258E Guideline 5:01A: Venue: Objection

Part of the Guidelines of Judicial Practice: Harassment Prevention Proceedings.

Guideline 5:01A

A defendant must raise an objection to venue in a timely manner, usually at the outset, prior to addressing the merits alleged in the plaintiff’s application. Otherwise, any defect in venue is waived. If the judge finds, upon the defendant’s timely objection, that the court does not have venue over the plaintiff’s residence as provided by G.L. c. 258E, § 2, the case can be transferred to a court with venue for the hearing. A defect in venue does not require dismissal of the action. In determining which court would have proper venue, the judge should take care, to the extent practicable, not to divulge the plaintiff’s address to the defendant if the plaintiff’s address does not appear on the order.

Prior to transferring the case, the judge should consider whether the plaintiff is suffering from harassment and issue any interim orders deemed necessary to protect the plaintiff from further harassment pending the transfer. The judge should allow the defendant an opportunity to be heard on the issuance of such interim orders and inform the defendant that doing so will not constitute a waiver of venue. If the judge determines, by a preponderance of the evidence, that the plaintiff is suffering from harassment, the judge may issue an interim order as permitted by c. 258E. Any interim orders should be effective through 4:00 P.M. on the date set for the hearing after notice.

Alternatively, the judge can give the defendant the option of holding the hearing after notice on an initial order in the court with a defect in venue and, in the event an initial order is granted, make the order returnable to a court with venue. The option of holding the hearing after notice in the court with a defect in venue should be explored where the location of the hearing would not impact the defendant’s opportunity to be heard on the question of granting relief as requested by the plaintiff, e.g., the defendant has a related criminal charge pending in the court and the defendant does not intend to call any witnesses who are not present or offer any exhibits that are unavailable.

Commentary

Although G.L. c. 258E, § 2 is entitled “Jurisdiction”, the Appeals Court has held its requirements relate to venue and not jurisdiction. See M.B. v. J.B., 86 Mass. App. Ct. 108, 115 (2014) (interpreting c. 209A, § 2).

“Venue in its modern and municipal sense relates to and defines the particular county or territorial area within the state or district in which the cause or prosecution must be brought or tried. It commonly has to do with geographical subdivisions, relates to practice or procedure, may be waived, and does not refer to jurisdiction at all.” Paige v. Sinclair, 237 Mass. 482, 484 (1921). An objection to venue must be raised in a timely manner, usually at the outset, or it is waived. Id. See Mass. R. Civ. P. 12(h). Cf. Lemarche v. Lussier, 65 Mass. App. Ct. 887, 891 (2006). Objecting to venue after addressing the merits of the plaintiff’s allegations is ordinarily too late. See Hastings v. Inhabitants of Bolton, 83 Mass. 529, 530 (1861). Because a challenge to venue must be raised, venue need not be addressed if the defendant does not appear. If the defendant does not appear, and, if there is evidence that the defendant had notice of the hearing and no reason excusing the defendant’s absence, the court should consider the defendant to have forfeited their opportunity to be heard on the issue of venue as well as on the merits. See Guideline 5:05 Failure of the Defendant to Appear.

Should a defendant appear prior to the hearing after notice date with an objection to venue, the Court should schedule the matter to be heard at the same time the hearing after notice is scheduled. At the hearing after notice, the court should give the plaintiff an opportunity to be heard on the issue of venue, taking care that a residential address is not disclosed to the defendant if the plaintiff has requested it be withheld, and determine if there is venue over the plaintiff’s residence as provided by G.L. c. 258E, § 2. See Commonwealth v. Wright, 88 Mass. App. Ct. 82, 83 n. 1 (2015) (proper to consider evidence offered at hearing to resolve question of venue, not simply consideration of facts contained within the complaint). For example, the court can refer to the court that has venue over the plaintiff’s residence but not identify the specific city or town in which the plaintiff lives.

If the judge concludes that the court does not have venue over the plaintiff’s residence as set forth in G.L. c. 258E, § 2, the case can be transferred to a court with venue as the remedy for improper venue is to transfer the case to a court with venue. Cormier v. Pezrow New England, Inc., 437 Mass. 302, 307 (2002). See G.L. c. 218, § 2A (transfer of civil actions brought in wrong court); G.L. c. 223, § 15 (erroneous venue; procedure). Lack of venue does not preclude the court from issuing interim orders pending the transfer. See M.B. v. J.B., 86 Mass. App. Ct. 108, 115 (2014) (unlike a lack of subject matter jurisdiction, a defect in venue does not irrevocably strip a court of all authority to hear a case). Consistent with the protective purposes of c. 258E, the judge should determine whether the plaintiff is suffering from harassment and enter any order necessary to protect the plaintiff from further harassment pending the transfer. G.L. c. 258E, § 3. The issuance of such orders pending the transfer of the case upon a finding by the court that the preponderance of the evidence establishes that the plaintiff is suffering from harassment “furthers the Commonwealth’s important public policy goal of securing ‘the fundamental human right to be protected from the devastating impact of family violence.’” See Caplan v. Donovan, 450 Mass. 463, 469 (2008), quoting Champagne v. Champagne, 429 Mass. 324, 327 (1999).

Upon transfer, the case shall be treated “as if it had been originally commenced therein, and all prior proceedings otherwise regularly taken shall thereafter be valid.” G.L. c. 218, § 2A.

When a case is to be transferred, the clerk in the issuing court should, prior to the parties leaving, contact the clerk’s office of the court to which the case will be transferred to determine when the hearing after notice can be scheduled. The following procedures should be followed. Specifically:

• Issuing Court:
  1. The clerk’s office in the Issuing Court should contact the clerk’s office in the Return Court to determine an acceptable return date, and must notify the clerk’s office in the Return Court of the return date and time ordered by the judge in the Issuing Court.
  2. The probation department in the Issuing Court shall promptly enter any order issued into the CARI system for transmittal to the Statewide Registry of Civil Restraining Orders. The entry should also indicate that the case is being transferred.
  3. The Issuing Court will enter on the docket the location of the court recording of the hearing conducted in the Issuing Court and that the matter is being forwarded to the Return Court. The Issuing Court should also scan the affidavit and the order into MassCourts.
  4. The clerk’s office in the Issuing Court must immediately transmit electronically or by facsimile a copy of the case file and docket to the Return Court.
  5. The Issuing Court will close its case, retain a copy of the case file and docket, and note on the case file that the case has been transferred by marking the case file “Transfer to [insert court].”
• Return Court:
  1. The Return Court shall open a case with its own docket number no later than the end of the next business day after an order issues. The matter shall proceed in the Return Court as if originally commenced therein.
  2. The docket in the Return Court shall indicate that the matter has been transferred from the Issuing Court. The Return Court should also scan the affidavit and the order.
  3. All further proceedings in the Return Court shall take place as if the matter had been originally commenced in that court (e.g., modifications or extensions must be served on the defendant and provided to the appropriate police department by the Return Court; the probation department in the Return Court is responsible for entry of the modified or extended order into the CARI system for transmittal to the Statewide Registry of Civil Restraining Orders).

This ability to transfer to cure a defect in venue is pursuant to statutory authority. Transfer of a case for any other reason, subject to conflict of interest policy and, in some instances mutual orders with an upcoming hearing date in a different court, still requires transfer through the Regional Administrative Justice or the Administrative Office of the appropriate court department. In those circumstances, approval to transfer the case from the department’s Chief Justice (or, if the courts are in different departments, the Chief Justice of the Trial Court) is required in order to return the case to another court for a joint hearing. See Guideline 6:06 Mutual Harassment Prevention Orders.

Last updated:	October 20, 2025