Joyce Barlow v. Colgate Palmolive Company

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:12-cv-01780-WMN. [999481852]. [13-1839, 13-1840]

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 1 of 40

ON REHEARING EN BANC
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,

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 2 of 40

LLC, individually and as successor to Bestwall Gypsum Co.;
FOSTER WHEELER CORPORATION; THE WALLACE & GALE ASBESTOS
SETTLEMENT TRUST; CONWED CORPORATION; GENERAL ELECTRIC
COMPANY; 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
2

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 3 of 40

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

September 18, 2014

Decided:

November 25, 2014

Before NIEMEYER, KING, SHEDD, DUNCAN, WYNN, DIAZ, and FLOYD,
Circuit Judges, and DAVIS, Senior Circuit Judge.

Reversed and remanded by published opinion.
Judge Floyd wrote
the opinion, in which Judges Niemeyer, King, Shedd, Duncan, and
Diaz joined. Judge Wynn wrote a separate opinion concurring in
part and dissenting in part.
Senior Judge Davis wrote a
dissenting opinion.

ARGUED: Faith Elizabeth Gay, QUINN, EMANUEL, URQUHART &
SULLIVAN, LLP, New York, New York, for Appellant. Jeffrey John
Utermohle, LAW OFFICES OF PETER G. ANGELOS, Baltimore, Maryland,
for Appellees.
ON BRIEF: Thomas P. Bernier, SEGAL MCCAMBRIDGE
SINGER & MAHONEY, Baltimore, Maryland; William B. Adams, QUINN
EMANUEL URQUHART & SULLIVAN, LLP, New York, New York, for
Appellant.
Jennifer L. Lilly, Thomas Kelly, Craig Silverman,
LAW OFFICES OF PETER G. ANGELOS, Baltimore, Maryland, for
Appellees.

3

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 4 of 40

FLOYD, Circuit Judge:
This

appeal

involves

the

interplay

between

28

U.S.C.

§ 1447(d), which prohibits federal courts from reviewing orders
remanding

cases

Procedure

11

to

and

state

court,

60(b)(3),

and

which

Federal

provide

Rules

means

of

for

Civil

federal

courts to remedy and deter the perpetration of fraud on the
courts.

Despite strong evidence that the plaintiffs in these

consolidated

actions

misrepresented

their

intent

to

pursue

claims against certain defendants, the lower court found that
§ 1447(d) deprived it of jurisdiction to either impose certain
sanctions under Rule 11 or afford relief under Rule 60(b)(3).
Because

we

conclude

that

using

these

rules

to

safeguard

the

courts from fraud does not amount to the “review” proscribed by
§ 1447(d), we reverse.

I.
A.
This action arises from asbestos litigation brought by two
individuals in Maryland state court.

Plaintiffs Joyce Barlow

and Clara Mosko separately sued Colgate–Palmolive Company--among
numerous

other

companies 1--and

asserted

that

each

of

the

defendants’ products had at some point exposed them to asbestos.
1

Barlow named 23 defendants. (J.A. 47-53.)
defendants. (Id. at 56-65.)
4

Mosko named 36

Appeal: 13-1839

As

to

Doc: 76

Colgate,

“Cashmere
harmful

Filed: 11/25/2014

Plaintiffs’

Bouquet”

levels

line

of

Pg: 5 of 40

theory

of

powder

asbestos

and

was

that

makeup

had

the

company’s

products

contained

thereby

contributed

to

Plaintiffs’ health problems.
Despite Plaintiffs’ joinder of in-state defendants, Colgate
removed the two cases to federal court on the basis of diversity
of

citizenship--asserting

fraudulent

joinder

of

the

in-state

defendants, and alleging that Plaintiffs’ deposition testimony
and

interrogatory

intend

to

pursue

responses
a

claim

demonstrated
against

any

that

they

defendant

did

other

not
than

Colgate, a diverse defendant. 2

2

A federal court has subject-matter jurisdiction to hear a
case if (1) “the matter in controversy exceeds the sum or value
of $75,000” and (2) there is complete diversity among defendants
and plaintiffs. 28 U.S.C. § 1332(a); Turner v. JP Morgan Chase
Bank, N.A., 543 F. App’x 300, 301 (4th Cir. 2013) (per curiam).
If a case meets these conditions, but a plaintiff files suit in
state court, defendants may remove a case to federal court. See
28 U.S.C. § 1446. “[I]t is difficult for a defendant to remove
a case if a nondiverse defendant has been party to the suit.”
Turner, 543 F. App’x at 301 (citation and brackets omitted). A
defendant may accomplish this, however, through the doctrine of
fraudulent joinder, which allows a district court to disregard
the citizenship of certain nondiverse defendants and assume
jurisdiction.
Id. (citation omitted).
“[T]o establish that a
nondiverse defendant has been fraudulently joined, the removing
party must establish either: [A] that there is no possibility
that the plaintiff would be able to establish a cause of action
against the in-state defendant in state court; or [B] that there
has been outright fraud in the plaintiff’s pleading of
jurisdictional facts.” Id. (citation omitted).
5

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 6 of 40

Plaintiffs’ counsel 3 then moved to remand the cases to state
court, arguing that Plaintiffs had viable claims against the
non-diverse

defendants.

In

a

motion

for

remand

in

Barlow’s

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

106.)

In

support,

Barlow’s

counsel

cited

Barlow’s

statement to a physician on or about June 21, 2011, that she
“may have been” exposed to asbestos while working the assembly
lines

of

RMR

Corporation. 4

(Id.

at

96,

145.)

Although

Plaintiffs’ counsel admitted that the evidence of liability was
3

We use “Plaintiffs’ counsel” to refer to both Barlow’s
attorney and Mosko’s attorney because their attorneys are the
same person, or at least hail from the same law firm.
See
Restatement (Third) of the Law – The Law Governing Lawyers § 14
cmt. h (2000) (“When a client retains a lawyer [who is part of a
law firm], the lawyer’s firm assumes the authority and
responsibility
of
representing
that
client,
unless
the
circumstances indicate otherwise.”).
Different attorneys from
the Law Offices of Peter G. Angelos represented Barlow and Mosko
at different stages of litigation: 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 consolidation of their cases into a trial group.
4

Barlow
later
contradicted
this
statement
at
her
deposition, where she admitted that she did not believe that she
was “exposed to asbestos at any time as a result of [her]
employment at RMR Corporation” and that the information she
relayed to her physician was based on gossip, rumor, and
hearsay. (J.A. 131, 133, 137.)
6

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 7 of 40

hardly “unequivocal,” counsel maintained that Barlow’s testimony
showed

“that

there

is

a

possibility

that

Ms. Barlow

could

successfully pursue a claim against the non-diverse defendants.”
(Id. at 114.)
Based

on

the

above

representations,

the

district

court

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

The

district

was

court

relied

solely

on

the

claim

that

Barlow

exposed to asbestos at RMR Corporation: “Barlow argues that her
joinder of the in-state defendants was not fraudulent because
there remains a possibility that she was exposed to asbestos
while working at RMR Corporation . . . .
finds

that

joinder

fraudulent . . . .”

of

the

in-state

As a result, the Court

defendants

here

was

not

(Id. at 367-68.)

