Civil Action Removal Procedure (2023)

§1446. Civil Claims Withdrawal Procedure

(A)GenerallyA defendant or defendants seeking to withdraw a civil action brought by a federal court must file in the United States district court for the district and division in which such action is pending a signed notice of dismissal pursuant to rule 11 of the federal regulations of civil procedure and with a brief and simple explanation of the reasons for the deportation, together with a copy of all the proceedings, writings and orders that have been notified to said accused or accused in said action.

(B)Requirements; Generally.-(1) Respondent must be given notice of dismissal of any civil suit or proceeding, by service or otherwise, filed or based on a proceeding, or within 30 days after service of the summons to the Respondent if such initial writ has been subsequently filed with the court and need not be served on the Defendant, whichever is shorter.

(2)(A) If a civil lawsuit is dismissed solely under section 1441(a), all defendants who have been properly assembled and served must join or consent to the dismissal of the lawsuit.

(B) Each Defendant shall have 30 days after receipt or delivery of the initial writ or summons by the Defendant pursuant to paragraph (1) to file the Notice of Removal.

(C) If Defendants are served at different times and a later notified Defendant files a notice of removal, any previously notified Defendant may consent to removal even if that previously notified Defendant did not initiate or previously consent to removal.

(3) Except as provided in subsection (c), if the case specified in the original brief is not removable, within thirty days after receipt of a copy of an amended pleading, motion, order, or other document as of from which it can initially be determined to be a case that is or has become removable.

(C)Requirements; Distance by diversity of citizenship.-(1) A case may not be stayed under subsection (b)(3) for jurisdiction under section 1332 more than 1 year after the filing of a claim, unless the district court finds that the plaintiff acted at fault to prevent the defendant from dismissing the case.

(2) If a civil action is sought to be set aside on the basis of the jurisdiction conferred by Section 1332(a), the amount claimed in good faith in the original pleading shall be deemed the amount in dispute, except that:

(A) The notice of removal may claim the amount in dispute if the initial pleading attempts to:

(i) non-monetary facilities; O

(ii) a money judgment, but government practice does not allow a claim for a specific amount or allows for damages in excess of the amount claimed; AND

(B) Dismissal of the claim based on an amount in dispute under subparagraph (A) is appropriate if the district court determines, based on overwhelming evidence, that the amount in dispute exceeds the amount in dispute specified in Section 1332 (to).

(3)(A) If the case identified in the original brief is not removable solely because the amount in dispute does not exceed the amount set forth in Section 1332(a), information about the amount in dispute in the record of the state proceeding, or in response to discovery, will be treated as "other paper" under subsection (b)(3).

(B) If the notice of deportation is filed more than 1 year after the filing of the claim and the district court finds that the claimant willfully failed to disclose the actual amount in dispute to avoid deportation, that determination shall be considered in bad faith . in accordance with paragraph (1).

(D)Notice to opposing parties and state court.- Immediately after the filing of said notice of removal in a civil action, the defendant or defendants must give written notice to all opposing parties and file a copy of the notice with the clerk of the state court effecting the removal and the state court shall not proceed unless the case is returned.

(mi)counterclaim337Continue.- With respect to a counterclaim submitted to a district court under Section 337(c) of the Tariff Act of 1930, the district court shall rule on that counterclaim in the same manner as an original claim under Federal Code of Civil Procedure, except that in such cases payment of a filing fee is not required and the counterclaim relates to the date of the original claim in proceedings before the International Trade Commission under Section 337 of this Law.

(GRAMS)¹If the civil action or criminal prosecution that is removable under section 1442(a) is a proceeding that seeks, issues, or seeks the execution of a warrant for testimony or documents, the 30-day requirement of subsection (b) applies. ) . Section and paragraph (1) of Section 1455(b) is satisfied if the person or entity requesting removal of the proceeding delivers notice of removal no later than 30 days after receiving notice of such proceeding.

