Filed: May 2, 2014 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 13-1839 

(1:12-cv-01780-WMN) 

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.; 
2 

FOSTER WHEELER CORPORATION; THE WALLACE & GALE ASBESTOS 

SETTLEMENT TRUST; CONWED CORPORATION; GENERAL ELECTRIC 

COMPANY; and GEORGIA PACIFIC CORPORATION, individually and 

as successor in interest to Bestwall Gypsum Co., 

 Defendants. 

No. 13-1840 

(1:12-cv-01781-WMN) 

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 
3 

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.; and GENERAL ELECTRIC COMPANY,

 Defendants. 

O R D E R 

 The Court amends its opinion filed April 30, 2014, as 

follows: 

 On page 28, first full paragraph, line 1 -- “the 

opinion is Durango Crushers” is corrected to read “the opinion 

in Durango Crushers.” 

 For the Court – By Direction 

 /s/ Patricia S. Connor 

 Clerk 
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 

Rehearing en banc granted, June 6, 2014
2 

SETTLEMENT TRUST; CONWED CORPORATION; GENERAL ELECTRIC 

COMPANY; and GEORGIA PACIFIC CORPORATION, individually and 

as successor in interest to Bestwall Gypsum Co., 

 Defendants. 

No. 13-1840

CLARA G. MOSKO, 

 Plaintiff - Appellee, 

 v. 

COLGATE PALMOLIVE COMPANY, 

 Defendant – Appellant, 

 and 

JOHN CRANE−HOUDAILLE, INCORPORATED; E.L. STEBBING & CO., 

INCORPORATED; HAMPSHIRE INDUSTRIES, INC., f/k/a John H. 

Hampshire Company; UNIVERSAL REFRACTORIES COMPANY; J.H. 

FRANCE REFRACTORIES COMPANY; THE GOODYEAR TIRE & RUBBER 

COMPANY, f/k/a Kelly Springfield Tire Company; MCIC, INC., 

and its remaining Director Trustees, Robert I. McCormick, 

Elizabeth McCormick and Patricia Schunk; CBS CORPORATION, a 

Delaware Corporation f/k/a Viacom, Inc.,f/k/a Westinghouse 

Electric Corporation; METROPOLITAN LIFE INSURANCE COMPANY; 

A.W. CHESTERTON COMPANY; CERTAINTEED CORPORATION, 

individually and as successor to Bestwall Gypsum Co.; KAISER 

GYPSUM COMPANY, INC.; UNION CARBIDE CORPORATION;

INTERNATIONAL PAPER COMPANY, individually and as successor 

in interest to Champion International Corporation and U.S. 

Plywood Corp.; BAYER CROPSCIENCE, INC., individually and as 

successor in interest to Benjamin Foster, Co., Amchem 

Products, Inc., H.B. Fuller Co., Aventis Cropscience USA, 

Inc., Rhone−Poulenc AG Company, Inc., Rhone−Poulenc, Inc. 

and Rhodia, Inc.; COOPER INDUSTRIES, INC., individually and 

as successors in interest to Crouse Hinds Co.; PFIZER 

CORPORATION; SCHNEIDER ELECTRIC USA, INC., f/k/a Square D 

Company, individually and as successor in interest to 

Electric Controller and Manufacturing Co.; FOSTER WHEELER 

CORPORATION; THE WALLACE & GALE ASBESTOS SETTLEMENT TRUST; 
3 

CONWED CORPORATION; GEORGIA−PACIFIC, LLC, individually and 

as successor to Bestwall Gypsum Co.; 3M COMPANY; 

MALLINCKRODT, INC.; CROWN, CORK & SEAL CO., INC.; KOPPERS 

COMPANY, INC.; WALTER E. CAMPBELL CO., INC.; KRAFFT−MURPHY

COMPANY, individually and as successor to National Asbestos 

Company, a dissolved Delaware Corporation; AC&R INSULATION 

CO., INC.; COTY, INC.; JOHNSON & JOHNSON; LUZENAC AMERICA 

INC.; R.T. VANDERBILT COMPANY, INC.; BAYER CORPORATION, as 

successor in interest to Sterling Drug, Inc., and 

Sterling−Winthrop Inc.; and GENERAL ELECTRIC COMPANY, 

 Defendants. 

