Multiple Defendants and Claims

Section 1391(b) is simplest with one defendant and one claim, but its text already anticipates more. The residence alternative permits venue in a district where “any defendant resides, if all defendants are residents of the State in which the district is located,” so the number of defendants and their home states are part of the test itself.¹ The events alternative asks where “a substantial part of the events or omissions giving rise to the claim occurred,” and its singular “claim” leaves open what a court should do when defendants acted in different places.² Only the rule for defendants who live abroad settles a multi-defendant problem in the statute’s own words: it tells courts to disregard the foreign defendant’s joinder.³ On everything else the text says little, and the courts have filled the gap.

Three situations need attention. Co-defendants from different states close the residence alternative for the whole case, and the plaintiff must find another way in. Defendants who acted in different districts raise the question whether a district holding a substantial part of the events as to one defendant is proper as to all. Joined claims raise a third question: whether a claim that could not be venued in a district standing alone may be heard there because a properly venued claim is attached to it, under a doctrine the courts created.

Venue answers only one of the three questions about where a federal civil suit may be filed, a limit that matters most with several defendants. A district can be proper for the whole case and still lie in a state whose courts cannot reach one defendant. The fallback provision shows how separate the inquiries are: it asks only whether “any defendant” is subject to the court’s personal jurisdiction, and it says nothing about the rest.⁴ A multi-defendant filing therefore calls for venue analysis of the case as a whole and personal jurisdiction analysis defendant by defendant.

Co-Defendants From Different States

Section 1391(b)(1) permits venue in “a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located.”⁵ The clause after the comma conditions the whole alternative. When every defendant lives in one state, venue lies in each district of that state where at least one defendant resides, and the plaintiff may choose among the defendants’ home districts. When the defendants live in different states, the condition fails for the entire case, and (b)(1) supplies no proper district anywhere in the country, however many defendants live in the district the plaintiff has chosen. The plaintiff must then rely on (b)(2), and on the fallback in (b)(3) only if no district satisfies (b)(1) or (b)(2).⁶

The condition tracks the reason residence venue is fair at all. Subsection (1) assumes that defendants will not be greatly inconvenienced by defending in a federal court located in the state where all of them reside.⁷ That assumption holds only if the chosen state is home to each defendant. If one defendant’s residence were enough, a plaintiff could pick the defendant whose home is most convenient and bring the others along, so that a Vermont defendant would defend in New York merely because of who else was sued. The same-state condition removes that leverage.

Once the condition is met, every defendant’s home district counts, so each added defendant from the same state lengthens the plaintiff’s list of proper districts.⁸ The plaintiff’s Connecticut residence plays no part. A student who sees two New York defendants should not stop at the district of the first one named.

The more common mistake runs the other way: assuming that because Doris lives in the Northern District, that district works against both defendants. A Vermont co-defendant shows why it does not.

The Southern District of New York is the only proper venue in that arrangement.⁹ Donald’s Vermont residence alone cuts the proper districts from three to one, because it closes every residence district at once, including the Northern District that was proper when only Doris’s home was in play.

The same-state condition decides only whether the residence alternative is open. It does not make every district in the state proper. In the Dixie problem, both defendants reside in Georgia, but neither resides in the Southern District of Georgia and no events occurred there, so that district fails under both (b)(1) and (b)(2).¹⁰ The example separates venue from personal jurisdiction: Georgia’s courts can reach both defendants, but venue asks about districts and personal jurisdiction asks about states.

A co-defendant who lives abroad is the one defendant whose home the statute does not count. Section 1391(c)(3) provides that a defendant not resident in the United States may be sued in any judicial district, and that the joinder of such a defendant is disregarded in determining where the action may be brought with respect to other defendants.¹¹ A defendant who lives abroad resides in no state, so counting that defendant would defeat the same-state condition in every case; the statute avoids that result by treating the defendant as absent when it works out venue for the others. Compare a Vermont co-defendant with a Toronto co-defendant in Powers’s suit. The Vermont co-defendant closes the Northern District of New York. The Toronto co-defendant leaves Doris alone to determine where the action may be brought, and the Northern District is then proper under (b)(1) against both. The clause also cuts against the plaintiff, since a foreign defendant cannot be used to enlarge the venue available against Doris, and personal jurisdiction over the Toronto defendant in New York remains a separate requirement.

