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Attorneys appreciate the benefit of litigation taking place where they want it to occur, rather than at a location desired by the adversary. ( image)

Perspectives: Venue is key in football—and 8th Circuit, too

“Venue. The designation in the pleading of the jurisdiction where a trial will be held.”

American College Dictionary (1978 Edition, p. 249)

While the beleaguered Minnesota Vikings fell out of contention after another disappointing season, many of their counterpart, superior professional football teams struggled for eligibility for the playoffs leading to next month’s Super Bowl in Los Angeles, along with vying for home-field advantage in as many of the post-season games as they can.

That positioning can be crucial due to the increased likelihood of the home team winning in familiar surroundings aided by their boisterous cheering fans. The maven who run the betting parlors realize this well, generally ascribing a three- to five-point pre-game advantage to the home team in football, college and pro, and a similar or greater margin in the other big betting sport, college basketball, an experience that Minnesotans may lawfully indulge in soon if the state enacts sports betting legislation pending in the upcoming legislative session beginning at the end of this month, a few days before the Super Bowl.

Surprising sweep

However, that general rule was not borne out last season in the largely empty stadiums due to the COVID pandemic. Surprisingly, the visiting teams won the majority of games in the 2020 season, highlighted by the Tampa Bay Buccaneers sweeping all three road games (remember that Packers fans?) on its way to triumphing in the Super Bowl, which incidentally was played in its home stadium.

That phenomenon is unlikely to recur in that sport or others, for that matter, where home teams have a statistically proven probability of prevailing with home-field advantage, although not as sizeable as often believed in pro sports.

In football, the home team prevails about 57% of the time, about 2% higher than baseball and hockey hovering at about 55% each. Those figures are exceeded by men’s basketball, where the home team is victorious about 60% of the time.

Interestingly, the Minnesota teams collectively seem to benefit the most from playing at their own venues. The disparity between their winning records at home and on the road historically have been the largest of any community with teams in those respective sports, earning the sobriquet a decade ago from one analyst as “Best Home Advantage.” J. Bois, “Home Advantage In Sports, A Scientific Study…,” SB Nation, July 19, 2011.

Proceedings place

Nonetheless, the advantage, perceived or actual, of competing at the venue of choice, the so-called “home field advantage,” is not lost on litigators and litigants, either. They appreciate the benefit of litigation taking place where they want it to occur, rather than at a location desired by the adversary.

This is because the place where a legal proceeding is conducted, its venue, is often influential, sometimes determinative of the outcome. Consequently, litigants not infrequently spar over this issue, usually at the outset of a proceeding.

A trio of cases, all arising in Missouri, decided last year by the Eighth Circuit Court of Appeals address various views on the topic of venue. A pair of them concerned efforts to shift venue from one federal jurisdiction to another; one was allowed and the other was not. The third involved a lawsuit sent to an extra-territorial jurisdiction.
The three cases warrant review because of the potential significance of venue as a threshold issue in some litigation, both criminal and civil.

Perspective pointers

Transfer of venue of civil cases in Minnesota under Minn. Stat. § 542.10

  • Written demand for transfer within 20 days after service;
  • Supporting affidavit setting froth grounds for transfer;
  • Must be filed with court administrator where action was begun within 30 days from date of service; and
  • Opposing party may move to quash transfer within 8 days.

Criminal case

A criminal case in which a defendant who pled conditionally guilty to a money laundering conspiracy failed in his challenge to venue in U.S. v. Hardaway, 999 F.3d 1127 (8th Cir. June 7, 2021). The defendant was charged with the offense in Missouri arising out of the transporting of drugs from Los Angeles to St. Louis by another individual, after the investigation yielded the identity of the defendant as a participant in the transaction. Her claim that venue was improper on grounds that the transaction occurred entirely in California, the proceeds were used to buy a home, was denied by the trial court. The Eighth Circuit affirmed, rejecting the defendant’s claim that venue was improper because the “only evidence connecting her to the money laundering conspiracy is a financial transaction from California.” The indictment, on its face, supported venue in Missouri, because that is where the defendant entered into the illegal agreement and the indictment “need not detail specific acts” supporting that accusation.
The defendant’s claim that the venue should have been transferred to California, was premised on Rule 21(b) of the Federal Rules of Criminal Procedure, which permits a court to transfer a proceeding for the “convenience of the parties, any victims, and the witnesses and in the interest of justice.” A parallel provision, Rule 21(a), permits changing venue in criminal cases to avoid “prejudice

But the trial court correctly rejected transfer in this case due to multiple considerations: The investigation took place in St. Louis; the relevant documents were in St. Louis; the defendant’s counsel was in St. Louis; and witness expenses for her defense would be paid by the government. Although she might reside in California, the defendant’s home “has no independent significance” in analyzing venue.

