Joyce Barlow v. Colgate Palmolive Company

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Court of Appeals for the Fourth Circuit·Decided May 2, 2014·No. 13-1839·Published

Opinion

Filed: May 2, 2014

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 13-1839 (1:12-cv-01780-WMN)

JOYCE BARLOW,

Plaintiff - Appellee,

COLGATE PALMOLIVE COMPANY,

Defendant – Appellant,

and

JOHN CRANE−HOUDAILLE, INCORPORATED; E.L. STEBBING & COMPANY, INC.; HAMPSHIRE INDUSTRIES, INC., f/k/a John H. Hampshire Company; UNIVERSAL REFRACTORIES COMPANY; J.H. FRANCE REFRACTORIES COMPANY; THE GOODYEAR TIRE & RUBBER COMPANY, f/k/a Kelly Springfield Tire Company; MCIC, INC., and its remaining Director Trustees, Robert I. McCormick, Elizabeth McCormick and Patricia Schunk; CBS CORPORATION, a Delaware Corporation f/k/a Viacom, Inc., Successor by merger to CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation; METROPOLITAN LIFE INSURANCE COMPANY; A.W. CHESTERTON COMPANY; CERTAINTEED CORPORATION, individually and as successor to Bestwall Gypsum Co.; KAISER GYPSUM COMPANY, INC.; UNION CARBIDE CORPORATION; INTERNATIONAL PAPER COMPANY, individually and as successor in interest to Champion International Corporation and U.S. Plywood Corp.; BAYER CROPSCIENCE, INC., individually and as successor in interest to Benjamin Foster Co., Amchem Products, Inc., H.B. Fuller Co., Aventis CropScience USA, Inc., Rhone−Poulenc AG Company, Inc., Rhone−Poulenc, Inc. and Rhodia, Inc.; COOPER INDUSTRIES, INC., individually and as successors in interest to Crouse Hinds Co.; PFIZER CORPORATION; SCHNEIDER ELECTRIC USA, INC., f/k/a Square D Company, individually and as successor in interest to Electric Controller and Manufacturing Co.; GEORGIA−PACIFIC, LLC, individually and as successor to Bestwall Gypsum Co.; FOSTER WHEELER CORPORATION; THE WALLACE & GALE ASBESTOS SETTLEMENT TRUST; CONWED CORPORATION; GENERAL ELECTRIC COMPANY; and GEORGIA PACIFIC CORPORATION, individually and as successor in interest to Bestwall Gypsum Co.,

Defendants.

No. 13-1840 (1:12-cv-01781-WMN)

CLARA G. MOSKO,

JOHN CRANE−HOUDAILLE, INCORPORATED; E.L. STEBBING & CO., INCORPORATED; HAMPSHIRE INDUSTRIES, INC., f/k/a John H. Hampshire Company; UNIVERSAL REFRACTORIES COMPANY; J.H. FRANCE REFRACTORIES COMPANY; THE GOODYEAR TIRE & RUBBER COMPANY, f/k/a Kelly Springfield Tire Company; MCIC, INC., and its remaining Director Trustees, Robert I. McCormick, Elizabeth McCormick and Patricia Schunk; CBS CORPORATION, a Delaware Corporation f/k/a Viacom, Inc.,f/k/a Westinghouse Electric Corporation; METROPOLITAN LIFE INSURANCE COMPANY; A.W. CHESTERTON COMPANY; CERTAINTEED CORPORATION, individually and as successor to Bestwall Gypsum Co.; KAISER GYPSUM COMPANY, INC.; UNION CARBIDE CORPORATION; INTERNATIONAL PAPER COMPANY, individually and as successor in interest to Champion International Corporation and U.S. Plywood Corp.; BAYER CROPSCIENCE, INC., individually and as successor in interest to Benjamin Foster, Co., Amchem Products, Inc., H.B. Fuller Co., Aventis Cropscience USA, Inc., Rhone−Poulenc AG Company, Inc., Rhone−Poulenc, Inc. and Rhodia, Inc.; COOPER INDUSTRIES, INC., individually and as successors in interest to Crouse Hinds Co.; PFIZER CORPORATION; SCHNEIDER ELECTRIC USA, INC., f/k/a Square D Company, individually and as successor in interest to

2 Electric Controller and Manufacturing Co.; FOSTER WHEELER CORPORATION; THE WALLACE & GALE ASBESTOS SETTLEMENT TRUST; CONWED CORPORATION; GEORGIA−PACIFIC, LLC, individually and as successor to Bestwall Gypsum Co.; 3M COMPANY; MALLINCKRODT, INC.; CROWN, CORK & SEAL CO., INC.; KOPPERS COMPANY, INC.; WALTER E. CAMPBELL CO., INC.; KRAFFT−MURPHY COMPANY, individually and as successor to National Asbestos Company, a dissolved Delaware Corporation; AC&R INSULATION CO., INC.; COTY, INC.; JOHNSON & JOHNSON; LUZENAC AMERICA INC.; R.T. VANDERBILT COMPANY, INC.; BAYER CORPORATION, as successor in interest to Sterling Drug, Inc., and Sterling−Winthrop Inc.; and GENERAL ELECTRIC COMPANY,

O R D E R

The Court amends its opinion filed April 30, 2014, as

follows:

On page 28, first full paragraph, line 1 -- “the

opinion is Durango Crushers” is corrected to read “the opinion

in Durango Crushers.”

For the Court – By Direction

/s/ Patricia S. Connor Clerk

3 PUBLISHED

No. 13-1839

No. 13-1840

2 CONWED CORPORATION; GEORGIA−PACIFIC, LLC, individually and as successor to Bestwall Gypsum Co.; 3M COMPANY; MALLINCKRODT, INC.; CROWN, CORK & SEAL CO., INC.; KOPPERS COMPANY, INC.; WALTER E. CAMPBELL CO., INC.; KRAFFT−MURPHY COMPANY, individually and as successor to National Asbestos Company, a dissolved Delaware Corporation; AC&R INSULATION CO., INC.; COTY, INC.; JOHNSON & JOHNSON; LUZENAC AMERICA INC.; R.T. VANDERBILT COMPANY, INC.; BAYER CORPORATION, as successor in interest to Sterling Drug, Inc., and Sterling−Winthrop Inc.; and GENERAL ELECTRIC COMPANY,

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Filed: May 2, 2014

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 13-1839 (1:12-cv-01780-WMN)

JOYCE BARLOW,

Plaintiff - Appellee,

COLGATE PALMOLIVE COMPANY,

Defendant – Appellant,

and

Defendants.

No. 13-1840 (1:12-cv-01781-WMN)

CLARA G. MOSKO,

O R D E R

The Court amends its opinion filed April 30, 2014, as

follows:

On page 28, first full paragraph, line 1 -- “the

opinion is Durango Crushers” is corrected to read “the opinion

in Durango Crushers.”

For the Court – By Direction

/s/ Patricia S. Connor Clerk

3 PUBLISHED

No. 13-1839

No. 13-1840

Appeals from the United States District Court for the District of Maryland, at Baltimore. William M. Nickerson, Senior District Judge. (1:12-cv-01780-WMN; 1:12-cv-01781-WMN)

Argued: March 19, 2014 Decided: April 30, 2014

Before FLOYD, Circuit Judge, DAVIS, Senior Circuit Judge, and Max O. COGBURN, United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed by published opinion. Senior Judge Davis wrote the majority opinion, in which Judge Cogburn joined. Judge Floyd wrote a dissenting opinion.

ARGUED: William Balden Adams, QUINN EMANUEL URQUHART & SULLIVAN, LLP, New York, New York, for Appellant. Jennifer Louise Lilly, LAW OFFICES OF PETER G. ANGELOS, Baltimore, Maryland, for Appellees. ON BRIEF: Thomas P. Bernier, SEGAL MCCAMBRIDGE SINGER & MAHONEY, Baltimore, Maryland; Faith E. Gay, QUINN EMANUEL URQUHART & SULLIVAN, LLP, New York, New York, for Appellant.

3 DAVIS, Senior Circuit Judge:

The federal removal statute immunizes from review -

appellate or otherwise - any order remanding to state court a

case removed to federal court, with an exception for certain

civil rights cases or suits against federal officers. 28 U.S.C.

§ 1447(d). In particular, the statute has been interpreted to

“preclude review only of remands for lack of subject-matter

jurisdiction and for defects in removal procedure.” Powerex

Corp. v. Reliant Energy Services, Inc., 551 U.S. 224, 229

(2007). The removing defendant in this case, the Colgate

Palmolive Company, asks us to hold that the statute permits an

exception to its prohibition: that a federal court may strike a

remand order and retrieve a remanded case from its state cousin

as a sanction against plaintiffs’ counsel for making

misrepresentations to the federal court related to the existence

of subject-matter jurisdiction. It invokes in support the

district court’s inherent authority and Rules 11 and 60 of the

Federal Rules of Civil Procedure.

We are unpersuaded. In the face of Congress’ explicit

direction to federal courts that an order remanding a case for

lack of subject-matter jurisdiction after it has been removed

“is not reviewable on appeal or otherwise,” 28 U.S.C. § 1447(d),

we reject Colgate’s collateral attack on the remand orders in

4 this case and affirm the order of the district court insofar as

it ruled that it lacked jurisdiction.

Joyce Barlow and Clare Mosko separately sued Colgate and a

variety of other companies in Maryland state court, asserting

that each of the defendants’ products had at some point exposed

them to asbestos. With respect to Colgate, the plaintiffs’

theory was that its “Cashmere Bouquet” line of powder makeup

products contained unhealthy levels of asbestos and had thereby

contributed to the plaintiffs’ health problems. Despite

plaintiffs’ joinder of in-state defendants, Colgate removed the

two cases to federal court on the basis of diversity of

citizenship, asserting fraudulent joinder as to the in-state

defendants, and alleging that the plaintiffs’ deposition

testimony and interrogatory responses demonstrated that they did

not intend to pursue a claim against any defendant other than

Colgate, a citizen of Delaware and New York.

After removal, the plaintiffs’ lawyers moved to remand the

cases to state court, arguing that they had viable claims

against the nondiverse defendants. The district court agreed,

finding that although only Colgate’s Cashmere Bouquet products

had been identified by the plaintiffs as the source of their

asbestos exposure, there was still more than a “glimmer of

hope,” Hartley v. CSX Transportation, Inc., 187 F.3d 422, 426

5 (4th Cir. 1999), that the plaintiffs could identify a basis to

recover against the nondiverse defendants as discovery

proceeded. J.A. 358, 368. The cases were remanded.

