What are the differences among 28 USC secs. 1404, 1406, and 1631 and Forum Non-Conveniens?

28 USC §§ 1404, 1406, and 1631, as well as the doctrine of forum non-conveniens,  may affect whether a case will be heard in the forum originally selected by plaintiff

Venue and Transfer under 28 USC § 1404(a)

If a plaintiff chooses a federal district where venue is proper, any party may move to transfer the case to an alternative forum under 28 USC s. 1404(a) if there is a proper judicial district that would be more convenient for the parties or witnesses, and in the interest of justice.

In determining whether to transfer the case or not, a federal court will weigh so-called public and private factors.  This process is very similar to traditional rules of forum nonconveniens, except now there is a statute (28 USC s. 1404) which expressly provides for the transfer.

• Federal courts will only transfer a case under §1404 to another federal judicial district. Federal courts cannot “transfer” a case to a state court.
• Although venue was proper in the district selected by plaintiff,  the court may  transfer the case  to another proper federal district for purposes of convenience.
• The case is not being dismissed.
• The law of the original forum (transferor state) should apply if the case is transferred under §1404.

Let’s start creating a table to keep track:

Venue, Dismissal, and Transfer under 28 USC § 1406(a) 

If plaintiff chooses a federal judicial district where venue is improper, the court can dismiss the case or, in the interest of justice, transfer the case to a district where the case originally should have been brought.

Keep in mind that F.R.Civ.P. 12(b)(3) provides that a party may move to dismiss a case for improper venue. § 1406(a)  also provides that a court can dismiss a case for improper venue, but the court may also transfer the case to a federal judicial district where venue would have been proper originally.

In practice, parties will often move to dismiss a case pursuant to Rule 12(b)(3) and s.1406(a) and, in the alternative, ask the court to transfer the case to judicial district they prefer.

• Unlike §1404, venue was originally improper.
• Federal courts will only transfer a case under §1406 to another federal judicial district. Federal courts cannot “transfer” a case to a state court.
• The case will either be dismissed or transferred to another federal district.
• If the case is dismissed, plaintiff will probably be able to refile the case anew in another judicial district.
• The law of the original forum (transferor state) should not apply if the case is transferred under §1406.

Keep going with our table to keep track:

Transfer under 28 USC § 1631 

This statute does not come up in practice very often. 

28 USC 1631 empowers federal courts, including trial courts and appellate courts, to transfer a case to another federal court if the original court lacked subject matter jurisdiction or personal jurisdiction (there may be some dispute as to whether this statute applies to personal jurisdiction).

The statute is not related to the issue of venue. Instead, a plaintiff or appellant chose the wrong federal court and this statute empowers the court to transfer the case instead of dismissing the action.

Some federal courts have exclusive power to hear certain types of cases.   Congress empowered these federal trial level and appellate level federal courts to hear these cases. 

For example, appeals in certain IP cases must go to the Federal Circuit.  A losing party might make a mistake and file its appeal in the wrong Circuit Court of Appeals.  28 USC s. 1631 allows the federal court to transfer the case to the correct federal court instead of dismissing the case.

• The case can be transferred to another federal court.
• Once transferred the case is treated as though it was originally filed in the correct court.

Keep going with our table to keep track:

Doctrine of Forum Non Conveniens

Sometimes a federal court has jurisdiction over a case, venue is proper, but a court in another country might also potentially have jurisdiction over the dispute.

Likewise, sometimes a state court has jurisdiction over a case but a court in another state or another country might also potentially have jurisdiction over the dispute.

In these circumstances, a court might dismiss the case to allow the case to proceed in another court.

• Federal courts may dismiss the case to allow a case to proceed in another country
• There must be an adequate alternative court in the other country
• Courts weight so-called private and public factors in choosing to dismiss or not
• Keep in mind that courts in the United States tend to give considerable weight to plaintiff’s choice of forum and also to forum selection clauses in contracts.

Finishing up our chart: