How to Bring a Small Claims Case to the Right Location - dummies

How to Bring a Small Claims Case to the Right Location

By Judge Philip Straniere

Venue is the legal term for the physical location of the small claims court. Basically, the question of venue determines which county is the proper place to bring the lawsuit. The three potential places for any lawsuit to be started are:

  • Where the defendant lives, works, or has a place of business.

  • Where the action that caused the lawsuit happened. This may be where the accident took place, where the contract was made, or where the contract was to be performed. If the dispute involves real property, the lawsuit almost always may be brought where the real property is located.

  • Where the plaintiff lives, works, or has a place of business.

Choosing to bring a case where the plaintiff lives is frowned upon because it doesn’t appear to be fair to the defendant. On the other hand, bringing the case where the defendant resides is always considered to be fair because the defendant can’t claim prejudice or bias or that the plaintiff has a home field advantage.

If you file your papers in the wrong county, in most situations the case will not be dismissed and will proceed in the wrong court. Notice the phrase wrong county, not the wrong court. If you’re in the wrong level court, you have a subject matter jurisdiction problem, not a venue problem. Where the venue is improper, the case may be transferred

  • By the court on its own without anyone asking it to do so. The court may change venue on its own in an instance in which an employee of the court system is a litigant or if one of the parties knows the judge, who’s the only small claims judge in the county. The judge would transfer the case to ensure fairness.

  • By the defendant requesting that the court moves it to the right county.

The court may actually hear the case even if it’s not in the correct county if neither party objects; Venue is presumed to be correct unless someone objects. Also some states have a rule that to change the venue, you have to make an application in the county you think is the correct one. This can be complicated for unrepresented litigants.

You may not have any choice as to where the case is brought if you agreed upon a location in advance or if a statute or administrative rule says the case has to be brought in a particular county.

For example: You enter into a written contract — you can do it by mail, on the Internet, or any other way you can think of to enter into a written contract. Like everyone else in the world, other than looking at the price and the delivery date you don’t read any of the small print on the contract. A dispute arises and you sue in your local small claims court.

The next thing you know, your case is being transferred to some county in the middle of nowhere because that’s where you agreed to have all lawsuits brought in the small print on the contract. So if you ordered a computer from the Knotwerk Computer Company, from Knotwerk City in Knotwerk County, guess where your trial is likely to be. You agreed to the terms by signing the contract.

In a similar instance, if you want to sue a government agency, a statute may say that the venue where you have to bring the lawsuit is the county seat or the state capital. So be prepared to pack your bags and put on your travelin’ clothes.

If you’re suing a business, make sure that the business is present in the county where you want to bring the lawsuit. A business is present if it transacts business at a particular location. This usually means something more than one commercial transaction in a state. The mere fact that the business delivered something to you does not necessarily mean you can sue them where you are.