§ 1446. — Procedure for removal.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC1446]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART IV--JURISDICTION AND VENUE
CHAPTER 89--DISTRICT COURTS; REMOVAL OF CASES FROM STATE COURTS
Sec. 1446. Procedure for removal
(a) A defendant or defendants desiring to remove any civil action or
criminal prosecution from a State court shall file in the district court
of the United States for the district and division within which such
action is pending a notice of removal signed pursuant to Rule 11 of the
Federal Rules of Civil Procedure and containing a short and plain
statement of the grounds for removal, together with a copy of all
process, pleadings, and orders served upon such defendant or defendants
in such action.
(b) The notice of removal of a civil action or proceeding shall be
filed within thirty days after the receipt by the defendant, through
service or otherwise, of a copy of the initial pleading setting forth
the claim for relief upon which such action or proceeding is based, or
within thirty days after the service of summons upon the defendant if
such initial pleading has then been filed in court and is not required
to be served on the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a
notice of removal may be filed within thirty days after receipt by the
defendant, through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may first be
ascertained that the case is one which is or has become removable,
except that a case may not be removed on the basis of jurisdiction
conferred by section 1332 of this title more than 1 year after
commencement of the action.
(c)(1) A notice of removal of a criminal prosecution shall be filed
not later than thirty days after the arraignment in the State court, or
at any time before trial, whichever is earlier, except that for good
cause shown the United States district court may enter an order granting
the defendant or defendants leave to file the notice at a later time.
(2) A notice of removal of a criminal prosecution shall include all
grounds for such removal. A failure to state grounds which exist at the
time of the filing of the notice shall constitute a waiver of such
grounds, and a second notice may be filed only on grounds not existing
at the time of the original notice. For good cause shown, the United
States district court may grant relief from the limitations of this
paragraph.
(3) The filing of a notice of removal of a criminal prosecution
shall not prevent the State court in which such prosecution is pending
from proceeding further, except that a judgment of conviction shall not
be entered unless the prosecution is first remanded.
(4) The United States district court in which such notice is filed
shall examine the notice promptly. If it clearly appears on the face of
the notice and any exhibits annexed thereto that removal should not be
permitted, the court shall make an order for summary remand.
(5) If the United States district court does not order the summary
remand of such prosecution, it shall order an evidentiary hearing to be
held promptly and after such hearing shall make such disposition of the
prosecution as justice shall require. If the United States district
court determines that removal shall be permitted, it shall so notify the
State court in which prosecution is pending, which shall proceed no
further.
(d) Promptly after the filing of such notice of removal of a civil
action the defendant or defendants shall give written notice thereof to
all adverse parties and shall file a copy of the notice with the clerk
of such State court, which shall effect the removal and the State court
shall proceed no further unless and until the case is remanded.
(e) If the defendant or defendants are in actual custody on process
issued by the State court, the district court shall issue its writ of
habeas corpus, and the marshal shall thereupon take such defendant or
defendants into his custody and deliver a copy of the writ to the clerk
of such State court.
(f) With respect to any counterclaim removed to a district court
pursuant to section 337(c) of the Tariff Act of 1930, the district court
shall resolve such counterclaim in the same manner as an original
complaint under the Federal Rules of Civil Procedure, except that the
payment of a filing fee shall not be required in such cases and the
counterclaim shall relate back to the date of the original complaint in
the proceeding before the International Trade Commission under section
337 of that Act.
(June 25, 1948, ch. 646, 62 Stat. 939; May 24, 1949, ch. 139, Sec. 83,
63 Stat. 101; Pub. L. 89-215, Sept. 29, 1965, 79 Stat. 887; Pub. L. 95-
78, Sec. 3, July 30, 1977, 91 Stat. 321; Pub. L. 100-702, title X,
Sec. 1016(b), Nov. 19, 1988, 102 Stat. 4669; Pub. L. 102-198,
Sec. 10(a), Dec. 9, 1991, 105 Stat. 1626; Pub. L. 103-465, title III,
Sec. 321(b)(2), Dec. 8, 1994, 108 Stat. 4946; Pub. L. 104-317, title VI,
Sec. 603, Oct. 19, 1996, 110 Stat. 3857.)
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., Secs. 72, 74, 75, 76 (May 3,
1911, ch. 231, Secs. 29, 31, 32, 33, 36 Stat. 1095, 1097; Aug. 23, 1916,
ch. 399, 39 Stat. 532; July 30, 1977, Pub. L. 95-78, Sec. 3, 91 Stat.
321.)
Section consolidates portions of sections 74, 75, and 76 with
section 72 of title 28, U.S.C., 1940 ed., with important changes of
substance and phraseology.
Subsection (a), providing for the filing of the removal petition in
the district court, is substituted for the requirement of sections 72
and 74 of title 28, U.S.C., 1940 ed., that the petition be filed in the
State court. This conforms to the method prescribed by section 76 of
title 28, U.S.C., 1940 ed., and to the recommendation of United States
District Judges Calvin W. Chesnut and T. Waties Warring approved by the
Committee of the Judicial Conference on the Revision of the Judicial
Code.
