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Publication Date

10-4-2026

Abstract

Today, venue is generally treated as secondary to jurisdiction: statutory, waivable, and concerned with where litigation should proceed, rather than whether it should proceed at all. Yet the courts of appeals remain split over a basic question of federal venue procedure: who bears the burden of proof when a defendant moves to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3)? Though seemingly technical, in practice, burden allocation can determine whether a suit survives.

This Note offers the first historically grounded approach to resolving Rule 12(b)(3)’s burden allocation problem and argues that the circuit majority approach rests on a doctrinal error. Most circuits place the burden on the plaintiff, often by analogizing venue to jurisdiction and requiring the plaintiff to justify her chosen forum once challenged. The Sixth Circuit recently adopted this approach in Tobien v. Nationwide General Insurance Co. But that analogy collapses venue into jurisdiction, importing jurisdiction’s constitutionalized limitations into venue’s waivable statutory framework. The minority approach, led by the Third Circuit in Myers v. American Dental Association, instead treats improper venue as what it is: a waivable, procedural defense that only delays litigation and operates like other affirmative defenses that allocate the burden of proof on the movant.

Today’s dispute about Rule 12(b)(3)’s burden allocation can be resolved by looking to yesterday’s procedural requirements. At common law, objections to venue’s “place of trial” were disfavored by courts and existed as dilatory pleas in abatement. The plea in abatement, which objected to the technical aspects of a particular suit but not its merits, was strictly policed by the court, easily waived, and required the movant to bear the burden of proof. As American procedure evolved, the Supreme Court constitutionalized jurisdiction while Congress separated venue by statute, keeping improper venue as a waivable privilege of the defendant. The creation of the Federal Rules of Civil Procedure repackaged, rather than repudiated, the inherited procedural burdens of the Federal Rule’s predecessors. Read against its historical background, Rule 12(b)(3) is an outlier only because modern courts have lost sight of where it came from.

This Note advances a clear rule: when properly raised, the movant should bear the burden of proving improper venue under Rule 12(b)(3). Not only is the movant in the best position to answer whether venue is improper, but venue transfer mechanisms under 28 U.S.C. §§ 1404 and 1406 make the rule procedurally and normatively attractive. Placing the burden on the movant would reduce gamesmanship and ensure that a procedural threshold does not become an evidentiary barrier to adjudication on the merits.

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