§ 1447. — Procedure after removal generally.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC1447]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART IV--JURISDICTION AND VENUE
CHAPTER 89--DISTRICT COURTS; REMOVAL OF CASES FROM STATE COURTS
Sec. 1447. Procedure after removal generally
(a) In any case removed from a State court, the district court may
issue all necessary orders and process to bring before it all proper
parties whether served by process issued by the State court or
otherwise.
(b) It may require the removing party to file with its clerk copies
of all records and proceedings in such State court or may cause the same
to be brought before it by writ of certiorari issued to such State
court.
(c) A motion to remand the case on the basis of any defect other
than lack of subject matter jurisdiction must be made within 30 days
after the filing of the notice of removal under section 1446(a). If at
any time before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded. An order
remanding the case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of the removal.
A certified copy of the order of remand shall be mailed by the clerk to
the clerk of the State court. The State court may thereupon proceed with
such case.
(d) An order remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise, except that an order
remanding a case to the State court from which it was removed pursuant
to section 1443 of this title shall be reviewable by appeal or
otherwise.
(e) If after removal the plaintiff seeks to join additional
defendants whose joinder would destroy subject matter jurisdiction, the
court may deny joinder, or permit joinder and remand the action to the
State court.
(June 25, 1948, ch. 646, 62 Stat. 939; May 24, 1949, ch. 139, Sec. 84,
63 Stat. 102; Pub. L. 88-352, title IX, Sec. 901, July 2, 1964, 78 Stat.
266; Pub. L. 100-702, title X, Sec. 1016(c), Nov. 19, 1988, 102 Stat.
4670; Pub. L. 102-198, Sec. 10(b), Dec. 9, 1991, 105 Stat. 1626; Pub. L.
104-219, Sec. 1, Oct. 1, 1996, 110 Stat. 3022.)
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., Secs. 71, 72, 74, 76, 80, 81
and 83 (Mar. 3, 1911, ch. 231, Secs. 28, 29, 31, 33, 37 and 38, 36 Stat.
1094-1098; Jan. 20, 1914, ch. 11, 39 Stat. 278; Aug. 23, 1916, ch. 399,
39 Stat. 532; Apr. 16, 1920, ch. 146, 41 Stat. 554; Jan. 31, 1928, ch.
14, Sec. 1, 45 Stat. 54).
Section consolidates procedural provisions of sections 71, 72, 74,
76, 80, 81 and 83 of title 28, U.S.C., 1940 ed., with important changes
in substance and phraseology.
Subsection (a) is derived from sections 72, 76, 81 and 83 of title
28, U.S.C., 1940 ed. The remaining provisions of said section 83 are the
basis of section 1448 of this title.
Subsection (b) is derived from sections 72, 74, 76 and 83 of title
28, U.S.C., 1940 ed., which have been rewritten to provide the utmost
simplicity and flexibility of procedure in bringing the State court
record to the district court.
[Editorial Note.--Subsecs. (c), (d) and (e) as originally revised
and incorporated in this section read as follows:
``(c) It may order the pleadings recast and the parties realigned
according to their real interest.
``(d) If any party fails to comply with its lawful orders, the
district court may enter such further orders and judgments as justice
requires.
``(e) If at any time before final judgment it appears that the case
was removed improvidently and without jurisdiction, the district court
shall remand the case. A certified copy of the order of remand shall be
mailed by its clerk to the clerk of the State court. The State court may
thereupon proceed with such case.'']
Subsections (c) and (d) are substituted for unnecessary and
inconsistent procedural provisions.
Subsection (e) [now subsec. (c)] is derived from sections 71 and 80
of title 28, U.S.C., 1940 ed. Such subsection is rewritten to eliminate
the cumbersome procedure of remand. Under this chapter as revised, the
petition for removal under section 1446 of this chapter will be filed in
the Federal court in the first instance and the right of removal
determined in that court before the petition is granted.
The provisions in section 80 of title 28, U.S.C., 1940 ed., relating
to actions commenced in district courts, as distinguished from actions
removed thereto, are incorporated in section 1359 of this title. Other
provisions of said section 80 appear in section 1919 of this title.
1949 Act
This section strikes out subsections (c) and (d) of section 1447 of
title 28, U.S.C., as covered by the Federal Rules of Civil Procedure,
and adds a new subsection to such section 1447 to remove any doubt that
the former law as to the finality of an order of remand to a State court
is continued. This section also amends renumbered subsection (c) to
remove any doubt that the former law authorizing the district court upon
remand to order payment of costs is continued.
Amendments
1996--Subsec. (c). Pub. L. 104-219 substituted ``any defect other
than lack of subject matter jurisdiction'' for ``any defect in removal
procedure'' in first sentence.
1991--Subsec. (b). Pub. L. 102-198 substituted ``removing party''
for ``petitioner''.
1988--Subsec. (c). Pub. L. 100-702, Sec. 1016(c)(1), amended subsec.
(c) generally. Prior to amendment, subsec. (c) read as follows: ``If at
any time before final judgment it appears that the case was removed
improvidently and without jurisdiction, the district court shall remand
the case, and may order the payment of just costs. A certified copy of
the order of remand shall be mailed by its clerk to the clerk of the
State court. The State court may thereupon proceed with such case.''
Subsec. (e). Pub. L. 100-702, Sec. 1016(c)(2), added subsec. (e).
1964--Subsec. (d). Pub. L. 88-352, inserted exception provision.
1949--Subsec. (c). Act May 24, 1949, Sec. 84(a), struck out former
subsecs. (c) and (d), renumbered former subsec. (e) to be subsec. (c)
and inserted at end of first sentence of new subsec. (c) ``and may order
the payment of just costs''.
Subsec. (d). Act May 24, 1949, Sec. 84(b), added subsec. (d).
Exception to Subsection (d)
Act Aug. 4, 1947, ch. 458, Sec. 3(c), 61 Stat. 732, provides in part
that the United States shall have the right to appeal from any order of
remand entered in any case removed to a United States district court
pursuant to the provisions of act Apr. 12, 1926, ch. 115, 44 Stat. 239.
These acts referred to herein relate to restrictions on land of the Five
Civilized Tribes of Oklahoma and are set out as notes under section 355
of Title 25, Indians.