On remand, counsel for the plaintiffs asked the state court

to consolidate the two cases because, among other reasons,

“[a]ll [plaintiffs] allege exposure to asbestos-containing

Cashmere Bouquet powder products only and do not allege exposure

to any other asbestos, asbestos-containing products or asbestos-

containing dust in any other form.” J.A. 474 (emphasis added).

Irritated by the change in tune, Colgate then promptly moved in

the district court for vacatur of the remand order as a

sanction. The district court denied the motion, stating that

reconsideration of the remand order is prohibited by the removal

statute and pertinent Circuit law. The district court stated

further that it was “not convinced that counsel’s conduct is

sanctionable” because the alleged misrepresentations were

“attributable to different attorneys in markedly different

litigation contexts.” J.A. 1108.

II.

On appeal, Colgate contends that it was error for the

district court to rule that it did not have the authority to

consider whether plaintiffs’ counsel committed misconduct and

“whether such misconduct warrants relief from the Remand

Orders.” App. Reply Br. 2. It asks that we reverse the district

6 court’s order denying the motion for vacatur and remand the case

with instructions that the remand orders be vacated. Colgate

maintains that the district court had authority, pursuant to its

inherent authority and Rules 11 and 60(b)(3) of the Federal

Rules of Civil Procedure, to strike the remand orders as a

sanction. We review questions of law de novo. Trans Energy, Inc.

v. EQT Prod. Co., 743 F.3d 895, 900 (4th Cir. 2014).

Fueled by a desire to cut off costly and prolonged

jurisdictional litigation, Powerex, 551 U.S. at 238, the federal

removal statute generally prohibits review of orders remanding

removed cases:

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 [cases against federal officers] or 1443 [certain civil rights cases] of this title shall be reviewable by appeal or otherwise.

28 U.S.C. § 1447(d) (emphasis added). Read in conjunction with

28 U.S.C. § 1447(c), the statute’s prohibition has been

construed to preclude review of remands “colorably

characterized” as for lack of subject-matter jurisdiction or

defects in removal procedure. Powerex, 551 U.S. at 234, 229.

Courts may not review, for example, an order remanding a case

for lack of diversity jurisdiction even in the face of evidence

of fraudulent joinder, In re Lowe, 102 F.3d 731, 733-34 (4th

Cir. 1996), or an order remanding a case for lack of federal

7 question jurisdiction after the district court has held that a

federal statute did not completely preempt state law. In re

Blackwater Security Consulting LLC, 460 F.3d 576, 585 (4th Cir.

2006). The corollary to the statute’s prohibition is that courts

may review remands when they are not based on a lack of subject-

matter jurisdiction or a defect in removal procedure, such as

when the review is of a decision collateral and severable from

the remand order, or when the remand order is outside the

district court’s authority. Lisenby v. Lear, 674 F.3d 259, 261

(4th Cir. 2012).

Colgate frames the issue in this case as whether the

statute permits appellate review of an order denying a request

to strike a remand order as a sanction for counsel’s alleged

misrepresentation regarding the existence of subject-matter

jurisdiction. 28 U.S.C. § 1447(d). Put differently, Colgate,

seeking to draw us into the merits (rather than the procedural

correctness) of the district court’s order, asks us to hold that

we may review a remand order, even though the case does not

relate to the exceptions noted in 28 U.S.C. § 1447(d), if the

basis for review relates to a material misrepresentation made by

counsel that induced the district court to remand the case. We

decline Colgate’s invitation. Put simply, we discern no basis to

infer that Congress intended to etch a litigation-integrity

8 policing exception into its prohibition on the review of remand

orders.

As an initial matter, no court has ever embraced the

argument Colgate puts forward today, and for a simple reason: it

is a long-standing principle that entry of an order remanding a

case to state court divests the district court “of all

jurisdiction in [the] case and preclude[s] it from entertaining

any further proceedings of any character, including the

defendants’ motion to vacate the original remand order.” Three J

Farms, Inc. v. Alton Box Bd. Co., 609 F.2d 112, 115 (4th Cir.

1979) (emphasis added). In this context, it is manifest that the

law favors finality so that jurisdictional litigation comes to

an end and the parties can proceed to the merits and avoid

unnecessary delay and expense. For Colgate to have returned to

the district court to seek a sanction in the form of vacatur of

the remand orders is, to put it simply, an anomaly in federal

jurisdiction.

Colgate insists that counsel’s misrepresentation undermines

the basis for the remand order, and it cites Rules 11 and

60(b)(3) of the Federal Rules of Civil Procedure and the case

law describing the district court’s inherent authority as

support for its argument that a district court may take some

9 remedial action to sanction a lawyer for misconduct. ∗ But there

is nothing in the Federal Rules or the case law bearing on a

federal court’s inherent authority that authorizes the retention

of federal jurisdiction as a sanction. Nor could there be: while

a defendant certainly has a right to a federal forum, it is

something quite different to argue that a district judge should

claw a case back into federal court as a remedy to deter future

attorney misconduct or to remedy a perceived injury to the

integrity of the litigation process. After all, a state court

“operates with an eye to justice, just the same as that of the

federal court,” and both equally offer Colgate a meaningful

opportunity to vigorously litigate its defense on the merits. 20

Charles Alan Wright & Mary Kay Kane, Federal Practice and

Procedure § 43 (2d ed. 2011) (quoting Pabst v. Roxana Petroleum

Co., 30 F.2d 953, 954 (S.D. Tex. 1929)).

Colgate counters with a clever but ultimately misplaced

argument: the federal statute prohibits “review” of remand

∗ Rule 11 specifically authorizes the imposition of sanctions for misrepresentations, but the sanction “must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated,” Fed. R. Civ. P. 11(c)(4). Analogously, Rule 60(b)(3) provides that a court “may relieve a party” from an “order” for “fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party,” Fed. R. Civ. P. 60(b)(3). Furthermore, “the inherent power . . . allows a federal court to vacate its own judgment upon proof that a fraud has been perpetrated upon the court,” Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991).

10 orders, but a “request for vacatur as either a sanction or

pursuant to Rule 60(b)(3) based on misrepresentations and

misconduct does not seek . . . ‘review’” of a remand order. App.

Br. 21. Review, argues Colgate, is “directed at the substance of

what is being reviewed, not at matters collateral” to the merits

of the remand order. App. Br. 21. Here, the issue is whether the

district court should impose a sanction against plaintiffs’

counsel for allegedly misrepresenting their intent to pursue

relief against nondiverse defendants; Colgate argues that its

request is therefore unrelated to the merits of the remand

orders and is instead about something collateral to the remand

orders, i.e., attorney misconduct.

Colgate’s proffered distinction suffers from three flaws.

First, creating an attorney-misconduct exception to the

prohibition on review of remand orders would be contrary to

Congress’ intent, as evidenced by the text and underlying policy

goals of the federal statute. The statute provides that “[a]n

order remanding a case to the State court from which it was

removed is not reviewable on appeal or otherwise,” 28 U.S.C. §

1447(d) (emphasis added); a phrase of such breadth clearly

sweeps collateral challenges on remand orders within the

statute’s prohibition. Our case law construing the text is even

clearer: we have said, unequivocally, that “the district court

has one shot, right or wrong,” to decide whether a removed case

11 should be remanded. Lowe, 102 F.3d at 735 (alterations,

quotations, and citations omitted).

Even more conclusive is that the policy underlying 28

U.S.C. § 1447(d) – to neutralize “prolonged litigation on

threshold nonmeritorious questions” – weighs strongly against

the argument that Congress intended to carve an attorney-

misconduct exception into the federal statute. Powerex, 551 U.S.

at 237. The prohibition on reviewability of remand orders has

been “a part of American jurisprudence for at least a century,”

Lowe, 102 F.3d at 734, and we have said that the underlying

policy is so potent that it mandates nonreviewability “even if

the remand order is manifestly, inarguably erroneous.” Lisenby,

674 F.3d at 261 (citations and quotations omitted). The Supreme

Court has acknowledged that the absolute nature of the

prohibition creates “undesirable consequences” even in cases

with significant countervailing federal interests. Powerex, 551

U.S. at 237. The consequence of all of this is that it is

difficult, if not impossible, for us to conclude that Congress

intended implicitly for the rules against litigation misconduct

to create an escape hatch within its robust statutory

prohibition on the reviewability of remand orders.

Second, Colgate’s argument that it is not seeking “review”

is simply incorrect because its request necessarily requires a

merits review of the remand orders. Colgate’s argument boils

12 down to the following: the plaintiffs’ fraudulent joinder was so

deeply buried that they managed to deceive the district court

into remanding, and now that we know the truth because of new

evidence (the transcript of what plaintiffs’ counsel told the

state court, post remand), the remand must be vacated as a

sanction. The argument fails because it seeks to relitigate the

merits of an issue already litigated: whether the plaintiffs

fraudulently joined the nondiverse defendants, which was the

issue the first-time around. Colgate had its chance to prove

fraudulent joinder. It failed. It does not get a second try with

an improved record.

Third, the cases cited by Colgate, in support of the

proposition that its request for vacatur as a sanction is not

“review” of a remand order, are easily distinguishable because

they involved vacatur of remands based on rulings several steps

removed from the core jurisdictional inquiry. In Aquamar v. Del

Monte Fresh Produce, 179 F.3d 1279, 1285-89 (11th Cir. 1999),

the Eleventh Circuit reversed the district court’s dismissal of

claims on the merits, ultimately requiring vacatur of the

district court’s subsequent remand because the erroneous

dismissal of the claims removed the nondiverse defendants; in

Tramonte v. Chrysler Corp., 136 F.3d 1025, 1027-28 (5th Cir.

1998), the Fifth Circuit held that an erroneous recusal decision

that preceded the remand order required vacatur of the remand

13 order; and in Williams v. Beemiller, Inc., 527 F.3d 259, 264 (2d

Cir. 2008), the Second Circuit assessed the “scope of authority

of a magistrate judge,” a question not requiring review of the

merits of the remand order. These cases involved rulings that

preceded the remand orders and that were on issues of

substantive law wholly unrelated to the merits of the remand.

