28 U.S.C. § 1447 — Procedure after removal generally

Page 402 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1447 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.’’ Subsec. (g). Pub. L. 112–63, § 104, substituted ‘‘sub- section (b) of this section and paragraph (1) of section 1455(b)’’ for ‘‘subsections (b) and (c)’’. Pub. L. 112–51 added subsec. (g). 1996—Subsec. (c)(1). Pub. L. 104–317 substituted ‘‘de- fendant or defendants’’ for ‘‘petitioner’’. 1994—Subsec. (f). Pub. L. 103–465 added subsec. (f). 1991—Subsec. (c)(1). Pub. L. 102–198, § 10(a)(1), (4), sub- stituted ‘‘notice of’’ for ‘‘petition for’’ and ‘‘the notice’’ for ‘‘the petition’’. Subsec. (c)(2). Pub. L. 102–198, § 10(a)(1), (4), sub- stituted ‘‘notice of’’ for ‘‘petition for’’ and substituted ‘‘notice’’ for ‘‘petition’’ in three places. Subsec. (c)(3). Pub. L. 102–198, § 10(a)(1), (2), sub- stituted ‘‘notice of’’ for ‘‘petition for’’ and ‘‘prosecution is first remanded’’ for ‘‘petition is first denied’’. Subsec. (c)(4), (5). Pub. L. 102–198, § 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 prompt- ly. If it clearly appears on the face of the petition and any exhibits annexed thereto that the petition for re- moval 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 peti- tion as justice shall require. If the United States dis- trict court determines that such petition shall be granted, it shall so notify the State court in which prosecution is pending, which shall proceed no fur- ther.’’ Subsec. (d). Pub. L. 102–198, § 10(a)(1), (4), (5), sub- stituted ‘‘notice of removal’’ for ‘‘petition for the re- moval’’, struck out ‘‘and bond’’ after ‘‘civil action’’, and substituted ‘‘notice with’’ for ‘‘petition with’’. 1988—Subsec. (a). Pub. L. 100–702, § 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, § 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, § 1016(b)(3), redesig- nated 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 pro- ceeding, 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 de- fendants will pay all costs and disbursements incurred by reason of the removal proceedings should it be de- termined that the case was not removable or was im- properly removed.’’ 1977—Subsec. (c). Pub. L. 95–78, § 3(a), designated ex- isting 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, § 3(b), inserted ‘‘for the re- moval 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, § 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 peti- tion for removal shall be filed within 20 days after the service of summons. Subsec. (e). Act May 24, 1949, § 83(b), indicated that notice need not be given simultaneously with the fil- ing, but may be made promptly thereafter. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2011 AMENDMENT Amendment by Pub. L. 112–63 effective upon the expi- ration of the 30-day period beginning on Dec. 7, 2011, and applicable to any action or prosecution commenced on or after such effective date, with provisions for treatment of cases removed to Federal court, see sec- tion 105 of Pub. L. 112–63, set out as a note under sec- tion 1332 of this title. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–465 applicable with re- spect 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 com- plaint 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 2074 of this title. § 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 pro- ceedings in such State court or may cause the same to be brought before it by writ of certio- rari 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 pay- ment of just costs and any actual expenses, in- cluding 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 review- able on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 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 de- Page 403 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1449 stroy 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, § 84, 63 Stat. 102; Pub. L. 88–352, title IX, § 901, July 2, 1964, 78 Stat. 266; Pub. L. 100–702, title X, § 1016(c), Nov. 19, 1988, 102 Stat. 4670; Pub. L. 102–198, § 10(b), Dec. 9, 1991, 105 Stat. 1626; Pub. L. 104–219, § 1, Oct. 1, 1996, 110 Stat. 3022; Pub. L. 112–51, § 2(d), Nov. 9, 2011, 125 Stat. 546.) HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., §§ 71, 72, 74, 76, 80, 81 and 83 (Mar. 3, 1911, ch. 231, §§ 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, § 1, 45 Stat. 54). Section consolidates procedural provisions of sec- tions 71, 72, 74, 76, 80, 81 and 83 of title 28, U.S.C., 1940 ed., with important changes in substance and phrase- ology. 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 pro- cedure in bringing the State court record to the dis- trict 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 or- ders, 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 unneces- sary and inconsistent procedural provisions. Subsection (e) [now subsec. (c)] is derived from sec- tions 71 and 80 of title 28, U.S.C., 1940 ed. Such sub- section is rewritten to eliminate the cumbersome pro- cedure of remand. Under this chapter as revised, the pe- tition 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 be- fore 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 in- corporated 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 sec- tion 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 renum- bered subsection (c) to remove any doubt that the former law authorizing the district court upon remand to order payment of costs is continued. Editorial Notes AMENDMENTS 2011—Subsec. (d). Pub. L. 112–51 inserted ‘‘1442 or’’ be- fore ‘‘1443’’. 1996—Subsec. (c). Pub. L. 104–219 substituted ‘‘any de- fect other than lack of subject matter jurisdiction’’ for ‘‘any defect in removal procedure’’ in first sentence. 1991—Subsec. (b). Pub. L. 102–198 substituted ‘‘remov- ing party’’ for ‘‘petitioner’’. 1988—Subsec. (c). Pub. L. 100–702, § 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 re- mand 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, § 1016(c)(2), added subsec. (e). 1964—Subsec. (d). Pub. L. 88–352, inserted exception provision. 1949—Subsec. (c). Act May 24, 1949, § 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, § 84(b), added subsec. (d). Statutory Notes and Related Subsidiaries EXCEPTION TO SUBSECTION (d) Act Aug. 4, 1947, ch. 458, § 3(c), 61 Stat. 732, provides in part that the United States shall have the right to ap- peal from any order of remand entered in any case re- moved 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. § 1448. Process after removal In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such proc- ess or service may be completed or new process issued in the same manner as in cases originally filed in such district court. This section shall not deprive any defendant upon whom process is served after removal of his right to move to remand the case. (June 25, 1948, ch. 646, 62 Stat. 940.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 83 (Apr. 16, 1920, ch. 146, 41 Stat. 554). Words ‘‘district court of the United States’’ were sub- stituted for ‘‘United States Court,’’ because only the district courts now possess jurisdiction over removed civil and criminal cases. Changes were made in phraseology. § 1449. State court record supplied Where a party is entitled to copies of the rec- ords and proceedings in any suit or prosecution in a State court, to be used in any district court of the United States, and the clerk of such State court, upon demand, and the payment or tender of the legal fees, fails to deliver certified copies, the district court may, on affidavit reciting such facts, direct such record to be supplied by affidavit or otherwise. Thereupon such pro- ceedings, trial, and judgment may be had in such district court, and all such process award- ed, as if certified copies had been filed in the dis- trict court. (June 25, 1948, ch. 646, 62 Stat. 940; May 24, 1949, ch. 139, § 85, 63 Stat. 102.)