Not for Publication in West's Federal Reporter 

United States Court of Appeals

For the First Circuit 

No. 15-1609 

UNIVERSAL TRUCK & EQUIPMENT COMPANY, INC.; NEW LONDON MINING 

MANUFACTURING & PROCESSING, LLC; NICHOLAS E. CAMBIO, 

individually and as Trustee of the Nicholas E. Cambio, Roney A. 

Malafronte and Vincent A. Cambio Trust; VINCENT A. CAMBIO, 

Plaintiffs, Appellants, 

 v. 

CATERPILLAR, INC.; CATERPILLAR FINANCIAL SERVICE CORPORATION, 

 Defendants, Appellees, 

W. FRANK BLOUNI; JOHN R. BRAZIL; DANIEL M. DICKINSON; JOHN T. 

DILLON; EUGENE V. FIFE; GAIL D. FOSLER; JUAN GALLARDO; DAVID R. 

GOODE; PETER A. MAGOWAN; WILLIAM A. OSBORN; JAMES W.L. OWENS; 

CHARLES D. POWELL; EDWARD B. BUST, JR.; SUSAN C. SCHWAB; JOSHUA 

I. SMITH; KENT ADAMS; JIM DUENSING; PETER D'AGOSTINO; 

SOUTHWORTH-MILTON, INC., 

Defendants. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF RHODE ISLAND 

[Hon. William E. Smith, U.S. District Judge] 

Before 

Torruella, Lipez, and Thompson, 

Circuit Judges. 
 Richard G. Riendeau, for appellants. 

 A. Neil Hartzell, with whom LeClairRyan, PC was on brief, for 

appellees. 

June 27, 2016 
- 3 -

THOMPSON, Circuit Judge. 

Stage Setting

Today's case involves a routine commercial-collection 

matter gone awry. The parties know the facts — some of which are 

recounted elsewhere, see Universal Truck & Equip. Co. v. 

Southworth–Milton, Inc., 765 F.3d 103, 105-07 (1st Cir. 2014) 

("Universal I," from now on) — so a simple summary suffices. 

Plaintiff New London entered into an installment 

contract with Defendant Caterpillar Financial to buy 22 pieces of 

heavy equipment for about $3.4 million. The remaining Plaintiffs 

listed in our caption signed personal guarantees of New London's 

obligations. New London later defaulted on its payments. But 

Caterpillar Financial agreed to renegotiate the terms. 

Unfortunately, New London defaulted on those terms too. 

Things eventually turned litigious, unsurprisingly. 

Sprinting to Rhode Island state court, Plaintiffs sued Caterpillar 

Financial, Caterpillar, Inc., Southworth (a Caterpillar-equipment 

dealer), individual members of Caterpillar, Inc.'s board of 

directors, as well as an individual employee — Peter D'Agostino — 

of Southworth. Plaintiffs' complaint alleged claims for breach of 

contract and related wrongs. All Plaintiffs are Rhode Island 

citizens. And all Defendants are citizens of other states — all, 
- 4 -

that is, except Defendant D'Agostino, who is a Rhode Island 

citizen. 

Defendants Caterpillar Financial and Southworth later 

counterclaimed for (among other things) breach of contract. The 

individual Defendants — including Defendant D'Agostino — moved to 

dismiss the claims against them. And the state court granted the 

motion. 

Before a partial final judgment could enter, see R.I. 

Super. Ct. R. Civ. P. 54(b), Defendants Caterpillar Financial, 

Caterpillar, Inc., and Southworth removed the case to federal court 

on diversity grounds. These corporate Defendants argued that 

diversity arose after the state court dismissed Defendant 

D'Agostino from the case. They also argued that they had timely 

removed the case because they had filed the removal notice within 

30 days of the state court's dismissal order. 

Unpersuaded, Plaintiffs filed a remand motion, arguing 

that removal was improper because Defendant D'Agostino's dismissal 

had not "occurred as a result of" Plaintiffs' "voluntary action" 

and the dismissal order "had not become final" at the time of 

removal. Defendants countered that Plaintiffs' claims against 

Defendant D'Agostino had no reasonable chance of success under 

state law — Plaintiffs had "fraudulently joined" him to defeat 

removal (the argument continued) and so the judge should disregard 
- 5 -

him for purposes of determining diversity. Plaintiffs disputed 

the fraudulent-joinder charge, insisting that Defendant 

D'Agostino's joinder "had nothing to do with his citizenship or 

any intent" on Plaintiffs' part "to thwart removal." Agreeing 

with Defendants' fraudulent-joinder thesis, the district judge 

denied Plaintiffs' remand motion, see Universal I, 765 F.3d at 107 

— "there is not and was not a colorable claim against the 

Defendant, D'Agostino," the judge stressed in his oral ruling, 

"and therefore there was diversity and removal to this [c]ourt was 

appropriate." 

