Joyce Barlow v. Colgate Palmolive Company

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:12-cv-01780-WMN. [999347121]. [13-1839, 13-1840]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1839

JOYCE BARLOW,
Plaintiff - Appellee,
v.
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

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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

CLARA G. MOSKO,
Plaintiff - Appellee,
v.
COLGATE PALMOLIVE COMPANY,
Defendant – Appellant,
and
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
Electric Controller and Manufacturing Co.; FOSTER WHEELER
CORPORATION; THE WALLACE & GALE ASBESTOS SETTLEMENT TRUST;
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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,
Defendants.

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.

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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

jurisdiction
Corp.

v.

(2007).

and

Reliant
The

only
for

of

defects

Energy

removing

remands
in

for

removal

Services,

defendant

lack

in

of

subject-matter

procedure.”

Inc.,
this

551

U.S.

case,

Powerex

224,

the

229

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

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this case and affirm the order of the district court insofar as
it ruled that it lacked jurisdiction.
I.
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

citizenship,

asserting

defendants,

and

court

on

fraudulent

alleging

that

the

basis

joinder
the

of

as

diversity

to

the

plaintiffs’

of

in-state

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
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(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

“[a]ll

the

two

[plaintiffs]

cases

allege

because,

exposure

among
to

other

reasons,

asbestos-containing

Cashmere Bouquet powder products only and do not allege exposure
to any other asbestos, asbestos-containing products or asbestoscontaining 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

“attributable

to

the

alleged

different

misrepresentations

attorneys

in

markedly

it

was

were

different

litigation contexts.” J.A. 1108.
II.
On

appeal,

Colgate

contends

that

error

for

the

district court to rule that it did not have the authority to
consider
“whether

whether
such

plaintiffs’

misconduct

counsel

warrants

committed
relief

misconduct

from

the

and

Remand

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

authority

of

Civil

and

Rules

Procedure,

11

to

and

strike

60(b)(3)
the

of

remand

the

Federal

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.

construed

§

1447(c),

to

characterized”

the

preclude
as

for

lack

statute’s
review
of

of

prohibition
remands

subject-matter

has

been

“colorably

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
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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 subjectmatter 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
jurisdiction.

28

regarding
U.S.C.

§

the

existence

1447(d).

Put

of

subject-matter

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

8

etch

a

litigation-integrity

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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

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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
argument:

counters

the

federal

with

a

clever

statute

∗

but

prohibits

ultimately
“review”

misplaced
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).
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orders,
pursuant

but
to

Filed: 04/30/2014

a

“request

Rule

for

Pg: 11 of 58

vacatur

60(b)(3)

based

as
on

either

a

sanction

misrepresentations

or
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
counsel

court
for

should

allegedly

impose

a

sanction

misrepresenting

against

their

plaintiffs’

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

prohibition

on

an

review

attorney-misconduct
of

remand

orders

exception
would

be

to

contrary

the
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)
sweeps

(emphasis
collateral

added);

a

challenges

phrase
on

of

remand

such

breadth

orders

clearly

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

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should

be

Filed: 04/30/2014

remanded.

Lowe,

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102

F.3d

at

735

(alterations,

quotations, and citations omitted).
Even
U.S.C.

more

§

1447(d)

threshold
the

conclusive
–

to

nonmeritorious

argument

that

is

that

the

questions”

Congress

underlying

28

“prolonged

neutralize

policy

litigation

on

–

intended

weighs
to

strongly

carve

an

against

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

prohibition

acknowledged
creates

that

the

“undesirable

absolute

nature

consequences”

even

of
in

the
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
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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

district

the

merits,

court’s

ultimately

subsequent

requiring

remand

because

vacatur
the

of

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
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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-ofCircuit 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

indication

Oklahoma).
otherwise,

jurisdictional

statute

But

in

in

absence

of

will

“[w]e

the

not

ignore

reliance

upon

any

supposition

express
a

clear
of

what

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

Doc: 39

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Court

“[a]ppellate
seriously.”

at
courts

Id.

at

its

word

must
238.

Pg: 15 of 58

in

its

take
Thus,

[the

instruction

to

§

prescription

because

1447(d)]
remand

orders

us

are

that

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

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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.
I.

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.
provided

less

than

two

pages

of

facts

and

The majority

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
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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 asbestoscontaining 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

argues

that

fraudulent

exposed
her

to

asbestos

joinder

because

there

of

the

remains

1

at

RMR

in-state
a

Corporation:
defendants

possibility

that

“Barlow
was

not

she

was

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.