(June 25, 1948, chap. 646, 62 state. 939;May 24, 1949, chap. 139, §83, 63 Stat. 101;Pub. L. 89–215, Sept. 29, 1965, 79 Stat. 887;Pub. L. 95–78, §3, 30. Juli 1977, 91 Stat. 321;Pub. L. 100–702, title X, §1016(b), November 19, 1988, 102 Stat. 4669;Pub. L. 102–198, §10(a), 9 Dec. 1991, 105 Stat. 1626;Pub. L. 103–465, Title III, §321(b)(2), December 8; 1994, 108 State. 4946;Pub. L. 104–317, Title VI, §603, October 19. 1996, 110 Stat. 3857;Pub. L. 112–51, §2(c), nov. 9, 2011, 125 State. 545;Pub. L. 112–63, Title I, §§103(b), 104, 7. Dez. 2011, 125 Stat. 760,762.)

Historical and revision notes

1948 Act

Based on Title 28, USC, 1940 Edition, §§72, 74, 75, 76 (3. May 1911, chap. 231, §§29, 31, 32, 33, 36 Stat. 1095,1097;23.8.1916, chap. 399, 39 State. 532; July 30, 1977Pub. L. 95–78, §3, 91 Stat. 321.)

Section consolidates parts of Sections 74, 75 and 76 withSection 72 of Title 28, U.S.C., 1940 ed., with major changes in content and language.

Subsection (a) providing that the removal petition be filed with the district court supersedes the requirement ofSections 72 and 74 of Title 28, U.S.C., 1940 edition. that the petition be filed in a state court. This corresponds to the procedure prescribed bySection 76 of Title 28, U.S.C., 1940 ed., and on the recommendation of U.S. District Judges Calvin W. Chesnut and T. Waties Warring, approved by the Judicial Conference Committee on Judicial Code Revision.

Subsection (b) standardizes the time for filing motions to set aside all civil claims within twenty days of the date of the claim or notice of proceeding, whichever is later, instead of "at any time before the defendant is bound by the laws of the state or the rule of the state court in which such action is brought to answer or plead" as prescribed bySection 72 of Title 28, USC, 1940 Edition. With its revision, the section will provide sufficient time and will operate uniformly throughout the federal jurisdiction. regulationsSections 74 and 76 of Title 28, U.S.C., 1940 ed., to file at any time "before trial or final hearing" in civil rights cases and cases involving tax officials, judicial officials, and officials of both houses of Congress were omitted.

Subsection (c) contains the provisions ofSections 74 and 76 of Title 28, U.S.C., 1940 ed., to file the request for removal before trial and makes it applicable to all criminal proceedings but not to civil actions. This provision was retained to protect federal tax or criminal law enforcement officials from being tried in state courts before an application for deportation could be filed. The words "or final hearing" after the words "pretrial" have been omitted for clarity and simplification of the procedure.

The determination of saidSection 76 of Title 28, U.S.C., 1940 ed., for counsel's certification that he reviewed the proceedings and carefully examined all of the issues set forth in the petition and found to be true, omitted as unnecessary and inconsistent with Rule 11 of the Federal Rules of Civil Procedure .

Subsection (d) is derived fromSections 72 and 74 of Title 28, U.S.C., 1940 ed., but the cost bond requirement is limited to civil claims in keeping with the more progressive trend of modern procedure to remove all unnecessary impediments to the administration of the criminal justice system. The provisions of Section 72 related to the terms of the bond were rewritten because they are unreasonable if the motion for removal is filed in federal court.

Subsection (e) provides for notice to counterparties and filing a copy of the removal request with the state court as a substitute for the removal requirements.Sections 72 and 74 of Title 28, U.S.C., 1940 ed., for filing the motion for removal in state court. The last sentence of subsection (e) is derivedSections 72, 74 and 76 of Title 28, USC, 1940 edition.

Subsection (f) is derived fromSections 75 and 76 of Title 28, USC, 1940 edition.

Since the procedure in deportation cases is now governed by the Federal Code of Civil Procedure [Rule 81 (c)] and the Federal Code of Criminal Procedure [Rule 54 (b)], the detailed instructions of the various Sections related to said procedure have been modified as omitted unnecessarily.

So the arrangement ofSection 72 of Title 28, U.S.C., 1940 ed., regarding failure to appear, special bond, and production of minutes as contemplated in the Federal Rules of Civil Procedure, Rules 64, 81(c).

regulationsSection 74 of Title 28, U.S.C., 1940 ed., regarding the effect of warranty and other proceedings and remedies in state court have been omitted as covered byArticle 1450 of this title.