After discovery, all Defendants moved for summary 

judgment on Plaintiffs' claims. Defendants Caterpillar Financial 

and Southworth also moved for summary judgment on their 

counterclaims. In a detailed and thoughtful order, the judge 

granted Defendants' motion. Deeming Plaintiffs' claims against 

Southworth frivolous, the judge awarded Southworth its attorney 

fees. The judge later entered a partial final judgment "for 

Defendant Southworth and against all Plaintiffs." See Fed. R. 

Civ. P. 54(b). Issues concerning damages for Caterpillar Financial 

and attorney fees for Caterpillar Financial and Caterpillar, Inc. 

remained unresolved at that time. 

Plaintiffs appealed against Defendant Southworth, 

challenging the judge's remand denial, grant of summary judgment, 
- 6 -

and attorney-fees award. After oral argument here but before our 

decision, Plaintiffs asked the district judge to reconsider his 

remand ruling, arguing for the first time — some three years after 

the judge's original ruling — that Defendants' failure to raise 

their fraudulent-joinder theory within 30 days of receiving 

service of the state-court complaint (as opposed to 30 days after 

Defendant D'Agostino's dismissal) made their removal improper. 

Opposing Plaintiffs' reconsideration effort, Defendants 

Caterpillar Financial and Caterpillar, Inc. argued that 

Plaintiffs' appeal divested the district court of jurisdiction to 

act on the motion. They also argued that their "position is and 

continues to be" that Plaintiffs' fraudulent joinder of Defendant 

D'Agostino barred remand to state court. 

The district judge did not take on Plaintiffs' 

reconsideration motion until after our Universal I decision came 

down — a decision that affirmed the judge's original order denying 

remand, as well as his summary-judgment and attorney-fees rulings 

for Defendant Southworth. See 765 F.3d at 105. We will have 

more to say about Universal I in just a bit. Anyway, the judge 

ended up denying Plaintiffs' reconsideration motion, noting that 

he had orally denied their original remand motion after "adopting 

Defendants' fraudulent joinder theory" and that Universal I's 

affirmance of his earlier remand ruling required him to deny the 
- 7 -

reconsideration request. And after concluding that "Plaintiffs' 

claims presented no justiciable issues of law or fact and exhibited 

bad faith," the judge entered a judgment against Plaintiffs and in 

favor of Defendants — awarding Defendant Caterpillar, Inc. 

$68,181.89 in attorney fees and costs (relying "on either [the 

court's] inherent power or Rhode Island law") and Defendant 

Caterpillar Financial $2,553,203.50 in damages plus $235,192.97 in 

attorney fees and costs (finding an entitlement to fees and costs 

under the agreement). The judge held Plaintiffs "jointly and 

severally liable" for the judgments. 

Which takes us to the present, with Plaintiffs arguing 

that the judge triply erred: Giving us a sense of déjà vu, they 

contend — as they did in Universal I — that the judge stumbled by 

not remanding the case to state court.1 Next they argue that the 

judge blundered by granting Caterpillar Financial and Caterpillar, 

Inc. summary judgment on all claims. And finally they argue that 

the judge slipped by awarding Caterpillar Financial and 

 

1 We read Plaintiffs' brief as contesting the judge's original 

remand denial, not his denial of the reconsideration motion. But 

even if we are wrong about that, Plaintiffs would gain nothing. 

And that is because, as Defendants note, Plaintiffs based their 

reconsideration argument on a new theory — that Defendants botched 

matters by not raising the fraudulent-joinder theory within 30 

days of service — and "a party may not, on a motion for 

reconsideration, advance a new argument that could (and should) 

have been presented prior to the district court's original ruling." 

Cochran v. Quest Software, Inc., 328 F.3d 1, 11 (1st Cir. 2003). 
- 8 -

Caterpillar, Inc. attorney fees. For our part, however, we see no 

reason to undo what the judge did. 

