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Change of Venue in the Federal Courts Under Section 1404-A of the New Judicial Code--Effect on Rights of the Parties Harold J

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Change of Venue in the Federal Courts Under Section 1404-A of the New Judicial Code--Effect on Rights of the Parties Harold J Hastings Law Journal Volume 2 | Issue 1 Article 3 1-1950 Change of Venue in the Federal Courts under Section 1404-A of the New Judicial Code--Effect on Rights of the Parties Harold J. Chase Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Harold J. Chase, Change of Venue in the Federal Courts under Section 1404-A of the New Judicial Code--Effect on Rights of the Parties, 2 Hastings L.J. 29 (1950). Available at: https://repository.uchastings.edu/hastings_law_journal/vol2/iss1/3 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. CHANGE OF VENUE IN THE FEDERAL COURTS UNDER SEC- TION 1404-A OF THE NEW JUDICIAL CODE-EFFECT ON RIGHTS OF THE PARTIES By HARoLD 3. CASE Title 28, U. S. Judicial Code, Section 1404-a-a few questions On September 1, 1948, the new revision of the United States Judicial Code went into effect. Section 1404-a of title 28 of that code was but a very small part of that total revision. Its text is as follows: "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." Taking the words in their ordinary meaning the section seems to say quite simply and clearly that, if plaintiff sues defendant in a federal district court which has jurisdiction over the parties and the subject matter, the court may, in the exercise of its discretion, transfer the case to another federal district court where the plaintiff might have brought suit in the first instance. The section does not say when the court is to exercise this discretion, on whose motion, at what point in the proceedings; nor does it lay down any standards to guide the federal district court judge in the exercise of his discretion other than the phrases, "For the convenience of parties and witnesses . ." and ". in the interest of justice. ." The section does not say what the effect of a transfer will be on a case transferred under its provisions-whether, for example, the federal district court to which the cause is transferred is to apply the "substantive" law of the state in which it sits, or of the state in which the transferring court sits. A further problem suggests itself as to what state laws will be classified as "substantive" or as "procedural" in order to carry out the purposes of 1404-a, admitting that a "procedural" law can take on a "substantive" character in the eyes of the classifying court in order to achieve a desired result in a given situation. (See the discussion of this point below in reference to "Erie".) For example, if A sues B in the federal district court in state X (F) we know that the statute of limitations of state X will govern the case and be applied. Now the case is transferred to a federal district court in state Y (F2) for the "convenience of parties and witnesses." Is the statute of limitations in F2 (Y) now "substantive" as it was in F1, assuming that the case is a diversity case and Erie applies. A similar line of inquiry can be opened up as to the burden of proof in F1 and F2, inasmuch as the federal courts must apply with respect to the burden of proof the rule of the state in which they sit. (Schopp v. Muller Dairies (1938), 25 F. Supp. 50; Palmer v. Hoffman, 318 U. S. 109,87 L. Ed. 645.) (29) 30 THE HASTINGS LAW JOURNAL The simple language of the section does not make it clear whether F1, feeling it is an inconvenient and therefore "unjust" forum, has to take juris- diction or not. Can the court refuse the case and tell the plaintiff to bring his cause in the more appropriate forum to which the cause might be trans- ferred? Under what circumstances would an order transferring a cause be an abuse of discretion on the part of Fl? Suppose the statute of limitations applicable to the plaintiff's cause in the convenient forum has run and the plaintiff is there barred? Does this mean that transfer is impossible because not "in the interest of justice" or does it mean that it is possible for F1 to be so inconvenient for parties and -witnesses that justice may require a transfer to F2, even if the plaintiff is there barred? Or is there a third possibility even more consonant with the "interest of justice" and within the scope of the section? This article will attempt to survey the problem of the proper place of trial in the federal courts and will consider section 1404-a as the latest step in the evolution of attempts, legislative and judicial, to solve the problems of venue and its effect on the proper hearing of the merits of a cause. It is the purpose of this article to submit the argument that in view of the developments in the federal courts, and also in the state courts, in the field of "proper venue," section 1404-a must be construed as an attempt by Congress to create a flexible technique for the use of the federal courts-a technique intended for and adapted to, properly construed, an overall work- able solution of most of the vexing problems and dilemmas presented by the "inconvenient forum" and its choice by a plaintiff as a place of trial. Prior to 1404-a, there was a definite evolution in the field of the "incon- venient forum" in the federal courts but it was an evolution characterized by a sort of head-over-heels development: problem-solution, problem-solu- tion, etc., with each solution being an ad hoc technique for dealing with the respective problem. It will be argued herein that a forthright and bold construction of section 1404-a, such as two federal courts recently suggested in perceptive dicta (see infra), will be best suited for dealing with the problems to be here considered. All of the ramifications which may flow from the proposed construction will not be considered-and, of course, cannot be considered. The General Background of "Proper Place of Trial" In the common law two concepts have developed which have provided endless hours of entertainment for those with a jurisprudential twist in their natures: the "transitory cause of action" and "jurisdiction over the person." Without considering any of the theoretical problems involved, working CHANGE OF VENUE IN FEDERAL COURTS 31 lawyers commonly say that a plaintiff having a transitory cause of action can sue the defendant "wherever he can find him" or "in any court having personal jurisdiction over him." Let us use the language in its ordinary sense and assume that a plaintiff has a transitory cause of action for negligence. It is perfectly clear that as a matter of tactics it might be far more to the plaintiff's advantage to have the case tried in a forum far from the scene of the accident, in a court having "jurisdiction" over the defendant. Let us assume there is such a court and the plaintiff serves the defendant within its territorial jurisdiction. The defendant appears in order to avoid default and defends himself at great expense and under heavy handicaps. But the defendant may choose to settle rather than go to the expense of appearing in the inconvenient forum which is probably one of the reasons why the plaintiff chose the forum in the first instance. Of course the plaintiffs early took advantage of these concepts of "transitory cause of action" and "jurisdiction over the person" and courts were required to develop rules and techniques to satisfy complaints of indignant defendants who pointed out that a case is not truly heard on the "merits" when heard in a forum where the plaintiff's proof is easy to present, local feeling is strong for plaintiff's right in this type of action, and the defendant's witnesses must be transported or records bundled up and trans- ferred, or valuable time of the defendant or of his witnesses is lost in traveling and living away from home. In England, with its unitary form of government, and in the separate states of the United States, arriving at methods with which to deal with plain- tiffs who made these harassing choices of venue was relatively easy. Statutes were passed early in the development of our law which regulated choice of venue and provided for defenses of improper venue and for transfer of cases from one venue to another where it was clear the plaintiff's choice, though legally correct, was unfair to the defendant; and the device of conditional dismissal was developed whereby the defendant could ask the court to dismiss the plaintiff's suit on condition defendant would agree to service in the convenient forum or would waive the statute of limitations therein, etc.- making it clear that if the defendant did not cooperate in the "convenient county" the plaintiff could return and proceed to trial or judgment. The "interstate" problem in a federal system, however, is necessarily much more complex. If A sues B in state X on a transitory cause of action and B pleads that he was only temporarily in state X and that the "fair" place of trial is state Y-several problems are immediately apparent: 1.
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