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28 USC Sec. 1446 01/16/96

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART IV - JURISDICTION AND VENUE

CHAPTER 89 - DISTRICT COURTS; REMOVAL OF CASES FROM STATE COURTS

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Sec. 1446. Procedure for removal

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(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 petitioner 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.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 939; May 24, 1949, ch. 139, Sec.

83, 63 Stat. 101; Sept. 29, 1965, Pub. L. 89-215, 79 Stat. 887;

July 30, 1977, Pub. L. 95-78, Sec. 3, 91 Stat. 321; Nov. 19, 1988,

Pub. L. 100-702, title X, Sec. 1016(b), 102 Stat. 4669; Dec. 9,

1991, Pub. L. 102-198, Sec. 10(a), 105 Stat. 1626; Dec. 8, 1994,

Pub. L. 103-465, title III, Sec. 321(b)(2), 108 Stat. 4946.)

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HISTORICAL AND REVISION NOTES

1948 ACT

Based on title 28, U.S.C., 1940 ed., Sec. 72, 74, 75, 76 (May 3,

1911, ch. 231, Sec. 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.

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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.

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AMENDMENTS

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.

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FEDERAL RULES OF CIVIL PROCEDURE

Application of Rules of Civil Procedure, see rule 81, Appendix to

this title.

Continuation of section under rule 81, see note by Advisory

Committee under rule 81.

CROSS REFERENCES

Stay of State court proceedings, see section 2283 of this title.

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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 section 2210.