(dissenting):

The issue upon which this court is called to rule, is the effect of 28 U.S.C. § 1450 on the duration of a temporary restraining order issued by a state court in a case which is then removed to the federal court.

Had the case not been removed, the California Code of Civil Procedure would have caused such a temporary restraining order issued ex parte to be extinguished in a maximum of 20 days; had the same order been issued originally in the federal court, it would have ceased to exist in the same period of time.

When such a case, with an outstanding restraining order issued and pending, is removed, it becomes subject to 28 U.S.C. § 1450 which provides in pertinent part: “All injunctions, orders, and other proceedings had in [a removed] action prior to its removal shall remain in full force and effect until dissolved or modified by the district court.”

The majority of the court is of the opinion that the purpose of this section is to “prevent a break” in the continuity of a restraining order that “could otherwise occur” during the change from state to federal court. It would seem that if such were the purpose, the statute could have very simply said so. Or, the Congress could have provided that the restraint should not in any event continue in effect for a greater period of time than that provided by the state statute or the state court’s order. It did not. It provided very simply, but very clearly, that all injunctions should remain in full force and effect “until dissolved or modified by the district court.” It thus requires affirmative action on the part of one of the parties before it may be dissolved or modified. And if the district court refuses to dissolve it, the temporary restraining order issued ex parte remains in force until the case is tried on its merits and the temporary injunction or permanent injunction is granted or denied.

In this case the pleadings disclose that the employers, as plaintiffs, filed a complaint and then an amended complaint seeking relief against the defendant Union’s alleged unlawful interference with its activities. The complaint sought a permanent injunction. It also asked for a temporary restraining order pending a hearing on an order to show cause and that a preliminary injunction be granted upon the hearing of the order to show cause to continue during the pendency of the action. The action was removed to federal court before the return date of the order to show cause in the state court. But the Union promptly filed a motion in federal court to dissolve the temporary restraining order and caused the motion to be brought to a hearing. The motion to dissolve was denied upon that hearing leaving the order of restraint against the Union in full force and effect. At this point the case was in exactly the same posture as it would have been had the order to show cause been heard and the preliminary injunction granted on that order pending a trial on the merits of the permanent relief. The temporary restraining order had been disposed of by hearing and decision. The order continuing the restraint was, in effect, a preliminary injunction pending *768 a hearing on the merits. Morning Telegraph v. Powers, 450 F.2d 97, 99 (2nd Cir. 1971), cert. denied, 405 U.S. 954 , 92 S.Ct. 1170 , 31 L.Ed.2d 231 (1972); Appalachian Volunteers, Inc. v. Clark, 432 F.2d 530, 533 (6th Cir. 1970), cert. denied, 401 U.S. 939 , 91 S.Ct. 936 , 28 L.Ed.2d 219 (1971). Morning Telegraph, supra, points out that in applying the distinction between a temporary restraining order and a preliminary injunction,

In Peabody Coal Co. v. Barnes, supra, the district court said, “[u]nder Section 1450, 28 U.S.C., the temporary restraining order issued by the state court remains in full force and effect after the removal until and unless dissolved by this Court.” 308 F.Supp. at 903 . In that case the temporary restraining order issued without notice remained in effect some two and one-half months without a request for a hearing.

Indeed, the California courts appear to follow the same reasoning. In Gray v. Bybee, 60 Cal.App.2d 564 , 141 P.2d 32, 35 (1943), the court said:

It is asserted here that if the employers had wanted a preliminary injunction they could easily have sought one. They did seek one in their pleadings. After the trial court denied the motion to dissolve there was no reason for the employers to take the initiative. The restraint they sought had been obtained. Had the Union desired to litigate the merits of the trial court’s refusal to dissolve the temporary restraining order, the Union could easily have done so, either by an appeal from the trial court’s order, treating it as the grant of a preliminary injunction, see Morning Telegraph v. Powers, supra, or by bringing the case on for trial on the merits. It did neither.

The argument that to construe Section 1450 according to its plain language would somehow offend the policy of California and, therefore, the California time limitation should' control, is difficult to follow. It is well established that once a case is removed from state court to federal court, questions of procedure are governed by federal law and not state law. For instance, the time in which to file an amended complaint is governed by federal law and not state law.

Mr. Justice Douglas said in Freeman v. Bee Machine Co., 319 U.S. 448, 452 , 63 S.Ct. 1146, 1148 , 87 L.Ed. 1509 (1943):

Similarly, where a conflict exists between state rule and federal rule as to service of process in a diversity jurisdiction case, the federal rule applies. Hanna v. Plu-mer, 380 U.S. 460 , 85 S.Ct. 1136 , 14 *769 L.Ed.2d 8 (1965). See also, Seal v. Industrial Electric, Inc., 362 F.2d 788 (5th Cir. 1966). A federal court was not limited by a state 30-day rule to set aside a default judgment. Munsey v. Testworth Laboratories, Inc., 227 F.2d 902, 903 (6th Cir. 1955).

So, in this case I would hold that Section 1450 protects the restraining order during its removal trip and preserves it as it reaches its destination in the federal court. At that point federal procedural and statutory rules take control. Rule 65(b) Fed.R.Civ.P. would prevail over the state rule as to termination, and the “clear statutory command [of Section 1450] must take precedence over the arguably contrary rule of procedure [of Rule 56(b)].” Appalachian Volunteers, Inc. v. Clark, 432 F.2d 530, 533 (6th Cir. 1970).

I would therefore conclude that the temporary restraining order continued in existence as a preliminary injunction after hearing by the district court and its denial of the motion to dissolve the restraint. The order of contempt was not clearly erroneous and the judgment of the trial court should be affirmed.