See, also, Gay v. Ogilvie, 47 So.2d 525 (Fla. 1950) (the question whether a state agency must be sued in the county where the seat of government is located or may be sued in another county is a question of venue and not of jurisdiction over subject matter of the litigation). See, further, Upchurch v. Piper Aircraft Corp., 736 F.2d 439 (8th Cir. 1984) (under federal Tort Claims Act, the statute specifying venue as the place where the plaintiff resided or where tortious conduct occurred is not a jurisdictional statute but a venue statute). As the result of 81-8,214, the district court for Boyd County had subject matter jurisdiction over Blitzkie's tort claim against the State.
On the other hand, the Eighth Circuit has held that § 1402(b) is not "a jurisdictional statute." Upchurch v. Piper Aircraft Corp. , 736 F.2d 439, 440 (8th Cir. 1984).
In addition, the magistrate judge noted that a claim against the United States pursuant to this Act "may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred." 28 U.S.C. § 1402(b); Upchurch v. PiperAircraft Corp., 736 F.2d 439 (8th Cir. 1984) (construing statute as venue statute). Id. at 17.
A claim against the United States pursuant to this Act "may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred." 28 U.S.C. § 1402(b); see Upchurch v. Piper Aircraft Corp., 736 F.2d 439 (8th Cir. 1984) (construing statute as venue statute). The Plaintiff has not indicated where he resided before his incarceration and most circuit courts have held that a prisoner's place of incarceration is not his residence.
A claim against the United States pursuant to this Act "may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred." 28 U.S.C. § 1402(b); see Upchurch v. Piper Aircraft Corp., 736 F.2d 439 (8th Cir. 1984) (construing statute as venue statute). The Plaintiff has not indicated where he resided before his incarceration, and most circuit courts have held that a prisoner's place of incarceration is not his residence.
However, no case cited by defendants involved the denial of jurisdiction by a court to whom a case had been transferred pursuant to 28 U.S.C. § 1404, where the issues of convenience, efficiency, and judicial economy already have been considered by the transferring court. Accordingly, the court is unpersuaded that the authority cited by defendants demands the dismissal of Case No. 02-2143. See Upchurch v. Piper Aircraft Corp., 736 F.2d 439 (8th Cir. 1984); United States v. Ardelt-Horn Construction Co., 316 F. Supp. 254 (D.Neb. 1970), and Cory v. Mark Twain Life Insurance Co., 604 F. Supp. 226 (E.D.Ark. 1984), also cited by defendants. Conclusion
The first-to-file rule demands that "when two identical actions are filed in courts of concurrent jurisdiction, the court which first acquired jurisdiction should try the lawsuit and no purpose would be served by proceeding with a second action." Upchurch v. Piper Aircraft Corp., 736 F.2d 439, 440 (8th Cir. 1984) (quoting Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94-95 (9th Cir. 1982)). The purpose of the rule Is to promote judicial efficiency.
There appears to be nearly unanimous authority among the circuits for the Factors court's general proposition that countervailing considerations may counsel against application of the first to file rule. E.g., Upchurch v. Piper Aircraft, 736 F.2d 439, 440 (8th Cir. 1984). There does not appear to be such universal authority for the assertion that a party may defeat application of the first to file rule simply by showing that the second forum is more convenient. Indeed, the latter concept would virtually abolish the efficiencies and certainty otherwise attributable to the rule.
Any civil action on a tort claim against the United States under subsection (b) of section 1346 of this title [the provision conferring jurisdiction on federal courts] may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred. Federal courts have consistently held that this language limits venue but not jurisdiction of the federal district court. See, e.g., Upchurch v. Piper Aircraft Corp., 786 F.2d 439, 440 (8th Cir. 1984); United States v. Acord, 209 F.2d 709, 711-14 (10th Cir.), cert. denied, 347 U.S. 975, 74 S.Ct. 786, 98 L.Ed. 1115 (1954); Nowotny v. Turner, 208 F. Supp. 802, 805 (M.D.N.C. 1962). We presume that our legislature understood, when it borrowed that language from 28 United States Code section 1402(b), that Iowa Code section 25A.4 to that extent would also be characterized as a venue provision, not a limitation on the district court's power to hear and decide Iowa state tort claims.