Title 28 — Judiciary and Judicial Procedure — § 1447. Procedure after removal generally
Summary
Pages 402 and 403 of Title 28, Judiciary and Judicial Procedure, carry § 1447, Procedure after removal generally. In a case removed from a State court, the district court may issue all necessary orders and process and may require the removing party to file copies of the State court records. A motion to remand on any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal, but the case shall be remanded at any time before final judgment if the court lacks subject matter jurisdiction, and the remand order may require payment of just costs, including attorney fees. A remand order is not reviewable on appeal except for cases removed under section 1442 or 1443. The pages also carry historical and amendment notes from June 25, 1948 to Pub. L. 112–51 of Nov. 9, 2011, and §§ 1448 and 1449.
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§ 1447 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE Page 402
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.)
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