Forum Strategy Toolkit: Clauses, Transfer Motions, and First-Filed Briefing

Summary. The working documents of a forum practice, annotated.

Template 1 — Forum selection clause

Forum. Any action, suit, or proceeding arising out of or relating to this Agreement, the relationship of the parties, or the subject matter hereof, whether sounding in contract, tort, statute, or otherwise, shall be brought exclusively in the state or federal courts located in [County, State], and each party irrevocably submits to the exclusive jurisdiction of such courts.

Waivers. Each party irrevocably waives (a) any objection to venue in such courts; (b) any defense of inconvenient forum, including forum non conveniens; and (c) any right to seek transfer of any such action to any other court.

Service. Each party consents to service of process by [certified mail to the address in Section ___ / the means permitted by applicable law], and agrees such service is effective and sufficient.

Binding effect. This Section binds the parties and their respective affiliates, successors, assigns, and any person claiming through or on behalf of a party.

Survival. This Section survives termination or expiration of this Agreement.

Drafting notes — the words that do the work:

Pair it with a choice of law clause. They do different work, and a forum clause without one leaves governing law to the chosen forum's conflicts rules.

Template 2 — Forum comparison worksheet

One page. Prepared before filing. The analysis clients most appreciate.

Sources: published caseload statistics for the timing rows; the circuit reporter for the law rows; local rules and standing orders; and local counsel for the judge rows.

Template 3 — Venue analysis worksheet

VENUE ANALYSIS                                  CASE: ______

1. SPECIAL VENUE STATUTE?
   [ ] Patent — 28 U.S.C. 1400(b)   [ ] Copyright — 1400(a)
   [ ] Securities  [ ] Antitrust  [ ] ERISA  [ ] FTCA
   [ ] Admiralty   [ ] Bankruptcy [ ] Other: ______
   *** CHECK THIS BEFORE APPLYING 1391 ***

2. GENERAL VENUE — 28 U.S.C. 1391
   (1) Do all defendants reside in this State, and does any
       reside in this district?                        Y / N
   (2) Did a SUBSTANTIAL PART of the events occur here?  Y / N
       Which events:
   (3) Fallback: personal jurisdiction over any defendant? Y / N

3. PATENT (if applicable) — 1400(b)
   Defendant incorporated in this State?                Y / N
   Acts of infringement here?                           Y / N
   REGULAR AND ESTABLISHED PLACE OF BUSINESS here?      Y / N
     - A physical place?                                Y / N
     - Regular and established?                         Y / N
     - THE DEFENDANT'S place (not an employee's home)?  Y / N

4. PERSONAL JURISDICTION over each defendant?           Y / N

5. FORUM SELECTION CLAUSE in any governing agreement?
   Text:
   Mandatory or permissive?
   Scope: "arising out of" / "arising out of OR RELATING TO"
   Does it cover each claim?

6. CONCLUSION: venue proper / improper / clause controls

Template 4 — Transfer motion outline

MOTION TO TRANSFER UNDER 28 U.S.C. § 1404(a)

I.    INTRODUCTION
      Where the case should be, and the one fact that decides it.

II.   BACKGROUND
      The parties; where the events occurred; the connection (or
      lack of it) between this district and the dispute.

III.  LEGAL STANDARD
      § 1404(a); the two-step inquiry; Gulf Oil factors as applied
      in this circuit. Two pages.

IV.   THE ACTION COULD HAVE BEEN BROUGHT IN THE TRANSFEREE DISTRICT
      Venue and personal jurisdiction there.

V.    THE PRIVATE INTEREST FACTORS FAVOR TRANSFER
      A. NON-PARTY WITNESSES BEYOND THIS COURT'S SUBPOENA POWER
         [The witness table. This is the motion.]
      B. Party witnesses and their locations
      C. Sources of proof
      D. Practical trial considerations

VI.   PLAINTIFF'S CHOICE MERITS REDUCED DEFERENCE
      [Sued outside home district / operative facts elsewhere /
       attenuated connection]

VII.  THE PUBLIC INTEREST FACTORS FAVOR TRANSFER
      A. Comparative time to trial [with published figures]
      B. Local interest
      C. Familiarity with governing law
      D. Jury duty burden

VIII. [CANDOR:] TRANSFER DOES NOT ALTER GOVERNING LAW
      Van Dusen — transferor's choice-of-law rules follow.

IX.   CONCLUSION

Section VIII is worth including. It removes the opponent's most sympathetic argument and demonstrates candor to a court that will otherwise wonder.