Subsection (b) makes uniform the time for filing petitions to remove
all civil actions within twenty days after commencement of action or
service of process whichever is later, instead of ``at any time before
the defendant is required by the laws of the State or the rule of the
State court in which such suit is brought to answer or plead'' as
required by section 72 of title 28, U.S.C., 1940 ed. As thus revised,
the section will give adequate time and operate uniformly throughout the
Federal jurisdiction. The provisions of sections 74 and 76 of title 28,
U.S.C., 1940 ed., for filing at any time ``before trial or final
hearing'' in civil rights cases and cases involving revenue officers,
court officers and officers of either House of Congress were omitted.
Subsection (c) embodies the provisions of sections 74 and 76 of
title 28, U.S.C., 1940 ed., for filing the removal petition before trial
and makes them applicable to all criminal prosecutions but not to civil
actions. This provision was retained to protect Federal officers
enforcing revenue or criminal laws from being rushed to trial in State
courts before petition for removal could be filed. Words ``or final
hearing'' following the words ``before trial,'' were omitted for
purposes of clarity and simplification of procedure.
The provision of said section 76 of title 28, U.S.C., 1940 ed., for
certificate of counsel that he has examined the proceedings and
carefully inquired into all matters set forth in the petition and
believes them to be true, was omitted as unnecessary and inconsistent
with Rule 11 of the Federal Rules of Civil Procedure.
Subsection (d) is derived from sections 72 and 74 of title 28,
U.S.C., 1940 ed., but the requirement for cost bond is limited to civil
actions in conformity with the more enlightened trend of modern
procedure to remove all unnecessary impediments to the administration of
criminal justice. Provisions of said section 72 as to the conditions of
the bond were rewritten because inappropriate when the petition for
removal is filed in the Federal court.
Subsection (e) provides for notice to the adverse parties and for
the filing in the State court of a copy of the petition for removal in
substitution for the requirements of sections 72 and 74 of title 28,
U.S.C., 1940 ed., for the filing of the removal petition in the State
court. The last sentence of subsection (e) is derived from sections 72,
74 and 76 of title 28, U.S.C., 1940 ed.
Subsection (f) is derived from sections 75 and 76 of title 28,
U.S.C., 1940 ed.
Since the procedure in removal cases is now governed by the Federal
Rules of Civil Procedure [Rule 81(c)] and Federal Rules of Criminal
Procedure [Rule 54(b)], the detailed directions of the various sections
with respect to such procedure were omitted as unnecessary.
Thus the provision of section 72 of title 28, U.S.C., 1940 ed., with
respect to appearance, special bail and filing the record were omitted
as covered by the Federal Rules of Civil Procedure, Rules 64, 81(c).
The provisions of section 74 of title 28, U.S.C., 1940 ed., as to
the effect of security and other proceedings and remedies in the State
court were omitted as covered by section 1450 of this title.
The requirements of section 74 of title 28, U.S.C., 1940 ed., that
the clerk of the State court shall furnish copies of pleadings and
proceedings to the petitioner and that the petitioner shall file the
same in the district court are covered by section 1447 of this title.
The provisions of section 74 of title 28, U.S.C., 1940 ed.,
requiring the adverse parties to plead anew in the district court were
omitted as unnecessary in view of Federal Rules of Civil Procedure, Rule
81(c). The last sentence of such section was omitted as covered by
section 1447(d) of this title.
1949 Act
Subsection (b) of section 1446 of title 28, U.S.C., as revised, has
been found to create difficulty in those States, such as New York, where
suit is commenced by the service of a summons and the plaintiff's
initial pleading is not required to be served or filed until later.
The first paragraph of the amendment to subsection (b) corrects this
situation by providing that the petition for removal need not be filed
until 20 days after the defendant has received a copy of the plaintiff's
initial pleading.
This provision, however, without more, would create further
difficulty in those States, such as Kentucky, where suit is commenced by
the filing of the plaintiff's initial pleading and the issuance and
service of a summons without any requirement that a copy of the pleading
be served upon or otherwise furnished to the defendant. Accordingly the
first paragraph of the amendment provides that in such cases the
petition for removal shall be filed within 20 days after the service of
the summons.
The first paragraph of the amendment conforms to the amendment of
rule 81(c) of the Federal Rules of Civil Procedure, relating to removed
actions, adopted by the Supreme Court on December 29, 1948, and reported
by the Court to the present session of Congress.
The second paragraph of the amendment to subsection (b) is intended
to make clear that the right of removal may be exercised at a later
stage of the case if the initial pleading does not state a removable
case but its removability is subsequently disclosed. This is declaratory
of the existing rule laid down by the decisions. (See for example,
Powers v. Chesapeake etc., Ry. Co., 169 U.S. 92.)
In addition, this amendment clarifies the intent of section 1446(e)
of title 28, U.S.C., to indicate that notice need not be given
simultaneously with the filing, but may be given promptly thereafter.
References in Text
The Federal Rules of Civil Procedure, referred to in subsecs. (a)
and (f), are set out in the Appendix to this title.
Section 337 of the Tariff Act of 1930, referred to in subsec. (f),
is classified to section 1337 of Title 19, Customs Duties.