Remand Ruling 

A defendant may remove a civil case from state to federal 

court only if the federal court has "original jurisdiction" over 

the action, see Universal I, 765 F.3d at 108-09 — for example, if 

the parties are of diverse citizenship and the stakes exceed 

$75,000, see McKenna v. Wells Fargo Bank, N.A., 693 F.3d 207, 211-

12 (1st Cir. 2012). A defendant looking to remove a case must 

file a notice of removal within 30 days of receiving a copy of the 

initial pleading. See Universal I, 765 F.3d at 108. But if the 

case is not removable from the get-go (because of, say, a lack of 

complete diversity among the parties), the defendant must file the 

removal notice within 30 days of when the case "become[s] 

removable" — provided the case is less than one year old. See id. 

(quoting 28 U.S.C. § 1446(b)(3)). A case may "become removable" 

in the diversity context if "through service or otherwise . . . of 

a copy of an amended pleading, motion, order or other paper . . . 

it may first be ascertained that" the parties' citizenship is 

diverse. 28 U.S.C. § 1446(b)(3).2

 

2 As we said in Universal I, "[t]he parties now apparently agree 

that the original asserted grounds for removal — the dismissal of 

D'Agostino — was not proper because the state court decision was 

not final in the sense that it was not voluntary, and still subject 

to review on appeal." 764 F.3d at 108. So we did not then and do 
- 9 -

Trying yet again to get us to kibosh the judge's remand 

ruling, Plaintiffs offer a kitchen-sink's worth of arguments, 

though their contentions basically turn on a common theme — namely, 

that Defendants waited too long to remove this action, so the judge 

should have remanded the case back to state court. But Universal 

I knocks the legs out from under their theory. 

There, we held that these same Plaintiffs had no 

"reasonable possibility" of succeeding against the non-diverse 

defendant, Defendant D'Agostino — they had thrown him in, we said, 

only to defeat diversity jurisdiction. Id. And this "fraudulent 

joinder" — a theory Defendants argued below, which the judge 

"agree[d]" with — was obvious on the face of Plaintiffs' statecourt complaint. Id. at 107, 108. So, we added, Defendants knew 

(or should have known) from the case's beginning that they could 

remove the suit to federal court under diversity jurisdiction. 

See id. at 108. And that means they had to remove the case within 

30 days of service. See id. They did not. See id. But Plaintiffs 

had "raised no objection" below about "the timeliness of a removal 

based on fraudulent joinder." Id. at 107. In other words, while 

"[D]efendants failed to remove this lawsuit due to fraudulent 

 

not now address whether the 30-day clock begins running on a state 

court's yet-to-be-appealed or unappealed dismissal of a diversitydestroying party. 
- 10 -

joinder in a timely manner, . . . [P]laintiffs never argued" to 

the district judge that Defendants' "fraudulent joinder theory was 

untimely." Id. at 109-10. Noting that the 30-day-time limit "is 

not jurisdictional" and thus can be "waive[d]" if not seasonably 

raised, we found that Plaintiffs' silence below on this fraudulentjoinder issue constitutes a waiver. Id. at 110, 111. And with 

that, we affirmed the judge's decision not to remand the removed 

case to state court. Id. at 111, 112. 

At oral argument in the present appeal, Plaintiffs 

candidly conceded that Universal I specifically rejected the very 

claims they make here about the removal's (supposed) untimeliness. 

They just think that Universal I does not bind us — it is not "law 

of the case" — basically because (as they see it) the panel there 

got two things wrong: first, they say the panel wrongly concluded 

that they had "never argued that fraudulent joinder was untimely"; 

and second, they claim the panel wrongly thought that the district 

judge denied the remand motion based on a finding of fraudulent 

joinder. 

The law-of-the-case doctrine "binds a successor 

appellate panel in a second appeal in the same case to honor fully 

the original decision." United States v. Matthews, 643 F.3d 9, 13 

(1st Cir. 2011) (internal quotation marks omitted). Of course, 

like most judicial doctrines, this one has its exceptions — though 
- 11 -

the list is "short" and "narrowly cabined," see United States v. 

