See Verosol B.V. v. Hunter Douglas, Inc., 806 F. Supp. 582, 592 (E.D. Va. 1992); see also Chedid v. Boardwalk Regency Corp., 756 F. Supp. 941, 944 (E.D. Va. 1991).
[x] 17 Moore's Federal Practice - Civil § 111.17 (2018).