Similarly, in Mosko’s case, Plaintiffs’ counsel represented
that she may have a viable claim against at least one of the
non-diverse defendants:
[I]t 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 Ms. Mosko may
have
been
exposed
to
asbestos
at
the
Department of Agriculture in the form of
invoices [from an in-state defendant, Walter
E. Campbell Co., Inc.].

7

Appeal: 13-1839

Doc: 76

(Id. at 247.)

Filed: 11/25/2014

Pg: 8 of 40

Based on the above representations, 5 the district

court (Judge Quarles) found a possibility that Ms. Mosko could
successfully pursue a claim against the non-diverse defendants
and remanded Mosko’s case to state court.

(Id. at 351-61.)

In

doing so, 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 in the DOA building.
was improper.”

Therefore, removal

(Id. at 358-59.)

B.
Shortly after returning to state court, Plaintiffs filed a
joint motion to consolidate their cases with two other asbestosrelated cases. 6
could

not

receive

Colgate opposed the motion, arguing that it
a

fair

trial

in

a

consolidated

proceeding

because the alleged sources of asbestos (other than Cashmere
Bouquet) were too different among the cases.

5

In a reply brief,

Plaintiffs’ counsel made these statements despite Mosko
admitting at a deposition on May 29, 2012, that she did not
believe that she was exposed to asbestos while working at the
Department of Agriculture.
6
The district court handed down remand orders in Mosko’s and
Barlow’s cases on September 21, 2012, and November 1, 2012,
respectively.
The joint motion was filed eight days after the
remand in Barlow’s case.
8

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 9 of 40

Plaintiffs made the following statements, which contradict their
representations to the federal district court judges:
[Plaintiffs] allege exposure to asbestoscontaining Cashmere Bouquet powder products
only and do not allege exposure to any other
asbestos, asbestos-containing products or
asbestos-containing dust in any other form.
. . . 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 review because each of
the Plaintiffs were exposed, in their homes,
to
asbestos-containing
Cashmere
Bouquet
only. . . . The occupations or worksites of
the
Plaintiffs
should
not
affect
the
consolidation of these cases for trial
because not one of the Plaintiffs testified
that they were exposed to asbestos as a
result of their employment. . . . 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).)
At a hearing on Plaintiffs’ consolidation motion, the state
court

judge

told

Plaintiffs’

counsel,

“I

can’t

believe

you

actually told Judge Nickerson and Judge Quarles one thing and
tell me another.”

(Id. at 494.)

The judge then posed the

following

to

counsel:

question

defendant case, right?”

Plaintiffs’

“It

Counsel answered, “Yes.”

9

is

(Id.)

a

one-

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 10 of 40

C.
After
district

the

post-remand

court

for

misrepresentations.

hearing,

relief

Colgate

from

moved

Plaintiffs’

in

the

purported

Specifically, Colgate sought relief under

Rule 11 of the Federal Rules of Civil Procedure and asked that
the district court sanction Plaintiffs’ attorneys by imposing
monetary

penalties,

referring

awarding

any

relief

appropriate.

other
The

nearly

them

that

to

the

identical

the

state

district

motions

bar,

court

in

and

deemed

Barlow’s

and

Mosko’s separate cases were consolidated before Judge Nickerson.
A

hearing

was

held

on

these

motions,

at

which

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.

not

“factual

(Id. at 1070–71.)

Post-hearing, Colgate moved for relief under Rule 60(b)(3) as a
supplement

to

its

Rule

11

motions.

In

its

Rule

60(b)(3)

motions, Colgate sought vacatur of the remand orders.
On
motions.

June

26,

2013,

Judge

(Id. at 1107, 1109.)

Nickerson

“denied”

Colgate’s

Although the district court

characterized the allegations in the motions as “substantial”
and acknowledged that the different statements by Plaintiffs’
counsel “appear to be in sharp conflict,” the court concluded
that 28 U.S.C. § 1447(d) deprived it of jurisdiction to vacate
or strike its remand orders.

(Id. at 1106, 1108.)
10

The district

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 11 of 40

court further stated that “[w]ere the Court to consider other
possible sanctions, it would decline to impose them.”
was

“not

because

convinced

the

that

alleged

counsel’s

conduct

misrepresentations

were

is

(Id.)

It

sanctionable”

“attributable

to

different attorneys in markedly different litigation contexts.”
(Id.)

This appeal followed. 7

II.
We

review

determination

questions
of

its

of

law,

including

subject-matter

a

lower

jurisdiction,

de

court’s
novo.

Trans Energy, Inc. v. EQT Prod. Co., 743 F.3d 895, 900 (4th Cir.
2014); Lontz v. Tharp, 413 F.3d 435, 439 (4th Cir. 2005).

We

review a district court’s decision on Rule 11 and Rule 60(b)(3)
motions for an abuse of discretion.

Hunter v. Earthgrains Co.

Bakery, 281 F.3d 144, 150 (4th Cir. 2002) (stating the standard
of review for Rule 11 motions); Green v. Foley, 856 F.2d 660,
665 (4th Cir. 1988) (stating the standard of review for Rule
60(b) motions).

7

The original panel consisted of Judge Davis, Judge Floyd,
and Judge Cogburn, United States District Judge for the Western
District of North Carolina, sitting by designation. A majority
affirmed the district court’s determination “insofar as it ruled
that it lacked jurisdiction.” Barlow v. Colgate Palmolive Co.,
750 F.3d 437, 440 (4th Cir. 2014). On June 5, 2014, the Court
granted Colgate’s petition for rehearing en banc.
11

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 12 of 40

III.
This

appeal

concerns

whether

a

district

court

retains

jurisdiction to issue sanctions under Rule 11 and to vacate a
remand order under Rule 60(b)(3) following remand of the case to
the state court.
assess

the

The propriety of such relief requires us to

interplay

between

these

rules

and

28

U.S.C.

§ 1447(d).

A.
The

federal

removal

statute

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).
a

remand

order

if

This statute generally precludes review of
the

remand

is

for

lack

of

subject-matter

jurisdiction or for defects in the removal procedure.

Powerex

Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 229, 234
(2007).

For example, a district court may not review--pursuant

to a motion for reconsideration--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.
12

Appeal: 13-1839

1996).

