§1447 — Title 28 Judiciary and Judicial Procedure | U.S. Code

Summary

When a case is moved from state court to federal court, the federal court can order anyone needed in the case to appear. The court can also require the party who moved the case to give it copies of the state-court papers or can get those papers from the state court. If someone wants the case sent back for a defect other than lack of federal power, they must ask within 30 days after the notice of removal is filed under section 1446(a). If the federal court ever finds it does not have subject‑matter jurisdiction before final judgment, it must send the case back. The court may order payment of fair costs and actual expenses, including lawyer fees, caused by the removal. The federal clerk must mail a certified copy of the remand order to the state court clerk. A remand order cannot be reviewed on appeal or otherwise, except for remands under sections 1442 or 1443. If the plaintiff tries to add new defendants after removal who would destroy federal jurisdiction, the court can refuse to allow them or allow them and send the case back to state court.

Title 28, §1447

Judiciary and Judicial Procedure — Source: USLM XML via OLRC

(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 proceedings in such State court or may cause the same to be brought before it by writ of certiorari 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 payment of just costs and any actual expenses, including 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 reviewable 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 destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.

Notes & Related Subsidiaries

Historical and Revision Notes

1948 ActBased 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 section 71, 72, 74, 76, 80, 81 and 83 of title 28, U.S.C., 1940 ed., with important changes in substance and phraseology. Subsection (a) is derived from section 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 section 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 procedure in bringing the State court record to the district 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 orders, 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 unnecessary and inconsistent procedural provisions. Subsection (e) [now subsec. (c)] is derived from section 71 and 80 of title 28, U.S.C., 1940 ed. Such subsection is rewritten to eliminate the cumbersome procedure of remand. Under this chapter as revised, the petition 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 before 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 incorporated in section 1359 of this title. Other provisions of said section 80 appear in section 1919 of this title. 1949 ActThis section strikes out subsections (c) and (d) of section 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 renumbered 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” before “1443”. 1996—Subsec. (c). Pub. L. 104–219 substituted “any defect other than lack of subject matter jurisdiction” for “any defect in removal procedure” in first sentence. 1991—Subsec. (b). Pub. L. 102–198 substituted “removing 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 remand 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 appeal from any order of remand entered in any case removed 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.

§1447 Procedure after removal generally