Residency Venue in Cases with Foreign Corporate Defendants

A few years ago, Congress passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011, in part to resolve, as the title suggests, uncertainties concerning the old venue statute. The effort succeeded in various regards, but Congress seems to have unwittingly created a new problem in the course of correcting others. Specifically, it’s not clear how to determine residency venue under 28 U.S.C. § 1391(b)(1) when at least one of the defendants is a foreign corporation.

The statute appears to provide two contradictory solutions: First, venue is appropriate in a district only if at least one defendant resides there and all defendants—including the foreign corporation—reside in the state in which the district is located. In this analysis, 1391(c)(2) decides residency questions for all corporate defendants such that a foreign corporation, like any other, is a resident of the given state only if it is subject to personal jurisdiction there. Alternatively, venue is appropriate in a district only if at least one defendant resides there and all defendants—excluding the foreign corporation—reside in the state in which the district is located. Under this option, 1391(c)(2) only governs the residency of domestic corporations; foreign counterparts are “not resident in the United States” under 1391(c)(3) regardless of whether they are subject to personal jurisdiction in the state in which the district is located, and thus “may be sued in any district” and “disregarded” in determining whether venue is appropriate under 1391(b)(1).

The difficulty arises because it’s not clear whether 1391(c)(2) and (c)(3) operate on the same concept of residency. One would think they do. After all, there is no specific indication of different meanings, both provisions are part of 1391(c), and an accepted canon of construction holds that a term used more than once should typically carry the same meaning throughout a statute. But this would lead to a bizarre result: If 1391(c)(3) incorporates (c)(2)’s personal jurisdiction-based concept of residency, then “not resident in the United States” under (c)(3) means not subject to personal jurisdiction in the United States, and a foreign corporation may be sued “in any district” only if it is not subject to personal jurisdiction here. That amounts to a null set of venues in which federal courts can constitutionally adjudicate claims against non-resident corporate defendants.

We could avoid this problem by adopting a different interpretation of 1391(c)(3). One possibility is that the provision uses a narrower concept of residency, defined exclusively in terms of state of incorporation and principal place of business: a foreign corporation is “not resident in the United States” even if it’s subject to personal jurisdiction here, as long as it’s incorporated and has its principal operations abroad. On this view, 1391(c)(3) doesn’t become inapplicable simply because there’s personal jurisdiction over the defendant. Such an interpretation would not only render 1391(c)(3) more useful in the sense that it would facilitate venue in cases in which a district court can constitutionally exercise jurisdiction, it would also align with 1391(c)(3)’s approach to human defendants, which permits venue anywhere with respect to individuals who are domiciled abroad even when personal jurisdiction is present. A second possible interpretation is that 1391(c)(3) applies only to human defendants, leaving 1391(c)(2) as the sole basis for determining whether 1391(b)(1) applies in cases with any kind of corporate defendant.

But both of these options raise their own difficulties. For one, there is no clear textual justification for saying that residency under 1391(c)(3) means something different than it does under (c)(2), or for concluding that (c)(3) applies only to natural persons. On top of that, different meanings would make it hard to decide in principle which of the two provisions governs: Is a foreign corporate defendant a non-resident under (c)(3)? Or is it an entity under (c)(2)? There’s a sense in which it would be both, so neither provision would be more specific.

Uncertain about the proper resolution, I did a quick Westlaw search to see how courts and influential treatises have handled the issue. None of these sources provide any thorough analysis on point, but they do imply that 1391(c)(3) applies even when foreign corporations are subject to personal jurisdiction in the United States. Coupling this fact with the difficulty that accompanies the contrary interpretation, the best view seems to be that 1391(c)(2) and (c)(3) use different concepts of residency, with the latter pointing simply to entities that are incorporated and headquartered overseas.

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