28 U.S.C. § 1448 — Process after removal

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.)