MBE Tip of the Day: Civil Procedure

Answer to the Civil Procedure MBE Question

Subject: Civil Procedure

Legal Issue: Venue and Transfer

Legal Rule and Analysis: Venue is proper where any defendant resides if all defendants reside in the same state or where a substantial part of events or omissions giving rise to the claim occurred.  The defendant does not reside in State B and the car accident did not occur in State B.  Thus, the federal court in State B is not a proper venue.  The relevant motion filed by the man therefore is a motion to transfer to a proper venue under 28 USC 1406.  Under this statute, the court shall either dismiss the case itself, or transfer it to a proper venue if it is in the interest of justice.  If the case is transferred, the law of the transferee court applies.

Conclusion: If the interests of justice require it, the judge must transfer the case to State A and the statute of limitations of State A will apply.  This makes the case untimely, and it will ultimately be dismissed for violating the statute of limitations.

Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. 

The answer choice (A) is therefore correct. (B) is incorrect because it implies that the law of State B will still apply.  This is not true, as the law of the transferee court will apply when transfer to a proper venue is granted. (C) is incorrect because the relevant statute associated with a motion for a transfer to a proper venue uses the word “shall.”  The judge does not have discretion as it would if this were a motion for a transfer to a more appropriate forum.  (D) is incorrect for the same reason that (C) is incorrect.  Further, it also implies that the law of State B would apply, and this is not accurate with a motion to transfer to a proper venue.

MBE Tip: Think through the rationales for the law of which forum to apply as it will help you memorize the rule! For transfer to a proper venue, the law of the state where the transferee court is located applies. If you have trouble remembering this, think of the rationale behind the rule. It would be unfair of the woman could have State A law apply by filing the case in the wrong court! If this were a case, a plaintiff could simply choose which state’s law would apply by filing the case in the wrong court anywhere in the United States. So it makes sense that the law of the state where the transferee court is located applies. For transfer to a more appropriate forum, the law of the state where the transferor court is located applies.