Venue and Transfer Checklist: A Practical Checklist

Summary. Choose a forum you can keep; move one you cannot.

Phase 1 — Compare the candidate districts

For each, record:

• Median time from filing to disposition and to trial (published statistics)
• Local rules and the assigned judge's standing order
• Judicial experience with this case type
• Jury pool composition and verdict history
• Governing circuit law on the dispositive issues — for an appealable case, this may matter most
• Discovery dispute practice: conference or full briefing
• Vulnerability to a transfer motion
• Location of the defendant's assets, for enforcement
• Convenience to your witnesses and client
• The assigned judge's history on transfer motions, if identifiable

Then ask: if we file here, will it survive a § 1404(a) motion?

Phase 2 — Confirm venue

• Does a special venue statute apply? Check before applying the general rule.
  • Patent: 28 U.S.C. § 1400(b)
  • Copyright and mask works: § 1400(a)
  • Securities, antitrust, ERISA, FTCA, admiralty, bankruptcy — each has its own
• Under 28 U.S.C. § 1391:
  • Does any defendant reside here, with all defendants in the same State?
  • Did a substantial part of the events or omissions occur here?
  • Fallback: is any defendant subject to personal jurisdiction here?
• For patent cases: is the defendant incorporated here, or does it have a regular and established physical place of business that is the defendant's — not an employee's home office? TC Heartland.
• Is personal jurisdiction available over every defendant?
• Is there a forum selection clause in any governing agreement? Read the scope: "arising out of" versus "arising out of or relating to."

Phase 3 — Do not invite a declaratory action

• Would a demand letter create a controversy under 28 U.S.C. § 2201 and MedImmune?
• Options considered:
  • File first, then send the complaint with a settlement proposal
  • Obtain a standstill agreement with a notice period and tolling
  • Write a letter that describes without threatening
  • Accept the risk because the recipient's forum is tolerable
• If a standstill is used, does it include a notice period before either party may file and a no-first-filing-advantage clause?

Phase 4 — Choose the mechanism

Phase 5 — Build the § 1404(a) record

• Threshold: could the action have been brought in the transferee district?
• Witness table — for each witness:
  • Name, employer, location
  • Expected testimony, described substantively
  • Within the subpoena power under Rule 45? (100 miles; or within the state for parties and officers)
  • Party employee (compellable) or non-party (frequently not)
  • Any stated unwillingness to travel
• Declaration from a party representative, not from counsel
• Location of physical evidence, systems, or facilities requiring inspection
• Why deference to the plaintiff's choice is reduced
• Published time-to-trial comparison
• Local interest in the controversy
• Familiarity with governing law
• Move early — delay undercuts the inconvenience argument

Phase 6 — Forum selection clause enforcement

• The clause is valid — no fraud or overreaching; no deprivation of a meaningful day in court; no contravention of strong public policy (The Bremen)
• The clause covers this dispute — quote the scope language and match it to each claim
• The clause is mandatory, not permissive
• Recite the Atlantic Marine modifications:
  • Plaintiff's choice merits no weight
  • Private interest factors are not considered
  • Transferor's choice-of-law rules do not travel
• Resisting? Your only realistic arguments are validity and scope — do not brief convenience

Phase 7 — Forum non conveniens

• Adequate alternative forum — defendant amenable to process; remedy not so clearly inadequate as to be no remedy (Piper Aircraft)
• Gulf Oil private and public factors favor it (Gulf Oil)
• Deference reduced if the plaintiff is foreign
• Offer the conditions: submit to jurisdiction there; waive limitations defenses arising during this action; produce documents and witnesses; satisfy any judgment
• Note that Sinochem permits dismissal without resolving difficult jurisdictional questions first

Phase 8 — Parallel proceedings

First-filed

• Substantially the same parties and issues?
• Docket timestamps compared
• Exceptions to invoke or rebut:
  • Anticipatory filing — attach the demand letter
  • Forum shopping
  • Balance of convenience
  • Comprehensiveness of the second action
  • Bad faith or induced delay

Parallel state case

• Colorado River factors — abstention is exceptional
• Federal claims present? Counts heavily against abstention
• For declaratory relief, the broader discretion of Wilton
• Enjoining a state proceeding? 28 U.S.C. § 2283 permits it only in three narrow circumstances

Foreign parallel case

• Same parties, same issues, domestic resolution dispositive
• Check your circuit's standard — conservative or liberal approach to comity
• Alternatives: stay; discovery under 28 U.S.C. § 1782; coordination agreement

Phase 9 — Removal

• Federal jurisdiction exists
• Notice within 30 days under 28 U.S.C. § 1446
• Consent of all served defendants (relaxed for class actions under § 1453)
• Forum-defendant rule checked
• RUN THE ARTICLE III STANDING ANALYSIS FIRST — a plaintiff without standing produces remand under § 1447, not dismissal, and remand orders are generally unreviewable
• Fraudulent joinder assessed if a non-diverse defendant is named
• Sequence: remove first, then move to transfer

Phase 10 — Multidistrict litigation

• Does an existing proceeding share common questions of fact?
• Notify the Panel of a potential tag-along
• Opposing? Show the factual questions are not common
• Remember: transfer is pretrial only — Lexecon
• Decide whether to waive the remand right by agreement

Phase 11 — Choice of law consequence

• Tell the client before filing the motion, not after it is granted

Phase 12 — Sequencing and preservation

• Removal first, on its 30-day clock — missing it forfeits the federal forum permanently
• Personal jurisdiction, if genuinely absent — winning ends the case rather than moving it
• Consolidate Rule 12 defenses — personal jurisdiction and venue are waived if omitted from the first responsive motion
• Venue or transfer
• Forum non conveniens
• Merits motions, generally in the transferee court
• Subject matter jurisdiction — never waived
• Request a discovery stay pending the transfer motion, or litigating fully undercuts the inconvenience argument

Related documents

• Forum Selection, Transfer, and Parallel Proceedings: Choosing and Keeping the Court You Want
• Moving or Keeping a Case in Your Chosen Forum: A Practical Guide
• Forum Strategy Toolkit: Clauses, Transfer Motions, and First-Filed Briefing
• Standing and Justiciability Checklist: A Practical Checklist
• Declaratory Judgment Checklist: A Practical Checklist
• Rule 45 Subpoena Response Checklist: A Practical Checklist
• Civil Procedure Toolkit: Pleadings, Jurisdiction, Preclusion, and Deadlines