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    The Lawletter Blog

    CIVIL PROCEDURE: COVID-19 Venue Issues and Relevant Practical Problems

    Posted by Anne B. Hemenway on Thu, Feb 18, 2021 @ 09:02 AM

    The Lawletter Vol 46 No 2         

    Anne B. Hemenway—Senior Attorney, National Legal Research Group

                The COVID-19 pandemic has caused many state courts around the country to either close down during parts of 2020 and 2021 or dramatically curtail operations. In many jurisdictions, jury trials have been canceled or postponed for months. The pandemic has resulted in a plethora of federal court cases regarding requests by federal inmates to be released from federal custody and other court-related issues. See Fern L. Kletter, COVID-19 Related Litigation: Effect of Pandemic on Release from Federal Custody, 54 A.L.R. Fed. 3d art. 1 (2020 & Westlaw updated weekly).

                In a case of first impression in the Commonwealth of Virginia, Clarke v. Medical Facilities of America, Inc. , No. CL20-4379, 2020 Va. Cir. LEXIS 493 (Va. Cir. Ct. City of Norfolk Dec. 30, 2020), the court reviewed whether pandemic-related issues were material to a venue dispute. In that case, defendants in a wrongful death action sought to transfer venue from the circuit court in the City of Norfolk, one of the largest cities in Virginia, to a small rural circuit court closer to the rehabilitation center where the plaintiff decedent had been treated.

                In overruling the defendants' motion to transfer venue, citing RMBS Recovery Holdings I, LLC v. HSBC Bank USA, 297 Va. 327, 827 S.E.2d 762 (2019) (recognizing that litigation is several years faster in Virginia than in New York), and City of Danville v. Virginia State Water Control Board, 18 Va. App. 594, 446 S.E.2d 466 (1994) (reversing a trial court's grant of a motion to transfer venue in part because the court impermissibly determined that it could manage documents better than the transferee court), the state court judge in Clarke recognized that Virginia appellate courts have long recognized that court-related conditions "can pose relevant practical problems" regarding the proper venue. Yet the court concluded that the pandemic's disparate impact on the operations of courthouses across Virginia "is simply too speculative" to qualify as a problem to consider when determining whether to transfer a case for convenience.

                The "too speculative" conclusion came with the recognition by the court that at the time the plaintiff made the argument, only four Virginia jurisdictions were approved by the Supreme Court of Virginia to resume jury trials. While others were later approved, the Supreme Court then shut down many of those in late December because of the second wave of coronavirus cases. While the pandemic and its impact on the courts were not "predictable," they certainly qualify as posing relevant practical problems on the operations of the courts.

    Topics: Anne B. Hemenway, COVID-19, court venue issues, too speculative, pandemic's disparate impact, relevant practical problems

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