Where It Might Have Been Brought

Where It Might Have Been Brought

Section 1404(a) lets a district court transfer “any civil action,” but only to a destination the statute names: “any other district or division where it might have been brought or to any district or division to which all parties have consented.”¹ The sentence opens two routes. One measures the destination against the plaintiff’s options on the day of filing; the other asks only whether everyone in the case agrees.

Either route is a threshold. Convenience and the interest of justice come into play only after a proposed district qualifies under one of them, and a district that qualifies under neither stays off the table however convenient it looks. The original-right route comes first below because it supplies the default rule; the consent route relaxes it.

The Original-Right Limit

The last phrase of § 1404(a), “where it might have been brought,” poses a counterfactual question. Had the plaintiff filed this same suit in the proposed district on the day the action began, would that district have been a proper home for it? Courts answer by checking that the transferee district would have had subject-matter jurisdiction over the claim, personal jurisdiction over the defendant, and proper venue.² The clock stops at filing: the Supreme Court read the phrase to refer only to the situation when the original suit was instituted.³ Promises made and events that occur after filing therefore do not lengthen the list of eligible districts.

A transfer motion accordingly runs in two steps. The moving party must first show that the action could have been brought in the proposed district, and only then does the court weigh the convenience of parties and witnesses and the interest of justice.⁴ The first step asks whether a district is available at all; the second asks which available district serves the case better. A district that fails the first step cannot be rescued by a strong showing on the second. Courts apply the sequence in practice. At the first step, one court checked complete diversity, the transferee state’s long-arm statute, and whether a substantial part of the events occurred in the transferee state.⁵ At the second step, a court gave weight to the fact that almost all nonparty, nonexpert witnesses lived in the transferee district and that the sources of medical records were there too.⁶

Hoffman v. Blaski shows how rigid the limit is. The defendant sought transfer to a forum that had been improper for both venue and service of process when the suit was filed, and it emphasized that venue, like jurisdiction over the person, may be waived.⁷ The Supreme Court held that a transfer is permissible only to a district where the plaintiff had a right to bring the action initially, so the transferee court must have had venue, and the defendants must have been amenable to process there, when the suit was filed.⁸ Waiver and consent did not change that result: a forum improper for both venue and service of process was not a forum where the action “might have been brought.”⁹ The Court also rejected the argument that the phrase covers a forum to which the parties consent or one that is convenient.¹⁰

The Court placed the power to transfer with the plaintiff’s options, not the defendant’s preferences. It depends “not upon the wish or waiver of the defendant but, rather, upon whether the transferee district was one in which the action ‘might have been brought’ by the plaintiff.”¹¹ A defendant’s offer to waive objections therefore adds nothing when the plaintiff objects. What counts are the facts that existed on the filing date: where the defendant resides, where the events occurred, and whether process could have reached the defendant in the proposed district.

The second half of the limit comes from Van Dusen v. Barrack, which settled what “where it might have been brought” refers to. The plaintiffs there sued as fiduciaries, and the defendants moved to transfer to Massachusetts, where venue and jurisdiction were not in question.¹³ The plaintiffs had not obtained the appointment that Massachusetts required of a fiduciary who sues. The court of appeals conceded that they quite likely could have obtained an ancillary appointment but held that irrelevant, and it denied transfer on the strength of Hoffman: unless the plaintiff had an unqualified right to sue in the transferee forum when the complaint was filed, § 1404(a) did not authorize transfer there.¹⁴

The Supreme Court found the analogy to Hoffman wanting. Hoffman involved a forum improper for both venue and service of process, while this motion sought a district where both venue and jurisdiction were proper, so the court of appeals had extended Hoffman and increased the restrictions on transfers to convenient federal forums.¹⁵ The statute’s remedial purpose, the individualized, case-by-case consideration of convenience and fairness, also “militates against restricting the number of permissible forums within the federal system.”¹⁶ The Court therefore held that the words “where it might have been brought” are construed with reference to the federal laws delimiting the districts in which an action may be brought, and not with reference to the laws of the transferee state concerning the capacity of fiduciaries to bring suit.¹⁷

The capacity problem still mattered, though not at the threshold. If Rule 17(b) required Massachusetts capacity law to apply after transfer, the defendants could raise the incapacity defense and defeat the actions, so a § 1404(a) transfer might bring a prejudicial change in the applicable state law. Rule 17(b) may thus be irrelevant to where an action might have been brought, yet its effect may render a change of venue contrary to the interest of justice.¹⁸ The choice-of-law sections below return to that concern.

The two cases mark opposite edges of the same limit. Hoffman refused to let a defendant’s waiver add a district that failed on venue and service of process at filing. Van Dusen refused to let a transferee state’s capacity rules remove a district that satisfied venue and jurisdiction. In both, the federal rules on venue and jurisdiction decide which districts are eligible.

A diversity case shows the audit at work. The court confirmed complete diversity, that the transferee state’s long-arm statute reached the alleged tort, and that a substantial part of the events occurred in the transferee state, so the case could have been brought there.¹⁹ A failure at steps two through four ends the inquiry for that district before convenience arises, unless every party consents. That exception is the next topic.

Transfer by Consent

The second destination clause of § 1404(a) permits transfer “to any district or division to which all parties have consented.”²¹ The first clause asks a counterfactual about the plaintiff’s options at filing; this one asks only whether everyone agrees. A district that every party has accepted is therefore eligible even if the case could not have been brought there originally,²² and the “or” between the clauses means that either one opens the door. The word “all” carries weight. Every plaintiff, every defendant, and every other party must agree, and a single holdout closes this route and leaves the court with the original-right clause alone.

The consent clause is Congress’s answer to a complaint. The Supreme Court had held that the words “where it might have been brought” referred only to the situation when the original suit was instituted and would not permit transfer to a forum where the action could not originally have been commenced, even though the defendant consented. Critics called that result unduly restrictive of transfers to convenient forums, and Congress amended the statute to allow transfer to a forum “to which all the parties have consented.”²³ The Federal Courts Jurisdiction and Venue Clarification Act of 2011 made that change, so on the consent of all parties a district court may now send a case to a district where it could not originally have been brought.²⁴

The statute requires agreement, not the defendant’s preference. The Hoffman Court had said that the transfer power depends “not upon the wish or waiver of the defendant but, rather, upon whether the transferee district was one in which the action ‘might have been brought’ by the plaintiff,” and the strict limitation that statement described no longer applies once all parties consent.²⁵ The amendment did not make the defendant’s wish the test. It asks for the agreement of everyone.

A defendant who wants the new district but cannot win the plaintiff’s agreement is therefore left with the original-right limit. In Hoffman the defendant stressed that venue and process may be waived, and the Court still held that a forum improper for both venue and service of process was not one where the action might have been brought.²⁶ Nothing in the amendment gives a defendant’s waiver that power when the plaintiff objects, because the statutory test is the consent of all parties. An exam stem should be read for the plaintiff’s position: a plaintiff who objects has not consented.

The consent clause also reaches forum-selection agreements, which later sections develop. Section 1404(a) permits transfer to any district to which the parties have agreed by contract or stipulation, so it supplies a mechanism for enforcing a forum-selection clause that points to a particular federal district.²⁷ The weight such a clause carries in the balance is taken up below.