Venue must also be proper as to each defendant, so one defendant for whom the chosen district fails can put the whole filing at risk. The plaintiff bears the burden of showing venue as to each claim and as to each defendant.¹² A federal court in New Hampshire applied that rule to an action over republications of a book. The plaintiff’s one remaining claim did not arise from Menninger’s participation in any republication there, so no venue existed as to him, and the court dismissed the case for lack of venue.¹³ The opinion cites the former diversity subsection, § 1391(a)(2), but the substantial-part test it applies is the one now found in (b)(2).

Remedies differ with the posture of the case. In Schultz v. Ary, a plaintiff sued a corporation, Roche, and an individual, Ary, in Michigan, and no one alleged that Ary had done anything in the state.¹⁴ The court was inclined to transfer the entire action to a district where it could have been brought, not to dismiss only the claims against Ary, because dismissal would leave the plaintiff free to refile against him and would produce two cases over the same events.¹⁵ The New Hampshire court dismissed; Schultz points toward transfer.¹⁶

A court will not necessarily rescue the plaintiff by dropping the troublesome defendant. In Woodke v. Dahm, the plaintiff argued on appeal that the district court should have dismissed one defendant, DePew, to make venue proper. The Eighth Circuit agreed that without DePew, venue would have been proper under (b)(1) because the remaining defendants resided in Iowa, but it knew of no rule requiring a court to dismiss a defendant on its own, and Woodke had made no motion.¹⁷ A plaintiff who sees that one defendant spoils (b)(1) must therefore act: move to drop that defendant, find a district proper for every defendant under (b)(2), or accept a transfer of the whole case.

Exam Analysis Steps

The same-state condition opens or closes the residence alternative for the whole case, so the analysis runs best as a short sequence applied to all defendants together:

Identify where each defendant resides under § 1391(c), and set aside any defendant who does not reside in the United States, because that defendant’s joinder is disregarded.
Ask whether all remaining defendants reside in one state; if they do not, treat (b)(1) as unavailable for the entire case.
If they do, list every district of that state in which any defendant resides; each is proper under (b)(1).
Test (b)(2) separately for the claims against each defendant, and turn to the fallback in (b)(3) only if no district in the country satisfies (b)(1) or (b)(2).
Confirm that the chosen district is proper as to every defendant; if it is not, expect dismissal, severance, or transfer of the claims against the defendant for whom it fails.

Step four leads to the next section: when several defendants did different things, a district may hold a substantial part of the events as to one defendant and almost none as to another.

Events With Several Defendants

The events alternative lets a plaintiff sue in “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred,” and the wording says nothing about defendants.¹⁹ With one defendant that silence causes no trouble, because every event behind the claim is that defendant’s doing. The difficulty appears when several defendants are sued on one claim and acted in different districts. Two readings follow from the phrase “the claim.” A claim-focused reading asks where a substantial part of the story behind the claim happened, so one defendant’s conduct in the district can support venue for every defendant sued on that claim. A defendant-by-defendant reading asks the question separately for each defendant, so a defendant who did nothing in the district can object that venue is improper as to that defendant, whatever the others did there.

A design dispute shows the claim-focused reading at work. Grant sues Lee, who lives in the Eastern District of Virginia, and Longstreet, a South Carolina resident who dealt only with Lee, and did so in Virginia. The defendants live in different states, so the residence alternative cannot carry the case, and the analysis moves to (b)(2).²⁰ Suppose Lee decided to back out of the deal at his Virginia office. That decision is part of the events giving rise to the claim against both defendants, so on the claim-focused reading the Eastern District of Virginia is proper as to both, even though Longstreet took no part in the decision.²¹ The same reasoning supports venue in any district where Lee failed to perform, even though it was Lee’s omission, not Longstreet’s, that occurred there.²² The question is what gave rise to the claim, whoever performed the act or omission.

That reading has a textual basis and a practical one. The standard in (b)(2) focuses on the events or omissions giving rise to the claim, not on the acts or omissions of each individual defendant.²³ And the provision exists to assure a relation between the underlying events that are litigated and the place where the case is tried, a relation that exists in every district where significant events involved in the case took place.²⁴ A co-defendant sued on the same claim is not dragged to a district with no tie to the dispute when the events giving rise to that claim happened there.