The requirements ofSection 74 of Title 28, U.S.C., 1940 ed., that the clerk of the state court provide the petitioner with copies of the pleadings and proceedings and that the petitioner file them with the district courtArticle 1447 of this title.

regulationsSection 74 of Title 28, U.S.C., 1940 ed., which require opposing parties to plead anew in District Court, were omitted as unnecessary under Federal Rules of Civil Procedure, Rule 81(c). The last sentence of this section has been omitted as covered bySection 1447(d) of this title.

1949 Act

Subsection (b) ofSection 1446 of Title 28, U.S.C., as amended, has proven problematic in states such as New York, where the action is commenced by the service of a summons and the plaintiff's first brief must be served or filed later.

The first paragraph of the amendment to subsection (b) corrects this situation by providing that the removal request must be filed no sooner than 20 days after the respondent receives a copy of the complainant's original brief.

However, this provision alone would create more difficulties in states such as Kentucky, where the action is commenced by filing the plaintiff's first brief and issuing and serving a summons without requiring a copy of the brief to be served on the defendant or otherwise available. mode. Consequently, the first paragraph of the reform provides that in such cases the request for removal must be submitted within 20 days of notification of the summons.

The first paragraph of the amendment corresponds to the amendment to rule 81(c) of the Federal Code of Civil Procedures regarding stolen actions, approved by the Supreme Court of Justice in the 29th Congress.

The second paragraph of the amendment to subsection (b) is intended to clarify that the right of removal may be exercised at a later stage in the event that a removal case is not identified in the original brief but your removal case is disclose later. This is a conclusion of the existing regime established by the decisions. (See for examplePowers contra Chesapeake, etc., Ry. Co., 169 EE. UU. 92.)

Additionally, this change clarifies the intentSection 1446(e) of Title 28, USC to indicate that notice need not be given at the same time as the filing, but may be given immediately thereafter.

editorial notes

references in the text

The Federal Code of Civil Procedures referred to in inc. (a) and (e) are set forth in the Appendix to this title.

Article 337 of the Customs Law of 1930 referred to in the subparagraph. (e), it is classifiedSection 1337 of Title 19, customs duties.

changes

2011-Pub. L. 112–63,Section 103(b)(1), General Section amended, replacing “Civil Claims Disposal Method” with “Disposal Method”.

Subsection (A).Pub. L. 112–63,§103(b)(2), added title and deleted "or criminal prosecution" after "civil action" in text.

Subsection (B).Pub. L. 112–63,§103(b)(3)(A), (B), inserted heading, first identified paragraph. as pair. (1), paragraphs added. (2) and (3) and the second paragraph deleted. which read as follows: "If the case specified in the original pleading cannot be removed, a notice of removal may be filed with the Defendant, by notice or otherwise, within thirty days of receipt of a copy of any pleading." , motion or order amended or otherwise Document from which it can be initially determined that the case is or has become removable, except that a case cannot be removed under delegated jurisdictionArticle 1332 of this titlemore than 1 year after the start of the measure".

Subsection (b)(1).Pub. L. 112–63,§103(b)(4)(B), replaced "30 days" with "30 days" in two places.

Subsection (C).Pub. L. 112–63,§103(b)(3)(C), subclause added. (c) and the previous paragraph crossed out. (c) in relation to the Notice to Stop Processing.

Subsection (D).Pub. L. 112–63,§103(b)(4)(A), caption inserted.

subsections (e), (f).Pub. L. 112–63,§103(b)(4)(C), (D), subclause redesignated. (f) like (e), the heading is inserted and the previous subsection is deleted. (e) say the following: "If the defendant or defendants are in custody pursuant to a proceeding issued by the state court, the district court shall issue its arrest warrant and the bailiff shall take custody of said defendant or defendants and provide a copy of the letter to the clerk of said state court."

Subsection (G).Pub. L. 112–63,§104 replaced "subsections (b) and (c)" with "subsection (b) of this section and paragraph (1) of section 1455(b)."

Pub. L 112-51Added subsection. (GRAM).

1996-Subsec. (c)(1).Pub. L 104-317replaced "defendant or defendants" with "applicant".

1994-Subsec. (F).Pub. L 103–465Added subsection. (F).

1991-Subsec. (c)(1).Pub. L. 102-198,§10(a)(1),(4), replaced "notice of" with "request for" and "notice" with "request."

