Different Court. The issue of a change of venue between different courts is most likely to arise in the context of a motion to dismiss on the ground of lack of subject matter jurisdiction.248 In the event that a court determines that it lacks subject matter jurisdiction, it may not dismiss the action solely for that reason. Instead, the plaintiff must be given the opportunity to transfer the proceeding to an appropriate court for hearing and determination. To obtain a transfer, the affected party must file a written election of transfer in the first court within sixty days after the order denying the jurisdiction of the first court has become final. That party must pay all costs accrued in the first court and must make the required deposit for costs in the second court. The court file and docket listing, or copies thereof, are then delivered to the second court. The action is deemed to continue unabated, with the date the action was filed in the first court deemed effective for the purpose of laches or any statute of limitations.249
Different County. There is no provision in any statute or rule of court for transferring a civil case from one county to the same court in another county.250 Nonetheless, courts have entertained such motions as an exercise of their inherent powers.251
A motion for a transfer of venue to a different county is a matter of judicial discretion.251.1 The plaintiff’s right to choose the forum dictates the place of trial unless the party seeking a transfer can demonstrate a need to disturb the right of forum selection.252 On a motion to transfer, the movant has a heavy burden to establish that transfer is warranted. Unless the balance of convenience is strongly in favor of the movant, the plaintiff’s choice of forum will not be disturbed. If the balance of inconvenience borne by the parties is equal or slightly heavier for the movant, the plaintiff’s choice of forum should prevail.253
In deciding a motion to transfer, a court will consider (i) the plaintiff’s inherent right to choose the forum, (ii) the convenience of the parties, (iii) the convenience of the witnesses, (iv) ease of access to documentary evidence, (v) the location of counsel, (vi) the possibility of a jury view, where relevant, and (vii) the interests of justice.254
Where the matter is to be tried before the court without a jury, claims that trial in a given county will be unfair because of the “legal culture” there will be unavailing.254.1
It has been recognized that it is not unusual for actions to be heard in New Castle County that arose in other parts of the state. In one case, the court found that the need to travel from Dover to Wilmington for a one-week trial was not, of itself, so inconvenient as to outweigh the effect of denying the plaintiff the right to litigate in the original forum.255
248. See §2.2.
249. 10 Del. C. §1902.
250. See Ch. Ct. R. 82; Super. Ct. Civ. R. 82; Comm. Pls. Ct. Civ. R. 82; Fam. Ct. Civ. R. 82. The term “improper venue” in Civil Rule 12(h)(3) refers to a situation where venue is improper in the first instance, and not to an effort to transfer a cause where venue has been properly laid. Prior to 1977, Article I, § 9 of the Constitution of the State of Delaware provided that a transfer to a different county was not permitted unless the trial court determined that an impartial trial could not be had in the county in which the action was commenced. That restriction was deemed to apply equally to civil case. See Brandywine Mushroom Corp. v. Thompson, 137 A.2d 746, 747 (Del. Super. 1958). In 1977, that provision was removed. 60 Del. Laws. C. 519; 61 Del. Laws c. 80 (May 31, 1977).
251. Kruger v. Cedars Academy, C.A. No. 14726, slip op. at 5, Jacobs, V.C. (Del. Ch. Apr. 22, 1996); Hartman v. Carter, C.A. No. 81C-FE-8, slip op. at 2, Walsh, J. (Del. Super. Nov. 16, 1981).
251.1. Rowe v. Everett, C.A. No. 1967-S, Glasscock, M. (Del. Ch. Oct. 8, 1999), app. dismissed mem., 757 A.2d 1277 (Del. 2000).
252. Hartman v. Carter, C.A. No. 81C-FE-8, slip op. at 2, Walsh, J. (Del. Super. Nov. 16, 1981).
253. Delmarva Power & Light Co. v. City of Seaford, 523 A.2d 973, 975 (Del. Super. 1987).
254. Hartman v. Carter, C.A. No. 81C-FE-8, slip op. at 2, Walsh, J. (Del. Super. Nov. 16, 1981); Goldberg v. Hersman, C.A. No. 98-02-209 (Del. Comm. Pls. Jan 28, 2000).
254.1. Rowe v. Everett, C.A. No. 1967-S, Glasscock, M. (Del. Ch. Oct. 8, 1999), app. dismissed mem., 757 A.2d 1277 (Del. 2000).
255. Hartman v. Carter, C.A. No. 81C-FE-8, slip op. at 3, Walsh, J. (Del. Super. Nov. 16, 1981).
© 2010 David L. Finger