Amendments
1996--Subsec. (c)(1). Pub. L. 104-317 substituted ``defendant or
defendants'' for ``petitioner''.
1994--Subsec. (f). Pub. L. 103-465 added subsec. (f).
1991--Subsec. (c)(1). Pub. L. 102-198, Sec. 10(a)(1), (4),
substituted ``notice of'' for ``petition for'' and ``the notice'' for
``the petition''.
Subsec. (c)(2). Pub. L. 102-198, Sec. 10(a)(1), (4), substituted
``notice of'' for ``petition for'' and substituted ``notice'' for
``petition'' in three places.
Subsec. (c)(3). Pub. L. 102-198, Sec. 10(a)(1), (2), substituted
``notice of'' for ``petition for'' and ``prosecution is first remanded''
for ``petition is first denied''.
Subsec. (c)(4), (5). Pub. L. 102-198, Sec. 10(a)(3), added pars. (4)
and (5) and struck out former pars. (4) and (5) which read as follows:
``(4) The United States district court to which such petition is
directed shall examine the petition promptly. If it clearly appears on
the face of the petition and any exhibits annexed thereto that the
petition for removal should not be granted, the court shall make an
order for its summary dismissal.
``(5) If the United States district court does not order the summary
dismissal of such petition, it shall order an evidentiary hearing to be
held promptly and after such hearing shall make such disposition of the
petition as justice shall require. If the United States district court
determines that such petition shall be granted, it shall so notify the
State court in which prosecution is pending, which shall proceed no
further.''
Subsec. (d). Pub. L. 102-198, Sec. 10(a)(1), (4), (5), substituted
``notice of removal'' for ``petition for the removal'', struck out ``and
bond'' after ``civil action'', and substituted ``notice with'' for
``petition with''.
1988--Subsec. (a). Pub. L. 100-702, Sec. 1016(b)(1), amended subsec.
(a) generally. Prior to amendment, subsec. (a) read as follows: ``A
defendant or defendants desiring to remove any civil action or criminal
prosecution from a State court shall file in the district court of the
United States for the district and division within which such action is
pending a verified petition containing a short and plain statement of
the facts which entitle him or them to removal together with a copy of
all process, pleadings and orders served upon him or them in such
action.''
Subsec. (b). Pub. L. 100-702, Sec. 1016(b)(2), substituted ``notice
of removal'' for ``petition for removal'' in two places and inserted
before period at end of second par. ``, except that a case may not be
removed on the basis of jurisdiction conferred by section 1332 of this
title more than 1 year after commencement of the action''.
Subsecs. (d) to (f). Pub. L. 100-702, Sec. 1016(b)(3), redesignated
subsecs. (e) and (f) as (d) and (e), respectively, and struck out former
subsec. (d) which read as follows: ``Each petition for removal of a
civil action or proceeding, except a petition in behalf of the United
States, shall be accompanied by a bond with good and sufficient surety
conditioned that the defendant or defendants will pay all costs and
disbursements incurred by reason of the removal proceedings should it be
determined that the case was not removable or was improperly removed.''
1977--Subsec. (c). Pub. L. 95-78, Sec. 3(a), designated existing
provisions as par. (1), set a period of 30 days as the maximum allowable
time prior to commencement of trial and following arraignment during
which time a petition for removal can be filed, provided for the grant
of additional time for good cause shown, and added pars. (2) to (5).
Subsec. (e). Pub. L. 95-78, Sec. 3(b), inserted ``for the removal of
a civil action'' after ``filing of such petition''.
1965--Subsec. (b). Pub. L. 89-215 substituted ``thirty days'' for
``twenty days'' wherever appearing.
1949--Subsec. (b). Act May 24, 1949, Sec. 83(a), provided that the
petition for removal need not be filed until 20 days after the defendant
has received a copy of the plaintiff's initial pleading, and provided
that the petition for removal shall be filed within 20 days after the
service of summons.
Subsec. (e). Act May 24, 1949, Sec. 83(b), indicated that notice
need not be given simultaneously with the filing, but may be made
promptly thereafter.
Effective Date of 1994 Amendment
Amendment by Pub. L. 103-465 applicable with respect to complaints
filed under section 1337 of Title 19, Customs Duties, on or after the
date on which the World Trade Organization Agreement enters into force
with respect to the United States [Jan. 1, 1995], or in cases under
section 1337 of Title 19 in which no complaint is filed, with respect to
investigations initiated under such section on or after such date, see
section 322 of Pub. L. 103-465, set out as a note under section 1337 of
Title 19.
Effective Date of 1977 Amendment
Amendment by Pub. L. 95-78 effective Oct. 1, 1977, see section 4 of
Pub. L. 95-78, set out as an Effective Date of Pub. L. 95-78 note under
section 3771 of Title 18, Crimes and Criminal Procedure.
Section Referred to in Other Sections
This section is referred to in sections 1441, 1447 of this title;
title 19 section 3473; title 22 sections 283gg, 290i-7, 290k-9, 290m;
title 25 sections 487, 610c, 642, 670; title 42 sections 2210, 14616.