Doc: 76

Filed: 11/25/2014

Review

is

prohibited,

Pg: 13 of 40

moreover,

“even

order is ‘manifestly, inarguably erroneous.’”

if

the

remand

In re Blackwater

Sec. Consulting, LLC, 460 F.3d 576, 582 (4th Cir. 2006) (quoting
Mangold v. Analytic Servs., Inc., 77 F.3d 1442, 1450 (4th Cir.
1996) (Phillips, J., concurring)).

This strict treatment serves

the purposes of comity and judicial economy, as an action “must
not

ricochet

back

and

forth

depending

determination of a federal court.”

upon

the

most

recent

Three J Farms, Inc. v. Alton

Box Bd. Co., 609 F.2d 112, 115 (4th Cir. 1979) (quoting In re La
Providencia Dev. Corp., 406 F.2d 251, 252 (1st Cir. 1969)).
This Circuit has recognized three exceptions to § 1447(d)’s
limit on reviewing remand orders: (1) when the remand was not
based on a determination either that the court lacked subjectmatter jurisdiction or that there was a defect in the removal
procedure; (2) when the review is of a “collateral decision that
is [logically and factually] severable from the remand order”
and that had a “conclusive effect upon the parties’ substantive
rights”; and (3) when the district court exceeds the scope of
its authority in issuing a remand order.
Consulting,

LLC,

460

exceptions apply here.

F.3d

at

582-83,

In re Blackwater Sec.
586.

None

of

these

First, the remand orders were explicitly

based on a determination that the district court lacked subjectmatter

jurisdiction.

Second,

the

remand

orders

had

“conclusive effect” on the parties’ substantive rights.
13

no
And

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 14 of 40

third, no party contends that the district court exceeded its
authority.
Nevertheless,

as

discussed

below,

the

types

of

relief

provided by Rule 11 and Rule 60(b)(3) do not involve “review” as
proscribed by § 1447(d).

Accordingly, Colgate’s motions never

implicated § 1447(d) in the first instance.

B.
Rule

11(b)

sanctions

for

submit

filing

a

specifically

authorizes

misrepresentations.
in

good

faith

It

and

courts

requires

without

to

impose

attorneys

knowledge

of

to
the

falsity of its contents:
By presenting to the court a pleading,
written motion, or other paper . . . an
attorney . . . certifies that to the best of
the person’s knowledge, information, and
belief . . . (1) it is not being presented
for any improper purpose . . . [and] (3) 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).

If a 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,”

Fed.

R.

Civ.

P.

11(c)(1),

although the sanction “must be limited to what suffices to deter

14

Appeal: 13-1839

Doc: 76

repetition

of

Filed: 11/25/2014

the

conduct

or

Pg: 15 of 40

comparable

conduct

by

others

similarly situated,” Fed. R. Civ. P. 11(c)(4).
The Rule 11 jurisdictional issue before us involves two
similar but distinct questions: (1) whether a district court
retains
action

jurisdiction
to

state

to

court

impose
and

(2)

sanctions
whether

after

an

remanding

appeals

court

an
can

review a district court’s determination regarding the imposition
of sanctions in such a circumstance.

As set forth below, we

answer both questions in the affirmative.
The Supreme Court itself has spoken on these issues.

In

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 389-90 (1990),
the district court granted the defendants’ Rule 11 motion more
than three years after the plaintiff had voluntarily dismissed
the case.

On appeal, the Supreme Court stated that “a voluntary

dismissal does not expunge the Rule 11 violation,” and “a court
must have the authority to consider whether there has been a
violation

of

[Rule

underlying action.”

11]

regardless

Id. at 395.

of

the

dismissal

of

the

The Court noted that “[i]t is

well established that a federal court may consider collateral
issues after an action is no longer pending” and that “[t]he
filing of complaints, papers, or other motions without taking
the necessary care in their preparation is a separate abuse of
the judicial system, subject to separate sanction.”
398.
15

Id. at 395,

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 16 of 40

Two years later the Court reached a similar conclusion in
Willy v. Coastal Corp.:
[Although a] final determination of lack of
subject-matter jurisdiction of a case in a
federal
court
. . .
precludes
further
adjudication
of
it[,]
. . .
such
a
determination does not automatically wipe
out all proceedings had in the district
court at a time when the district court
operated under the misapprehension that it
had jurisdiction.
503 U.S. 131, 137 (1992).

Citing Cooter & Gell, the Court

reiterated that Rule 11 sanctions are “collateral to the merits”
of

an

action

procedure

and

obeyed

determination

on

. . .

that

jurisdiction.”
relied

that

“[t]he
does

the

interest

not

court

Willy,

along

with

disappear
was

Id. at 137, 139.

in

having
upon

without

a

rules

of

subsequent

subject-matter

Several appeals courts have

Cooter

&

Gell,

in

holding

that

district courts maintain jurisdiction after remand to order Rule
11 sanctions.

E.g., Bryant v. Britt, 420 F.3d 161, 164 (2d Cir.

2005) (per curiam) (citing Willy, 503 U.S. at 137-38); Lazorko
v. Pa. Hosp., 237 F.3d 242, 247 (3d Cir. 2000) (citing Willy,
503 U.S. at 139).
This Court’s own caselaw is in accord.
Inc.

v.

Engram,

the

district

court

granted

In Anton Leasing,
the

plaintiff’s

motion to remand the case to state court for failure to remove
the case to the proper venue.

846 F.2d 69, at *1 (4th Cir.

1988) (per curiam) (unpublished table decision).
16

Prior to the

Appeal: 13-1839

Doc: 76

remand,

the

Filed: 11/25/2014

plaintiff

Pg: 17 of 40

requested

costs

and

fees.

Id.

The

defendant “failed to respond to [the plaintiff’s] motion, and
the district court granted [the] motion to remand and dismissed
the case from the docket.

The court awarded no costs or fees.”

Id.
Then--after

remand--the

defendant

filed

a

motion

in

district court to transfer venue to cure his prior error.

the
Id.

The plaintiff opposed this motion and again requested attorney’s
fees, which the district court awarded.

Id.

The defendant

appealed.

that

although

On

appeal,

this

Court

held

“the

district court was without jurisdiction to rule on the transfer
motion, . . . the court had jurisdiction to review the [postremand] 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. v. Solis, 820 F.2d 674, 679-80 (5th Cir. 1987) (both Rule 11
cases)).
As

these

cases

demonstrate--and

as

we

reiterate

here--

district courts have jurisdiction to decide Rule 11 sanctions
motions

on

the

merits,

even

when

17

they

are

filed

after

the

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 18 of 40

underlying action is remanded to state court.