Courts have not settled the point. Some analyze venue separately for each defendant and find it improper as to those who took no part in events in the forum district.²⁵ The premise of that approach is that venue protects a defendant against a plaintiff’s choice of an unfair or inconvenient place of trial, so the privilege belongs to the defendant.²⁶ Taken seriously, that purpose means the plaintiff must show venue as to each claim and as to each defendant, and venue that holds for one defendant does not extend automatically to another.²⁷ A rule that measured venue only by the claim would let a plaintiff find the one defendant who acted in a convenient district and use that conduct to pull in co-defendants who had no dealings there. On this view, venue must be proper as to all defendants and all claims.²⁸

A clear illustration of the defendant-by-defendant approach is Kaplan v. Reed, a civil RICO action filed in the District of Colorado. RICO has venue provisions of its own that supplement those in § 1391,²⁹ and the court applied § 1391(b) first. The plaintiffs’ allegations suggested that a substantial number of the events giving rise to their claims occurred in Colorado, yet the court found no prima facie showing of venue under § 1391(b) as to James Reed and Cynthia Reed, because the specific acts alleged against them did not occur there.³⁰ Venue was proper as to William Reed under (b)(2), since a substantial number of the alleged acts were his, committed in Colorado.³¹ The court then turned to RICO’s own venue provisions for the two Reeds, a matter that belongs with the special venue statutes taken up below.³²

Schultz reached the same kind of result on a smaller record. The court observed that a substantial part of the events giving rise to the claim against Roche might have occurred in Michigan, but not the claim against Ary, since no allegation placed him in the state; New Jersey, where Ary had contact with the plaintiff and where Roche has its principal place of business, appeared to be the only proper venue for the non-federal claims against both.³³ Because the fallback in subsection (3) applies only if no district otherwise qualifies, the court looked to subsection (2) first.³⁴ It added that an individual basis for venue ordinarily must exist for each separate cause of action in a complaint.³⁵ The New Hampshire court asked the same question about its one remaining claim and found no venue as to Menninger, because nothing in the record showed that he played any part in the republications there or authorized them.³⁶ These decisions apply versions of § 1391 that predate the 2011 amendments, and the New Hampshire opinion cites the former diversity subsection, but each applies the substantial-part language that now appears in (b)(2).³⁷

What separates the two groups of decisions is the relation between the event in the forum and the objecting defendant. In the design dispute, Lee’s decision to back out is a link in the chain that produces the claim against Longstreet as well. In Kaplan and Schultz, the pleadings attributed to the objecting defendants separate acts that happened elsewhere, so nothing in the forum connected to the claim against them. A plaintiff seeking the claim-focused result should be able to say that the in-district event belongs to the sequence giving rise to the claim against each defendant. A defendant who objects should show that the complaint places that defendant’s own conduct outside the district.

A favorable venue ruling under either reading still leaves personal jurisdiction over each defendant to be shown separately. Grant would have to establish personal jurisdiction over Longstreet in Virginia, because venue never supplies it.³⁸ In a case like that, the outside defendant might escape on jurisdictional grounds whatever the venue answer, and that cushion can hide the split. A second hypothetical removes the cushion.

Hypothetical Illustration

Hale, a Florida citizen, sues Dalton, who lives in Louisiana, and Reyes, who lives in Oklahoma, on a single fraud claim arising from the sale of an oil and gas lease. Dalton made the false statements at a meeting in Houston, in the Southern District of Texas. Reyes prepared the false geological report in Dallas, in the Northern District of Texas, and mailed it to Dalton in Louisiana; assume that Reyes’s Dallas conduct supports personal jurisdiction in Texas on this claim. Hale files in the Southern District of Texas. The defendants live in different states, so the residence alternative is closed and the case turns on (b)(2). On the claim-focused reading, the Houston meeting is a substantial part of the events giving rise to the claim, and venue is proper there as to both defendants. On the defendant-by-defendant reading, Reyes took no action in the Southern District, so venue is improper as to Reyes there even though Texas courts can reach Reyes.