Subsection (c)(2).Pub. L. 102-198,Section 10(a)(1), (4), replaced "notice of" with "request for" and replaced "notice" with "request" in three places.

Subsection (c)(3).Pub. L. 102-198,Section 10(a)(1), (2) replaced "application for" with "notice of" and "application initially denied" with "charge initially denied."

Subsection (c)(4), (5).Pub. L. 102-198,§10(a)(3) added para. (4) and (5) and previous paragraphs deleted. (4) and (5), which say the following:

“(4) The United States district court to which such application is directed shall promptly consider it. If it is clear from the motion and accompanying exhibits that the motion to remove should not be granted, the court must enter an order of summary dismissal.

"(5) If the United States District Court does not order summary dismissal of said motion, it shall promptly order an evidentiary hearing and, after such hearing, make a decision on the motion as required by the court of law. If If the United States District Court decides that such a motion should be granted, it will notify the state court in which the prosecution is pending and that court will proceed no further.”

Subsection (D).Pub. L. 102-198,§10(a)(1),(4),(5), replaced “request for removal” with “notice of removal”, deleted “and bond” after “civil action” and replaced “notice with”. "Request with".

1988-Subsec. (A).Pub. L. 100–702,§1016(b)(1), subsection as amended. (a general. Before change, subsection. (a) reads as follows: “Any defendant or defendants who wish to withdraw a civil action or criminal prosecution from a state court must file a verified petition in the District Court of the United States for the district and division in which such action is pending, containing a brief and clear statement of the facts entitling you to deportation together with a copy of all proceedings, writings, and orders served on you in such action."

Subsection (B).Pub. L. 100–702,§1016(b)(2), replacing “request for removal” with “notice of removal” in two places and inserting before the period at the end of the second paragraph. ', except that a case cannot be removed as a result of delegated jurisdictionArticle 1332 of this titlemore than 1 year after the start of the measure”.

subsections (d) to (f).Pub. L. 100–702,§1016(b)(3), renamed subparagraphs. (e) and (f) as (d) and (e) respectively and the previous subsection deleted. (d) reads as follows: "Any motion to quash any civil claim or proceeding, other than a motion on behalf of the United States, shall be accompanied by a bond of good and reasonable security, provided that the defendant or defendants pay costs and expenses incurred as a result of the removal process if it is determined that the item could not be removed or could not be removed properly.

1977-Subsec. (C).Pub. L. 95–78,§3(a), the existing provisions referred to in paragraph (1) establish a period of 30 days as the maximum time allowed before the start of the trial and after the indictment during which a request may be made. of deportation, provided that a grace term to be granted for proven justified cause, and paragraphs are added. (2) to (5).

Subsection(s).Pub. L. 95–78,§3(b), inserting "to resolve a civil claim" after "filing such a request."

1965-Subsec. (B).Pub. L. 89–215replaced "thirty days" with "twenty days" wherever it appeared.

1949-Subsec. (B). Act of May 24, 1949, §83(a), provided that the application for removal must be filed no earlier than 20 days after the respondent has received a copy of the original submission of the claimant and provided that the Application for removal must be filed within 20 service days of the citation.

Subsection(s). Law of May 24, 1949, §83(b), indicated that the notice need not be given at the same time as the filing, but could be given immediately thereafter.

Legal Notices and Affiliated Subsidiaries

Effective Date of 2011 Amendment

switch throughPub. L 112–63effective after the expiration of the 30-day period beginning December 7, 2011 and applicable to any suit or prosecution commenced on or after such Effective Date, with provisions for handling cases referred to in federal courts, see Section 105 of thePub. L. 112–63,listed as a note belowArticle 1332 of this title.

Effective Date of the 1994 Amendment

switch throughPub. L 103–465applicable in relation to complaints filed inSection 1337 of Title 19, tariffs, from the date of entry into force of the WTO Agreement with respect to the United States [1. 1, 1995], or in the following casesSection 1337 of Title 19where no complaint is filed, with respect to investigations initiated pursuant to this section on or after that date, see Section 322 of thePub. L. 103–465,listed as a note belowSection 1337 of Title 19.

Effective date of the 1977 amendment

switch throughPub. L 95–78effective October 1, 1977, see Section 4 of thePub. L. 95–78,indicated as the effective date ofPub. L 95–78note belowSection 2074 of this title.

1 So in the original. The section does not contain a subsection. (F).