Appeals from the United States District Court for the District 

of Maryland, at Baltimore. William M. Nickerson, Senior 

District Judge. (1:12-cv-01780-WMN; 1:12-cv-01781-WMN)

Argued: March 19, 2014 Decided: April 30, 2014 

Before FLOYD, Circuit Judge, DAVIS, Senior Circuit Judge, and 

Max O. COGBURN, United States District Judge for the Western 

District of North Carolina, sitting by designation. 

Affirmed by published opinion. Senior Judge Davis wrote the

majority opinion, in which Judge Cogburn joined. Judge Floyd 

wrote a dissenting opinion. 

ARGUED: William Balden Adams, QUINN EMANUEL URQUHART & SULLIVAN, 

LLP, New York, New York, for Appellant. Jennifer Louise Lilly, 

LAW OFFICES OF PETER G. ANGELOS, Baltimore, Maryland, for 

Appellees. ON BRIEF: Thomas P. Bernier, SEGAL MCCAMBRIDGE SINGER 

& MAHONEY, Baltimore, Maryland; Faith E. Gay, QUINN EMANUEL 

URQUHART & SULLIVAN, LLP, New York, New York, for Appellant.
4 

DAVIS, Senior Circuit Judge: 

The federal removal statute immunizes from review - 

appellate or otherwise - any order remanding to state court a 

case removed to federal court, with an exception for certain 

civil rights cases or suits against federal officers. 28 U.S.C. 

§ 1447(d). In particular, the statute has been interpreted to 

“preclude review only of remands for lack of subject-matter 

jurisdiction and for defects in removal procedure.” Powerex 

Corp. v. Reliant Energy Services, Inc., 551 U.S. 224, 229 

(2007). The removing defendant in this case, the Colgate 

Palmolive Company, asks us to hold that the statute permits an 

exception to its prohibition: that a federal court may strike a 

remand order and retrieve a remanded case from its state cousin 

as a sanction against plaintiffs’ counsel for making

misrepresentations to the federal court related to the existence 

of subject-matter jurisdiction. It invokes in support the 

district court’s inherent authority and Rules 11 and 60 of the 

Federal Rules of Civil Procedure. 

We are unpersuaded. In the face of Congress’ explicit 

direction to federal courts that an order remanding a case for 

lack of subject-matter jurisdiction after it has been removed 

“is not reviewable on appeal or otherwise,” 28 U.S.C. § 1447(d), 

we reject Colgate’s collateral attack on the remand orders in 
5 

this case and affirm the order of the district court insofar as 

it ruled that it lacked jurisdiction. 

I. 

Joyce Barlow and Clare Mosko separately sued Colgate and a 

variety of other companies in Maryland state court, asserting 

that each of the defendants’ products had at some point exposed

them to asbestos. With respect to Colgate, the plaintiffs’ 

theory was that its “Cashmere Bouquet” line of powder makeup 

products contained unhealthy levels of asbestos and had thereby 

contributed to the plaintiffs’ health problems. Despite 

plaintiffs’ joinder of in-state defendants, Colgate removed the 

two cases to federal court on the basis of diversity of 

citizenship, asserting fraudulent joinder as to the in-state 

defendants, and alleging that the plaintiffs’ deposition 

testimony and interrogatory responses demonstrated that they did 

not intend to pursue a claim against any defendant other than

Colgate, a citizen of Delaware and New York. 

After removal, the plaintiffs’ lawyers moved to remand the 

cases to state court, arguing that they had viable claims 

against the nondiverse defendants. The district court agreed, 

finding that although only Colgate’s Cashmere Bouquet products 

had been identified by the plaintiffs as the source of their 

asbestos exposure, there was still more than a “glimmer of 

hope,” Hartley v. CSX Transportation, Inc., 187 F.3d 422, 426 
6 

(4th Cir. 1999), that the plaintiffs could identify a basis to 

recover against the nondiverse defendants as discovery 

proceeded. J.A. 358, 368. The cases were remanded. 

On remand, counsel for the plaintiffs asked the state court

to consolidate the two cases because, among other reasons,

“[a]ll [plaintiffs] allege exposure to asbestos-containing 

Cashmere Bouquet powder products only and do not allege exposure 

to any other asbestos, asbestos-containing products or asbestoscontaining dust in any other form.” J.A. 474 (emphasis added).