Personal jurisdiction does not help Reyes here, because it is a statewide concept that reaches Reyes anywhere in Texas, while venue asks about one district at a time. The venue reading therefore decides the outcome by itself, and under the stricter reading the usual consequence is relocation of the case, as in Schultz, not its end. The hypothetical also shows why the ring structure from the start of this chapter matters: a defendant can be properly before a state’s courts and still be improperly venued in a particular district of that state.

Exam Analysis Steps

Because courts have not settled which reading controls, the safest exam answer reports the result under each and then adds the personal jurisdiction check:

Confirm that the residence alternative fails for the case as a whole, usually because the defendants live in different states, so that (b)(2) must carry the venue question.
Place each event or omission behind the claim in a judicial district, and note which defendant was responsible for it.
Under the claim-focused reading, ask whether a substantial part of the events giving rise to the claim occurred in the filing district, whoever acted there; if so, venue is proper for every defendant sued on that claim.
Under the defendant-by-defendant reading, ask whether a substantial part of the events giving rise to the claim against each defendant occurred in the filing district, and identify any defendant for whom the answer is no.
State whether the two readings agree. Where they diverge, note that the defendant who did nothing in the district has a venue objection under the second reading, and that courts sustaining it often transfer the whole action.
Test personal jurisdiction over each defendant separately in the state of the filing district, whatever the answer on venue.

The readings agree whenever the in-district event is a link in the causal chain for every defendant, which is why Lee’s decision to back out poses little difficulty for a plaintiff. They part company only when the pleading attributes separate acts to separate defendants and the filing district holds the acts of only some of them. A related problem comes next: a claim that could not be venued in the filing district standing alone but is tied to another claim that can.

Pendent Venue

Section 1391(b)(2) tests venue claim by claim, because it asks where “a substantial part of the events or omissions giving rise to the claim occurred.”⁴⁰ Combined with the principle that venue must be proper as to every defendant and every claim, that wording causes trouble when one set of facts produces several claims: each claim is measured against its own venue provision, and the provisions may point to different districts.⁴¹

In Pacer Global Logistics v. National Passenger R.R. Corp., cargo was damaged when an Amtrak rail car derailed and was the subject of an attempted rerailing. Pacer sued Amtrak and BNSF under the Carmack Amendment and sued BNSF and a third defendant, Jimco, for negligence under state law.⁴² All four claims sought recovery for the same cargo damage, yet they did not share a venue provision.⁴³

The Carmack claim against Amtrak fell under the venue provision attached to that statute, § 11706(d)(2)(A), and BNSF consented to venue in the district where Pacer had sued.⁴⁴ That provision said nothing about the state-law claim against Jimco, so the court turned to the general statute, which appeared to place that claim in a California district.⁴⁵ One derailment had thus produced a claim that belonged in the chosen district and a claim that, standing alone, seemed to belong elsewhere. Under the rule that venue must be proper for each claim, the claim against Jimco would seem to call for dismissal or transfer.⁴⁶

The court found that result unsatisfactory, and the reason is practical. Two claims from one derailment draw on the same witnesses, the same records, and the same physical evidence, so sending one of them to California would mean presenting the proof twice. The court reasoned that requiring claims that arise out of the same facts to be litigated in separate districts wastes judicial resources, is unfair to one or more of the parties, and undermines the economy, fairness, and convenience on which venue itself rests.⁴⁷

Courts created the doctrine of pendent venue to avoid that outcome, and nothing in the text of § 1391 mentions it.⁴⁸ Under the doctrine, a claim that is not properly venued standing alone may still be heard when another properly venued claim arising out of a common nucleus of operative facts is brought at the same time in the same district.⁴⁹ The doctrine developed as an analogy to supplemental jurisdiction, under which a state-law claim that a federal court could not otherwise hear is allowed when it is attached to a factually similar federal claim; its name comes from pendent jurisdiction, the older name for that idea.⁵⁰ Section 1367(a) gives district courts supplemental jurisdiction over claims related to those within their original jurisdiction, and claims are related for that purpose when they derive from a common nucleus of operative facts, a test taken from United Mine Workers v. Gibbs.⁵¹ Pacer applied that test to its own jurisdiction, finding that the Carmack claims and the negligence claims all alleged liability for the same cargo damage and that supplemental jurisdiction therefore reached the state-law claims, including the one against Jimco.⁵² The venue doctrine asks the same relationship question about the same claims.

