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December 29, 2006

Worst Statute in the World for December, 2006

Okay, I've decided to make this a monthly feature. It will bring more drama, expectation, and thrills.

As I mentioned somewhere else, I'm writing a book on civil procedure for Carolina Academic Press. Finished the venue chapter yesterday. That explains this month's winner.

This month's winner is the first two subsections of 28 USC 1391, specifically (a) and (b).

Here they are, in all their convoluted glory:

(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in
(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.
(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in
(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

Now, it looks like what you have to do, in order to figure out proper venue over a claim, is figure out whether subject matter jurisdiction is based solely on diversity, or not. If it's solely on diversity, then you go to (a), and if it's not, you go to (b).

But, look again: the first two clauses of (a) and (b) are identical. So, it doesn't matter whether diversity is the sole basis for subject matter jurisdiction: in either case, you can file the claim in a district where a defendant resides (if all defendants reside in the same state), or where a substantial part of the events occurred.

That leaves the third clauses of both (a) and (b). Are they different?

Both only apply if there's no other district with proper venue, so they share that, so let's get rid of that.

In diversity cases, venue over a claim is proper in "a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced," but over claims where subject matter jurisdiction is based on federal question, venue is proper in "a judicial district in which any defendant may be found."

Okay, so there are some differences: if the complaint has a federal question, venue lies where the defendant "may be found," and not in which "any defendant is subject to personal jurisdiction" when the complaint's filed.

But, according to the advisory notes, "may be found" apparently means the same thing as "subject to personal jurisdiction."

Okay, so that still leaves one difference: if the copmlaint has federal question, the personal jurisdiction issue is not limited to the time the action is filed.

When, then, is it determined? We don't know. I'd presume at the time of service of the complaint, since that's when venue is measured... but wait, that then means exactly the same thing as "at the time the action is filed..."

So, once we've gone through this, this is probably what these two sections could simply say:

Except as otherwise provided by law, a civil action may be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

This statute was revised about four times in the mid to early 1990's, after causing enormous social costs through poor drafting, and they still left it a mess. How many lawyers, do you think, had to muddle through this thing only to find that venue in 99.9% of the cases didn't turn on the basis of subject matter jurisdiction, and even if there is some difference between the two "clause 3's" they only apply when there's no other basis for venue?

But, it's fun to subject law students to poor statutory drafting. They might as well get used to it!

28 USC 1391(a) and (b), December's Worst Statute in the World...

December 29, 2006 in Current Affairs | Permalink

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Comments

Is it possible that the 120-day lag allowed under Rule 4(m) between the Rule 3 filing of the complaint and actual service of the summons and complaint on the defendant(s) could be significant here?

Posted by: Guest | Dec 29, 2006 10:01:09 AM

Hmmmm... do you mean that so long as the defendant is subject to PJ in that window - date of filing & for 120 days -- that venue would be proper? Interesting, but I don't see how it makes either of clause 3 mean something different... Or am I missing something (very possible!)

Posted by: David Hricik | Dec 29, 2006 1:05:39 PM

Make up your own mind about whoever is right, but this opinion raises some great statutory interpretation issues: Campbell v. Allied Van Lines Inc. 410 F.3d 618.

What I like about that case is that it's not about legislative history vs. plain meaning, or textualism vs. purposivism, but is simply about taking language, rolling up one's sleeves, and trying to figure out what it means. (For the record, I prefer the dissent's interpretation.)

As an aside, the statute at issue should be in the running for the Worst Statute in the World.

Posted by: andy | Jan 7, 2007 2:29:47 AM

I'll read it. I sheperdized it, and found that the split continues:

All In The Family Moving & Storage, Inc. v. Latka, 935 So.2d 87, 88+, 31 Fla. L. Weekly D2048, D2048+ (Fla.App. 1 Dist. Aug 04, 2006) (NO. 1D05-3073)

Posted by: David Hricik | Jan 7, 2007 8:54:05 AM

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