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Author Topic: Objection to Venue?  (Read 691 times)

jellybean00

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Objection to Venue?
« on: December 12, 2008, 03:04:32 AM »
under 28 USC 1406(b), "nothing will impair the jurisdiction of a district court involving a party who doesnm't interpose timely and sufficient objection to the venue."

when are you supposed to object to venue? And so that means if a court decides a case, and it turns out that it was in the wrong venue the whole time, the parties can never object to the lack of jurisdiction even on appeal? 

dsetterl

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Re: Objection to Venue?
« Reply #1 on: December 12, 2008, 03:19:11 AM »
It's 12 B (pre-trial) motion my friend. You can file the motion alone as a defense or go ahead and write it into your responsive pleadings. Basically this is saying that you cannot collaterally attack venue nor can you appeal it if you did not file the proper pre-trial motion. It is waived if not in 12 b motion.

You usually get one bite of the apple; just not with venue.

However, you know can collaterally attack personal jurisdiction by filing a 60b(4). (I am sure you know this but just wanted to make it clear)

 Say you live in TN and a claim against you accrues there. Then then plaintiff goes to Iowa and files a complaint. You never show up, submit an answer or anything. Default judgment is entered against you. Plaintiff comes to enforce the judgment in TN; you can collaterally attack this claim  and file a 60 b(4) that judgment it void for lack of personal jurisdiction.

 You cannot do this for venue. Venue is not subject to collateral attack.

The only claims that are never waived by failure to file the proper motion or include them in your pleadings are subject matter jurisdiction, failure to state a claim upon which relief can be granted, and failure to join.




jellybean00

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Re: Objection to Venue?
« Reply #2 on: December 12, 2008, 05:06:12 AM »
i'm confused though.  how come a defendant can challenge the original court's jurisdiction in the enforcement action through a collateral attack? 

vap

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Re: Objection to Venue?
« Reply #3 on: December 12, 2008, 10:40:12 AM »
i'm confused though.  how come a defendant can challenge the original court's jurisdiction in the enforcement action through a collateral attack? 

I haven't researched this specific area of law, but my guess would be this:

Jurisdiction is a constitutional issue.  Venue is not.  Although SMJ and PJ are principles derived from the Constitution, venue is purely statutory and was created for efficiency and convenience purposes.  Parties can collaterally attack a suit which was unconstitutional, but not challenge a suit which was merely inconvenient.

Subject matter jurisdiction relates to the power of courts to hear cases and controversies under the constitution.  It's a federalism issue.

Personal jurisdiction and service relate to the due process which must be given to parties haled into federal court.

Venue is primarily concerned with the convenience of the parties and witnesses and invokes no constitutional issues. 14D Wright & Miller, Federal Practice & Procedure § 3801 (“Unlike laying venue in a proper locale, the exercise of personal jurisdiction implicates constitutional, not merely statutory, concerns”).  There is a presumption against jurisdiction in federal courts, but there is no such presumption regarding venue.  695 F.2d at 724

vap

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Re: Objection to Venue?
« Reply #4 on: December 12, 2008, 10:44:34 AM »
And so that means if a court decides a case, and it turns out that it was in the wrong venue the whole time, the parties can never object to the lack of jurisdiction even on appeal? 

Parties can object to SMJ on appeal without raising the issue below.

Parties can not object to PJ on appeal unless it was raised by pre-answer motion or included in the complaint and supported by a timely motion.

Parties can not object to venue on appeal unless it was raised by pre-answer motion or includced in the complaint and supported by a timely motion.


Keep in mind that venue has NOTHING to do with jurisdiction of a federal court.  It's a separate, statutory principle.

dsetterl

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Re: Objection to Venue?
« Reply #5 on: December 12, 2008, 11:32:54 AM »
Vap is 100% on point about it (venue) not being a due process issue.

I do disagree however about some aspects because personal jurisdiction for federal courts is not limited by the constitution but by 4k.
 
Kind of funny right?

 Nothing in the constitution limits the territorial power of the federal court, just statutes. Also diversity subject matter is completely statutory as well. (Article 3 gives the courts original jurisdictional power over other issues and federal question).

Man I took this test yesterday, it was a beast.

vap

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Re: Objection to Venue?
« Reply #6 on: December 12, 2008, 11:59:48 AM »
I do disagree however about some aspects because personal jurisdiction for federal courts is not limited by the constitution but by 4k.
 
Kind of funny right?

 Nothing in the constitution limits the territorial power of the federal court, just statutes.

I think the Due Process Clause is the driving force behind the minimum contacts / fair play and substantial justice test announced in International Shoe.  I think that's how territorial power is limited by the Constitution.  Although, this was last year for me, so maybe I'm not remembering correctly...

Also diversity subject matter is completely statutory as well. (Article 3 gives the courts original jurisdictional power over other issues and federal question).

But... "The judicial Power shall extend to all Cases, in Law and Equity, . . . between Citizens of different States . . . and between a State, or Citizens thereof, and foreign States, Citizens, or Subjects." U.S. Const. art. III, Sec. 2.

This is the Constitutional basis for requiring diversity of citizenship in non-federal question cases. Sec. 1332 merely acts as a limiting statute.

dsetterl

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Re: Objection to Venue?
« Reply #7 on: December 12, 2008, 03:41:08 PM »
That is what I meant; how it was a limitation with the 75K amount. I guess it was a mistake to say completely statutory! haha, little tired. thanks vap, That would have been a big mistake if he wrote that on the exam!!!


Back on the Federal government:
Does due process require that a federal district court must not extend its jurisdictional boundaries to multiple states?

 I think fair play and substantial justice was a valid reason to adopt 4k but I see no reason why a federal court's boundaries would have to be limited within one state for it to have been constitutional. I see a lot more efficiency justifications for limiting district courts in that manner. I mean this is apparent at the appellant level because if I appeal a case in a TN district court I am going to Cincinnati (???Off the top of my head) for an appeal.