28 USC § 1406 - Cure or waiver of defects

(a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.

(b) Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue.

(c) As used in this section, the term “district court” includes the District Court of Guam, the District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the term “district” includes the territorial jurisdiction of each such court.

Source

(June 25, 1948, ch. 646, 62 Stat. 937; May 24, 1949, ch. 139, § 81,63 Stat. 101; Pub. L. 86–770, § 1,Sept. 13, 1960, 74 Stat. 912; Pub. L. 87–845, § 10, Oct. 18, 1962, 76A Stat. 699; Pub. L. 97–164, title I, § 132,Apr. 2, 1982, 96 Stat. 39; Pub. L. 104–317, title VI, § 610(b),Oct. 19, 1996, 110 Stat. 3860.)

Historical and Revision Notes

1948 Act

Subsection (a) provides statutory sanction for transfer instead of dismissal, where venue is improperly laid.

Subsection (b) is declaratory of existing law. (See Panama R.R. Co. v. Johnson, 1924, 44 S.Ct. 391, 264 U.S. 375, 68 L.Ed. 748.) It makes clear the intent of Congress that venue provisions are not jurisdictional but may be waived.

1949 Act

This section removes an ambiguity in section 1406 (a) of title 28, U.S.C., by substituting “may” for “shall”, thus making it clear that the court may decline to transfer a case brought in the wrong district under circumstances where it would not be in the interest of justice to make such transfer. [The amendment to section 1406 (a) of this title described in this note was altered in the bill as enacted. See Cong. Rec., vol. 95, pt. 5, pp. 5826, 5827, 6283, 6284.]

Amendments

1996—Subsec. (c). Pub. L. 104–317amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: “As used in this section, ‘district court’ includes the United States District Court for the District of the Canal Zone; and ‘district’ includes the territorial jurisdiction of that court.”

1982—Subsecs. (c), (d). Pub. L. 97–164redesignated subsec. (d) as (c). Former subsec. (c), which provided that if a case within the exclusive jurisdiction of the Court of Claims were filed in a district court, the district court, if it were in the interest of justice, was required to transfer the case to the Court of Claims where the case would proceed as if it had been filed in the Court of Claims on the date that it was filed in the district court, was struck out.

1962—Subsec. (d). Pub. L. 87–845added subsec. (d).

1960—Subsec. (c). Pub. L. 86–770added subsec. (c).

1949—Subsec. (a). Act May 24, 1949, inserted “dismiss, or if it be in the interest of justice”.

Effective Date of 1996 Amendment

Amendment by Pub. L. 104–317applicable to cases pending on Oct. 19, 1996, and to cases commenced on or after such date, see section 610(c) ofPub. L. 104–317, set out as a note under section 1404 of this title.

Effective Date of 1982 Amendment

Amendment by Pub. L. 97–164effective Oct. 1, 1982, see section 402 ofPub. L. 97–164, set out as a note under section 171 of this title.

Effective Date of 1962 Amendment

Amendment by Pub. L. 87–845effective Jan. 2, 1962, see section 25 ofPub. L. 87–845, set out as a note under section 414 of this title.

Effective Date of 1960 Amendment

Section 4 ofPub. L. 86–770provided in part that: “The amendments made by sections 1 and 2 of this Act [adding subsec. (c) of this section and section 1506 of this title] shall apply to any case or proceeding pending on, or brought after, the date of enactment of this Act [Sept. 13, 1960] in the district courts or the Court of Claims.”