Wright & Kane, supra. Even assuming we agree with these out-of-

Circuit cases, which we need not and do not decide, the case

before us is different because Colgate’s contention attacks the

district court’s analysis of the merits of the remand. That is,

Colgate sought a reconsideration of the merits with a new

(complete) record. And that is barred by statute.

The bottom line is that if Congress wanted to carve out an

attorney-misconduct exception to the prohibition on review of

remand orders, it would have done so: the text of the statute

itself contains two such exceptions, 28 U.S.C. § 1447(d), and

other statutes contain express exemptions for certain types of

cases. E.g., Blackwater Security Consulting, 460 F.3d at 582-83

n.5 (discussing 25 U.S.C. § 355, which creates an exemption for

certain cases involving land restrictions to the Five Civilized

Tribes of Oklahoma). But in the absence of any express

indication otherwise, “[w]e will not ignore a clear

jurisdictional statute in reliance upon supposition of what

Congress really wanted.” Powerex, 551 U.S. at 237. We take the

14 Supreme Court at its word in its instruction to us that

“[a]ppellate courts must take [the § 1447(d)] prescription

seriously.” Id. at 238. Thus, because remand orders are not

reviewable on appeal or otherwise, the district court correctly

ruled that it lacked jurisdiction to revisit its remand orders;

dressing up the request that it do so as a motion for sanctions

does not alter the analysis or the result.

III.

For the reasons set forth, we DENY AS MOOT Colgate’s motion

for expedited consideration and we affirm the order of the

district court insofar as it ruled that it lacked jurisdiction.

AFFIRMED

15 FLOYD, Circuit Judge, dissenting:

I agree that we cannot vacate the remand orders and return

the lawsuits to the district court pursuant to Federal Rule of

Civil Procedure 11; but that determination pertains to the type

of remedy available, not the threshold issue of whether there is

jurisdiction to consider the motion. Because I think that the

district court had jurisdiction to entertain Colgate’s Rule 11

motion, I would reverse the district court’s order denying that

motion for lack of jurisdiction. I would also reverse the

district court’s denial of Colgate’s Rule 60(b)(3) motion for

lack of jurisdiction insofar as vacating the remand orders does

not require any prohibited “review” of those orders. Further,

because the district court indicated how it would have ruled if

it thought that it had jurisdiction, I would reach the merits of

Colgate’s motions on appeal. I respectfully dissent.

To fully grasp the gravity of plaintiffs’ shifty positions

and counsel’s misrepresentations in the district court, a more

detailed recitation of the facts is necessary. The majority

provided less than two pages of facts and glossed over the

written declarations made by plaintiffs while the lawsuits were

removed to federal court. I therefore feel duty-bound to shed

more light on plaintiffs’ assertions that form the very basis of

Colgate’s motions and this appeal beyond the general statement

16 that, “After removal, the plaintiffs’ lawyers moved to remand

the case to state court, arguing that they had viable claims

against the nondiverse defendants.” Ante at 5.

After Colgate removed Barlow’s and Mosko’s cases to federal

court, plaintiffs’ counsel 1 represented the following in a motion

for remand in Barlow’s case:

[T]here is some circumstantial evidence to suggest Ms. Barlow could possibly have been exposed to asbestos- containing products while working at RMR Corporation. . . . The evidence is certainly circumstantial, but it cannot be said that there is no possibility that a claim could be successfully proven against any of the non-diverse defendants.

(J.A. 106.) Based on the above representations, the district

court (Judge Nickerson) remanded Barlow’s case to state court.

Importantly, the district court relied solely on the claim that

Barlow was exposed to asbestos at RMR Corporation: “Barlow

argues that her joinder of the in-state defendants was not

fraudulent because there remains a possibility that she was

1 I use “plaintiffs’ counsel” to refer to both Barlow’s attorney and Mosko’s attorney because their attorneys are the same person, or at least hale from the same law firm. Although different attorneys from the Law Offices of Peter G. Angelos represented Barlow and Mosko at different stages of litigation (e.g., Jennifer Lilly signed Barlow’s and Mosko’s respective motions for remand in federal court, but Thomas Kelly signed Barlow and Mosko’s joint motion for severance of their cases from a first consolidated trial group and for consolidation of their cases into a second trial group with two different cases), Barlow and Mosko were at all times represented by the same person for the same or similar matters in their separate cases and were represented by the same person when matters were argued on their behalves together.

17 exposed to asbestos while working at RMR Corporation[.] . . .

As a result, the Court finds that joinder of the in-state

defendants here was not fraudulent[.]” (Id. at 368.)

Similarly, in Mosko’s case, plaintiffs’ counsel represented

the following in the motion for remand:

[G]iven the extent of work that [Mosko] recalled being done in the [Department of Agriculture] building [her place of employment for twenty-eight years], it was certainly plausible at the time that [Mosko] filed her complaint that local defendants should be implicated. . . . In fact, Plaintiff’s counsel do have some circumstantial evidence that Mrs. Mosko may have been exposed to asbestos at the Department of Agriculture in the form of invoices [from an in-state defendant].

(Id. at 247.) Based on the above representations, the district

court (Judge Quarles) remanded Mosko’s case to state court.

Importantly, the district court relied solely on the claim that

Mosko was exposed to asbestos at the Department of Agriculture

(DOA) building: “Mosko has shown more than a ‘glimmer of hope’

of recovering against . . . an in-state defendant[] for exposure

during the renovations to the DOA building. Therefore, removal

was improper.” (Id. at 358.)

The remand orders in Mosko’s and Barlow’s cases were handed

down on September 21, 2012, and November 1, 2012, respectively.

Just eight days after the remand in Barlow’s case, plaintiffs

filed a joint motion to sever their cases from a consolidated

trial group for which trial was scheduled for March 12, 2013,

and to consolidate their cases with two other asbestos-related

18 cases into a separate trial group. See supra note 1. Colgate

opposed this motion on the basis that all lawsuits should

proceed separately because the alleged other sources of asbestos

(i.e., sources other than Cashmere Bouquet, such as the

plaintiffs’ individual workplaces) are so different that Colgate

could not receive a fair trial in a consolidated proceeding. In

reply to Colgate’s opposition, plaintiffs made the following

statements, which directly contradict their representations that

formed the bases of the remand orders:

[Plaintiffs] allege exposure to asbestos-containing Cashmere Bouquet power products only and do not allege exposure to any other asbestos, asbestos-containing products or asbestos-containing dust in any other form. . . . Colgate attempts to highlight alleged differences in Plaintiffs’ worksites and occupations as well as their alleged exposures to [other] asbestos-containing products. However, neither Plaintiffs’ worksites nor their occupations are relevant to this consolidation because each of the Plaintiffs were exposed, in their homes, to asbestos- containing Cashmere Bouquet only. . . . The occupations or worksites of the Plaintiffs should not affect the consolidation of these cases for trial because not one of the Plaintiffs testified that they were exposed to asbestos as a result of their employment. . . . Neither were any Plaintiffs exposed to asbestos at any place of residence or secondarily through any family member. . . . In short, there is absolutely no evidence to indicate or even suggest that the Plaintiffs were exposed to asbestos in any form other than Cashmere Bouquet.

(J.A. 474–76 (paragraph breaks omitted) (emphases added).)

This last statement in particular represents a 180-degree

departure by plaintiffs’ counsel from statements made while the

19 cases were removed to federal court, and Colgate’s lawyers were

not the only ones who were “[i]rritated by [plaintiffs’] change

in tune.” Ante at 6. At the post-remand hearing in state court

regarding plaintiffs’ motion for severance and consolidation,

Judge Glynn recognized the bait-and-switch that occurred in

federal court and admonished plaintiffs’ counsel, stating,

“I can’t believe you actually told Judge Nickerson and Judge

Quarles one thing and tell me another.” (J.A. 494.) Judge

Glynn then posed the following question to plaintiffs’ counsel:

“It is a one-defendant case, right?” Counsel answered, “Yes.”

(Id.) Judge Glynn and plaintiffs’ counsel then engaged in the

following exchange:

THE COURT: So you told [Judges Quarles and Nickerson] in the U.S. District Court that you were contending [that] there was no viable claim against any of these [in-state] defendants? MR. KELLY: All we had to prove in federal court is that there was a glimmer of hope. . . . THE COURT: So once the case came back here [to state court], the glimmer disappeared? . . . MR. KELLY: The glimmer is in federal court. What we have here is what plaintiffs testified to. . . . The federal court is well aware of that. We didn’t tell the federal court anything that they didn’t know. We didn’t tell the federal court anything different than what we put in our pleadings here. . . . THE COURT: What exactly did you tell [the federal judges]? You told them you filed a claim against in- state defendants? MR. KELLY: . . . We recited how—what possibility there was that each [plaintiff] might have been exposed to the products of a Maryland defendant. THE COURT: What was the possibility that you recited?

20 MR. KELLY: I just told you. Ms. Mosko worked at the FDA. . . . But—so there is the possibility. But the reality is—and the federal court knew that—is that she said before it was removed, I wasn’t exposed at the FDA. I wasn’t exposed at any location other than the houses where I used Cashmere Bouquet. I mean, nothing was held secret from the federal court. To suggest other wise is wrong.

(Id. at 494–95 (emphasis added).)

Mr. Kelly’s statement above that plaintiffs “didn’t tell

the federal court anything different than what [plaintiffs] put

in [their] [post-remand] pleadings” is squarely refuted by

comparing the statements made in plaintiffs’ motions to remand

and the statements made in plaintiffs’ joint motion for

severance and consolidation. As recited above, in one instance,

after the case was removed, Ms. Lilly proclaimed that, “[T]here

is some circumstantial evidence to suggest [that] Ms. Barlow

could possibly have been exposed to asbestos-containing products

while working at RMR Corporation,” (id. at 106 (all emphasis

added)), and “Plaintiff’s counsel do have some circumstantial

evidence that Mrs. Mosko may have been exposed to asbestos at

the Department of Agriculture,” (id. at 247 (emphasis added)).

Yet, on remand, Mr. Kelly averred that, “there is absolutely no

evidence to indicate or even suggest that the Plaintiffs were

exposed to asbestos in any form other than Cashmere Bouquet.”

