28 USC 1446: Procedures for the Disposition of Civil ClaimsThe text contains these laws, which enter into force on April 1, 2023
From Title 28 – JURISDICTION AND PROCEDUREPART IV - JURISDICTION AND JURISDICTIONCHAPTER 89 - STATE COURTS; REMOVAL OF CASES FROM STATE COURTS
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§1446. Civil Claims Withdrawal Procedure
(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.
(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).
(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
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.
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.
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.
subsections (e), (f).
Subsection (c)(4), (5).
“(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.”
subsections (d) to (f).
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
Effective Date of the 1994 Amendment
Effective date of the 1977 amendment
1 So in the original. The section does not contain a subsection. (F).