Frank E. Deale of CUNY School of Law has a new post on SSRN entitled: “Jurisdiction, Transfer, and Pretrial: Using Fed. R. Civ. P. 16 to Resolve Forum Convenience Disputes” Howard Law Journal, Vol. 53, No. 1, 2009 . Here is the abstract:
The article argues that Federal District Judges should exercise their managerial powers under Rule 16 of the Federal Rules of Civil Procedure to resolve forum convenience disputes, (i.e., challenges to the personal jurisdiction or venue of a court), in early pre-trial conference negotiation meetings rather than through the normal, but extremely wasteful, expensive, and time consuming, route of motion practice. The article suggests that the extremely complex multi-factored analyses for making forum convenience decisions, especially those ascertaining personal jurisdiction, has resulted in a body of decisional law that makes it difficult to predict reasonable outcomes, and that is moreover inconsistent with settled understandings regarding the adjudication of constitutional and statutory claims. These unfortunate results are compounded by the ability of defendants to secure interlocutory appeals to challenge District Judge decisions to honor plaintiff’s initial choice of forum, adding substantial expense and significant delay to the adjudication of the merits of a plaintiff’s claim. In cases targeted by the proposal, federal diversity cases filed against non-residents defendants, the use of early Rule 16 conferences could substantially reduce the judicial resources necessary to adjudicate the large volume of such cases that appear on the federal docket.