The Fallback Venue

Section 1391(b)(3) differs from the two alternatives before it because it opens only when they have failed. It permits suit in "any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action," but only "if there is no district in which an action may otherwise be brought as provided in this section."¹ That opening condition makes the provision a last resort. A court must test the residence alternative and the events alternative against every district in the country, and only if neither yields a proper district anywhere may the plaintiff turn to (b)(3).² Once the fallback does apply, the test changes entirely. Venue follows personal jurisdiction rather than residence or events, and because the statute says "any defendant," jurisdiction over one defendant in the chosen district is enough.³

The fallback closes a gap that the first two alternatives can leave open. The residence alternative, as the earlier diversity subsection phrased it, reaches a district where any defendant resides only "if all defendants reside in the same State," so defendants from different states defeat it in every district.⁴ The events alternative fails when no district holds a substantial part of the events or omissions behind the claim, which typically happens only when the claims arise abroad.⁵ A plaintiff whose claim arose overseas against defendants from different states would therefore have no venue under either alternative. The Supreme Court refused to adopt a reading that produced that kind of gap in Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas. It observed that "Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional grant with the other," and that the statute's design "contemplates that venue will always exist in some federal court."⁶

Hypothetical Illustration

Alvarez, a California citizen, sues Brennan, a Colorado domiciliary, and Osei, an Ohio domiciliary, over a charter agreement negotiated and performed entirely in the Bahamas. She files in the District of Nevada, where neither defendant has any contacts. Residence venue fails because the defendants live in different states. Events venue fails because nothing happened in any federal district. The fallback is therefore reached, but it still requires a district in which a defendant is subject to personal jurisdiction on this claim, and Nevada offers none. The filing fails. The District of Colorado would work, because Brennan is at home there and the statute asks only about any defendant.

Now change one fact. The charter was performed in Florida, within a single federal district. That district holds a substantial part of the events, so it is proper under the events alternative. The fallback is then closed for every district in the country, including any other district where Brennan or Osei could be reached.

Both versions of the hypothetical turn on one question: does any district in the country qualify under the first two alternatives? When one district plainly holds the events, the answer ends the inquiry. One judicial opinion applying § 1391(b)(2) reasoned that, because all of a defendant's activity occurred in California, the claim against that defendant was properly venued in a California district.⁷ A plaintiff in that position cannot reach for (b)(3) to sue elsewhere, however many other districts could assert personal jurisdiction over the defendant.⁸

The same reasoning defeated a plaintiff in Hickey v. St. Martin's Press, Inc. Venue in the plaintiff's New Hampshire forum failed as to one defendant, and the court declined to apply the fallback because the plaintiff could not show that no other district was available. He had himself sued the defendants in Maryland, and all sides agreed that venue and personal jurisdiction existed there.⁹ The court applied the earlier diversity-only subsection, § 1391(a)(3), which allowed venue in a district where any defendant is subject to personal jurisdiction "at the time the action is commenced, if there is no district in which the action may otherwise be brought."¹⁰ The wording differs from the current text, but the structure is the same: the fallback opens only when no other district is available.

Scattered events tempt students toward the fallback, yet they usually produce the opposite result. A claim can have a substantial part of its events in several districts, so § 1391(b)(2) often authorizes venue in more than one place. In a trademark suit, for example, it would presumably support venue where the decision to market the infringing product was made and in the districts where the product was sold.¹¹ Courts will face close questions about what counts as a "substantial part," but any one proper district closes the fallback.¹² Because subsections (1) and (2) are so broad, subsection (3) typically matters only when the claims arise abroad.¹³

A plaintiff who does reach the fallback still has a choice to make. The phrase "with respect to such action" ties the jurisdictional inquiry to the claim actually pleaded, so the plaintiff needs a district whose court could hear this claim against at least one defendant.¹⁴ A defendant's home district is the natural candidate.

Students most often go wrong at the third step. Defendants from different states, or events spread over several places, invite an immediate leap to the fallback. One proper district under (b)(1) or (b)(2) anywhere in the country already forecloses it.

The Fallback Venue

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