Filed: Nov. 25, 2014
Latest Update: Mar. 02, 2020
Summary: 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 Tru
Summary: 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 Trus..
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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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