Joyce Barlow v. Colgate Palmolive Company

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,
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
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
FLOYD, Circuit Judge:

This appeal involves the interplay between 28 U.S.C.

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

remanding cases to state court, and Federal Rules of Civil

Procedure 11 and 60(b)(3), which provide means for 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.) Mosko named 36
defendants. (Id. at 56-65.)

4
As to Colgate, Plaintiffs’ theory was that the company’s

“Cashmere Bouquet” line of powder makeup products contained

harmful levels of asbestos and had 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 responses demonstrated that they did not

intend to pursue a claim against any defendant other 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
 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
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 court relied solely on the claim that Barlow was

exposed to asbestos at RMR Corporation: “Barlow argues that her

joinder of the in-state defendants was not fraudulent because

there remains a possibility that she was exposed to asbestos

while working at RMR Corporation . . . . As a result, the Court

finds that joinder of the in-state defendants here was not

fraudulent . . . .” (Id. at 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
(Id. at 247.) 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. Therefore, removal

was improper.” (Id. at 358-59.)

B.

Shortly after returning to state court, Plaintiffs filed a

joint motion to consolidate their cases with two other asbestos-

related cases. 6 Colgate opposed the motion, arguing that it

could not receive a fair trial in a consolidated proceeding

because the alleged sources of asbestos (other than Cashmere

Bouquet) were too different among the cases. In a reply brief,

5
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
Plaintiffs made the following statements, which contradict their

representations to the federal district court judges:

[Plaintiffs] allege exposure to asbestos-
containing Cashmere Bouquet powder products
only and do not allege exposure to any other
asbestos, asbestos-containing products or
asbestos-containing dust in any other form.
. . . 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 question to Plaintiffs’ counsel: “It is a one-

defendant case, right?” Counsel answered, “Yes.” (Id.)

9
 C.

After the post-remand hearing, Colgate moved in the

district court for relief from Plaintiffs’ purported

misrepresentations. 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 them to the state bar, and

awarding 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.

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],” not “factual

contention[s]” subject to Rule 11 sanctions. (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 June 26, 2013, Judge Nickerson “denied” Colgate’s

motions. (Id. at 1107, 1109.) 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.) The district

10
court further stated that “[w]ere the Court to consider other

possible sanctions, it would decline to impose them.” (Id.) It

was “not convinced that counsel’s conduct is sanctionable”

because the alleged misrepresentations were “attributable to

different attorneys in markedly different litigation contexts.”

(Id.) This appeal followed. 7

II.

We review questions of law, including a lower court’s

determination of its subject-matter jurisdiction, de 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
 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. The propriety of such relief requires us to

assess the 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). This statute generally precludes review of

a remand order if 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
1996). Review is prohibited, moreover, “even if the remand

order is ‘manifestly, inarguably erroneous.’” 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 upon the most recent

determination of a federal court.” 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 subject-

matter 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. In re Blackwater Sec.

Consulting, LLC, 460 F.3d at 582-83, 586. None of these

exceptions apply here. First, the remand orders were explicitly

based on a determination that the district court lacked subject-

matter jurisdiction. Second, the remand orders had no

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

13
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) specifically authorizes courts to impose

sanctions for misrepresentations. It requires attorneys to

submit a filing in good faith and without knowledge of 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
repetition of the conduct or 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 jurisdiction to impose sanctions after remanding an

action to state court and (2) whether an appeals court 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 11] regardless of the dismissal of the

underlying action.” Id. at 395. 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.” Id. at 395,

398.

15
 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 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 137, 139. Several appeals courts have

relied on Willy, along with 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. In Anton Leasing,

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

1988) (per curiam) (unpublished table decision). Prior to the

16
remand, the plaintiff 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 the

district court to transfer venue to cure his prior error. Id.

The plaintiff opposed this motion and again requested attorney’s

fees, which the district court awarded. Id. The defendant

appealed. On appeal, this Court held that although “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. 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 they are filed after the

17
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). In other words, the court was

opaquely saying that if it “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
 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 obtained remand order under Rule 60(b)(3).

Critically, § 1447(d) prohibits “reviewing” an order, but it

does not prohibit “vacating” an order as permitted by

Rule 60(b)(3). This distinction is not merely 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 must presume that a legislature says in a

statute what it means and means in a statute what it says

there.”); Perrin v. United States, 444 U.S. 37, 42 (1979)

19
(“[U]nless otherwise defined, 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 constitute a proscribed

review of a remand decision. Id. at 1288. This is because

vacatur may be available even when review (defined as

“reconsideration; second view or examination; revision;

consideration for purposes of correction”) is precluded. Id.

20
(citing U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S.

18, 22–23 (1994), and Black’s Law Dictionary 1320 (6th ed.

1990)). 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). None of these non-

9
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
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 a

contaminated process, not review of a motion’s merits. 10 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. Id. at 733. This Court framed the “principal issue”

in the appeal as “whether the district court exceeded its

jurisdiction when it reconsidered its remand order.” Id. at

10
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
733-34 (emphasis added). This Court then determined that,

“[i]ndisputably, ‘otherwise’ in § 1447(d) includes

reconsideration by the district court.” 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
by which Plaintiffs secured the remand orders, not the merits or

correctness of the orders themselves.

In sum, nothing in the plain language of § 1447(d) or

courts’ interpretation thereof bars vacatur of the 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]” Colgate’s motions, 11 the district court

apparently determined--in a hypothetical context in which

jurisdiction was assumed--that “it would decline [to vacate the

remand orders and] to impose [other possible sanctions].” (J.A.

1106-09.) 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
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.” Cooter & Gell, 496 U.S. at 402.

In making these 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 Rule 11 motions, Colgate’s Rule 60(b)(3)

motions require a showing of misconduct by the other party,

25
among other things. 12 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
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
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 that the district court determined that the

complained-of conduct did not warrant sanctions. 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
remand to state court. Instead, the district court generally

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

court was “not convinced that counsel’s conduct is

sanctionable.” J.A. 1106. That is why the district 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
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 explanation of its decision. See, e.g., Miltier v.

Beorn, 896 F.2d 848, 855 (4th Cir. 1990) (remanding for

reconsideration a denial of sanctions “where the circumstances

and the record do not clearly reflect the reasons for the

district court’s disposition”), overruled in part on other

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

II.

In sum, the majority opinion makes an issue where none

exists. 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
 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
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 this court feel constrained to order the

district judge, in effect, to redo his “mid-term exam” on

removal jurisprudence and sanctions law. District 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 recurring, decades-old, hand-to-hand combat which

characterizes removal/remand litigation in federal district

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

32
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
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
 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 had post-remand authority to impose sanctions on

ethically challenged attorneys under Rule 11. The 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

that misconduct, 2 the en banc court prudently and correctly

2
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
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-of-

hand, 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 twenty-

four 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
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 salience, none of the principal pillars of the

majority’s handiwork in eviscerating § 1447(d) will bear the

weight assigned to them. Gonzalez v. Crosby, 545 U.S. 524

(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 non-reviewability of

remand orders called the “Waco doctrine”:

37
 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 pre-
remand denial of a motion for recusal, fits the same
description.

38
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 file a petition for

certiorari.

Despite the district court’s 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 comprehend and appreciate sanctions jurisprudence;

Judge Nickerson has encountered it many 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
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.

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