Divisions, Places of Trial, and Territories

Section 1404 does not end with the cross-district power in subsection (a). Three more subsections answer narrower questions: how an action moves between divisions of one district, where inside a division a trial may be held, and which territorial courts the section cannot send a case to.¹ The easiest way to keep them apart is by distance. Subsection (c) moves a trial from one place to another inside a division. Subsection (b) moves the case to a different division of the same district. Subsection (a) reaches across district lines, but only to a district or division where the action might have been brought or to which all parties have consented.² Subsection (d) then takes three courts off the list of destinations altogether.

Subsections (a) and (b) overlap. Subsection (a) itself authorizes transfer to “any other district or division,” so a division-to-division move can be framed under it as well.³ Subsection (b) exists because a district may be divided into divisions, and a convenience problem can arise inside one district: the courthouse where a case sits may be far from the witnesses while another division’s courthouse is close. Subsection (b) gives that smaller adjustment a provision of its own, with a simpler destination test.

Transfer Between Divisions

Subsection (b) governs the smallest relocation of a whole case, a move between two divisions of one district. Its operative sentence provides: “Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district.”⁴ Three features matter. The trigger is a motion, or the consent or stipulation of all parties. The thing moved can be a whole civil action or only a motion or hearing within it, so a court can send one proceeding to another division without moving the case. The decision is discretionary, and the destination is confined to “any other division in the same district.”⁵

Subsection (b) has no counterpart to the original-right clause or the consent clause of subsection (a). Its only destination limit is that the receiving division lie in the same district.⁶ The court therefore does not ask where the plaintiff could originally have sued. The case stays in the district where it already sits, and the question is whether another division serves it better.

Smith v. Colonial Penn Insurance Co. shows how courts treat such a motion. The movant sought to move a case from the Galveston Division to the Houston Division, and the court refused to find that transfer would best serve the convenience of parties and witnesses.⁷ Vague statements about unknown and unnamed witnesses were not enough. The court added that even if every witness, document, and piece of evidence were within walking distance of the Houston courthouse, retaining the case in Galveston would impose minimal inconvenience in an age of easy travel, communication, discovery, and preserved testimony. The Galveston courthouse is only about fifty miles from Houston, and the key witnesses were not being asked to travel “to the wilds of Alaska.”⁸ When two courthouses are a short drive apart, the movant has little inconvenience to point to and must offer specifics.

A move that crosses a district line cannot use subsection (b). In Republic of Bolivia v. Philip Morris Cos., the Republic of Bolivia sued tobacco companies in a Texas state court to recover health care costs it said it had incurred treating its residents’ tobacco-related illnesses. The defendants removed the suit to federal court on February 19, 1999, invoking 28 U.S.C. §§ 1331 and 1332. The federal judge then transferred the case to the District of Columbia on the court’s own initiative under § 1404(a), for the convenience of parties and witnesses and in the interest of justice.⁹ The destination was a different district, so the transfer ran through subsection (a) and its destination clauses. Subsection (b) stops at the district line. A party who wants a different district must satisfy the “might have been brought” clause or obtain the consent of all parties.¹⁰

The second sentence of subsection (b) deals with proceedings in rem, which are directed at specific property rather than at a person. A proceeding in rem brought by or on behalf of the United States may be transferred under the section without the Government’s consent where all other parties request transfer.¹¹ A trigger built on the agreement of all parties would otherwise let the Government, as the party that began the proceeding, block a move that everyone else wants. The sentence removes that veto and leaves the court’s discretion in place.

The destination of the move decides which provision does the work. A stem that sends a case to another division of the same district points to subsection (b), and the court applies the same convenience reasoning it would use for any transfer. A stem that sends the case to another district must be tested under subsection (a), through either the original-right clause or the consent of all parties.

Place of Trial Within a Division

Subsection (c) is the statute’s smallest convenience tool: “A district court may order any civil action to be tried at any place within the division in which it is pending.”¹³ The grant reaches “any civil action,” so it applies to every kind of case on the court’s docket. The permitted locations are “any place within the division in which it is pending,” so the court chooses among locations inside the division the case already occupies. Nothing in the sentence sends the case to another court. It stays pending in the same division before the same court, and only the place where the trial is held changes.

Compare that with subsection (a). A transfer to another district or division needs a destination test, either the original-right clause or the consent clause.¹⁴ Subsection (c) has no destination test and no trigger. It names no motion and does not require the consent of the parties, so the judge may address the convenience problems directly, such as witness travel and access to the courthouse, by choosing the closer location.¹⁵

The power stops at the division line. A judge who concludes that the case belongs in a different division is no longer choosing a place of trial within the division where the case is pending, so subsection (c) does not reach that move. A move to a different division of the same district runs through subsection (b), and a move to another district must satisfy subsection (a) and one of its destination clauses.¹⁶ On an exam, the question to ask about any order relocating a trial is how far the trial is going. Another place in the same division is subsection (c). A different division or district is subsection (b) or (a).

Territorial Courts

Subsection (d) removes three courts from the list of places a case can be sent. Its first sentence reads: “Transfers from a district court of the United States to the District Court of Guam, the District Court for the Northern Mariana Islands, or the District Court of the Virgin Islands shall not be permitted under this section.”¹⁸ The exclusion sits on top of the destination clauses in subsection (a). A district where the action might have been brought, or to which every party has consented, is ordinarily an eligible destination.¹⁹ These three courts are unavailable whatever the parties prefer, because subsection (d) states no exception for consent or for convenience. The statute gives no reason on its face, so the rule is best learned as a textual limit and not as the product of any balancing.

The second sentence is definitional: “As otherwise used in this section, the term ‘district court’ includes the District Court of Guam, the District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the term ‘district’ includes the territorial jurisdiction of each such court.”²⁰ Read together, the two sentences divide the work. For other purposes of the section, the three courts count as district courts and their territorial jurisdiction counts as a district. The first sentence withholds them as destinations for transfers from a district court of the United States. The bar runs in one direction to three named courts, and the rest of the section operates as usual.

On an exam, the proposed destination is the first thing to read. A stem that names Guam, the Northern Mariana Islands, or the Virgin Islands as the transferee court is testing this exclusion, and the answer is that § 1404 does not permit the transfer, with no weighing of private and public factors. A stem that names any other district sends the analysis back to the original-right clause and the consent clause, followed by the convenience balance.