(Id. at 476 (all emphasis added).) What is worse is that the

respective district court judges based their remand decisions

21 precisely (and solely) on counsel’s factual misrepresentations.

(See id. at 358 (“Mosko has shown more than a ‘glimmer of hope’

of recovering against . . . an in-state defendant[] for exposure

during the renovations to the DOA building. Therefore, removal

was improper.” (emphasis added)); id. at 368 (“Barlow argues

that her joinder of the in-state defendants was not fraudulent

because there remains a possibility that she was exposed to

asbestos while working at RMR Corporation[.] . . . As a result,

the Court finds that joinder of the in-state defendants here was

not fraudulent[.]” (emphasis added)).) In other words, the

bait-and-switch worked.

Colgate then moved in the district court for relief from

the plaintiffs’ (now-confirmed) intentional misrepresentations

that were perpetrated upon the district judges while the cases

were removed. In particular, Colgate sought relief pursuant to

Rule 11 and asked that the district court sanction plaintiffs’

attorneys by imposing monetary penalties, referring them to the

state bar, and awarding to Colgate any other relief that the

district court deemed appropriate. The nearly identical motions

in Barlow’s and Mosko’s separate cases were consolidated before

Judge Nickerson. After a hearing on the motions, Colgate also

moved pursuant to Rule 60(b)(3) as a supplement to its Rule 11

motion. In its Rule 60(b)(3) motion, Colgate sought vacatur of

the remand orders.

22 On June 26, 2013, Judge Nickerson issued an order denying

Colgate’s motions. Although the district court characterized

the allegations in the motions as “substantial,” (id. at 712),

and acknowledged that the different statements by plaintiffs’

counsel “appear to be in sharp conflict” and that such conflict

is “troubling,” (id. at 1106), the court concluded that it did

not have jurisdiction to rule on the motions. This appeal

followed.

Having provided a more comprehensive account of the facts,

I will now explain why I disagree with the majority regarding

the district court’s jurisdiction to consider Colgate’s motions.

Then, because the district court indicated how it would have

ruled if it had jurisdiction, I will explain why I would reverse

the district court’s would-be denials of Colgate’s motions.

II. Jurisdiction

Although Colgate’s Rule 11 motion and Rule 60(b)(3) motion

seek relief based on the same misconduct, the motions require

separate jurisdictional analyses. Accordingly, I address the

district court’s jurisdiction regarding each motion in turn.

A. Rule 11

Although the majority’s research led the majority to the

conclusion that “no court has ever embraced the argument Colgate

puts forward,” ante at 9, my research shows otherwise (as does

examining the record, namely, Colgate’s motion for sanctions—one

23 of the two motions underlying this appeal). In fact, and au

contraire to the majority’s assertion, it appears that every

federal court that has addressed the issues of (1) whether

district courts retain jurisdiction to impose sanctions after

remand to state court and (2) whether appeals courts can review

such decisions regarding sanctions, has answered those questions

affirmatively. 2 Desert Sch. Fed. Credit Union v. Johnson, 473

2 To the extent that the majority’s statement that “no court has ever embraced the argument Colgate puts forward,” ante at 9, is narrowed to focus on Colgate’s request for vacatur of the remand orders and reinstatement of federal jurisdiction as a Rule 11 sanction, I agree with the majority’s assertion. But vacatur pertains to the type of remedy/relief sought by Colgate, not the threshold issue of whether the district court had jurisdiction to consider Colgate’s Rule 11 motion in the first instance. Although the district court appears to think that vacatur is the only relief that Colgate now seeks, (see, e.g., J.A. 1106 (“A hearing was held on [the sanctions] motions . . . and there, [Colgate] clarified that the relief sought was for this Court to vacate, or strike, its remand orders.”); id. (“[Colgate] clarified in the hearing that the only ‘sanction’ being sought was for the Court to strike the orders of remand.”)), I could not find any statement in the transcript from the motions hearing wherein Colgate disavowed or otherwise withdrew its written prayers for any other (nonjurisdictional) relief (e.g., monetary penalties and referral of plaintiffs’ counsel to the state bar). Moreover, I have a very difficult time believing that Colgate’s lawyers abandoned their quest for attorneys fees relating to what they believe to be fraudulently obtained remand orders. But regardless of whether Colgate did narrow the relief that it seeks, the specific remedy sought pursuant to Rule 11 does not dictate whether the court has jurisdiction to consider the motion in the first place. It is wrong for the majority to leapfrog over the antecedent question only to look back and claim that the district court lacked jurisdiction to consider the relief sought in Colgate’s motion because of the very relief sought in Colgate’s motion. This bootstrapping approach is, quite simply, not the law.

24 F. App’x 804 (9th Cir. 2012) (cited by Colgate; “[T]he district

court had jurisdiction to impose Rule 11 sanctions in the amount

of attorney’s fees even after remanding the case to state

court.”); Bryant v. Britt, 420 F.3d 161, 164 (2d Cir. 2005) (per

curiam) (cited by Colgate; “[T]he district court was not

deprived of jurisdiction to resolve the collateral issue of

Rule 11 sanctions by virtue of its earlier order remanding the

suit.”); Midlock v. Apple Vacations W., Inc., 406 F.3d 453 (7th

Cir. 2005) (affirming Rule 11 sanctions imposed subsequent to a

post-remand hearing); Lazorko v. Penn. Hosp., 237 F.3d 242, 247

(3d Cir. 2000) (“Although the District Court relinquished

jurisdiction over this case when it either dismissed or remanded

all the claims before it, it still had jurisdiction to order

sanctions.”); Miranti v. Lee, 3 F.3d 925, 927 (5th Cir. 1993)

(“There is no question but that if an order of sanctions had

been entered under Rule 11 . . . , we would have jurisdiction to

review it despite the statutory limitation on our review of the

order of remand.”); Vatican Shrimp Co. v. Solis, 820 F.2d 674,

680 n.7 (5th Cir. 1987) (“Although 28 U.S.C. § 1447(d) precludes

our review of the order of remand, it does not shield the

subsidiary issue of Rule 11 sanctions from appellate review.

. . . [O]ur review on the merits of the Rule 11 sanctions is

distinct and separable from a review on the merits of the order

of remand.”); e.g., Pisciotta v. Dobrynina, No. 08-CV-5221, 2009

25 WL 1913393, at *2 (E.D.N.Y. July 2, 2009) (“On January 21, 2009,

the parties appeared for oral argument before the Court

[regarding the removal notice]. The next day, the Court . . .

remand[ed] the underlying action to state court but retain[ed]

jurisdiction to consider sanctions under Rule 11 and costs and

fees under § 1447(c).” (citing Bryant, 420 F.3d at 162)); Creek

Ventures, LLC v. World Parts, LLC, No. 01-CV-89C, 2004 WL

1166642, at *3 (W.D.N.Y. Apr. 14, 2004) (“The court notes that

it retains continuing jurisdiction over the motion for

sanctions, despite the remand to state court.”); Park Nat’l Bank

of Houston v. Kaminetzky, 976 F. Supp. 571, 573 n.2 (S.D. Tex.

1996) (“Although this Court does not have jurisdiction over the

merits of the remanded action, the Court retained jurisdiction

to impose sanctions, costs, and fees.”); see also Perpetual

Sec., Inc. v. Tang, 290 F.3d 132, 141 (2d Cir. 2002) (“Although

the district court lacked jurisdiction to decide the merits of

the underlying action, it retained the power to determine

collateral issues, such as the appropriateness of [Rule 11]

sanctions.”); Olcott v. Del. Flood Co., 76 F.3d 1538, 1553 (10th

Cir. 1996) (“Among the collateral issues a federal court may

consider after an action is no longer pending is a Rule 11

sanction.”); Westlake N. Prop. Owners Ass’n v. City of Thousand

Oaks, 915 F.2d 1301, 1303 (9th Cir. 1990) (“[E]ven if a court

does not have jurisdiction over an underlying action, it may

26 have jurisdiction to determine whether the parties have abused

the judicial system and whether sanctions are appropriate to

remedy such abuse.”).

This Court’s own precedent aligns with the chorus of cases

cited above, thus exposing as hollow the majority’s far-reaching

statement that “entry of an order remanding a case to state

court divests the district court ‘of all jurisdiction in [the]

case and preclude[s] it from entertaining any further

proceedings of any character[.]’” Ante at 9 (first and second

alterations in original) (quoting Three J Farms, Inc. v. Alton

Box Board Co., 609 F.2d 112, 115 (4th Cir. 1979)). In ITT

Industrial Credit Co. v. Durango Crushers, Inc.—a case decided

eight years after Three J Farms—this Court affirmed the district

court’s award of attorneys’ fees to the plaintiff as a sanction

based on the defendants’ improper removal of the case to federal

court. 832 F.2d 307, 308 (4th Cir. 1987). Specifically, this

Court stated the following:

Ordinarily, a district court may not award attorneys’ fees absent express Congressional authorization. Exceptions to the “American Rule,” whereby each party pays its own attorney’s fees, are matters of legislative providence. . . . [H]owever, courts do have inherent power to award attorney’s fees against a party who has acted in bad faith. The limited authority of the district courts to award fees as a sanction for a removal taken in bad faith is widely recognized. Although § 1447(c) itself conveys no power on the district courts to award attorneys’ fees, the district court did not err in awarding attorney’s fees . . . because the[] removal petition was so

27 patently without merit that the inescapable conclusion is that it was filed in bad faith.

Id. (emphasis added) (citations omitted) (internal quotation

marks omitted). 3

To be absolutely sure, the opinion in Durango Crushers is

ambiguous about (1) whether the district court ordered sanctions

subsequent to remand, as would be the case here (as opposed to

in conjunction with remand), and (2) whether the court ordered

sanctions sua sponte or pursuant to a post-remand motion or

request. However, this Court’s subsequent decision in Anton

Leasing, Inc. v. Engram, 846 F.2d 69 (4th Cir. 1988) (per

curiam) (unpublished table decision)—handed down less than six

months after Durango Crushers—purges any lingering doubt about

district courts’ ability to order sanctions after remand. 4 In

Engram, the district court granted the plaintiff’s motion to

remand the case to state court for failure to remove the case to

the proper venue. Prior to the remand, the plaintiff requested

costs and fees. “[The defendant] failed to respond to [the

3 At the time that this Court decided Durango Crushers, the then-current (1982) version of 28 U.S.C. § 1447(c) did not include attorneys’ fees as part of the “just costs” available based on an improvident removal. See Graphic Commc’ns Local 1B Health & Welfare Fund A v. CVS Caremark Corp., 636 F.3d 971, 974 (8th Cir. 2011). 4 Two of the three judges who were on the panel for Durango Crushers—Judge Wilkinson (author) and Judge Chapman—were also panel members for Engram.

