Also known as: 12(b)(3) · FRCP 12(b)(3) · Fed. R. Civ. P. 12(b)(3) · improper venue · venue motion
Written by attorneys — see sources below.
A procedural mechanism by which a defendant challenges the propriety of the judicial district in which the plaintiff has filed suit. The motion asserts that venue does not lie under 28 U.S.C. § 1391 because no defendant resides in the district, no substantial part of the events or omissions giving rise to the claim occurred there, and no defendant is subject to personal jurisdiction there under the fallback provision.
Bay Logic sued Red Networks in the District of State T after a failed data migration. Red Networks filed a pre-answer motion asserting that the contract negotiations and primary server locations were in States N and C, with only incidental routing through State T. The court examined whether any substantial part of the events occurred in the chosen district and dismissed the action.
After a prior action was dismissed for improper venue, the plaintiff refiled the same claim in a new district. The defendant argued that the earlier dismissal should bar the second suit. The court determined that a venue dismissal does not automatically carry claim-preclusive effect and allowed the new action to proceed.
Ruby Rivera filed suit in an improper district and then failed to respond to court orders. The defendant moved under Rule 12(b)(3) and also sought dismissal for failure to prosecute. The court dismissed the action, noting that the venue defect alone would have warranted dismissal without prejudice.
Paula Smith sued Commodore Cruise Line in Louisiana after an injury at sea. Commodore moved to dismiss under Rule 12(b)(3) based on a forum-selection clause designating New York. The court evaluated whether the clause rendered the chosen venue improper and considered transfer as an alternative.
Plaintiff Paula Smith filed this suit for injuries she allegedly sustained in Montego Bay, Jamaica while a passenger aboard the S/S ENCHANTED SEAS, a cruise vessel operated by defendant Commodore Cruise Line, Limited. After removing the suit from Louisiana state court based on diversity of citizenship, Commodore moved for dismissal pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure for improper venue, or in the alternative, for transfer pursuant to 28 U.S.C. § 1406. Commodore contends that the forum selection clause contained in the passenger ticket contract with Smith provides for exclusive venue in the United States District Court for the Southern District of New York. Smith disputes the enforceability of the clause on the grounds that Congress overruled the Supreme Court decision in Carnival Cruise Lines, Inc. v. Shute, that Smith did not freely bargain for the forum selection clause, and that Smith did not have notice of the clause. The forum selection clause is found in paragraph 27 of Commodore's Passage Contract. The front of the Passage Contract provides in bold that each passenger should carefully examine all the conditions of this contract, particularly the conditions on pages 4-12. On page 4 of the contract, the following is stated in bold that acceptance of this contract by the passenger shall constitute an acceptance by the passenger of all the terms and conditions set forth herein. Commodore submitted the affidavit of Stephen Field, formerly Commodore's Vice President of Insurance and Claims, attesting that the standard Passage Contract is an identical form of the Passage Contract which was issued and delivered to Paula Smith for the cruise in question. A duplicate original would have been given to Ms. Smith. Smith did not submit any evidence to controvert the affidavit.
View caseStewart Organization sued Ricoh in Alabama despite a clause selecting New York. Ricoh moved under Rule 12(b)(3) to dismiss or transfer. The court treated the clause as a factor in the venue analysis and decided whether dismissal or transfer best served the interests of justice.
Stewart Organization, Inc., an Alabama corporation, entered into a dealership agreement with Ricoh Corporation, a nationwide manufacturer whose principal place of business is in New Jersey, obligating Stewart to market Ricoh copier products. The agreement contained a forum-selection clause stating that any appropriate state or federal district court located in the Borough of Manhattan, New York City, New York, shall have exclusive jurisdiction over any case or controversy arising under or in connection with the agreement. Business relations between the parties soured, and in September 1984 Stewart filed a complaint in the United States District Court for the Northern District of Alabama alleging breach of the dealership agreement together with claims for breach of warranty, fraud, and antitrust violations. Relying on the forum-selection clause, Ricoh moved the district court to transfer the case to the Southern District of New York under 28 U.S.C. § 1404(a) or to dismiss for improper venue under 28 U.S.C. § 1406; the district court denied the motion after concluding that Alabama law governed and disfavored enforcement of such clauses, then certified its ruling for interlocutory appeal under 28 U.S.C. § 1292(b). A divided Eleventh Circuit panel reversed, holding that federal law governs venue questions in diversity actions and that the clause is enforceable; after rehearing en banc the full court adopted the panel result and reasoning, and the Supreme Court granted certiorari.
