§ 1441. — Actions removable generally.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC1441]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART IV--JURISDICTION AND VENUE
CHAPTER 89--DISTRICT COURTS; REMOVAL OF CASES FROM STATE COURTS
Sec. 1441. Actions removable generally
(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.
(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.
Section Referred to in Other Sections
This section is referred to in section 1332 of this title; title 33
section 1323.