Each element of the doctrine has a reason. The requirement of a properly venued claim supplies an anchor: the related claim travels with a claim that already belongs in the district, so the doctrine creates no venue where no claim has one. The common-nucleus requirement matches the justification, because the saving comes from trying one set of facts once. A claim built on different events, such as a dispute over a different shipment, gains nothing from joint trial, while its defendant would lose the protection venue provides. The requirement that the claims be brought together in the same district reflects the aim of keeping one set of facts in one courtroom.

A number of courts have invoked the doctrine to avoid splitting claims that rest on the same facts as a properly venued claim; among them, the Eighth Circuit in Travis v. Anthes Imperial Ltd. stated that when venue is proper on federal claims it is also proper on pendent state claims.⁵³ The argument for the doctrine is strongest where jurisdiction over the related claim is supplemental, since refusing to hear such a claim over a venue objection would give venue more weight than subject matter jurisdiction carries.⁵⁴ A defendant burdened by trial of the related claim in the chosen district is not left without protection, because the defendant may seek to transfer the entire action to a different district.⁵⁵ Pacer presents the doctrine as a way to reconcile the venue statutes with the goals of economy, fairness, and convenience while respecting the statutes’ language, and it goes on to set out an analysis for doing so.⁵⁶

The reach of the doctrine is contested, and the clearest limit appears when the plaintiff has sued more than one defendant. Schultz v. Ary starts from the ordinary rule that an individual basis for venue must exist for each separate cause of action in the complaint.⁵⁷ The court acknowledged that some courts have recognized pendent venue, but it observed that the concept does not appear to have been applied where differing claims are asserted against multiple defendants.⁵⁸ The plaintiff there had sued Roche on a Title VII claim and on state-law claims, and had sued Ary over statements he made about the plaintiff’s activities at a hotel bar in New Jersey. The complaint alleged that venue was proper in Michigan because Roche conducted substantial business there, and it offered no explanation of why venue was proper as to Ary.⁵⁹ The Title VII claim against Roche was properly venued in Michigan, where the plaintiff would have worked and was terminated, yet nothing in the pleading connected Ary to that claim.⁶⁰

The two opinions fit together if the question is how tightly the plaintiff tied the doubtful claim to a properly venued one. In Pacer the claims against three defendants were four ways of recovering for one cargo loss, and the court described them as deriving from a common nucleus of operative facts.⁶¹ In Schultz the claims were differing claims against different defendants, and the plaintiff offered no venue theory for the second defendant at all.⁶² Schultz describes what courts have done so far, so the most defensible reading is that pendent venue has its greatest force when the claims against several defendants are variations on a single event and its least force when the pleading gives no link at all.

Exam Analysis Steps

The doctrine is a judicial gloss on the statute, and courts differ about it, so an essay should run the ordinary venue test first and reach for pendent venue only for the claim that fails it:

Identify each claim and each defendant in the complaint, and find the venue provision that governs each claim, whether § 1391 or a special venue statute.
Test each claim against its own provision in the district where the plaintiff filed, and mark any claim that fails when considered alone.
Look for an anchor: a properly venued claim brought in the same action and the same district.
Ask whether the failing claim and the anchor derive from a common nucleus of operative facts, the same relationship test that governs supplemental jurisdiction.
If the failing claim runs against a different defendant, ask how closely the pleading ties it to the anchor, and note that courts have been reluctant to apply the doctrine to differing claims against multiple defendants.
State that a burdened defendant may seek transfer of the entire action, and that personal jurisdiction over each defendant remains a separate requirement.

Step five is where the doctrine is weakest, and an essay should say so rather than assume that a properly venued claim against one defendant carries every other defendant along. The doctrine also leaves personal jurisdiction untouched: a district may be a permitted venue for a related claim while the court still lacks power over the defendant to whom that claim is directed. The Carmack provision that created the problem in Pacer is one example of a special venue statute, and the next section takes up those statutes and the other places where § 1391 does not govern.