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exposed to asbestos while working at RMR Corporation[.] . . .
As a

result,

the

Court

finds

that

defendants here was not fraudulent[.]”

joinder

of

the

in-state

(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.)
court

(Judge

Based on the above representations, the district
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.
was improper.”

Therefore, removal

(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
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cases into a separate trial group.
opposed

this

motion

on

the

See supra note 1.

basis

that

all

Colgate

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.
reply

to

Colgate’s

opposition,

plaintiffs

made

the

In

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 asbestoscontaining
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

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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.

regarding

plaintiffs’

Judge

Glynn

federal

At the post-remand hearing in state court
motion

recognized

court

and

the

for

severance

and

bait-and-switch

admonished

plaintiffs’

consolidation,

that

occurred

counsel,

in

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?”
(Id.)

Counsel answered, “Yes.”

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 instate 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?

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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

severance and consolidation.

in

plaintiffs’

joint

motion

for

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

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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.
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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
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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.

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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

deprived

of

by

Colgate;

jurisdiction

to

“[T]he
resolve

district
the

court

collateral

was
issue

not
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
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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

collateral

action,

issues,

such

it

retained

as

the

the

power

to

appropriateness

of

determine
[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
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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

proceedings of any character[.]’”

entertaining

any

further

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
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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 is 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
request.
Leasing,

sua

sponte

or

pursuant

to

a

post-remand

motion

or

However, this Court’s subsequent decision in Anton
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.

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plaintiff’s] motion, and the district court granted [the] . . .
motion to remand and dismissed the case from the docket.
court awarded no costs or fees.”

Id.

The

Then, after remand, the

defendant filed a motion in the district court to transfer venue
to cure the lack of subject jurisdiction.
this

motion

and

again

district court awarded.

requested

The plaintiff opposed

attorneys’

fees,

which

the

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
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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

regardless

of

there

the

has

dismissal

been
of

a

the

violation
underlying

of

[Rule

action.”

11]
Id.

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

consider

pending.”);

collateral
see

also

issues

id.

at

after

398

an

(“The

action
filing

is
of

no

longer

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
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to

the

Pg: 31 of 58

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
Supreme

Sch.

Court

Fed.

has

Credit

long

held

Union,
that

473

a

F. App’x

district

804

court

(“The

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.
objection,
matter

the

district

jurisdiction

and

Id. at 132.

court

concluded

subsequently

Over the petitioner’s
that

granted

it

motion to dismiss for failure to state a claim.

the

had

subject

respondent’s

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
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petitioner appealed.
that

federal

Pg: 32 of 58

Id. at 133.

subject

matter

The appeals court determined

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.
that,

although

“[a]

final

Instead, the Court stated

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

misapprehension that it had jurisdiction.”

operated

under

Id. at 137.

the

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

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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.”
of

Felix Frankfurter, Some Reflections on the Reading

Statutes,

omitted)

47

(internal

Colum.

L.

quotation

Rev.
marks

527,

546

omitted).

(1947)

(citation

“[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,

“[U]nless

503

U.S.

249,

253–54
33

(1992).

otherwise

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defined, words will be interpreted as taking their ordinary,
contemporary, common meaning.”
U.S. 37, 42 (1979).

Perrin v. United States, 444

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
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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.
the

Aquamar

court,

this

Court

has

Indeed, and just like

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,

This Court

704

F.3d

should

not

327,

339

treat

(4th

this

Cir.

case

2013)

and

this

(Davis,
statute

J.).
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
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moved

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for

Filed: 04/30/2014

“reconsideration”—not

Id. at 732–33.

Pg: 36 of 58

vacatur—of

the

remand

order.

The district court granted the motion, and the

plaintiff petitioned this Court for a writ of mandamus.
at 733.

Id.

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

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did not).

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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
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orders themselves.
it

is

request

not

Pg: 38 of 58

Compare ante at 12 (“Colgate’s argument that

seeking

necessarily

‘review’

is

simply

incorrect

a

merits

review

requires

of

because
the

its

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,
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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

determination as to liability.”

have

altered

the

court’s

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]

district court's judgment[.]”).

be

sufficient

to

alter

the

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

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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

5

Green v. Foley, 856 F.2d

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’”).

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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
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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

at 230.

was

properly

Specifically,

removed
the

in

Court

the

first

held

that

instance.”
Ҥ

1447(d)

Id.
bars

appellate consideration of [Powerex Corp.]’s claim that it is a
foreign state for purposes of the FSIA.”
42

Id. at 239.

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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

Powerex merely

to

on

the

show

merits).
that

the

I

belabor

majority’s

the

details

quoting

here

of
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.