View caseA plaintiff sued a government official in a district lacking proper venue. The defendant raised both qualified immunity and improper venue. The court addressed the venue motion first under Rule 12(b)(3) before reaching the immunity question to avoid unnecessary merits adjudication.
In 1970, the Federal Bureau of Investigation learned that members of the East Coast Conspiracy to Save Lives had planned to blow up heating tunnels linking federal office buildings in Washington, D.C. The group had also discussed kidnapping National Security Adviser Henry Kissinger. On November 6, 1970, then Attorney General John Mitchell authorized a warrantless wiretap on the telephone of William Davidon, a Haverford College physics professor and group member. The stated purpose was gathering intelligence in the interest of national security. The FBI installed the tap in late November 1970 and it remained in place until January 6, 1971. During that period the Government intercepted three conversations between Davidon and respondent Keith Forsyth. Forsyth learned of the wiretap in 1972 while facing unrelated criminal charges. He moved under 18 U.S.C. § 3504 for disclosure of any electronic surveillance to which he had been subjected. The Government's response revealed that Forsyth had participated in conversations overheard during surveillance expressly authorized by the President acting through the Attorney General. An affidavit from then Attorney General Richard Kleindienst stated the surveillance was authorized under the President's national security authority in 18 U.S.C. § 2511(3). Shortly after this Court decided United States v. United States District Court, 407 U.S. 297 (1972), Forsyth filed suit against Mitchell and other defendants in the United States District Court for the Eastern District of Pennsylvania. He alleged violations of the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968. He sought compensatory, statutory, and punitive damages. Discovery and preliminary proceedings continued for five and a half years. By early 1978 both parties had filed motions for summary judgment. The District Court found no genuine dispute that the FBI had informed Mitchell of the ECCSL plots, that Mitchell had authorized the warrantless tap on Davidon's phone, and that the ostensible purpose was national-security intelligence gathering. The court rejected Mitchell's claim to absolute prosecutorial immunity under Imbler v. Pachtman but held that he could assert qualified immunity. Neither side had established the absence of a genuine issue of material fact as to his good faith, so the court denied both summary-judgment motions. Mitchell appealed the denial of absolute immunity. The Third Circuit remanded for further factfinding on whether the authorization was necessary to a decision to initiate a criminal prosecution. On remand the District Court held a hearing and concluded that Mitchell's authorization was not intended to facilitate any prosecutorial decision. After this Court decided Harlow v. Fitzgerald, 457 U.S. 800 (1982), the District Court reconsidered qualified immunity, denied Mitchell's motion for summary judgment, granted Forsyth's motion on liability, and scheduled proceedings on damages. Mitchell again appealed. The Third Circuit held that it had jurisdiction over the absolute-immunity denial but that the qualified-immunity denial was not appealable under the collateral-order doctrine, and it remanded for further proceedings. Mitchell petitioned for certiorari, which this Court granted.
View caseA defendant must include the defense in the first pre-answer motion or in the answer if no such motion is made. Omitting it from an initial Rule 12 motion waives the defense under Rule 12(g) and (h).
Supporting sources
No. A dismissal for improper venue is expressly excluded from the default rule that other dismissals are on the merits. Jurisdictions may treat such dismissals as without prejudice for preclusion purposes.
Supporting sources
The plaintiff need only make a prima facie showing that venue is proper in the chosen district. The burden remains on the plaintiff to establish that a substantial part of the events occurred there or that another statutory basis applies.
Yes. Courts routinely resolve venue challenges before reaching the sufficiency of the complaint because venue is a threshold issue that determines whether the court should exercise its power over the case at all.