Template 5 — Witness declaration (the motion's foundation)

DECLARATION OF [NAME] IN SUPPORT OF MOTION TO TRANSFER

1. I am [title] at [Defendant]. I have personal knowledge of the matters stated here.

2. [Defendant]'s operations. [Defendant] is incorporated in [State] and headquartered in [City]. It has no offices, employees, or property in [current district]. [Or describe accurately what presence exists.]

3. The events at issue. The [contract was negotiated / product was designed / decisions were made] in [City], by employees located there.

4. Non-party witnesses. The following individuals have knowledge of the matters at issue and are not employed by [Defendant]:

Name	Location	Expected testimony	Employment status
			Former employee / third party

Each of these individuals resides more than 100 miles from [current courthouse] and outside [State]. [Named individuals] have informed me that they are unwilling to travel to [current district] voluntarily.

5. Party witnesses. The following [Defendant] employees have knowledge and are located in [City]: [list with roles].

6. Documents and systems. [Location of records, systems requiring inspection, physical evidence.]

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed on [date].

Signed by a party representative, not by counsel. A declaration from the lawyer about witness inconvenience carries little weight and is sometimes stricken.

The bolded sentence in paragraph 4 is what wins the motion. A witness who has said they will not come voluntarily, and who cannot be compelled, is the strongest fact available.

Template 6 — Forum non conveniens conditions stipulation

Defendant, in support of its motion to dismiss on forum non conveniens grounds, stipulates and agrees that if the Court dismisses this action:

1. Defendant will submit to the jurisdiction of the courts of [alternative forum] with respect to the claims asserted here.
2. Defendant will accept service of process in [alternative forum] in the manner permitted there.
3. Defendant waives any statute of limitations, repose, or laches defense that would not have been available had this action been filed in [alternative forum] on the date it was filed here, and further waives any such defense arising from the period during which this action was pending.
4. Defendant will make available in [alternative forum] all documents and witnesses within its control that would have been available here.
5. Defendant will satisfy any final judgment rendered in [alternative forum].
6. Defendant consents to reinstatement of this action if [alternative forum] declines jurisdiction.

Offer these affirmatively in the motion. They convert the strongest objection — that dismissal leaves the plaintiff without a remedy — into a non-issue, and courts frequently condition dismissal on exactly these terms anyway.

Template 7 — First-filed briefing

For the first filer:

I.   THE FIRST-FILED RULE
     Comity; the first-filed court proceeds.
II.  THE ACTIONS SUBSTANTIALLY OVERLAP
     Parties: [comparison]  Issues: [comparison]
III. THIS ACTION WAS FILED FIRST
     Docket timestamps.
IV.  NO EXCEPTION APPLIES
     A. Not anticipatory — [no specific threat preceded filing /
        filed after substantial pre-suit effort]
     B. Not forum shopping — this district's connections
     C. Convenience favors this forum
     D. This action is at least as comprehensive
V.   RELIEF: stay, transfer, or dismissal of the later action

For the second filer:

I.   THE FIRST-FILED RULE IS DISCRETIONARY, NOT ABSOLUTE
II.  THE FIRST ACTION WAS ANTICIPATORY
     A. The demand letter (Exhibit A) — quote the threat
     B. The declaratory action was filed [n] days later
     C. It seeks only a mirror-image declaration
III. FORUM SHOPPING
     The first forum's connection to the dispute: [none/minimal]
IV.  THE BALANCE OF CONVENIENCE FAVORS THIS FORUM
     [§ 1404(a) factors]
V.   THIS ACTION IS MORE COMPREHENSIVE
     Additional parties and claims not present in the first action.
VI.  BAD FAITH
     [Settlement discussions used to induce delay while preparing
      to file — attach the correspondence with dates.]

The demand letter is the exhibit in both. Attach it, quote it, and let the specificity of the threat do the work.

Template 8 — Standstill agreement

The most underused instrument in forum practice. Prevents the race entirely.

1. Purpose. The parties wish to discuss resolution of the matters described in [___] without either commencing litigation.

2. Standstill. Neither party will commence any action, arbitration, or administrative proceeding concerning the Disputes until the earlier of (a) [60] days from the date hereof, or (b) [10] business days after either party gives written notice terminating this Agreement.

3. Tolling. All statutes of limitation, repose, laches, and other time-based defenses applicable to the Disputes are tolled from the date hereof until [10] business days after termination.

4. No prejudice. Nothing herein is an admission, and no claim, defense, or position — including as to forum, jurisdiction, or venue — is waived.

5. Confidentiality. Communications during the standstill are settlement communications inadmissible to prove liability.

6. Notice. Notice under Section 2 must be given to [named individuals] at [addresses] and is effective on receipt.

7. No first-filing advantage. Neither party will contend that the timing of any action commenced after termination establishes priority under any first-filed or similar doctrine by reason of this Agreement.

