CITE

    28 USC Sec. 1441                                            01/05/2009

EXPCITE

    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART IV - JURISDICTION AND VENUE
    CHAPTER 89 - DISTRICT COURTS; REMOVAL OF CASES FROM STATE COURTS

HEAD

    Sec. 1441. Actions removable generally

STATUTE

      (a) Except as otherwise expressly provided by Act of Congress,
    any civil action brought in a State court of which the district
    courts of the United States have original jurisdiction, may be
    removed by the defendant or the defendants, to the district court
    of the United States for the district and division embracing the
    place where such action is pending. For purposes of removal under
    this chapter, the citizenship of defendants sued under fictitious
    names shall be disregarded.
      (b) Any civil action of which the district courts have original
    jurisdiction founded on a claim or right arising under the
    Constitution, treaties or laws of the United States shall be
    removable without regard to the citizenship or residence of the
    parties. Any other such action shall be removable only if none of
    the parties in interest properly joined and served as defendants is
    a citizen of the State in which such action is brought.
      (c) Whenever a separate and independent claim or cause of action
    within the jurisdiction conferred by section 1331 of this title is
    joined with one or more otherwise non-removable claims or causes of
    action, the entire case may be removed and the district court may
    determine all issues therein, or, in its discretion, may remand all
    matters in which State law predominates.
      (d) Any civil action brought in a State court against a foreign
    state as defined in section 1603(a) of this title may be removed by
    the foreign state to the district court of the United States for
    the district and division embracing the place where such action is
    pending. Upon removal the action shall be tried by the court
    without jury. Where removal is based upon this subsection, the time
    limitations of section 1446(b) of this chapter may be enlarged at
    any time for cause shown.
      (e)(1) Notwithstanding the provisions of subsection (b) of this
    section, a defendant in a civil action in a State court may remove
    the action to the district court of the United States for the
    district and division embracing the place where the action is
    pending if -
        (A) the action could have been brought in a United States
      district court under section 1369 of this title; or
        (B) the defendant is a party to an action which is or could
      have been brought, in whole or in part, under section 1369 in a
      United States district court and arises from the same accident as
      the action in State court, even if the action to be removed could
      not have been brought in a district court as an original matter.
    The removal of an action under this subsection shall be made in
    accordance with section 1446 of this title, except that a notice of
    removal may also be filed before trial of the action in State court
    within 30 days after the date on which the defendant first becomes
    a party to an action under section 1369 in a United States district
    court that arises from the same accident as the action in State
    court, or at a later time with leave of the district court.
      (2) Whenever an action is removed under this subsection and the
    district court to which it is removed or transferred under section
    1407(j) has made a liability determination requiring further
    proceedings as to damages, the district court shall remand the
    action to the State court from which it had been removed for the
    determination of damages, unless the court finds that, for the
    convenience of parties and witnesses and in the interest of
    justice, the action should be retained for the determination of
    damages.
      (3) Any remand under paragraph (2) shall not be effective until
    60 days after the district court has issued an order determining
    liability and has certified its intention to remand the removed
    action for the determination of damages. An appeal with respect to
    the liability determination of the district court may be taken
    during that 60-day period to the court of appeals with appellate
    jurisdiction over the district court. In the event a party files
    such an appeal, the remand shall not be effective until the appeal
    has been finally disposed of. Once the remand has become effective,
    the liability determination shall not be subject to further review
    by appeal or otherwise.
      (4) Any decision under this subsection concerning remand for the
    determination of damages shall not be reviewable by appeal or
    otherwise.
      (5) An action removed under this subsection shall be deemed to be
    an action under section 1369 and an action in which jurisdiction is
    based on section 1369 of this title for purposes of this section
    and sections 1407, 1697, and 1785 of this title.
      (6) Nothing in this subsection shall restrict the authority of
    the district court to transfer or dismiss an action on the ground
    of inconvenient forum.
      (f) The court to which a civil action is removed under this
    section is not precluded from hearing and determining any claim in
    such civil action because the State court from which such civil
    action is removed did not have jurisdiction over that claim.

SOURCE

    (June 25, 1948, ch. 646, 62 Stat. 937; Pub. L. 94-583, Sec. 6, Oct.
    21, 1976, 90 Stat. 2898; Pub. L. 99-336, Sec. 3(a), June 19, 1986,
    100 Stat. 637; Pub. L. 100-702, title X, Sec. 1016(a), Nov. 19,
    1988, 102 Stat. 4669; Pub. L. 101-650, title III, Sec. 312, Dec. 1,
    1990, 104 Stat. 5114; Pub. L. 102-198, Sec. 4, Dec. 9, 1991, 105
    Stat. 1623; Pub. L. 107-273, div. C, title I, Sec. 11020(b)(3),
    Nov. 2, 2002, 116 Stat. 1827.)

