Sec. 1446. Procedure for removal
- (a) 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 notice of removal signed pursuant to Rule 11 of the
Federal Rules of Civil Procedure and containing a short and plain statement of
the grounds for removal, together with a copy of all process, pleadings, and
orders served upon such defendant or defendants in such action.
- (b) The notice of removal of a civil action or proceeding
shall be filed within thirty days after the receipt by the defendant, through
service or otherwise, of a copy of the initial pleading setting forth the
claim for relief upon which such action or proceeding is based, or within
thirty days after the service of summons upon the defendant if such initial
pleading has then been filed in court and is not required to be served on the
defendant, whichever period is shorter.
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.
- (1) A notice of removal of a criminal prosecution shall be filed not
later than thirty days after the arraignment in the State court, or at any
time before trial, whichever is earlier, except that for good cause shown
the United States district court may enter an order granting the defendant
or defendants leave to file the notice at a later time.
- (2) A notice of removal of a criminal prosecution shall
include all grounds for such removal. A failure to state grounds which exist
at the time of the filing of the notice shall constitute a waiver of such
grounds, and a second notice may be filed only on grounds not existing at
the time of the original notice. For good cause shown, the United States
district court may grant relief from the limitations of this paragraph.
- (3) The filing of a notice of removal of a criminal
prosecution shall not prevent the State court in which such prosecution is
pending from proceeding further, except that a judgment of conviction shall
not be entered unless the prosecution is first remanded.
- (4) The United States district court in which such
notice is filed shall examine the notice promptly. If it clearly appears on
the face of the notice and any exhibits annexed thereto that removal should
not be permitted, the court shall make an order for summary remand.
- (5) If the United States district court does not order
the summary remand of such prosecution, it shall order an evidentiary
hearing to be held promptly and after such hearing shall make such
disposition of the prosecution as justice shall require. If the United
States district court determines that removal shall be permitted, it shall
so notify the State court in which prosecution is pending, which shall
proceed no further.
- (d) Promptly after the filing of such notice of removal of a
civil action the defendant or defendants shall give written notice thereof to
all adverse parties and shall file a copy of the notice with the clerk of such
State court, which shall effect the removal and the State court shall proceed
no further unless and until the case is remanded.
- (e) 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.
- (f) With respect to any counterclaim removed to a district
court pursuant to section 337(c) of the Tariff Act of 1930, the district court
shall resolve such counterclaim in the same manner as an original complaint
under the Federal Rules of Civil Procedure, except that the payment of a
filing fee shall not be required in such cases and the counterclaim shall
relate back to the date of the original complaint in the proceeding before the
International Trade Commission under section 337 of that Act.
authorities: CFR |