28 plaintiff’s] motion, and the district court granted [the] . . .

motion to remand and dismissed the case from the docket. The

court awarded no costs or fees.” Id. Then, after remand, the

defendant filed a motion in the district court to transfer venue

to cure the lack of subject jurisdiction. The plaintiff opposed

this motion and again requested attorneys’ fees, which the

district court awarded. The defendant appealed.

On appeal, this Court held that, “While the district court

was without jurisdiction to rule on the transfer motion, . . .

the court had jurisdiction to review the [post-remand] request

for just costs and that that part of the order is appealable.”

Id. (citing News-Texan, Inc. v. City of Garland, 814 F.2d 216,

220 (5th Cir. 1987), and Vatican Shrimp Co., 820 F.2d at 680

n.7—both Rule 11 cases). Importantly, and like in Durango

Crushers, this Court characterized the attorneys’ fees award as

a sanction. Id. (citing Durango Crushers and noting that the

then-current version of § 1447(c) “convey[ed] no power on the

district courts to award attorneys’ fees”); see supra note 3.

The myriad cases cited above from other circuit courts,

district courts, and this Court are just appetizers, for the

Supreme Court itself has spoken on the propriety of Rule 11

sanctions ordered (1) after a case has been dismissed and

(2) even when a district court was without jurisdiction in the

first instance. The first of these two cases is Cooter & Gell

29 v. Hartmarx Corp., 496 U.S. 384 (1990). There, the plaintiff

filed a complaint but then dismissed the complaint pursuant to

Rule 41(a)(1)(i) after the defendant moved for dismissal and for

Rule 11 sanctions because of the baseless allegations in the

complaint. Id. at 389. The district court heard oral argument

on the Rule 11 motion prior to dismissal but dismissed the case

without ruling on the motion. Id. More than three-and-a-half

years later, the district court granted the defendants’ Rule 11

motion. Id. at 389–90. After losing on appeal, the plaintiff’s

law firm petitioned the Supreme Court, arguing that the district

court was without jurisdiction to order sanctions.

The Supreme Court held that the district court did have

jurisdiction to sanction plaintiffs’ counsel. Specifically, the

Court stated that “a voluntary dismissal does not expunge the

Rule 11 violation,” and “a court must have the authority to

consider whether there has been a violation of [Rule 11]

regardless of the dismissal of the underlying action.” Id.

at 395; see id. (“It is well established that a federal court

may consider collateral issues after an action is no longer

pending.”); see also id. at 398 (“The filing of complaints,

papers, or other motions without taking the necessary care in

their preparation is a separate abuse of the judicial system,

subject to separate sanction.”). Although the underlying case

in Cooter & Gell became “no longer pending” before the district

30 court due to the plaintiff’s voluntary dismissal, numerous

circuit courts have applied Cooter & Gell’s holding to cases

that were “no longer pending” due to remand to state court.

E.g., Desert Sch. Fed. Credit Union, 473 F. App’x 804 (“The

Supreme Court has long held that a district court retains

jurisdiction to impose Rule 11 sanctions even after a case has

been dismissed. . . . Thus, the district court had jurisdiction

to impose Rule 11 sanctions in the amount of attorney’s fees

even after remanding the case to state court.” (citing Cooter &

Gell)); Bryant, 420 F.3d at 164 (“Nothing in Cooter & Gell

limits its observations concerning collateral jurisdiction over

Rule 11 motions to dismissals under Fed. R. Civ. P. 41(a)(1).”).

The second Supreme Court case that directs the conclusion

that the district court had jurisdiction to consider Colgate’s

Rule 11 motion for sanctions is Willy v. Coastal Corp., 503 U.S.

131 (1992) (9-0) (Rehnquist, C.J.). In Willy, the petitioner

sued the respondent in state court and the respondent removed

the case to federal court. Id. at 132. Over the petitioner’s

objection, the district court concluded that it had subject

matter jurisdiction and subsequently granted the respondent’s

motion to dismiss for failure to state a claim. Id. at 132–33.

At the same time, the district court granted the respondent’s

motion for Rule 11 sanctions against the petitioner and his

attorney for certain filings made in the district court, and the

31 petitioner appealed. Id. at 133. The appeals court determined

that federal subject matter jurisdiction over the case was

improper and reversed the district court’s order dismissing the

claims with instructions to remand the case to state court. Id.

However, the appeals court did not reverse the sanctions award.

Neither did the Supreme Court. Instead, the Court stated

that, although “[a] final determination of lack of subject-

matter jurisdiction of a case in a federal court . . . precludes

further adjudication of it[,] . . . such a determination does

not automatically wipe out all proceedings had in the district

court at a time when the district court operated under the

misapprehension that it had jurisdiction.” Id. at 137. Citing

Cooter & Gell, the Court reiterated that Rule 11 sanctions are

“collateral to the merits” of an action, id. at 138, and that

“[t]he interest in having rules of procedure obeyed . . . does

not disappear upon a subsequent determination that the court was

without subject-matter jurisdiction,” id. at 139. Like those

circuit court decisions applying Cooter & Gell, appeals courts

have likewise relied on Willy for the proposition that district

courts maintain jurisdiction to order Rule 11 sanctions after

remand. E.g., Bryant, 420 F.3d at 164 (“[T]he Supreme Court

. . . has . . . held that district courts have jurisdiction over

Rule 11 motions where the district court has remanded a case to

state court. It follows that in [appellant]’s case the district

32 court was not deprived of jurisdiction to resolve the collateral

issue of Rule 11 sanctions by virtue of its earlier order

remanding the suit.” (citing Willy)); see also Lazorko, 237 F.3d

at 247.

In view of the above, the district court had, at a minimum,

jurisdiction to consider Colgate’s Rule 11 motion for sanctions

and to fashion appropriate relief, if any; the law could not be

more clear on this point. Jurisdiction is a court’s ability to

consider a motion in the first instance, not the court’s ability

to actually grant the relief requested therein. The majority

misunderstands this basic legal distinction and, in reaching the

opposite conclusion, maroons itself on an island all alone,

thereby creating a cosmic circuit split and contravening Supreme

Court precedent and this Court’s precedent. Indeed, it appears

that it is the majority’s rigid position that is the “anomaly in

federal jurisdiction.” Ante at 9.

B. Rule 60(b)(3)

“Exactness in the use of words is the basis of all serious

thinking.” Felix Frankfurter, Some Reflections on the Reading

of Statutes, 47 Colum. L. Rev. 527, 546 (1947) (citation

omitted) (internal quotation marks omitted). “[C]ourts must

presume that a legislature says in a statute what it means and

means in a statute what it says there.” Conn. Nat’l Bank v.

Germain, 503 U.S. 249, 253–54 (1992). “[U]nless otherwise

33 defined, words will be interpreted as taking their ordinary,

contemporary, common meaning.” Perrin v. United States, 444

U.S. 37, 42 (1979). These are fundamental tenets for drafting

and interpreting legislation, and yet the majority spurns such

bedrock principles by failing to appreciate the distinction

between “vacating” an order and “reviewing” an order, only the

latter of which is prohibited by 28 U.S.C. § 1447(d).

The Eleventh Circuit recognized the distinction noted above

in Aquamar, S.A. v. Del Monte Fresh Produce N.A. and explained

it as follows:

Vacatur of a remand order does not necessarily constitute a forbidden “review” of the remand decision. To “review” an order, a court must do more than merely cancel it; it must, to some extent, examine it and determine its merits. A “review” is a “reconsideration; second view or examination; revision; consideration for purposes of correction.” Black’s Law Dictionary 1320 (6th ed. 1990). A vacatur does not necessarily implicate this sort of examination. If we order the district court to vacate an order for reasons that do not involve a reconsideration or examination of its merits, then we have not “reviewed” the order, and therefore have not fallen afoul of section 1447(d)’s prohibition on review.

179 F.3d 1279, 1288 (11th Cir. 1999) (citing U.S. Bancorp Mortg.

Co. v. Bonner Mall P’ship, 513 U.S. 18, 22–23 (1994)); see also

Tramonte v. Chrysler Corp., 136 F.3d 1025, 1028 (5th Cir. 1998)

(“[V]acatur of the remand order would . . . not constitute a

review of the merits of that order, prohibited by 28 U.S.C.

§ 1447(d).”). The majority is speedy to attempt to distinguish

34 Aquamar and Tramonte on their facts and the reasons for vacatur

in those cases, but is conspicuously silent as to why the

vacate/review distinction ceases to apply in this case, which

deals with the same statutory provision. Indeed, and just like

the Aquamar court, this Court has several times relied on

dictionaries to interpret statutes when the statutes’ words were

not defined therein. See, e.g., Country Vintner of N.C., LLC v.

E. & J. Gallo Winery, Inc., 718 F.3d 249, 258–59 & n.10–17 (4th

Cir. 2013) (Davis, J.); United States v. Hampton, 628 F.3d 654,

660 (4th Cir. 2010) (Davis, J.); FindWhere Holdings, Inc. v.

Sys. Env’t Optimization, LLC, 626 F.3d 752, 756 (4th Cir. 2010)

(Davis, J.); Torres v. O’Quinn, 612 F.3d 237, 243, 245–46 (4th

Cir. 2010) (Davis, J.); see also United States v. Perez-Perez,

737 F.3d 950, 955 (4th Cir. 2013) (Davis, J., concurring); David

v. Alphin, 704 F.3d 327, 339 (4th Cir. 2013) (Davis, J.).

This Court should not treat this case and this statute any

differently, and to dismiss the distinction as mere semantics

runs afoul of long-standing statutory interpretation principles.

The majority relies heavily on In re Lowe, 102 F.3d 731

(4th Cir. 1996), and the flowery “one shot”-language contained

therein, but without solid justification for doing so on these

facts and without any discussion of the particulars of that

case. In Lowe, the district court remanded the case due to lack

of complete diversity between the parties, and the defendants

35 moved for “reconsideration”—not vacatur—of the remand order.

