June 11, 2020

Out-of-State Business Sued in Virginia

By: Christopher Davis

When a non-Virginia business is sued in Virginia, it can be difficult and expensive to litigate far away. When the business wants to get the lawsuit dismissed or moved to their home state, there are usually two options. If the lawsuit was filed in a Virginia federal court (either the Eastern or Western District of Virginia), the business can file a motion to transfer under 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406(a). If the case was filed in a Virginia state court, in some cases the case can be removed to federal court under 28 U.S.C. § 1446 (if jurisdictional requirements are met), and then a motion to transfer can be filed.

Although the Eastern and Western Districts of Virginia give considerable deference to the plaintiff’s choice of forum, that deference is not without exceptions. When a business has a mandatory forum selection clause, or when the facts and matters in controversy have little or no connection to Virginia, a dismissal or transfer can sometimes be easily obtained. In the absence of the above factors, obtaining a transfer requires that the out-of-state business show significant inconvenience and burden to witnesses or parties if the case remained in Virginia, along with other factors.

Another situation non-Virginia businesses sometimes encounter is a party improperly filing a lawsuit in Virginia as a tactic or ploy, sometimes called “forum shopping.” Such practices are disfavored, especially when a parallel related matter is pending in a state court in the defendant business’s home forum. In these cases, the federal court may stay the Virginia case under the Colorado River doctrine. See Colorado River v. United States, 424 U.S. 800 (1976).

Davis Law, PLC has extensive experience with venue transfer motions in federal court, especially in the Eastern District of Virginia. When appropriate, we work with non-Virginia businesses to efficiently and effectively get cases dismissed or transferred out of Virginia.