Section 2's notice period is the point. Without it, a party terminates and files the same minute. Ten business days means neither side gains by racing.

Section 7 prevents an argument that the standstill reset the first-filed analysis.

Template 9 — Demand letter risk analysis

Complete before sending any letter that mentions litigation.

DEMAND LETTER — DECLARATORY ACTION RISK

1. WOULD THIS LETTER CREATE A CONTROVERSY?
   Does it assert that the recipient is infringing or in breach? Y/N
   Does it threaten litigation?                                  Y/N
   Does it set a deadline?                                       Y/N
   Does it identify specific rights and specific conduct?        Y/N
   -> Two or more "yes" answers: assume a DJ action is available.

2. WHERE WOULD THEY FILE?
   Recipient's home district: ______
   Is that forum acceptable to us?  Y / N
   What is our transfer argument there?

3. WHAT DO WE GAIN FROM THE LETTER?
   [ ] Willfulness / notice for damages purposes
   [ ] Genuine chance of resolution
   [ ] Preservation demand
   [ ] Nothing we cannot get another way

4. ALTERNATIVES
   [ ] File first, then send the complaint
   [ ] Standstill agreement (Template 8)
   [ ] Non-threatening letter describing rights and inviting discussion
   [ ] Do nothing yet

5. DECISION: ______   APPROVED BY: ______   DATE: ______

Template 10 — Removal checklist

REMOVAL — PRE-FILING CHECK

1. FEDERAL JURISDICTION
   [ ] Federal question — 28 U.S.C. 1331
   [ ] Diversity — 1332; amount in controversy: $______
   [ ] CAFA — 1332(d); minimal diversity; 100+ members; $5M

2. *** ARTICLE III STANDING ***
   Does the plaintiff allege a CONCRETE injury?   Y / N / Doubtful
   -> If NO or DOUBTFUL: removal produces REMAND under 1447,
      not dismissal, and remand orders are generally unreviewable.
      DO NOT REMOVE unless there is another reason.

3. TIMING
   Date of service on this defendant: ______
   30-day deadline: ______
   [ ] Later paper making it removable — date received: ______

4. CONSENT
   All served defendants consent?  Y / N
   [ ] CAFA — consent not required under 1453

5. FORUM DEFENDANT RULE
   Any properly joined and served defendant a citizen of the
   forum State?                                     Y / N
   [ ] CAFA — rule inapplicable

6. ONE-YEAR LIMIT (diversity)
   Case filed: ______   One year: ______
   [ ] CAFA — inapplicable

7. NON-DIVERSE DEFENDANT — fraudulent joinder?
   Any possibility of recovery against them?  Y / N

8. AFTER REMOVAL
   [ ] Motion to transfer to be filed
   [ ] Rule 12 defenses consolidated

Template 11 — MDL tag-along response

Supporting transfer:

The actions share common questions of fact concerning [the product, the conduct, the period]. Coordinated pretrial proceedings will avoid duplicative discovery, prevent inconsistent pretrial rulings, and conserve the resources of the parties and the judiciary. [Transferee district] is appropriate because [the defendant is headquartered there / a substantial number of actions are pending there / the judge has experience with related proceedings].

Opposing transfer:

This action does not share common questions of fact with the [MDL] proceeding because [different product / different period / different conduct / individualized facts predominate]. This action is [procedurally advanced — discovery is complete / set for trial on ___]. Transfer would delay resolution without efficiency benefit. In the alternative, if transferred, Movant does not waive its right to remand for trial under Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998).

Preserve the remand right expressly. It is frequently waived by agreement in multidistrict proceedings, and a party that intends to try its own case should say so early.

Template 12 — Client memorandum on forum

One page, before filing or before opposing a transfer motion.

What differs between the forums. [Time to trial, in months. Circuit law on the issue that decides this case. Jury pool. Whether our key witnesses can be compelled.]

What the motion costs. $[ ] to file / oppose, plus $[ ] if there is a hearing.

The odds. [Honest assessment, tied to the record: "We have three named non-party witnesses outside the subpoena power, which makes this motion substantially stronger than average" or "We have general inconvenience only, which rarely succeeds."]

What happens to the governing law. [Under § 1404(a), the transferor's choice-of-law rules follow. The limitations rule will not change.]

What happens if we lose. [We litigate there. Estimated additional cost over the life of the case: $ ].

Recommendation. [ ]

For next time. [The forum clause in the agreement should have said ___.]

The last line is the most valuable one in the memorandum. It is how a litigation experience becomes a better contract.

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• Moving or Keeping a Case in Your Chosen Forum: A Practical Guide
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