It is unclear

whether the district court in this case recognized as much. 8
After declining to vacate the remand orders, the district
court continued that it would deny relief “[w]ere the Court to
consider other possible sanctions.”

(J.A. 1106, 1108.)

This

statement implicitly acknowledges that the court was not making
a determination on the merits in regard to sanctions other than
vacatur, but the orders fail to explicitly state why.

On one

hand, it appears that the court thought that Colgate sought only
vacatur.

Thus, the district court would naturally treat its

consideration of other sanctions as only hypothetical--knowing
that it would have jurisdiction to consider such sanctions if
they were sought.

On the other hand, one can construe the

discussion as controlled by the district court’s determination
in the directly preceding paragraph that it lacked jurisdiction
to afford relief under § 1447(d).
opaquely

saying

that

if

it

In other words, the court was

“were”

to

have

jurisdiction

to

consider Rule 11 sanctions, it would decline to issue any.
8

Although the district court’s reasoning in denying the
motions is somewhat opaque, one aspect of the orders is clear:
the district court declined vacating the remand orders as a Rule
11 sanction.
(J.A. 1106-09.)
Indeed, there is no basis in
using Rule 11 as a means to vacate a remand order and to return
a case to federal court. Cf. Fed. R. Civ. P. 11(c)(4) (listing
possible sanctions, none of which include striking an order); 5A
Charles Alan Wright et al., Federal Practice and Procedure
§ 1336.3 (3d ed. 2004) (discussing the variety of permitted
nonmonetary sanctions under Rule 11).
18

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 19 of 40

Ultimately, however, why the district court denied other
Rule 11 sanctions is not dispositive to this appeal’s outcome.
Because we reverse the orders for erroneously holding that the
court

lacked

jurisdiction

to

consider

Rule

60(b)(3)

motions,

infra Part III.C, we simply remand the cases for reconsideration
of Colgate’s motions in full and in light of this opinion, see
infra Part IV.

C.
We further find that § 1447(d) does not limit a court’s
authority to provide relief--in this case, through vacatur--from
a

fraudulently

Critically,
does

not

obtained

§ 1447(d)
prohibit

Rule 60(b)(3).

remand

prohibits

order

“reviewing”

“vacating”

This

under

an

distinction

order
is

not

an
as

Rule 60(b)(3).
order,

but

permitted

merely

it
by

semantic.

Rather, as several fundamental tenets of statutory construction
demonstrate, it is a distinction with an important difference.
Felix Frankfurter, Some Reflections on the Reading of Statutes,
47 Colum. L. Rev. 527, 546 (1947) (“Exactness in the use of
words

is

the

basis

of

all

serious

thinking.”

(citation

omitted)); Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54
(1992) (“[C]ourts
statute

what

there.”);

it

Perrin

must
means
v.

presume
and

United

that

means

in

States,
19

a

legislature

a

statute

444

U.S.

says

what
37,

42

in

it

a

says

(1979)

Appeal: 13-1839

Doc: 76

(“[U]nless

Filed: 11/25/2014

otherwise

defined,

Pg: 20 of 40

words

will

be

interpreted

as

taking their ordinary, contemporary, common meaning.”).
Rule 60(b)(3) provides that a court “may relieve a party”
from a “final judgment, order, or proceeding” for “fraud . . . ,
misrepresentation, or misconduct by an opposing party.”

Rather

than assess the merits of a judgment or order, it focuses on the
unfair means by which a judgment or order is procured.

Schultz

v. Butcher, 24 F.3d 626, 631 (4th Cir. 1994); see also Gonzalez
v.

Crosby,

545

U.S.

524,

532

(2005)

(distinguishing

a

Rule

60(b)(3) motion as not attacking “the substance of the federal
court’s resolution of a claim on the merits, but some defect in
the integrity of the federal habeas proceedings”).
We

conclude

that

Colgate

seeks

vacatur

based

on

a

collateral consideration--Colgate’s allegation that the remand
orders were procured through attorney misconduct--rather than on
the

remands’

merits.

In

doing

so,

we

adopt

the

Eleventh

Circuit’s well-reasoned analysis in Aquamar S.A. v. Del Monte
Fresh

Produce

N.A.,

Inc.,

179

F.3d

1279

(11th

Cir.

1999).

There, the Eleventh Circuit correctly recognized that vacatur of
a

remand

order

does

not

necessarily

review of a remand decision.
vacatur

may

be

“reconsideration;

available
second

constitute

Id. at 1288.
even

view

when
or

a

proscribed

This is because

review

(defined

examination;

revision;

consideration for purposes of correction”) is precluded.
20

as

Id.

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 21 of 40

(citing U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S.
18,

22–23

1990)).

(1994),

and

Black’s

Law

Dictionary

1320

(6th

ed.

Thus, if a court vacates an order for “reasons that do

not involve a reconsideration or examination of its merits,”
then there is no review of the order, and a court does not run
afoul

of

§ 1447(d)’s

prohibition

on

review.

Id.;

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).”).
Admittedly,

three

circuits--in

unpublished

opinions--have

ruled that § 1447(d) deprives courts of jurisdiction to afford
relief under Rule 60(b)(3). 9

Wachovia Mortg. FSB v. Marquez, 520

F. App’x 783, 785 (11th Cir. 2013) (per curiam); Ysais v. Ysais,
372 F. App’x 843, 844 (10th Cir. 2010); Lindo v. Westlake Dev.
Co., 100 F.3d 963, at *1 (9th Cir. 1996).

9

None of these non-

Besides these decisions from our sister circuits, two
district courts have ruled on the issue, finding that they
lacked jurisdiction to grant relief under Rule 60(b)(3)-determinations apparently influenced by the lack of binding
precedent on this specific issue, in the face of a bounty of
cases applying § 1447(d) in other contexts.
See Omi’s Custard
Co. v. Relish This, LLC, No. 04-cv-861-DRH, 2006 WL 2460573, at
*2-3 (S.D. Ill. Aug. 24, 2006) (noting the lack of precedent on
the issue and concluding that relief is barred); Consol. Doors,
Inc. v. Mid-America Door Co., 120 F. Supp. 2d 759, 764-66 (E.D.
Wis. 2000) (declining “to adopt a novel interpretation” of Rule
60(b) in ruling on the party’s “motions for reconsideration”
under subsections (2) and (3)).
21

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 22 of 40

binding, unpublished opinions are persuasive, however.

Simply

put, those opinions--with minimal analysis and in the context of
appeals brought by pro se litigants--failed to consider what
relief

under

Rule

60(b)(3)

can

entail:

vacatur

based

on

contaminated process, not review of a motion’s merits. 10

a

See

Gonzalez, 545 U.S. at 532; Schultz, 24 F.3d at 631.
Our prior decision in In re Lowe, 102 F.3d at 735, is
similarly inapposite.