Id. at 732–33. The district court granted the motion, and the

plaintiff petitioned this Court for a writ of mandamus. Id.

at 733. This Court framed the “principal issue” in the appeal

as “whether the district court exceeded its jurisdiction when it

reconsidered its remand order.” Id. at 733 (emphasis added).

This Court then determined that, “[i]ndisputably, ‘otherwise’ in

§ 1447(d) includes reconsideration by the district court.” Id.

at 733–34 (emphasis added).

Lowe’s holding is consistent with the holdings of several

factually similar cases (i.e., cases wherein a party asked for

reconsideration of a remand order), all of which I think were

correctly decided in view of § 1447(d)’s bar on “review.” See,

e.g., Gravitt v. Sw. Bell Tel. Co., 430 U.S. 723 (1977) (per

curiam) (reversing judgment where the court of appeals “ordered

the District Court to vacate its remand order because the latter

had employed erroneous principles in concluding that it was

without jurisdiction”); Agostini v. Piper Aircraft Corp., 729

F.3d 350, 355 (3d Cir. 2013) (“[W]e hold that we do not have

jurisdiction to review an order denying a motion to reconsider a

remand order.”); Harris v. Blue Cross/Blue Shield of Ala., Inc.,

951 F.2d 325, 326, 330 (11th Cir. 1992) (addressing the issue of

“whether the district court had jurisdiction to ‘reconsider’ its

order remanding the case to state court” and concluding that it

36 did not). Fortunately for Colgate, however, the case before the

Court today is not Lowe, Gravitt, Agostini, or Harris insofar as

vacatur does not require review or reconsideration of a ruling.

See Aquamar, 179 F.3d at 1288; Tramonte, 136 F.3d at 1028.

Contrary to the majority’s claim that “Colgate[] seek[s] to

draw us into the merits . . . of the district court’s order,”

ante at 8, Colgate never once argues that remand was wrong based

on the facts that were presented to the district court at the

time the cases were removed. Of course, Colgate argues that the

joinder of certain parties has now been confirmed as fraudulent;

but this is a separate issue from the question of whether remand

was proper under the facts as plaintiffs’ counsel originally

presented them (i.e., that all Maryland defendants were properly

joined). The majority couches Colgate’s argument as “attacking

the district court’s analysis of the merits of the remand,” id.

at 14, but has not cited to a single instance—because there is

not one—where Colgate claims that the district court erred by

remanding the cases based on the facts as plaintiffs’ counsel

represented them. Colgate’s real argument, which the majority

either simply misunderstands or chooses to ignore and remold

into a new argument, is that plaintiff counsel’s representations

were not a truthful portrayal of the actual facts of the case;

Colgate therefore attacks the manner by which the plaintiffs

secured the remand orders, not the merits or correctness of the

37 orders themselves. Compare ante at 12 (“Colgate’s argument that

it is not seeking ‘review’ is simply incorrect because its

request necessarily requires a merits review of the remand

orders.”), with Colgate’s Reply Br. at 3 (“The instant motions

do not seek relief on the ground that the Remand Orders were

substantively incorrect. Instead, they contend that the orders

were procured unfairly through misconduct. Thus the ‘review’

requested is of counsel’s conduct—not the orders themselves.”

(third emphasis added)).

In view of the proper understanding of Colgate’s argument

and the fact that Colgate never once argues that the district

court erred in remanding the cases—only that that the district

court erred in subsequently denying Colgate’s post-remand

motions—§ 1447(d) does not prohibit this Court from vacating the

remand orders pursuant to Rule 60(b)(3) if it is determined that

such relief is warranted. In Schultz v. Butcher, 24 F.3d 626

(4th Cir. 1994), this Court clarified that Rule 60(b)(3) does

not pertain to the merits of a judgment, order, or proceeding,

but rather ensures the integrity of the manner by which such

ruling was procured. There, the plaintiff’s lawyer deliberately

withheld a document that fell plainly within the scope of one of

the defendant’s interrogatories. Id. at 629. The district

court (by a bench trial) ruled in favor of the plaintiff, and

the defendant moved post-judgment pursuant to Rule 60(b)(3) for,

38 inter alia, a new trial, alleging that the plaintiff concealed

the pertinent document and that the absence of that document

prejudiced the defendant. Id. at 630. The district court

denied the motion because “the report was not newly discovered

evidence and . . . would not have altered the court’s

determination as to liability.” Id. at 631.

This Court reversed on appeal and explained that

[t]he “newly discovered evidence” provision of Rule 60(b)(2) is aimed at correcting an erroneous judgment stemming from the unobtainability of evidence. Consequently, a party seeking a new trial under Rule 60(b)(2) must show that the missing evidence was “of such a material and controlling nature as [would] probably [have] change[d] the outcome” . . . In contrast, Rule 60(b)(3) focuses not on erroneous judgments as such, but on judgments which were unfairly procured.

Id. at 631 (alterations in original) (emphasis added) (quoting

Anderson v. Cryovac, Inc., 862 F.2d 910, 924 n.10 (1st Cir.

1988)); see also Square Constr. Co. v. Wash. Metro. Area Transit

Auth., 657 F.2d 68, 72 (4th Cir. 1981) (“Setting aside a

judgment under [Rule] 60(b)(3) does not require that the [fraud,

misrepresentation, or misconduct] be sufficient to alter the

district court's judgment[.]”). As noted above, Colgate does

not argue that the reasoning of the remand orders was erroneous

based on the facts as plaintiffs’ counsel presented them when

the cases were removed; rather, Colgate argues only that the

orders were “unfairly procured” due to the contortion of facts

39 and evidence supporting a claim against the in-state defendants.

The law recognizes such factual manipulation as fundamentally

unfair and provides to a party the opportunity to seek relief

pursuant to Rule 60(b)(3). Schultz, 24 F.3d at 631 (“[W]rongful

[withholding] of . . . material makes it inequitable for the

withholder to retain the benefit of the [judgment][.]”).

In Cooter & Gell, the Supreme Court stated that, “If a

litigant could purge his violation of Rule 11 merely by taking a

dismissal, he would lose all incentive to stop, think and

investigate more carefully before serving and filing papers.”

496 U.S. at 398 (citation omitted) (internal quotation marks

omitted). The same is true in the context of a remand order: if

a litigant could flout his duty of candor before a district

court and secure remand by misrepresentation, knowing that such

remand is never subject to vacatur, he would lose all incentive

to present the facts of a case honestly to the court during

removal. Righting this wrong and protecting the sanctity and

integrity of judicial proceedings overrides the value of any

purported finality of a remand order. 5 Green v. Foley, 856 F.2d

5 It is ironic that the majority would lean on the notion that “it is manifest that the law favors finality.” Ante at 9; see Whiteside v. United States, __ F.3d __, No. 13-7152, 2014 WL 1364019, at *11 (4th Cir. Apr. 8, 2014) (Davis, J., concurring) (criticizing one of our colleagues for “prostrat[ing] . . . at the altar of finality” and for “favor[ing] what’s ‘finished’ over what’s ‘right’”).

40 660, 667 (4th Cir. 1988) (“[T]he policy of deterring misconduct

which threatens the fairness and integrity of the fact finding

process must outweigh considerations of finality. Any other

result would reward [a litigant’s] wrongful acts by permitting

him to retain the benefit of those acts . . . in derogation of

the proper function of the federal courts.” (emphasis added)

(citation omitted) (internal quotation marks omitted)).

Finally, before proceeding to the merits of Colgate’s

motions, a word about Powerex Corp. v. Reliant Energy Services,

Inc., 551 U.S. 224 (2007), is in order. The majority erects a

cathedral around Powerex but, as with Lowe and every other case

that the majority relies upon, provides no discussion of the

facts—only selective sound bytes in support of its position. In

Powerex, two foreign defendants (including Powerex Corp.) and

two federal defendants removed a state-law action, claiming that

the district court had subject matter jurisdiction pursuant to

28 U.S.C. § 1441(d) (authorizing removal by a “foreign state” as

defined in the Foreign Sovereign Immunities Act (FSIA)) and

28 U.S.C. § 1442(a) (authorizing removal by federal agencies).

Id. at 227–28. The plaintiffs moved to remand the case, and the

district court determined that the two federal defendants and

one of the foreign defendants were immune from suit, but that

Powerex Corp. did not qualify as a “foreign state.” Id. at 228.

Accordingly, because Powerex Corp. did not satisfy the criteria

41 for federal jurisdiction pursuant to § 1441(d) and all other

defendants were immune from suit, the district court remanded

the case. Id. at 228.

Powerex Corp. appealed, arguing that it was “foreign state”

for FSIA purposes, and the plaintiffs countered, arguing that

the appeal was barred by § 1447(d). The Ninth Circuit held that

it “ha[d] jurisdiction to review the underlying merits of the

district court’s substantive rulings on immunity and sovereign

status[,]” California v. NRG Energy, Inc., 391 F.3d 1011, 1022

(2004) (emphasis added)—or in the words of the Supreme Court,

the Ninth Circuit held that § 1447(d) “did not preclude it from

reviewing substantive issues of law that preceded the remand

order,” Powerex, 551 U.S. at 228 (emphasis added). The Ninth

Circuit then affirmed the district court’s ruling that Powerex

Corp. was not a “foreign state” for purposes of § 1441(d). Id.

The Supreme Court subsequently vacated that decision and

remanded the case with instructions to dismiss the appeal for

lack of jurisdiction. The Court reasoned that “[n]othing in the

text of § 1447(c) supports the proposition that a remand for

lack of subject-matter jurisdiction is not covered so long as

the case was properly removed in the first instance.” Id.

at 230. Specifically, the Court held that “§ 1447(d) bars

appellate consideration of [Powerex Corp.]’s claim that it is a

foreign state for purposes of the FSIA.” Id. at 239.