Rivera-Martinez, 931 F.2d 148, 151 (1st Cir. 1991), only covering 

situations involving "exceptional circumstances," see NegrónAlmeda v. Santiago, 579 F.3d 45, 51 (1st Cir. 2009). An important 

exception (the one Plaintiffs try to invoke) provides that a 

litigant can avoid the doctrine's "application . . . by showing 

that the earlier decision is blatantly erroneous and, if 

uncorrected, will work a miscarriage of justice," see Matthews, 

643 F.3d at 14 — a hard-to-satisfy standard that requires us to 

have "a definite and firm conviction that a prior ruling on a 

material matter is unreasonable or obviously wrong, and resulted 

in prejudice," see United States v. Moran, 393 F.3d 1, 8 (1st Cir. 

2004) (internal quotation marks omitted). 

Moving from the general to the specific, we find that 

this exception offers Plaintiffs no refuge. Take their first claim 

of blatant error — that we wrongly concluded in Universal I that 

they had "never argued that the fraudulent joinder theory was 

untimely": Hoping to give their claim an aura of plausibility, 

Plaintiffs point out that they had said in their memo supporting 

their remand bid that "Defendants failed to" remove the case 

"within 30 days of" the case's "initiation . . . in state court." 

True. But a review of Plaintiffs' remand papers shows they did 

not argue there (as they do here) that Defendants failed to timely 
- 12 -

assert their fraudulent-joinder theory. See Universal I, 765 F.3d 

at 110. So their opening blatant-error claim misfires. 

The same is true of their second blatant-error claim — 

that we wrongly concluded in Universal I that the judge had 

rebuffed their remand bid on fraudulent-joinder grounds: Recall 

that in opposing the remand motion, Defendants raised a fraudulentjoinder theory premised on Plaintiffs' offering no state-law basis 

for recovery against Defendant D'Agostino. Well, in words that 

echoed Defendants' argument, the judge — in delivering an oral 

decision denying Plaintiffs' remand motion — held that Plaintiffs 

had no "colorable claim" against Defendant D'Agostino. On top of 

that, in rejecting Plaintiffs' reconsideration motion, the judge 

made it crystal clear that he had indeed "adopt[ed] Defendants' 

fraudulent joinder theory" in spurning Plaintiffs' remand motion. 

And given this record, we cannot say that Universal I blatantly 

erred in describing fraudulent joinder as the basis for the judge's 

remand denial. 

Because Plaintiffs have not satisfied the blatant-error 

step, we need not consider whether they can satisfy the prejudice 

step.3 What this means is that the law-of-the-case doctrine 

 

3 Plaintiffs also vaguely accuse the Universal I panel of 

"condon[ing]" what it calls Defendants' "'fraudulent joinder by 

hindsight' tactic." But Plaintiffs say this only in the "summary 

of the argument" section to their reply brief — the body of that 

brief's argument section does not discuss how the panel's supposed 
- 13 -

applies here, not the narrow exception that Plaintiffs seek to 

exploit. So Plaintiffs' assault on the judge's remand ruling goes 

nowhere. 

Summary-Judgment and Attorney-Fee Rulings 

Less need be said about Plaintiffs' challenges to the 

judge's summary-judgment and attorney-fee rulings. When a 

district judge pens a cogent, well-reasoned decision, we appellate 

judges should resist the urge to put matters into our own words. 

See, e.g., Moses v. Mele, 711 F.3d 213, 215-16 (1st Cir. 2013) 

(noting that because "starting from scratch and building a 

rationale from the ground up is sometimes an extravagant waste of 

judicial resources," we have long held that when a lower-court 

judge "accurately takes the measure of a case, persuasively 

explains its reasoning, and reaches a correct result, it serves no 

useful purpose for a reviewing court to write at length in placing 

its seal of approval on the decision below"); deBenedictis v. 

Brady-Zell (In re Brady-Zell), 756 F.3d 69, 71 (1st Cir. 2014) 

(similar). Because this is such an instance, we affirm the judge's 

 

"condon[ing]" brings them within the longed-for exception to the 

law of the case. Consequently we need say no more about that 

subject. See, e.g., United States v. Trinidad-Acosta, 773 F.3d 

298, 310 n.5 (1st Cir. 2014) (deeming waived arguments alluded to 

in the brief's summary-of-the-argument section but not developed 

elsewhere). 
- 14 -

summary-judgment and attorney-fee rulings for substantially the 

reasons outlined in his persuasive decisions. And that is that. 

Final Words 

Having fully considered Plaintiffs' many arguments 

(including some not mentioned above, because they deserve no 

discussion), we let the judge's decisions stand. 

Affirmed.