28 U.S.C. § 1441 — Removal of civil actions

Page 395 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1441 1 So in original. Does not conform to section catchline. § 1411. Jury trials (a) Except as provided in subsection (b) of this section, this chapter and title 11 do not affect any right to trial by jury that an individual has under applicable nonbankruptcy law with regard to a personal injury or wrongful death tort claim. (b) The district court may order the issues arising under section 303 of title 11 to be tried without a jury. (Added Pub. L. 98–353, title I, § 102(a), July 10, 1984, 98 Stat. 335.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective July 10, 1984, except that subsec. (a) not applicable with respect to cases under Title 11, Bankruptcy, that are pending on July 10, 1984, or to proceedings arising in or related to such cases, see sec- tion 122(a), (b) of Pub. L. 98–353, set out as a note under section 151 of this title. § 1412. Change of venue A district court may transfer a case or pro- ceeding under title 11 to a district court for an- other district, in the interest of justice or for the convenience of the parties. (Added Pub. L. 98–353, title I, § 102(a), July 10, 1984, 98 Stat. 335.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective July 10, 1984, see section 122(a) of Pub. L. 98–353, set out as a note under section 151 of this title. § 1413. Venue of cases under chapter 5 of title 3 Notwithstanding the preceding provisions of this chapter, a civil action under section 1346(g) may be brought in the United States district court for the district in which the employee is employed or in the United States District Court for the District of Columbia. (Added Pub. L. 104–331, § 3(b)(2)(A), Oct. 26, 1996, 110 Stat. 4069.) Editorial Notes CODIFICATION Pub. L. 104–331, § 3(b)(2)(A), which directed the amend- ment of chapter 37 of this title by adding this section at end, was executed by adding this section at the end of chapter 87 of this title to reflect the probable intent of Congress. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Oct. 1, 1997, see section 3(d) of Pub. L. 104–331, set out as a note under section 1296 of this title. CHAPTER 89—DISTRICT COURTS; REMOVAL OF CASES FROM STATE COURTS Sec. 1441. Removal of civil actions. 1442. Federal officers and agencies sued or pros- ecuted.1 1442a. Members of armed forces sued or prosecuted. 1443. Civil rights cases. 1444. Foreclosure action against United States. 1445. Nonremovable actions. 1446. Procedure for removal of civil actions. 1447. Procedure after removal generally. 1448. Process after removal. 1449. State court record supplied. 1450. Attachment or sequestration; securities. 1451. Definitions. 1452. Removal of claims related to bankruptcy cases. 1453. Removal of class actions. 1454. Patent, plant variety protection, and copy- right cases. 1455. Procedure for removal of criminal prosecu- tions. Editorial Notes AMENDMENTS 2011—Pub. L. 112–63, title I, § 103(d)(1), Dec. 7, 2011, 125 Stat. 762, substituted ‘‘Removal of civil actions’’ for ‘‘Actions removable generally’’ in item 1441, inserted ‘‘of civil actions’’ after ‘‘removal’’ in item 1446, and added item 1455. Pub. L. 112–29, § 19(c)(2), Sept. 16, 2011, 125 Stat. 332, added item 1454. 2005—Pub. L. 109–2, § 5(b), Feb. 18, 2005, 119 Stat. 13, added item 1453. 1996—Pub. L. 104–317, title II, § 206(b), Oct. 19, 1996, 110 Stat. 3850, inserted ‘‘and agencies’’ after ‘‘officers’’ in item 1442. 1984—Pub. L. 98–353, title I, § 103(b), July 10, 1984, 98 Stat. 335, added item 1452. 1970—Pub. L. 91–358, title I, § 172(d)(2), July 29, 1970, 84 Stat. 591, added item 1451. 1958—Pub. L. 85–554, § 5(b), July 25, 1958, 72 Stat. 416, substituted ‘‘Nonremovable actions’’ for ‘‘Carriers; non-removable actions’’ in item 1445. 1956—Act Aug. 10, 1956, ch. 1041, § 19(b), 70A Stat. 627, added item 1442a. § 1441. Removal of civil actions (a) GENERALLY.—Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original juris- diction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. (b) REMOVAL BASED ON DIVERSITY OF CITIZEN- SHIP.—(1) In determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded. (2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. (c) JOINDER OF FEDERAL LAW CLAIMS AND STATE LAW CLAIMS.—(1) If a civil action in- cludes— (A) a claim arising under the Constitution, laws, or treaties of the United States (within the meaning of section 1331 of this title), and (B) a claim not within the original or supple- mental jurisdiction of the district court or a claim that has been made nonremovable by statute, the entire action may be removed if the action would be removable without the inclusion of the claim described in subparagraph (B). Page 396 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1441 1 So in original. Section 1407 of this title does not contain a subsec. (j). (2) Upon removal of an action described in paragraph (1), the district court shall sever from the action all claims described in paragraph (1)(B) and shall remand the severed claims to the State court from which the action was re- moved. Only defendants against whom a claim described in paragraph (1)(A) has been asserted are required to join in or consent to the removal under paragraph (1). (d) ACTIONS AGAINST FOREIGN STATES.—Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the dis- trict and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based upon this subsection, the time limitations of section 1446(b) of this chapter may be enlarged at any time for cause shown. (e) MULTIPARTY, MULTIFORUM JURISDICTION.