42 At the end of this discussion of Powerex, one might be left

wondering, “Well, so what? How does Powerex apply here, where

Colgate does not claim that the district court erred as a matter

of law in granting plaintiffs’ motions for remand and does not

seek appellate review of the merits of the remand orders?” And

that is precisely the point—Powerex does not apply to this case

insofar it is no different from Lowe, Gravitt, Agostini, and

Harris (except that Powerex Corp. did not seek reconsideration

of the remand order by the district court, but instead jumped

straight to the court of appeals for review of the district

court’s decision on the merits). I belabor the details of

Powerex merely to show that the majority’s quoting here and

there of the case without any facts is nothing but an attempt to

distract and divert attention away from the critical distinction

between “vacatur” and “review”, which goes wholly unaddressed by

the majority. 6 Powerex is a case about the jurisdiction of an

appeals court to review a district court’s reasoning on issues

6 Well, almost unaddressed—the majority does state that Colgate’s proffered review/vacatur distinction fails “because it seeks to relitigate the merits of an issue already litigated.” Ante at 13. But the majority has not explained how relitigating an issue using completely different facts and, more importantly, without referring back to the first remand orders disposing of that issue, in any way requires reviewing the first orders. By engaging in such linguistic gymnastics, the majority declares that “review” now also means “to litigate anew on a blank slate,” thus expanding its definition far beyond Mr. Webster’s, Mr. Garner’s, and Congress’s wildest imaginations.

43 of substantive law; it is not a case about the jurisdiction of

an appeals court to vacate an order procured by alleged

fraudulent representations and attorney misconduct. Indeed, if

Powerex does anything, it underscores the difference between

vacatur and review insofar as the Supreme Court never reached

the merits of (“reviewed”) the principal issue for which it

granted certiorari—“whether, under [FSIA], [Powerex Corp.] is an

‘organ of a foreign state or political subdivision thereof,’”

id. at 226 (citation omitted)—because it vacated the appeals

court’s decision on jurisdictional grounds. 7

7 It is curious that the statement, “If Congress wanted to carve out an attorney-misconduct exception to the prohibition on review of remand orders, it would have done so[,]” ante at 14, appears in an opinion that places such heavy reliance on Powerex when all nine Justices in Powerex recognized that § 1447(d) has exceptions that were not carved out by Congress. Powerex, 551 U.S. at 229 (“[W]e have interpreted § 1447(d) to cover less than its words alone suggest.”); id. at 240 (Breyer, J., dissenting) (“[T]his Court has found exceptions to § 1447’s seemingly blanket prohibition [on review].” (citing Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 350–52 (1976), and Osborn v. Haley, 549 U.S. 225, 240–44 (2007))); see also Bujanowski v. Kocontes, 359 F. App’x 112, 113 (11th Cir. 2009) (per curiam) (“Generally, 28 U.S.C. § 1447(d) provides that ‘[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal.’ We have, however, carved out a limited exception in that the appellate court ‘may review the merits of a remand order in considering whether the district court abused its discretion by awarding attorneys' fees and costs under 28 U.S.C. § 1447(c).’” (quoting Legg v. Wyeth, 428 F.3d 1317, 1319 (11th Cir. 2005))); In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 587 (4th Cir. 2006) (relied upon by the majority; “Having determined that the order before us was, indeed, predicated upon § 1447(c), and therefore within the purview of § 1447(d), we turn now to a consideration of whether (Continued) 44 In sum, nothing in the plain language of § 1447(d) or

courts’ interpretation thereof bars vacatur of the district

court’s remand orders. Although I agree that reconsideration is

a subspecies of review, see Lowe, 102 F.3d at 733–34, vacatur,

without revisiting the merits of the prior order, is no such

cousin or relative.

III. Merits

Having concluded that the district court had jurisdiction

to rule on Colgate’s Rule 11 and Rule 60(b)(3) motions, I will

now proceed to analyze the merits of those motions. See Liberty

Univ., Inc. v. Geithner, 671 F.3d 391, 422 (4th Cir. 2011)

(Davis, J., dissenting) (“My good colleagues in the majority

hold that the Anti–Injunction Act strips us of jurisdiction in

this case. For reasons I explain at length below, I disagree.

As I reject the reasoning and the result of the majority’s

one of the other judicially created exceptions to § 1447(d) applies.” (emphasis added)); Nutter v. Monongahela Power Co., 4 F.3d 319, 321 (4th Cir. 1993) (“Although § 1447(d) appears to foreclose any review of remand orders, that limitation is subject to several exceptions.” (citing Brannon v. Babcock & Wilcox Co., 940 F.2d 832, 848 (3d Cir. 1991), which held that § 1447(d) does not bar review of remand orders where the district court determines it lacks jurisdiction because the federal statute conferring jurisdiction is unconstitutional)). Although I do not think that we need to carve out any new exception to § 1447(d) because vacatur does not require review and, thus, Colgate’s request is outside the reach of the statute, it is nonetheless worth noting that, even if that is what we were doing, we would certainly not be the first court to do so.

45 jurisdictional analysis, I am entitled to reach the merits of

appellants’ claims.”). Although normally all that would be

required of this Court at this particular procedural juncture

would be to reverse and remand for further consideration on the

merits, the district court indicated how it would have ruled if

it thought that it had jurisdiction. Specifically, the district

court stated that, although there is a “sharp conflict” between

plaintiff counsel’s statements made while the cases were removed

and those statements made subsequent to remand, and that such

conflict is “troubling,” the statements “are attributable to

different attorneys in markedly different litigation contexts,”

(J.A. 1106); therefore, the court was “not convinced that

counsel’s conduct is sanctionable,” (id.). These statements by

the district court were made after the parties had the

opportunity to brief whether plaintiff counsel’s conduct

warranted sanctions and after a hearing was held regarding the

same; in other words, the merits of the issue have been fully

presented and argued.

In such a situation, this Court has the ability to rule on

the merits of Colgate’s motions even though the district court

technically did not. See Brown & Williams Tobacco Corp. v. FTC,

710 F.2d 1165, 1172–73 & n.3 (6th Cir. 1983) (“The District

Court never ruled on [plaintiffs’] two arguments on the merits

because the court below erroneously held that it lacked

46 jurisdiction. Rather than remand the case which would entail

further delay, we have decided in the interest of judicial

economy to reach the merits of this case.”). This is especially

the case where the proper exercise of discretion could lead to

only one outcome and the district court has already shown how it

would rule if this Court were to simply remand the case. See

United States v. Fenner, 147 F.3d 360, 363 (4th Cir. 1998)

(“[W]e need not remand to permit the district court to exercise

its discretion [regarding an issue that it did think that it had

the authority to decide] if its decision to do so on remand

would constitute an abuse of discretion.”).

This Court reviews district courts’ decisions on Rule 11

and Rule 60(b)(3) motions for an abuse of discretion. Hunter v.

Earthgrains Co. Bakery, 281 F.3d 144, 150 (4th Cir. 2002)

(standard of review for Rule 11 motions); Green, 856 F.2d at 665

(standard of review for Rule 60(b) motions). “A district court

abuses its discretion if it bases its ruling on an erroneous

view of the law or on a clearly erroneous assessment of the

evidence.” Brubaker v. City of Richmond, 943 F.2d 1363, 1374

(4th Cir. 1991). As noted above, the same underlying conduct

forms the bases of each of Colgate’s respective motions.

47 A. Rule 11 Sanctions

In relevant part, Federal Rule of Civil Procedure 11(b)

provides as follows:

By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery[.]

Fed. R. Civ. P. 11(b)(3). Here, Colgate seeks sanctions for

plaintiff counsel’s averments to Judge Nickerson that “there is

some circumstantial evidence to suggest [that] Ms. Barlow could

possibly have been exposed to asbestos-containing products while

working at RMR Corporation,” (J.A. 106), and to Judge Quarles

that “Plaintiff’s counsel do have some circumstantial evidence

that Mrs. Mosko may have been exposed to asbestos at the

Department of Agriculture,” (id. at 247). Colgate claims that,

in view of plaintiff counsel’s subsequent statement after remand

that “there is absolutely no evidence to indicate or even

suggest that the Plaintiffs were exposed to asbestos in any form

other than Cashmere Bouquet,” (id. at 476), counsel’s statements

in federal court were without evidentiary support and deceived

the district court into ordering remand based on a sham factual

record.

48 At the hearing on the motions for sanctions, plaintiffs’

counsel claimed that the statements made in federal court were

“legal conclusion[s]” and “legal argument[s],” not “factual

contention[s]” subject to Rule 11 sanctions. (Id. at 1070–71.)

Counsel maintained this purported distinction on appeal,

claiming that “[t]he fact that an attorney calls evidence

circumstantial, or claims a piece of evidence gives rise to an

inference, falls squarely into the category of legal argument.”

Plaintiffs’ Br. at 37. Although I agree that characterizing the

type of evidence can, at times, be subject to some legal

significance, I strongly disagree that a statement regarding the

existence of evidence—be it direct, circumstantial, or some

other type—requires application of any law. Evidence exists or

it does not exist; this is a binary factual determination.

On appeal, plaintiffs’ counsel attempted to backpedal and

retreat further from the prior statements made during removal

proceedings by framing those statements as follows:

The truth is that the Plaintiffs in this case never represented to the federal court that it intended to generate evidence against any of the in-state defendants, or even that they would prevail against the in-state defendants. Indeed, such representations would have been irrelevant to the inquiry, because that is not what the federal standard [for remand] requires. Instead, the Plaintiffs argued that there was a possibility that evidence could be generated or a possibility that the Plaintiffs could prevail against the local defendants, and that is all that is required to obtain remand in a fraudulent joinder argument.

49 Id. at 29 (emphasis added on all words but the first

“possibility” and the first “could”). This qualification of the

previous statements is wholly unavailing and, worse, all but

confirms that counsel’s prior statements in federal court were

misrepresentations. While the cases were removed, plaintiffs

did not merely claim that evidence against in-state defendants

“could be generated”; rather, counsel told the district court

that “there is some circumstantial evidence” and “Plaintiff’s

counsel do have some circumstantial evidence.” (J.A. 106, 247

(emphases added).) In other words, counsel told the district

court that such evidence against the in-state defendants was

already in the plaintiffs’ possession. Insofar as plaintiffs’

counsel is on the record as telling the court that plaintiffs

had evidence that apparently did not exist, counsel’s misconduct

is subject to Rule 11. See, e.g., Pope v. Fed. Express Corp.,

39 F.3d 1327, 1328 (8th Cir. 1995) (affirming award of Rule 11

sanctions for offering a falsified document into evidence).

