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U.S. Code as of:
01/19/04
Section 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.
(c)(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.
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