In Lowe, the district court remanded the

case due to lack of complete diversity between the parties, and
the defendants moved for “reconsideration”--not vacatur--of the
remand order.

Id. at 732–33.

The district court granted the

motion, and the plaintiff petitioned this Court for a writ of
mandamus.
in

the

Id. at 733.

appeal

as

This Court framed the “principal issue”

“whether

the

district

court

exceeded

jurisdiction when it reconsidered its remand order.”

10

its

Id. at

Although a handful of other appellate decisions have
found that motions filed under different subsections of Rule
60(b) ask for impermissible review, those decisions are
irrelevant here because their pertinent subsections do not focus
on the means by which a remand order is obtained. See Bender v.
Mazda Motor Corp., 657 F.3d 1200, 1202, 1204 (11th Cir. 2011)
(affirming the lower court’s denial of a Rule 60(b)(6) motion);
Hood v. Allstate Ins. Co., 67 F. App’x 248, at *1-3 (5th Cir.
2003) (per curiam) (dismissing an appeal of a denied motion to
vacate under Rule 60(b)(4)); Lucisano v. Lucisano, 216 F.3d
1072, at *1 (2d Cir. 2000) (dismissing an appeal of an order
denying relief under an unspecified subsection of Rule 60(b));
Polyak v. Hulen, 898 F.2d 154, at *1 (6th Cir. 1990) (finding
that jurisdiction could not be “reinvest[ed]” in the district
court under Rule 60(b)(2)).
22

Appeal: 13-1839

733-34

Doc: 76

Filed: 11/25/2014

(emphasis

added).

“[i]ndisputably,

Pg: 23 of 40

This

Court

‘otherwise’

then

in

determined

§ 1447(d)

reconsideration by the district court.”

that,

includes

Id. at 734 (emphasis

added).
Lowe

is

consistent

with

several

factually

similar

cases

(that is, cases in which a party asked for reconsideration of a
remand order), all of which were correctly decided in view of
§ 1447(d)’s

bar

on

“review.”

See,

e.g.,

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 did not).
The

actions

before

the

Court

today,

however,

are

not

controlled by Lowe.

Unlike in Lowe, Colgate requests vacatur,

not reconsideration.

And unlike reconsideration, vacatur does

not require reassessing the facts that were presented to the
district court at the time the cases were removed.

See Aquamar

S.A., 179 F.3d at 1288; Tramonte, 136 F.3d at 1028.

Again,

Colgate only argues that Plaintiffs’ counsel misrepresented the
actual facts of the case.

Colgate therefore attacks the manner

23

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 24 of 40

by which Plaintiffs secured the remand orders, not the merits or
correctness of the orders themselves.
In
courts’

sum,

nothing

in

interpretation

the

plain

thereof

language

of

vacatur

of

bars

§

1447(d)

the

or

district

court’s remand orders if the court determines that such relief
is

warranted.

Although

reconsideration

is

a

subspecies

of

review, see In re Lowe, 102 F.3d at 733–34, vacatur, without
revisiting

a

prior

order’s

merits,

is

no

such

cousin

or

relative.

IV.
Because

the

district

court

had

jurisdiction

to

consider

Colgate’s motions, it should have resolved the motions on their
merits.

A

cursory

reading

of

the

court’s

orders,

perhaps,

suggests that it did just that.
In

“den[ying]”

apparently

Colgate’s

determined--in

a

motions, 11
hypothetical

the

district

context

in

court
which

jurisdiction was assumed--that “it would decline [to vacate the
remand orders and] to impose [other possible sanctions].”
1106-09.)

(J.A.

This purported determination was based on the court’s

recognition that the statements at issue “are attributable to
11

The court “denied” all of Colgate’s motions, including
the Rule 60(b)(3) motions that it technically should have
“dismissed” based on the court’s determination that it lacked
jurisdiction. (J.A. 1107, 1109.)
24

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 25 of 40

different attorneys in markedly different litigation contexts.”
(Id. at 1106, 1108.)

Thus, the court was “not convinced that

counsel’s conduct is sanctionable.”

(Id.)

Given the district

court’s misconception that it lacked jurisdiction to give full
consideration to the merits of the Rule 60(b)(3) motions (and
possibly the Rule 11 motions, supra Part III.B), we give no
weight to the court’s supposed determination.

Indeed, pursuant

to our discussion supra Part III.B, it was mere dicta.
On remand, the district court is directed to make specific
findings--supported by cogent reasoning--on whether Plaintiffs
engaged in misconduct while in federal court and whether Rule 11
relief is warranted.

Given the district court’s familiarity

with the issues and litigants, it is better situated than us “to
marshal the pertinent facts and apply the fact-dependent legal
standard mandated by Rule 11.”
In

making

these

Cooter & Gell, 496 U.S. at 402.

determinations,

the

district

court

should

provide more analysis than that included in the orders’ dicta,
which would be too perfunctory to merit meaningful review.

Cf.

United States v. Engle, 592 F.3d 495, 503-04 (4th Cir. 2010)
(remanding a case for new sentencing because the district court
failed to give an adequate explanation for its determination).
As

with

the

motions require

a

Rule

11

showing

motions,
of

Colgate’s

misconduct

25

by

the

Rule

60(b)(3)

other

party,

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

among other things. 12

Pg: 26 of 40

See Square Constr. Co. v. Wash. Metro.

Area Transit Auth., 657 F.2d 68, 71 (4th Cir. 1981).

For the

same reasons stated supra, the lower court, familiar with the
facts and parties, is better suited to make this determination.