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

appeals

court

to

vacate

an

order

procured

by

fraudulent representations and attorney misconduct.
Powerex

does

anything,

it

underscores

the

alleged

Indeed, if

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

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In
courts’

sum,

Filed: 04/30/2014

nothing

interpretation

court’s remand orders.

in

the

Pg: 45 of 58

plain

thereof

language

of

vacatur

of

bars

§

1447(d)

the

or

district

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.,

Cir.

Inc.

v.

Geithner,

671

F.3d

391,

422

(4th

2011)

(Davis, J., dissenting) (“My good colleagues in the majority
hold that the Anti–Injunction Act strips us of jurisdiction in
this case.
As

I

reject

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

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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

counsel’s conduct is sanctionable,” (id.).
the

district

opportunity

court
to

were

brief

made

whether

after

convinced

that

These statements by

the

plaintiff

parties

had

counsel’s

the

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
46

held

that

it

lacked

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jurisdiction.
further

Pg: 47 of 58

Rather than remand the case which would entail

delay,

we

have

decided

in

the

interest

economy to reach the merits of this case.”).

of

judicial

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.
United

States

v.

Fenner,

147

F.3d

360,

363

(4th

Cir.

See
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.
Earthgrains

Co.

Bakery,

281

F.3d

144,

150

(4th

Hunter v.
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.

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A.

Pg: 48 of 58

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

Department of Agriculture,” (id. at 247).

to

asbestos

at

the

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.

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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],”

contention[s]” subject to Rule 11 sanctions.
Counsel

maintained

claiming

that

this

“[t]he

purported

fact

that

an

not

“factual

(Id. at 1070–71.)

distinction
attorney

on

calls

appeal,
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.
type

of

evidence

can,

Although I agree that characterizing the
at

times,

be

subject

to

some

legal

significance, I strongly disagree that a statement regarding the
existence

of

evidence—be

it

direct,

circumstantial,

other type—requires application of any law.

or

some

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

Appeal: 13-1839

Id.

Doc: 39

at

29

Filed: 04/30/2014

(emphasis

added

Pg: 50 of 58

on

all

“possibility” and the first “could”).

words

but

the

first

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.”
(emphases added).)

(J.A. 106, 247

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

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Pg: 51 of 58

that the Plaintiffs were exposed to asbestos in any form other
than Cashmere Bouquet.”
“Yes,

there

was

(J.A. 1092.)

some

evidence[,]”

Ms. Lilly then asserted,
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.
added).)

(J.A. 474 (emphasis

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

assume a contrary position[.]”

his

interests

have

changed,

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
51

down,

there

was

no

such

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evidence

in

Filed: 04/30/2014

state

advantageous

for

court

Pg: 52 of 58

when

the

reconsolidating

lack

of

any

plaintiffs’

evidence

cases

for

was

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

litigation contexts.”

attorneys

(J.A. 1106.)
52

in

markedly

different

As explained above, the

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fact

Doc: 39

that

Filed: 04/30/2014

different

irrelevant.

lawyers

Pg: 53 of 58

made

the

statements

is

wholly

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

counsel

knew

that

before
it

the

was

same

making

the

judge;

but

plaintiffs’

post-remand

before a different judge and in a different forum.

statements

When this is

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

to

ensure

the

fair

adjudication

of

claims

prior rulings that impacted those same claims.

based

on

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

abused

its

discretion

the
when

district
it

court

denied

might

have

sanctions.”);

had,

it

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
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Pg: 54 of 58

“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;
remand,

(2)

any

including

proceedings
the

in

hearing

state

before

court
Judge

subsequent
Glynn;

(3)

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

is

Pg: 56 of 58

“troubling,”

(J.A.

1106),

even

though

it

likewise denied Colgate’s motion.
Second,

Colgate

proved

the

clear and convincing evidence.

misconduct

complained

of

by

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

presenting its case as to federal jurisdiction.

from

fully

As noted above,

the plaintiffs’ alleged existence of evidence against the instate

defendants

respective
remand.

is

district

the

precise

judges

and

granted

only

reason

plaintiffs’

that

the

motions

for

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

Lastly,

any

finality

of

the

remand

orders

“justice being done in view of all of the facts.”
F.3d at 630.

yields

to

Schultz, 24

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.
oranges.

Night and day.

Apples and

Although I agree that the district
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Doc: 39

“‘has

Filed: 04/30/2014

one

shot,

right

Pg: 57 of 58

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

jurisdiction

federal
over

court

regarding

plaintiffs’

claims

whether

subject

matter

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.
would

also

claim

Under this disquieting logic, the majority
that

a

person

“fails”

to

compute

the

circumference of a circle when that person is not provided with
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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.

58