Plaintiffs’ constant altering of their position to cater to

the forum of the day is further demonstrated by Ms. Lilly’s

statements at the hearing on Colgate’s motions for sanctions

before Judge Nickerson. There, Ms. Lilly claimed that Mr. Kelly

“overstated things” subsequent to remand when he submitted that

“there is absolutely no evidence to indicate or even suggest

50 that the Plaintiffs were exposed to asbestos in any form other

than Cashmere Bouquet.” (J.A. 1092.) Ms. Lilly then asserted,

“Yes, there was some evidence[,]” referring to the alleged

existence of evidence that Barlow could have been exposed to

asbestos at her place of employment and not via Cashmere Bouquet

only. (Id.) But even setting aside the existence (or not) of

evidence, Mr. Kelly also asserted after remand that Barlow and

Mosko “do not allege exposure to . . . asbestos . . . in any

other form” other than Cashmere Bouquet. (J.A. 474 (emphasis

added).) In other words, notwithstanding the named defendants

in the complaint, plaintiffs had no intention to pursue claims

against any party but Colgate; Mr. Kelly therefore confirmed

that this truly is a “one-defendant” case, (see J.A. 494).

“[W]here a party assumes a certain position in a legal

proceeding, and succeeds in maintaining that position, he may

not thereafter, simply because his interests have changed,

assume a contrary position[.]” New Hampshire v. Maine, 532 U.S.

742, 749 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689

(1895)) (internal quotation marks omitted)). That is precisely

what happened here: first, there was evidence in federal court

of other sources of exposure to asbestos when the existence of

such evidence was advantageous for defeating complete diversity

and obtaining remand; then, just eight days after the remand

order in Barlow’s case was handed down, there was no such

51 evidence in state court when the lack of any evidence was

advantageous for reconsolidating plaintiffs’ cases for trial;

then, there was again evidence in federal court when Ms. Lilly

had to answer for her prior representations made during removal

proceedings to avoid being sanctioned. This ping-pong match

must come to an end.

Although one might expect a multinational corporation,

embroiled in several types of lawsuits around the country and

represented by different law firms, to now and again take

inconsistent positions without being aware that it has done so

(not that doing so is excusable), the constant shifting of

positions by the same two lawyers from the same law firm and in

the same matters for two individual plaintiffs is unacceptable.

Lawyers are mouthpieces for their clients; they do not speak for

themselves. Thus, regardless of which lawyer makes an argument

on behalf of a client, it is still the client (i.e., party to

the lawsuit) who is taking a certain position, and this position

cannot change as does the weather in spring whenever it favors

the client’s instant cause or depending on which lawyer is

appearing to represent the client on any given day.

The district court provided no explanation as to why it

would not award sanctions other than counsel’s statements “are

attributable to different attorneys in markedly different

litigation contexts.” (J.A. 1106.) As explained above, the

52 fact that different lawyers made the statements is wholly

irrelevant. Moreover, the fact that the statements were made in

different contexts is precisely what makes the misconduct so

egregious—one would not expect a party to even attempt such a

blatant about-face before the same judge; but plaintiffs’

counsel knew that it was making the post-remand statements

before a different judge and in a different forum. When this is

the case, the consistency of a party’s position must be at its

pinnacle to ensure the fair adjudication of claims based on

prior rulings that impacted those same claims. To not order

sanctions on these facts would be an abuse of a district court’s

discretion. See, e.g., Judin v. United States, 110 F.3d 780,

781 (Fed. Cir. 1997) (“Because we find a clear violation of

Rule 11, we hold that the trial court abused its discretion in

determining otherwise.”); see also Thompson v. RelationServe

Media, Inc., 610 F.3d 628, 671 (11th Cir. 2010) (Tjoflat, J.,

concurring in the appeal and dissenting the cross-appeal)

(“[T]he district court necessarily abused its discretion when it

denied sanctions. That is, the violations are so clear that no

matter what rationale the district court might have had, it

abused its discretion when it denied sanctions.”); Rentz v.

Dynasty Apparel Indus., Inc., 556 F.3d 389, 400–03 (6th Cir.

2009) (concluding that the district court abused its discretion

for not ordering more severe sanctions because the amount of the

53 “token sanction” that was ordered was “insufficient to serve

Rule 11’s deterrent purposes”).

Rule 11(c)(1) provides, “If . . . the court determines that

Rule 11(b) has been violated, the court may impose an

appropriate sanction on any attorney, law firm, or party that

violated the rule or is responsible for the violation.” I agree

with the majority that we cannot order that the case be returned

to district court as a sanction; federal jurisdiction is not a

tool by which to ensure deterrence of future misconduct. But we

can compensate Colgate for any attorneys’ fees and costs that it

has amassed as a result of plaintiffs’ shifty positions. I

therefore would sanction the plaintiffs and their counsel by

ordering that plaintiffs pay Colgate’s attorneys’ fees and costs

for the following proceedings and any related filings: (1) the

original removal proceedings before Judge Nickerson and Judge

Quarles; (2) any proceedings in state court subsequent to

remand, including the hearing before Judge Glynn; (3) the

proceedings in the district court relating to Colgate’s motions

for sanctions; and (4) this appeal. Further, I would refer

plaintiffs’ counsel to the bars of any states in which they are

licensed to practice law.

B. Rule 60(b)(3) Relief

In Square Construction Co., this Court established a three-

pronged test for a moving party to obtain Rule 60(b)(3) relief:

54 the movant must (1) “demonstrate the existence of a meritorious

claim or defense”; (2) “prove the misconduct complained of by

clear and convincing evidence”; and (3) “demonstrate that such

misconduct prevented him from fully and fairly presenting his

claim or defense.” 657 F.2d at 71. “In consideration of these

proofs, the court must balance the competing policies favoring

the finality of judgments and justice being done in view of all

the facts, to determine, within its discretion, whether relief

is appropriate in each case.” Id. In analyzing these factors

as applied to this case, Colgate satisfies them all.

First, Colgate demonstrated the existence of a meritorious

defense to the remand orders, namely that the Maryland in-state

defendants were fraudulently joined. Colgate maintained this

position from the time that Colgate filed its notices of removal

in the respective state-court actions throughout this appeal.

(See, e.g., J.A. 30–31 (Notice of Removal in Barlow’s case); id.

at 39–40 (Notice of Removal in Mosko’s case); id. at 377–78

(Motion for Sanctions in Mosko’s case); id. at 530–31 (Motion

for Sanctions in Barlow’s case)); Colgate’s Opening Br. at 18.

And just as the district court in Schultz “observed that the

[meritorious defense] was a close question” but ultimately

denied the plaintiff’s Rule 60(b) motion, see 24 F.3d at 630,

the district court here similarly observed that plaintiff

counsel’s statements “appear to be in sharp conflict” and that

55 such conflict is “troubling,” (J.A. 1106), even though it

likewise denied Colgate’s motion.

Second, Colgate proved the misconduct complained of by

clear and convincing evidence. Although the burden belongs to

Colgate, the contradictory assertions contained in plaintiffs’

filings and the statements made by plaintiffs’ counsel speak for

themselves. See supra at 2–7. Moreover, as demonstrated above,

plaintiff counsel’s attempts to backpedal and cover their tracks

all but confirmed their prior misrepresentations. See supra

at 34–37.

Third, counsel’s misconduct prevented Colgate from fully

presenting its case as to federal jurisdiction. As noted above,

the plaintiffs’ alleged existence of evidence against the in-

state defendants is the precise and only reason that the

respective district judges granted plaintiffs’ motions for

remand. (See id. at 358, 368); supra at 7.

Lastly, any finality of the remand orders yields to

“justice being done in view of all of the facts.” Schultz, 24

F.3d at 630. The majority claims that the representations by

plaintiffs’ counsel on remand merely form a more “improved” and

“complete” record, ante at 13, 14; this is an understatement, to

put it lightly. In reality, the record on remand is starkly

different than the record put forth prior to remand. Apples and

oranges. Night and day. Although I agree that the district

56 court “‘has one shot, right or wrong,’ to decide whether a

removed case should be remanded,” ante at 11–12 (quoting Lowe,

102 F.3d at 735), this “one shot” must be based on an honest and

candid (i.e., accurate) representation of the facts and record.

Here, it was not, and the law provides a remedy to Colgate for

such misconduct. See, e.g., Schultz, 24 F.3d at 632 (reversing

denial of Rule 60(b)(3) motion for withholding key evidence);

see Square Constr. Co., 657 F.2d at 68 (vacating denial of

Rule 60(b)(3) motion and concluding that the district court’s

finding that evidence was not withheld was clearly erroneous).

For the reasons set forth above, I would vacate the denial

of Colgate’s Rule 60(b)(3) motion and remand the case for a

hearing in federal court regarding whether subject matter

jurisdiction over plaintiffs’ claims against Colgate exists

based on the facts as presented at the post-remand, state-court

hearing on plaintiffs’ motion for severance and consolidation.

IV.

It is a truly sad day for this Court to claim that a party

“failed” to make its case, ante at 13, and should be deprived of

a forum to which it is entitled when its adversary concealed or

otherwise obfuscated the information that would have allowed the

party to do so. Under this disquieting logic, the majority

would also claim that a person “fails” to compute the

circumference of a circle when that person is not provided with

57 the circle’s radius or diameter or the value of pi. This simply

cannot be the law, should not be the law, and is not the law.

Because the law is clear that remand does not deprive a

court of jurisdiction to sanction a party pursuant to Rule 11,

I would reverse the district court’s denial of Colgate’s Rule 11

motion. And because it would have been an abuse of discretion

to not sanction plaintiffs and their counsel, I would sanction

plaintiffs and their counsel as set forth above in Part III.A.

Furthermore, because vacatur of the remand orders does not

require “review” of the merits of those orders, I would reverse

the district court’s denial of Colgate’s Rule 60(b)(3) motion

for lack of jurisdiction. And because I think that Colgate has

met the criteria to obtain relief under Rule 60(b)(3) and that

it would have been an abuse of discretion to not grant relief to

Colgate, I would vacate the remand orders and remand the cases

with instructions as set forth above in Part III.B.

If honesty in the judicial system means anything, it means

proceeding with candor before the tribunal, which plaintiffs’

counsel did not do during the removal proceedings. Whatever

prolonging of this litigation vacatur of the remand orders might

cause, Barlow and Mosko have only their own lawyers to blame.

And the truth is well worth the delay.

Joyce Barlow v. Colgate Palmolive Company, (4th Cir. 2014).

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