Historical and Revision Notes

1948 Act

Based 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 sections 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 sections 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 sections 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 sections 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 Act

This 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.