Because the lower court considered the proper factors and articulated sound basis to refuse to transfer venue, there was no “abuse of discretion,” and the conviction was upheld.

Restaurant rulings

A pair of civil cases involved restaurants.

One of them was an untimely effort to change venue in a wrongful death action brought against a United States based franchise of a restaurant chain and its parent corporation, who was sued by parents of a child who was electrocuted in a playground inside a restaurant located in the Middle East country of Jordan.

The trial court granted a motion to dismiss the case on grounds of forum non conveniens, but the court of appeals reversed in Estate of I.E.H. v. CKE Restaurants Holdings, Inc., 995 F.3d 659 (8th Cir. April 28, 2021). A dismissal on forum non conveniens grounds requires a “two-part analysis,” determining first whether an adequate alternative form exists, and then weighing various “interest factors to determine whether dismissal is appropriate.” The test is to “ensure that the trial is held at a convenient situs.” In this case, the “private interest factors include ease of access to services approved; availability of witnesses; cost of obtaining available and willing witnesses; possibility of viewing the premises and all other practical problems that make trial of the case easy, expeditious and expensive,” coupled with possible “issues regarding enforcement” of a judgment, if one is obtained. In addition to these considerations, the court must consider “public interest factors,” which include administrative difficulties, as well as a “local interest in having localized controversies decided at home.”

In this case, the motion to dismiss on venue grounds was made 18 months after the case had begun. Although the “two party analysis” does not expressly address timeliness, a number of courts do take that into account in determining venue challenges. While case law reflects different approaches to deciding this issue, and any analysis, the “motion in this case was sufficiently untimely to warrant reversal.”

The defendant “knew the essential facts supporting its motion to dismiss,” which essentially stemmed from one essential fact, that the youth died from events and alleged negligence that occurred in Jordan. The defendant was aware of this at the time the complaint was filed and discovery “did not raise new facts” concerning this issue. The timeliness requirement serves a number of considerations, including “encouraging parties to file a motion to dismiss on venue grounds and early stage of litigation,” which [litigation] … promotes judicial economy. Additionally, a party spending substantial time in the forum before moving to dismiss on venue grounds “belies the claim that the forum is truly inconvenient.”

Finally, allowing dilatory motion practice to change on venue grounds allows parties to engage in “impermissible gamesmanship,” allowing defendants to “keep an ace up their sleeve by adopting a wait-and-see approach” and then seeking to dismiss on venue grounds if the case is going poorly.

In this case, the long delay in seeking to dismiss on venue grounds, “rings hollow,” because the defendant “knew the facts providing the basis for its motion to dismiss from the outset of the case; and that delay warrants reversing the lower court decision to allow the case to proceed in Missouri.

A restaurant case involving a noncompete dismissal prompted dismissal of a venue challenge on forum non convenience grounds due to mootness in Panera, LLC v. Dobson, 999 F.3d 1154 (8th Cir. June 8, 2021).

The case was brought against a restaurant and three of its former employees and the new employer, claiming a breach of a noncompete agreement that contained a six months post-employment prohibition on working for a competitor, along with a forum selection clause providing for litigation in Missouri. The new employer filed suit against the former employer in Delaware state court shortly on the same day that the former employer sued in Missouri, which prompted a motion by the new employer to seek a transfer on forum non conveniens grounds under 28 U. S. C. Section 1404(a), which authorizes transferring venue of a civil case from one Federal forum to another one where it initially “where it might have been brought” for the convenience of parties, witnesses, and in “the interest of justice.”
Because of a prior settlement agreement between the parties that contained a forum selection clause, requiring that Delaware be the “exclusive jurisdiction and venue” for any claims arising out of the settlement agreement. While the dueling lawsuits were proceeding, the Delaware court granted a temporary restraining order and the former employer obtained injunctive relief in the Delaware proceeding; meanwhile, the case in Missouri was dismissed on grounds of the forum selection clause requiring litigation in Delaware.

But, after appealing the dismissal, the former employer acknowledged in the Delaware case that it did “accept and voluntarily submit to jurisdiction in that state” and was not in any way challenging jurisdiction of venue in Delaware. However, it continued to appeal the Missouri dismissal, insisting on Missouri as a forum for any future litigation between the parties.

Reviewing the Missouri court’s dismissal of the lawsuit led to vacation of the ruling. It was undisputed that “no actual controversy remains concerning proper venue,” which makes the appeal moot. In situations of this type, case law does “typically favor vacating the lower court’s judgment which then enables the parties to litigate their issues on a clean slate. Since the former employer has conceded that he appeal was “moot,” it is appropriate to apply normal practice of vacating the lower court’s judgment in the moot appeal.

These three cases from the Show-Me state show the variables that can affect how courts view venue issues in both civil and criminal cases.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.

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