12

One additional requirement is a showing that the movant
had a “meritorious claim or defense.”
Square Constr. Co. v.
Wash. Metro. Area Transit Auth., 657 F.2d 68, 71 (4th Cir.
1981). We acknowledge that courts most often use Rule 60(b)(3)
to relieve a party of a determination on a case’s substantive
grounds.
Indeed, other circuits’ standards for relief under
Rule 60(b)(3) reflect such a focus by entailing an inquiry into
the probable effect of misconduct on presenting one’s “case” or
proceeding at trial.
See, e.g., State St. Bank & Trust Co. v.
Inversiones Errazuriz Limitada, 374 F.3d 158, 176 (2d Cir. 2004)
(“To prevail on a Rule 60(b)(3) motion, a movant ‘must show that
the conduct complained of prevented the moving party from fully
and fairly presenting his case.’” (citation omitted)); Venson v.
Altamirano, 749 F.3d 641, 651 (7th Cir. 2014) (“The party
seeking relief pursuant to Rule 60(b)(3) must show that he had a
meritorious claim that he could not fully and fairly present at
trial due to his opponent’s fraud, misrepresentation, or
misconduct.”); Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d
1281, 1290 (10th Cir. 2005) (“[T]he challenged behavior must
substantially have interfered with the aggrieved party’s ability
fully and fairly to prepare for and proceed at trial.” (citation
omitted)); Cox Nuclear Pharmacy, Inc. v. CTI, Inc., 478 F.3d
1303, 1314 (11th Cir. 2007) (“[T]he moving party must show that
the conduct prevented the losing party from fully and fairly
presenting his case or defense.” (brackets and citation
omitted)); In re Hope 7 Monroe St. Ltd. P’ship, 743 F.3d 867,
875 (D.C. Cir. 2014) (“[T]he movant must show the misconduct was
prejudicial, foreclosing the ‘full and fair preparation or
presentation of its case.’” (citation omitted)).
Nowhere,
however, do the Federal Rules of Civil Procedure or our
precedent limit Rule 60(b)(3)’s applicability to judgments on a
case’s merits. Although we decline to explore the full breadth
of Rule 60(b)(3), we simply note that it applies to the present
situation, in which a party alleges that misconduct prevented it
from fully and fairly presenting its “claim” of entitlement to a
federal forum.
Cf. Black’s Law Dictionary 301 (10th ed. 2014)
(defining a “claim” as “[t]he assertion of an existing right”).
26

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 27 of 40

Therefore, we remand the cases to the district court to decide
Colgate’s

Rule

60(b)(3)

motions

and

whether

vacatur

of

the

remand orders is warranted.

V.
The district court’s orders are reversed.

The cases are

remanded for the district court to rule on Colgate’s Rule 11 and
Rule 60(b)(3) motions on their merits.
REVERSED AND REMANDED

27

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 28 of 40

WYNN, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority opinion that courts retain the
power to sanction attorneys after a remand to state court.

But

in my view, so did the district court.
The district court rightfully understood that it generally
could sanction the parties here—that is why it denied, instead
of dismissing for lack of jurisdiction, the sanctions motions.
It

is

clear

complained-of

that

the

conduct

district
did

not

court

determined

warrant

that

sanctions.

the
Its

determination is, however, so sparse that we cannot properly
review it.

I therefore agree that the matter should be remanded

to the district court, solely for further explanation of the
decision to deny sanctions.

I.
Although my fine colleagues in the majority opinion frame
the first issue before us as “whether a district court retains
jurisdiction to impose sanctions after remanding an action to
state court,” ante at 15, I do not believe that this is an issue
we must address—because the district court understood perfectly
well that it did.
Indeed, nothing in the district court’s order on appeal
suggests

that

the

court

believed

that

it

generally

lacked

jurisdiction to impose sanctions for attorney misconduct after
28

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

remand to state court.

Pg: 29 of 40

Instead, the district court generally

noted that while it found counsel’s conduct “troubling,” the
court

was

“not

sanctionable.”

convinced

J.A.

1106.

that
That

counsel’s

is

why

the

conduct
district

is
court

simply denied the motions rather than dismissing them for lack
of jurisdiction. 1
Additionally, the district court recognized that Defendant
sought only one sanction—“for the Court to strike the orders of
remand[,]” J.A. 1106, and apparently believed that such relief
would effectively constitute reconsideration, which 28 U.S.C. §
1447(d) prohibits.

Nevertheless, the district court deemed the

challenged conduct unworthy of sanctions.

Therefore, so long as

that determination stands, any error in the district court’s
Section 1447(d) analysis was harmless.
That being said, I agree with the majority opinion that
this

matter

should

be

remanded

to

the

district

court.

At

bottom, the parties dispute whether Plaintiffs, through counsel,
misrepresented to the federal district court that there existed
the “slight[est] possibility of a right to relief” or a “glimmer
of hope” on their claims against Maryland state defendants such
1

My fine colleagues in the majority opinion frame the
second issue before us as “whether an appeals court can review a
district court’s determination regarding the imposition of
sanctions in such a circumstance.” Ante at 15. But, frankly, I
fail to see why that needs to be addressed here, particularly
given that we are remanding.
29

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 30 of 40

that remand to state court was appropriate.

J.A. 368.

After

remand to state court, Plaintiffs, through counsel, represented
their

matters

as

one-defendant

cases.

I

find

the

district

court’s abbreviated analysis—that the statements were made by
different lawyers in different contexts, with no elaboration or
explanation—insufficient

to

allow

for

appellate

review.

I

therefore agree that we should remand to the district court for
further
Beorn,

explanation
896

F.2d

of

its

848,

decision.

855

(4th

See,

Cir.

e.g.,

1990)

Miltier

(remanding

v.
for

reconsideration a denial of sanctions “where the circumstances
and

the

district

record
court’s

do

not

clearly

disposition”),

reflect

the

overruled

reasons

in

part

for

the

on

other

where

none

grounds, Farmer v. Brennan, 511 U.S. 825 (1994).

II.
In
exists.

sum,

the

majority

opinion

makes

an

issue

I cannot agree with that undertaking—but do agree with

the majority that the district court’s sanctions determination
is too minimalist to review.

Therefore, I would remand solely

for further explanation of that determination. 2

2

An
unaddressed
question
in
this
appeal
is
how,
procedurally, these cases would make their way from state court
back to federal court and whether their doing so would offend
either the Anti-injunction Act, 28 U.S.C. § 2283, or the notions
of comity underpinning it.
30

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 31 of 40

Finally, we all should bear in mind that federal courts
have no monopoly on the ability to sanction attorney misconduct.
If

counsel

engages

in

misconduct

after

a

matter

has

been

remanded to state court, we should “have every confidence that
the [state court] has the authority and judicial resourcefulness
to deal with such a problem.”

Three J Farms, Inc. v. Alton Box

Bd. Co., 609 F.2d 112, 116 n.3 (4th Cir. 1979). 3

3

The entirety of Three J Farms footnote three is worth

noting:
In his order . . ., the district judge referred
to certain conduct of counsel for the plaintiffs which
had occurred subsequent to his [prior remand] order .
. . and indicated that the attorneys were using the
state litigation to “harass the defendants.”
Having
divested itself of jurisdiction by the original remand
order,
the
district
court
had
no
continuing
supervisory authority over the conduct of counsel, nor
was any such conduct an appropriate basis for vacation
of the remand.
We might add that if, in fact, the
plaintiffs were using the state litigation in an
improper manner, we have every confidence that the
South Carolina Court has the authority and judicial
resourcefulness to deal with such a problem.
Id.
31

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 32 of 40

DAVIS, Senior Circuit Judge, dissenting:
Every now and again, a case comes along that leaves the
careful reader scratching her head in puzzlement. This is one of
those cases. It could not be more clear that the author of the
panel dissent, who now authors the majority for the en banc
court, disagrees, and vigorously so, with the district court’s
decision

to

remand

this

case

to

state

court.