— (1) Notwithstanding the provisions of subsection (b) of this section, a defendant in a civil action in a State court may remove the action to the district court of the United States for the dis- trict and division embracing the place where the action is pending if— (A) the action could have been brought in a United States district court under section 1369 of this title; or (B) the defendant is a party to an action which is or could have been brought, in whole or in part, under section 1369 in a United States district court and arises from the same accident as the action in State court, even if the action to be removed could not have been brought in a district court as an original mat- ter. The removal of an action under this subsection shall be made in accordance with section 1446 of this title, except that a notice of removal may also be filed before trial of the action in State court within 30 days after the date on which the defendant first becomes a party to an action under section 1369 in a United States district court that arises from the same accident as the action in State court, or at a later time with leave of the district court. (2) Whenever an action is removed under this subsection and the district court to which it is removed or transferred under section 1407(j) 1 has made a liability determination requiring further proceedings as to damages, the district court shall remand the action to the State court from which it had been removed for the determina- tion of damages, unless the court finds that, for the convenience of parties and witnesses and in the interest of justice, the action should be re- tained for the determination of damages. (3) Any remand under paragraph (2) shall not be effective until 60 days after the district court has issued an order determining liability and has certified its intention to remand the re- moved action for the determination of damages. An appeal with respect to the liability deter- mination of the district court may be taken dur- ing that 60-day period to the court of appeals with appellate jurisdiction over the district court. In the event a party files such an appeal, the remand shall not be effective until the ap- peal has been finally disposed of. Once the re- mand has become effective, the liability deter- mination shall not be subject to further review by appeal or otherwise. (4) Any decision under this subsection con- cerning remand for the determination of dam- ages shall not be reviewable by appeal or other- wise. (5) An action removed under this subsection shall be deemed to be an action under section 1369 and an action in which jurisdiction is based on section 1369 of this title for purposes of this section and sections 1407, 1697, and 1785 of this title. (6) Nothing in this subsection shall restrict the authority of the district court to transfer or dismiss an action on the ground of inconvenient forum. (f) DERIVATIVE REMOVAL JURISDICTION.—The court to which a civil action is removed under this section is not precluded from hearing and determining any claim in such civil action be- cause the State court from which such civil ac- tion is removed did not have jurisdiction over that claim. (June 25, 1948, ch. 646, 62 Stat. 937; Pub. L. 94–583, § 6, Oct. 21, 1976, 90 Stat. 2898; Pub. L. 99–336, § 3(a), June 19, 1986, 100 Stat. 637; Pub. L. 100–702, title X, § 1016(a), Nov. 19, 1988, 102 Stat. 4669; Pub. L. 101–650, title III, § 312, Dec. 1, 1990, 104 Stat. 5114; Pub. L. 102–198, § 4, Dec. 9, 1991, 105 Stat. 1623; Pub. L. 107–273, div. C, title I, § 11020(b)(3), Nov. 2, 2002, 116 Stat. 1827; Pub. L. 112–63, title I, § 103(a), Dec. 7, 2011, 125 Stat. 759.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., §§ 71, 114 (Mar. 3, 1911, ch. 231, §§ 28, 53, 36 Stat. 1094, 1101; Jan. 20, 1914, ch. 11, 38 Stat. 278; Jan. 31, 1928, ch. 14, § 1, 45 Stat. 54). Section consolidates removal provisions of sections 71 and 114 of title 28, U.S.C., 1940 ed., and is intended to resolve ambiguities and conflicts of decisions. Phrases such as ‘‘in suits of a civil nature, at law or in equity,’’ the words ‘‘case,’’ ‘‘cause,’’ ‘‘suit,’’ and the like have been omitted and the words ‘‘civil action’’ substituted in harmony with Rules 2 and 81(c) of the Federal Rules of Civil Procedure. Ambiguous phrases such as ‘‘the District Court of the United States for the proper district’’ have been clari- fied by the substitution of the phrase ‘‘the district and division embracing the place where such action is pend- ing.’’ (See General Investment Co. v. Lake Shore & M.S. Ry. Co., 1922, 43 S.Ct. 107, 112, 260 U.S. 261, 67 L.Ed. 244 and cases cited therein.) All the provisions with reference to removal of con- troversies between citizens of different States because of inability, from prejudice or local influence, to obtain justice, have been discarded. These provisions, born of the bitter sectional feelings engendered by the Civil War and the Reconstruction period, have no place in the jurisprudence of a nation since united by three wars against foreign powers. Indeed, the practice of re- moval for prejudice or local influence has not been em- ployed much in recent years. Subsection (c) has been substituted for the provision in section 71 of title 28, U.S.C., 1940 ed., ‘‘and when in any suit mentioned in this section, there shall be a con- troversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actu- ally interested in such controversy may remove said suit into the district court of the United States.’’ This quoted language has occasioned much confusion. The courts have attempted to distinguish between sep- Page 397 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1442 arate and separable controversies, a distinction which is sound in theory but illusory in substance. (See 41 Harv. L. Rev. 1048; 35 Ill. L. Rev. 576.) Subsection (c) permits the removal of a separate cause of action but not of a separable controversy un- less it constitutes a separate and independent claim or cause of action within the original jurisdiction of United States District Courts. In this respect it will somewhat decrease the volume of Federal litigation. Rules 18, 20, and 23 of the Federal Rules of Civil Pro- cedure permit the most liberal joinder of parties, claims, and remedies in civil actions. Therefore there will be no procedural difficulty occasioned by the re- moval of the entire action. Conversely, if the court so desires, it may remand to the State court all non- removable matters. The provisions of section 71 of title 28, U.S.C., 1940 ed., with respect to removal of actions under the Fed- eral Employer’s Liability Act (U.S.C., 1940 ed., title 45, Railroads, §§ 51–60) and actions against a carrier for loss, damage, or delay to shipments under section 20 of title 49, U.S.C., 1940 ed., Transportation, are incor- porated in section 1445 of this title. Editorial Notes AMENDMENTS 2011—Pub. L. 112–63, § 103(a)(1), substituted ‘‘Removal of civil actions’’ for ‘‘Actions removable generally’’ in section catchline. Subsec. (a). Pub. L. 112–63, § 103(a)(2), inserted heading and in text struck out at end ‘‘For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.’’ Subsec. (b). Pub. L. 112–63, § 103(a)(3), amended subsec. (b) generally. Prior to amendment, text read as follows: ‘‘Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citi- zenship or residence of the parties. Any other such ac- tion shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.’’ Subsec. (c). Pub. L. 112–63, § 103(a)(4), amended subsec. (c) generally. Prior to amendment, text read as follows: ‘‘Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may deter- mine all issues therein, or, in its discretion, may re- mand all matters in which State law predominates.’’ Subsec. (d). Pub. L. 112–63, § 103(a)(5), inserted head- ing. Subsec. (e). Pub. L. 112–63, § 103(a)(6), inserted head- ing. Subsec. (f). Pub. L. 112–63, § 103(a)(7), inserted heading. 2002—Subsecs. (e), (f). Pub. L. 107–273 added subsec. (e), redesignated former subsec. (e) as (f), and sub- stituted ‘‘The court to which a civil action is removed under this section’’ for ‘‘The court to which such civil action is removed’’. 1991—Subsec. (c). Pub. L. 102–198 struck out comma after ‘‘title’’ and substituted ‘‘may’’ for ‘‘may may’’ be- fore ‘‘remand’’. 1990—Subsec. (c). Pub. L. 101–650 substituted ‘‘within the jurisdiction conferred by section 1331 of this title’’ for ‘‘, which would be removable if sued upon alone’’ and ‘‘may remand all matters in which State law pre- dominates’’ for ‘‘remand all matters not otherwise within its original jurisdiction’’. 1988—Subsec. (a). Pub. L. 100–702 inserted at end ‘‘For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be dis- regarded.’’ 1986—Subsec. (e). Pub. L. 99–336 added subsec. (e). 1976—Subsec. (d). Pub. L. 94–583 added subsec. (d). 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 2002 AMENDMENT Amendment by Pub. L. 107–273 applicable to a civil action if the accident giving rise to the cause of action occurred on or after the 90th day after Nov. 2, 2002, see section 11020(c) of Pub. L. 107–273, set out as an Effec- tive Date note under section 1369 of this title. EFFECTIVE DATE OF 1986 AMENDMENT Pub. L. 99–336, § 3(b), June 19, 1986, 100 Stat. 637, pro- vided that: ‘‘The amendment made by this section [amending this section] shall apply with respect to claims in civil actions commenced in State courts on or after the date of the enactment of this section [June 19, 1986].’’ EFFECTIVE DATE OF 1976 AMENDMENT Amendment by Pub. L. 94–583 effective 90 days after Oct. 21, 1976, see section 8 of Pub. L. 94–583, set out as an Effective Date note under section 1602 of this title. § 1442. Federal officers or agencies sued or pros- ecuted (a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division em- bracing the place wherein it is pending: (1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or au- thority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue. (2) A property holder whose title is derived from any such officer, where such action or prosecution affects the validity of any law of the United States. (3) Any officer of the courts of the United States, for or relating to any act under color of office or in the performance of his duties; (4) Any officer of either House of Congress, for or relating to any act in the discharge of his official duty under an order of such House. (b) A personal action commenced in any State court by an alien against any citizen of a State who is, or at the time the alleged action accrued was, a civil officer of the United States and is a nonresident of such State, wherein jurisdiction is obtained by the State court by personal serv- ice of process, may be removed by the defendant to the district court of the United States for the district and division in which the defendant was served with process. (c) Solely for purposes of determining the pro- priety of removal under subsection (a), a law en- forcement officer, who is the defendant in a criminal prosecution, shall be deemed to have been acting under the color of his office if the officer—