§1446 Procedure for removal of civil actions

1948 ActBased on title 28, U.S.C., 1940 ed., §§ 72, 74, 75, 76 (

May 3, 1911, ch. 231, §§ 29, 31, 32, 33, 36 Stat. 1095, 1097; Aug. 23, 1916, ch. 399, 39 Stat. 532;

July 30, 1977, Pub. L. 95–78, § 3, 91 Stat. 321.) Section consolidates portions of section 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 section 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 section 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 section 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 section 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 section 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 section 72, 74 and 76 of title 28, U.S.C., 1940 ed. Subsection (f) is derived from section 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 ActSubsection (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.

2011—Pub. L. 112–63, § 103(b)(1), amended section catchline generally, substituting “Procedure for removal of civil actions” for “Procedure for removal”. Subsec. (a). Pub. L. 112–63, § 103(b)(2), inserted heading and struck out “or criminal prosecution” after “civil action” in text. Subsec. (b). Pub. L. 112–63, § 103(b)(3)(A), (B), inserted heading, designated first par. as par. (1), added pars. (2) and (3), and struck out second par. which read as follows: “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.” Subsec. (b)(1). Pub. L. 112–63, § 103(b)(4)(B), substituted “30 days” for “thirty days” in two places. Subsec. (c). Pub. L. 112–63, § 103(b)(3)(C), added subsec. (c) and struck out former subsec. (c) which related to notice of removal of a criminal prosecution. Subsec. (d). Pub. L. 112–63, § 103(b)(4)(A), inserted heading. Subsecs. (e), (f). Pub. L. 112–63, § 103(b)(4)(C), (D), redesignated subsec. (f) as (e), inserted heading, and struck out former subsec. (e) which read as follows: “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.” Subsec. (g). Pub. L. 112–63, § 104, substituted “subsection (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 “defendant 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), substituted “notice of” for “petition for” and “the notice” for “the petition”. Subsec. (c)(2). Pub. L. 102–198, § 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, § 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, § 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, § 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, § 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), 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, § 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, § 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, § 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, § 83(b), indicated that notice need not be given simultaneously with the filing, but may be made promptly thereafter.