That

is

not

surprising; judges disagree all the time, and a good thing that.
What is surprising here is that the disagreement has led to this
bizarre rehearing in which a subset of the judges in regular
active

service

on
in

this

district

judge,

removal

court

effect,

jurisprudence

and

feel

to

constrained

redo

his

sanctions

to

order

“mid-term

law.

exam”

District

the
on

judges

(including me, when I was a member of that hardworking guild)
have

long

accepted

the

fact

that

appellate

judges

“‘grade

[their] papers’ on appeal.” See Robert Bruce King, Robert C.
Byrd and the Fourth Circuit Court of Appeals, 108 W. Va. L. Rev.
607, 609 (2006) (quoting the Honorable Joseph Robert Goodwin,
United States District Judge for the Southern District of West
Virginia). But the instant grading of papers takes that aphorism
to new heights (or, if you will, a new low).
In

the

characterizes

recurring,

decades-old,

removal/remand

hand-to-hand

litigation

in

combat

federal

which

district

courts, this case does not stand out. Defendants (virtually)
32

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 33 of 40

always want to be in federal court whenever they can because:
(1)

discovery

practice

is

more

orderly,

predictable,

and,

generally, more expensive for plaintiffs; (2) summary judgment
practice is more defendant-friendly; 1 and (3) juror selections
from the available jury pools, generally drawn from the wider
expanse of a federal district than the insular state judicial
region

from

which

they

are

drawn

in

state

court,

are

more

attractive to defendants. On the other hand, most plaintiffs in
cases removed on the basis of diversity of citizenship (and,
more importantly, plaintiffs’ counsel) prefer state court over
federal court for the very obverse of the above-listed factors.
(I am not revealing palace secrets here.)
Thus, it was strange to hear, at oral argument before the
panel in this case, Colgate’s attorney repeatedly insist that
Appellees’ counsel had engaged in “jurisdictional manipulation”
(as if that were some kind of cardinal sin) in their efforts to
persuade

the

district

judge

to

remand

the

case

through

invocation of our longstanding “glimmer of hope” test. See Mayes
v. Rapoport, 198 F.3d 457, 466 (4th Cir. 1999). Colgate calls
1

Compare Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128
(4th Cir. 1987) (“Recent cases of the Supreme Court have made
increasingly clear, however, the affirmative obligation of the
trial judge to prevent ‘factually unsupported claims and
defenses’ from proceeding to trial.”), with Montgomery Cnty. Bd.
of Educ. v. Horace Mann Ins. Co., 860 A.2d 909, 915 (Md. 2004)
(“[I]n Maryland, a trial court has some discretion to deny
summary judgment even when it could grant that relief . . . .”).
33

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 34 of 40

this customary aspect of removal/remand litigation “misconduct”
within

the

meaning

of

Fed.

R.

Civ.

P.

60(b)(3)

because

plaintiffs’ legal tactics took a different turn upon remand of
the case to state court, where the “glimmer of hope” test could
be ethically discarded given the changed legal landscape and in
light of a client’s best interest. Nothing new here.
Back in federal court, Colgate filed a belated motion under
Rule

60(b)(3)

seeking

to

“vacate”

(but,

according

to

the

majority, through a feat of linguistic jiu-jitsu, not “review”)
the order of remand. The distinguished district judge, who will
shortly mark his twenty-fifth anniversary on the federal trial
bench (commenced after five years on the Maryland state trial
bench),

rejected

Colgate’s

attempts

to

slime

the

plaintiffs’

lawyers in these cases. He found there was no “misconduct” (to
say nothing of “misrepresentation”), and he further found that,
in any event, the sole relief sought by Colgate for counsel’s
“misconduct,”

restoration

of

federal

jurisdiction,

was

beyond

the court’s power to grant, citing, correctly in my view, 28
U.S.C. § 1447(d). See Ellenburg v. Spartan Motors Chassis, Inc.,
519 F.3d 192, 196 (4th Cir. 2008) (“The important policy carried
in [§ 1447(d)] disfavors prolonged interruptions to litigation
created by litigating which of two otherwise legitimate courts
should resolve the disputes between the parties.”).

34

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 35 of 40

All agree that Rule 11 is the reddest of red herrings in
this case. Ante at 17, 18 n.8 (“As these cases demonstrate--and
as

we

reiterate

here--district

courts

have

jurisdiction

to

decide Rule 11 sanctions motions on the merits, even when they
are

filed

after

the

underlying

action

is

remanded

to

state

court”; “there is no basis in using Rule 11 as a means to vacate
a remand order and to return a case to federal court.”). Unlike
the majority, I have no doubt that the district court knew full
well, after more than twenty years of service as a federal trial
judge,

it

ethically

had

post-remand

challenged

authority

attorneys

under

to

impose

Rule

11.

sanctions
The

on

contrary

insinuation is flatly insulting to the district court.
Alas,

although

the

panel

dissent

would

have

found

as

a

matter of law that there was misconduct by Appellees’ counsel
and that federal jurisdiction must be restored as a remedy for
misconduct, 2

that

the

en

banc

2

court

prudently

and

correctly

See Barlow v. Colgate Palmolive Co., 750 F.3d 437, 462
(4th Cir. 2014) (Floyd, J., dissenting), reh’g en banc granted:
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
(Continued)
35

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 36 of 40

refuses to go that far and instead, simply directs the district
court to write a longer opinion. Ante at 25–27.
To be sure, however, this is not all that the majority
achieves. It is now the law of the Fourth Circuit that a Rule
60(b)(3) motion must be entertained by every district judge in
the circuit in any remanded case, and the district judge is
required to write a convincing opinion showing why “vacatur” of
the remand order is inappropriate. The majority rejects out-ofhand, as lacking thoughtfulness and serious attention by the
rendering

courts,

the

unpublished

opinions

of

three

of

our

sister circuits that have explicitly refused to carve out Rule
60(b) exceptions to the clear mandate of 28 U.S.C. § 1447(d).
Ante at 21–22 (dismissing from consideration Wachovia Mortg. FSB
v. Marquez, 520 F. App’x 783, 785 (11th Cir. 2013) (per curiam);
Ysais v. Ysais, 372 F. App’x 843, 844 (10th Cir. 2010); Lindo v.
Westlake Dev. Co., 100 F.3d 963, at *1 (9th Cir. 1996) (table)).
This is a curious en banc critique, to say the least, for a
circuit that has permitted two of its judges to vacate a twentyfour month sentence imposed by another distinguished district

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.
36

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 37 of 40

judge in ordering, instead, the imposition of a fifteen year
sentence,

on

the

basis

of

a

non-argued,

non-precedential,

unpublished opinion of its own. See United States v. Foster, 674
F.3d 391, 402–03 (4th Cir. 2012) (Davis, J., dissenting from the
denial

of

rehearing

en

banc)

(criticizing

panel

majority’s

reliance on United States v. Shelton, 196 F. App’x 220 (4th Cir.
2006), in reversing factual finding of the district court).
Of

more

majority’s
weight

salience,

handiwork

assigned

to

in

none

of

the

principal

eviscerating

them.

