Concept
Where Section 1391 Yields
Proper venue under § 1391
Where Section 1391 Yields
Section 1391 opens with a qualification that is easy to read past: "Except as otherwise provided by law."1 Everything the section says about venue is subject to that phrase. The statute is general, so it answers the venue question only for claims that no more specific law addresses, and it yields whenever Congress has written a particular rule.
The qualification matters because the three alternatives in § 1391(b) can be applied flawlessly and still miss the point. You can show that the defendant resides in the chosen district, or that a substantial part of the events occurred there, and conclude that venue is proper. The conclusion decides nothing if another law governs venue for the case. The first question is which law supplies the rule, and § 1391(b) answers it only when nothing else does.
Two situations take a case out of subsection (b). In the first, Congress has written a venue provision for the claim itself, a rule aimed at one kind of claim rather than at every civil action. In the second, the case began in state court and the defendant removed it, so no plaintiff chose among federal districts, and the removal statute rather than § 1391 fixes the destination. Before you test residence, events, and fallback venue, then, ask two questions: Does this claim carry a venue statute of its own? Did this case start in state court? A yes to either makes § 1391(b) the wrong place to begin.
Special Venue Statutes
Congress has written special venue provisions for particular claims, and each either replaces § 1391 or supplements the venues that § 1391 specifies.2 The venue provision attached to the Carmack Amendment, § 11706(d)(2)(A), is a typical example: it limits venue to certain specified districts.3 Whether a special statute replaces or supplements the general one tells you how many routes to test, one when it replaces and two when it adds. Patent infringement illustrates replacement. RICO and antitrust illustrate supplement.
A reader who knew only § 1391(b) might assume that a patent suit can be brought wherever the defendant resides or wherever the events occurred. Not so. Section 1400(b) of Title 28 restricts venue in patent infringement actions to the district where the defendant resides, or where the defendant committed acts of infringement and has a regular and established place of business.4 The second route has two requirements joined by "and." Infringing acts in a district do not suffice unless the defendant also has a regular and established place of business there.
A claim with no special provision goes through § 1391(b) in the ordinary way. Suppose a plaintiff sues in Alabama a defendant domiciled in Florida. An individual resides "in the United States district in which that person is domiciled" under § 1391(c)(1), so the defendant does not reside in Alabama, and venue fails under (b)(1).5 The label "federal claim" therefore does not identify the venue statute. Only a search for a special provision does.
RICO shows a special statute that sits beside § 1391 rather than in place of it. In Kaplan v. Reed the court framed its first question as whether venue in Colorado was proper as to all defendants under § 1391(b) or under 18 U.S.C. § 1965(a). Subsection (b) of § 1965 comes into play in a multi-defendant RICO action where venue is proper as to at least one defendant but not the others.6 The court then found no prima facie showing under § 1391(b) as to James and Cynthia Reed. Not all defendants resided in Colorado, and although a substantial number of the events occurred there, the specific acts alleged against the Reeds did not. The court also could not tell from the record whether the (b)(3) fallback was open.7 A RICO plaintiff thus has two statutes to draw on, and showing that § 1391(b) fails for one defendant does not end the inquiry.
The Clayton Act supplements in the same way. In Zero Tech, LLC v. Clorox Co. the court quoted the antitrust venue provision: a suit under the antitrust laws against a corporation "may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business."8 The words "not only . . . but also" mark the provision as an addition. A district where the corporation merely transacts business may qualify under the Clayton Act even if § 1391(b) would not accept it. The same provision lets process be served wherever the corporation may be found, so it reaches beyond venue.9
Because a special statute controls only the claims it covers, one lawsuit can require more than one venue analysis. In Pacer Global Logistics v. National Passenger R.R. Corp. the Carmack provision supplied the venue rule for the Carmack claim. For the claim against Jimco the court turned to the general statute, and because all of Jimco's activity occurred in California, § 1391(b)(2) placed that claim in a California district.10 The special provision answered one claim and the general statute the other, which is why you must identify the governing provision for each claim before testing any district. The earlier discussion of pendent venue explains how courts try to keep such claims together.
Nothing in § 1391 lists the special provisions. Special venue provisions also govern copyright suits, interpleader actions, and actions against federal officials, and the only protection against missing one is a careful search of the statutes before suit is filed.11 A later section collects the specialized rules that sit inside § 1391 itself. An answer that applies only § 1391(b) to a claim carrying its own venue statute uses the wrong test, however accurate the application.
Removed Cases
The second situation that takes a case out of § 1391(b) is removal, the defendant's power to move a case that the plaintiff filed in state court into federal court. Congress answered the venue question for such cases in the removal statute. Section 1441(a) sends a removed action to "the district and division embracing the place where such action is pending" in state court, and § 1390(c) confirms that the venue chapter plays no part: it "shall not determine the district court to which a civil action pending in a State court may be removed."13 Geography therefore fixes the destination. Whatever federal district and division embrace the state court receive the case, and the three alternatives in § 1391(b) are never consulted. An exam answer that runs a § 1391 analysis on a removed case has answered the wrong question.
The rule makes sense because § 1391 governs cases commenced in federal court, and a removed case was commenced in state court under that state's venue rules.14 Removal exists to give the defendant a federal forum, not to let the defendant avoid the state in which the plaintiff permissibly chose to sue. If a defendant could remove and then win dismissal under § 1391, the right to a federal forum would double as an escape from a properly chosen state. A plaintiff who followed the venue rules that applied would be penalized for missing a federal statute that never applied.15
The motion should be denied. Sumner chose a court that was a proper venue under state law, and removal lets Davis exchange the state court for a federal one without letting him avoid trial in the state where suit was properly brought. The proper venue for the removed action is the District of Massachusetts, and only that district.16
Filed originally in the federal court in Boston, the same complaint would have drawn the opposite ruling. Davis resides in Louisiana and made the statement there, so the residence and events alternatives point to Louisiana districts and to none in Massachusetts.17 Because a proper district exists somewhere, the fallback in (b)(3) stays closed, and Davis's presence at the Massachusetts convention supports personal jurisdiction without creating venue.18 Removal can therefore deliver a case to a district in which the plaintiff could not have filed it.
Filed originally in the Rhode Island federal district, the suit would fail. The physician is not a Rhode Island resident, so (b)(1) is not met there. The treatment occurred in Kansas, so (b)(2) points to Kansas, and the availability of a Kansas district shuts off the fallback. After removal, however, the motion to dismiss for improper venue must be denied.19 The defendants keep one remedy, a motion under § 1404(a) to transfer the case to Kansas. That motion may well succeed, since a transfer requires only a lesser showing of inconvenience than dismissal for forum non conveniens, but it asks whether another federal district would serve the parties and witnesses better. It does not contend that venue in Rhode Island is improper.20
Removal settles the venue question and nothing more. Venue never supplies personal jurisdiction, which must still be established over each defendant.21 Whether the case could be removed at all is likewise a separate inquiry, treated elsewhere in this treatise.
The third step is where answers go wrong. The § 1391 analysis taught in earlier sections can be executed perfectly on a removed case and still answer the wrong question. A motion to dismiss a removed case under § 1391 should be denied on that ground alone, even when the same facts filed originally in that district would have been improperly venued.