HISTORICAL AND REVISION NOTES

      Based on title 28, U.S.C., 1940 ed., Secs. 71, 114 (Mar. 3, 1911,
    ch. 231, Secs. 28, 53, 36 Stat. 1094, 1101; Jan. 20, 1914, ch. 11,
    38 Stat. 278; Jan. 31, 1928, ch. 14, Sec. 1, 45 Stat. 54).
      Section consolidates removal provisions of sections 71 and 114 of
    title 28, U.S.C., 1940 ed., and is intended to resolve ambiguities
    and conflicts of decisions.
      Phrases such as "in suits of a civil nature, at law or in
    equity," the words "case," "cause," "suit," and the like have been
    omitted and the words "civil action" substituted in harmony with
    Rules 2 and 81(c) of the Federal Rules of Civil Procedure.
      Ambiguous phrases such as "the District Court of the United
    States for the proper district" have been clarified by the
    substitution of the phrase "the district and division embracing the
    place where such action is pending." (See General Investment Co. v.
    Lake Shore & M.S. Ry. Co., 1922, 43 S.Ct. 107, 112, 260 U.S. 261,
    67 L.Ed. 244 and cases cited therein.)
      All the provisions with reference to removal of controversies
    between citizens of different States because of inability, from
    prejudice or local influence, to obtain justice, have been
    discarded. These provisions, born of the bitter sectional feelings
    engendered by the Civil War and the Reconstruction period, have no
    place in the jurisprudence of a nation since united by three wars
    against foreign powers. Indeed, the practice of removal for
    prejudice or local influence has not been employed much in recent
    years.
      Subsection (c) has been substituted for the provision in section
    71 of title 28, U.S.C., 1940 ed., "and when in any suit mentioned
    in this section, there shall be a controversy which is wholly
    between citizens of different States, and which can be fully
    determined as between them, then either one or more of the
    defendants actually interested in such controversy may remove said
    suit into the district court of the United States."
      This quoted language has occasioned much confusion. The courts
    have attempted to distinguish between separate and separable
    controversies, a distinction which is sound in theory but illusory
    in substance. (See 41 Harv. L. Rev. 1048; 35 Ill. L. Rev. 576.)
      Subsection (c) permits the removal of a separate cause of action
    but not of a separable controversy unless it constitutes a separate
    and independent claim or cause of action within the original
    jurisdiction of United States District Courts. In this respect it
    will somewhat decrease the volume of Federal litigation.
      Rules 18, 20, and 23 of the Federal Rules of Civil Procedure
    permit the most liberal joinder of parties, claims, and remedies in
    civil actions. Therefore there will be no procedural difficulty
    occasioned by the removal of the entire action. Conversely, if the
    court so desires, it may remand to the State court all nonremovable
    matters.
      The provisions of section 71 of title 28, U.S.C., 1940 ed., with
    respect to removal of actions under the Federal Employer's
    Liability Act (U.S.C., 1940 ed., title 45, Railroads, Secs. 51-60)
    and actions against a carrier for loss, damage, or delay to
    shipments under section 20 of title 49, U.S.C., 1940 ed.,
    Transportation, are incorporated in section 1445 of this title.
                                AMENDMENTS
      2002 - Subsecs. (e), (f). Pub. L. 107-273 added subsec. (e),
    redesignated former subsec. (e) as (f), and substituted "The court
    to which a civil action is removed under this section" for "The
    court to which such civil action is removed".
      1991 - Subsec. (c). Pub. L. 102-198 struck out comma after
    "title" and substituted "may" for "may may" before "remand".
      1990 - Subsec. (c). Pub. L. 101-650 substituted "within the
    jurisdiction conferred by section 1331 of this title" for ", which
    would be removable if sued upon alone" and "may remand all matters
    in which State law predominates" for "remand all matters not
    otherwise within its original jurisdiction".
      1988 - Subsec. (a). Pub. L. 100-702 inserted at end "For purposes
    of removal under this chapter, the citizenship of defendants sued
    under fictitious names shall be disregarded."
      1986 - Subsec. (e). Pub. L. 99-336 added subsec. (e).
      1976 - Subsec. (d). Pub. L. 94-583 added subsec. (d).
                     EFFECTIVE DATE OF 2002 AMENDMENT
      Amendment by Pub. L. 107-273 applicable to a civil action if the
    accident giving rise to the cause of action occurred on or after
    the 90th day after Nov. 2, 2002, see section 11020(c) of Pub. L.
    107-273, set out as an Effective Date note under section 1369 of
    this title.
                     EFFECTIVE DATE OF 1986 AMENDMENT
      Section 3(b) of Pub. L. 99-336 provided that: "The amendment made
    by this section [amending this section] shall apply with respect to
    claims in civil actions commenced in State courts on or after the
    date of the enactment of this section [June 19, 1986]."
                     EFFECTIVE DATE OF 1976 AMENDMENT
      Amendment by Pub. L. 94-583 effective 90 days after Oct. 21,
    1976, see section 8 of Pub. L. 94-583, set out as an Effective Date
    note under section 1602 of this title.