28 U.S.C. 1406: Improper Venue and Transfer

28 U.S.C. 1406 allows a federal court to dismiss a case filed in the wrong division or district, or transfer it in the interest of justice to a district where it could have been brought. It is different from a convenience transfer of an otherwise properly venued case. [1]

Rules that determine the answer

Venue objections can be waived. Section 1406(b) preserves jurisdiction where a party does not make a timely and sufficient venue objection; Rule 12 governs important objection timing. Subject-matter jurisdiction cannot be created by consent or by calling a venue defect harmless. Transfer remains a context-dependent remedy. [1] [2]

A transfer request should explain why the proposed district is legally available and why transfer serves justice, such as a limitations problem. Dismissal and transfer do not always have the same practical consequences.

What to check before taking the next step

  1. Identify the governing venue statute and raise any venue objection at the stage required by the civil rules.
  2. Collect the complaint, service date, first responsive filing, party locations, and relevant transaction facts.

A distinction that changes the result

Improper venue usually concerns whether the district satisfies the governing venue law, often section 1391 or a claim-specific provision. Section 1404 instead addresses convenience and justice where the transfer framework applies to a properly filed action. Forum-selection agreements can add another layer without erasing subject-matter requirements. A defendant should consider the venue objection with the first Rule 12 motion or responsive pleading because the waiver rules can prevent holding it in reserve while litigating other defenses. [1] [2]

Practical example

A defendant answers without preserving an available improper-venue defense. A later motion may face waiver even if a different district would originally have been the proper venue.

For related situations, see federal diversity jurisdiction and federal removal deadlines under Section 1446.

Primary sources

  1. 28 U.S.C. ยง 1406: official United States Code
  2. Federal Rules of Civil Procedure, effective December 1, 2025

Sources checked: October 31, 2026.