A Short & Happy Guide to Civil Procedure (Short & Happy Guides) by Richard D. Freer

Author:Richard D. Freer [Freer, Richard D.]
Language: eng
Format: azw3
ISBN: 9781684672288
Publisher: West Academic Publishing
Published: 2019-08-20T16:00:00+00:00

The Transferee District (Hoffman)

Section 1404(a) and § 1406(a) require that the transferee district be a place where the case “could” or “might” have been brought. In Hoffman v. Blaski, 363 U.S. 335 (1960), the Court held that the transferee district must (1) be a proper venue and (2) have personal jurisdiction over D. Not only that, but these two things must be true independently—that is, without waiver by D. Though Hoffman was a § 1404(a) case, the courts have applied it to § 1406(a) as well.

Example #4: P sues D in the District of North Dakota. D moves to transfer the case to the District of Hawaii. The District of Hawaii is not a proper venue and does not have personal jurisdiction over D, but D agrees to waive these objections.

Under Hoffman, transfer cannot be ordered. The transferee must be a proper venue and have personal jurisdiction over D independent of any waiver by D.

Congress made a minor inroad on the rule in Hoffman by adding what are now the last 12 words of § 1404(a): “or to any district or division to which all parties have consented.” This provision allows a court to transfer if the requirements of § 1404(a) are satisfied and if all parties consent to transfer to the improper district. It is not clear why P would ever consent to such a transfer. In Example #4, 101

for instance, why would P agree to transfer? The court cannot force P to consent, so it is not clear that the proviso has had much impact.

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