Gonzalez

§ 1447(d)
v.

pillars

of

the

will

bear

the

545

U.S.

524

Crosby,

(2005), was a federal habeas case in which Justice Scalia cited
dicta from a Second Circuit opinion to make the point that some
Rule

60(b)(3)

motions

would

not

be

considered

successive

petitions under 28 U.S.C. § 2254. See id. at 532 n.5 (citing
Rodriguez v. Mitchell, 252 F.3d 191, 199 (2d Cir. 2001)). This
is a thin reed on which to countermand an unambiguous federal
jurisdictional statute such as 28 U.S.C. § 1447(d).
Nor is Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc.,
179 F.3d 1279 (11th Cir. 1999), of any genuine assistance to the
majority. In that case, relying on City of Waco v. United States
Fid. & Guar. Co., 293 U.S. 140 (1934), the court applied the
well-recognized

but

limited

exception

to

remand orders called the “Waco doctrine”:

37

non-reviewability

of

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 38 of 40

The Waco doctrine allows us to review district court
orders that lead to, but are separate from, orders of
remand and have a conclusive effect upon the ensuing
state
court
action.
See,
e.g.,
Beauclerc
Lakes
Condominium Ass’n v. City of Jacksonville, 115 F.3d
934, 935 (11th Cir. 1997) (reviewing dismissal of
federal claim that led to remand); Armstrong v.
Alabama Power Co., 667 F.2d 1385, 1387 (11th Cir.
1982) (relying on Waco to review district court’s
dismissal of United States as party prior to remand) .
. . . Similarly, vacating a remand to give effect to a
judgment
on
another
matter
is
an
“essentially
ministerial task,” rather than a review. This circuit
has held that a court of appeals may vacate an order
of remand when necessary to give effect to its
judgments. In Flohr v. Mackovjak, 84 F.3d 386, 392
(11th Cir. 1996), this court reversed the district
court’s denial of the defendant’s motion to substitute
the United States as the party defendant in a
negligence action, a denial that led to remand to
state court.
Aquamar

S.A.,

179

F.3d

at

1286,

1289.

Thus,

Aquamar

S.A.

presented the extraordinary situation in which vacatur of the
remand order was the sine qua non to the effectiveness of the
Eleventh Circuit’s mandate. 3
Here,

in

contrast,

the

majority’s

elevation

of

Rule

60(b)(3), so that it trumps the statutory prohibition on review
of

remand

orders,

serves

no

other

purpose

than

a

needless

decisional do-over by the district court. Simply put, vacatur
contravenes the mandate of § 1447(d). I have little doubt that
when it gets around to it (should any sister circuit blindly
3

Tramonte v. Chrysler Corp., 136 F.3d 1025 (5th Cir. 1998),
in which the appellate court reviewed a district judge’s preremand denial of a motion for recusal, fits the same
description.
38

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 39 of 40

follow ours, an unlikely eventuality), the Supreme Court will
reject such a blatant evasion of 28 U.S.C. § 1447(d).
Indeed, this case is a first-round draft choice for summary
reversal should plaintiffs choose not to go back to the district
court to achieve the preordained results of the do-over unwisely
ordered

by

the

majority

and

instead

the

district

court’s

file

a

petition

for

certiorari.
Despite

abbreviated

discourse

on

a

matter that most federal judges would regard as obvious, I do
not believe there is any reason to think the district court did
not

fully

Judge

comprehend

Nickerson

has

and

appreciate

encountered

it

sanctions
many

jurisprudence;

times.

See,

e.g.,

Watkins v. Trans Union LLC, No. WMN–10–838, 2010 WL 4919311 (D.
Md. Nov. 29, 2010) (dismissing case as a sanction); Awah v.
Board of Educ. of Baltimore Cnty., No. WMN–09–CV–1044, 2010 WL
9086039 (D. Md. June 10, 2010) (imposing monetary sanctions for
discovery violations), aff’d, 408 F. App’x 687 (4th Cir. 2011);
Greer v. Crown Title Corp., 216 F. Supp. 2d 519 (D. Md. 2002)
(in removed case, denying plaintiff’s motion for sanctions while
granting motion for remand to state court).
Nor is there any reason to think that Judge Nickerson is
unfamiliar with this Circuit’s abundant removal jurisprudence;
to the contrary, he has lots of experience with it. See, e.g.,
Hammonds v. Baltimore Cnty. Bd. of Educ., No. WMN–11–3348, 2012
39

Appeal: 13-1839

Doc: 76

Filed: 11/25/2014

Pg: 40 of 40

WL 787478 (D. Md. Mar. 8, 2012) (granting motion for remand);
Schaftel

v.

Highpointe

Bus.

Trust,

No.

WMN–11–2879,

2012

WL

219511 (D. Md. Jan. 24, 2012) (denying motion to remand and
allowing removing defendant to amend the Notice of Removal to
correct deficient allegations therein); Henderson v. Jinny-Poot
Props., Inc., No. WMN–11–2482, 2011 WL 6000554 (D. Md. Nov. 28,
2011)

(granting

motion

to

remand);

Beltway

Capital,

LLC

v.

Mortg. Guar. Ins. Corp., No. WMN–11–376, 2011 WL 2066603 (D. Md.
May

25,

2011)

(denying

motion

for

remand);

Streeter

v.

SSOE

Sys., No. WMN–09–CV–01022, 2009 WL 3211019 (D. Md. Sept. 29,
2009)

(denying

motion

for

remand);

Hewett

v.

Tri-State

Radiology, P.C., No. WMN–09–2017, 2009 WL 3048675 (D. Md. Sept.
17, 2009) (granting motion for remand).
The

remand

here

is

unwarranted

on

many

levels,

and

represents an “inefficient use of scarce judicial resources,”
indeed. Ellenburg v. Tom Johnson Camping Ctr., Inc., No. 8:06–
cv–1606, 2006 WL 1576701, at *2 (D.S.C. May 31, 2006) (Floyd,
J.), rev’d sub nom. Ellenburg v. Spartan Motors Chassis, Inc.,
519 F.3d 192 (4th Cir. 2008).
Accordingly, I respectfully dissent.

40