Irritated by the change in tune, Colgate then promptly moved in 

the district court for vacatur of the remand order as a 

sanction. The district court denied the motion, stating that 

reconsideration of the remand order is prohibited by the removal 

statute and pertinent Circuit law. The district court stated 

further that it was “not convinced that counsel’s conduct is 

sanctionable” because the alleged misrepresentations were 

“attributable to different attorneys in markedly different 

litigation contexts.” J.A. 1108. 

II. 

On appeal, Colgate contends that it was error for the 

district court to rule that it did not have the authority to 

consider whether plaintiffs’ counsel committed misconduct and 

“whether such misconduct warrants relief from the Remand 

Orders.” App. Reply Br. 2. It asks that we reverse the district 
7 

court’s order denying the motion for vacatur and remand the case 

with instructions that the remand orders be vacated. Colgate 

maintains that the district court had authority, pursuant to its 

inherent authority and Rules 11 and 60(b)(3) of the Federal 

Rules of Civil Procedure, to strike the remand orders as a 

sanction. We review questions of law de novo. Trans Energy, Inc. 

v. EQT Prod. Co., 743 F.3d 895, 900 (4th Cir. 2014). 

Fueled by a desire to cut off costly and prolonged 

jurisdictional litigation, Powerex, 551 U.S. at 238, the federal 

removal statute generally prohibits review of orders remanding 

removed cases: 

An order remanding a case to the State court from 

which it was removed is not reviewable on appeal or 

otherwise, except that an order remanding a case to 

the State court from which it was removed pursuant to 

section 1442 [cases against federal officers] or 1443 

[certain civil rights cases] of this title shall be 

reviewable by appeal or otherwise. 

28 U.S.C. § 1447(d) (emphasis added). Read in conjunction with 

28 U.S.C. § 1447(c), the statute’s prohibition has been 

construed to preclude review of remands “colorably 

characterized” as for lack of subject-matter jurisdiction or

defects in removal procedure. Powerex, 551 U.S. at 234, 229. 

Courts may not review, for example, an order remanding a case 

for lack of diversity jurisdiction even in the face of evidence 

of fraudulent joinder, In re Lowe, 102 F.3d 731, 733-34 (4th 

Cir. 1996), or an order remanding a case for lack of federal 
8 

question jurisdiction after the district court has held that a 

federal statute did not completely preempt state law. In re 

Blackwater Security Consulting LLC, 460 F.3d 576, 585 (4th Cir. 

2006). The corollary to the statute’s prohibition is that courts 

may review remands when they are not based on a lack of subjectmatter jurisdiction or a defect in removal procedure, such as 

when the review is of a decision collateral and severable from 

the remand order, or when the remand order is outside the 

district court’s authority. Lisenby v. Lear, 674 F.3d 259, 261 

(4th Cir. 2012). 

Colgate frames the issue in this case as whether the 

statute permits appellate review of an order denying a request 

to strike a remand order as a sanction for counsel’s alleged 

misrepresentation regarding the existence of subject-matter 

jurisdiction. 28 U.S.C. § 1447(d). Put differently, Colgate, 

seeking to draw us into the merits (rather than the procedural 

correctness) of the district court’s order, asks us to hold that 

we may review a remand order, even though the case does not 

relate to the exceptions noted in 28 U.S.C. § 1447(d), if the 

basis for review relates to a material misrepresentation made by 

counsel that induced the district court to remand the case. We 

decline Colgate’s invitation. Put simply, we discern no basis to 

infer that Congress intended to etch a litigation-integrity 
9 

policing exception into its prohibition on the review of remand 

orders. 

As an initial matter, no court has ever embraced the 

argument Colgate puts forward today, and for a simple reason: it 

is a long-standing principle that entry of an order remanding a 

case to state court divests the district court “of all 

jurisdiction in [the] case and preclude[s] it from entertaining 

any further proceedings of any character, including the 

defendants’ motion to vacate the original remand order.” Three J 

Farms, Inc. v. Alton Box Bd. Co., 609 F.2d 112, 115 (4th Cir. 

1979) (emphasis added). In this context, it is manifest that the 

law favors finality so that jurisdictional litigation comes to 

an end and the parties can proceed to the merits and avoid 

unnecessary delay and expense. For Colgate to have returned to 

the district court to seek a sanction in the form of vacatur of 

the remand orders is, to put it simply, an anomaly in federal 

jurisdiction. 

Colgate insists that counsel’s misrepresentation undermines

the basis for the remand order, and it cites Rules 11 and 

60(b)(3) of the Federal Rules of Civil Procedure and the case 

law describing the district court’s inherent authority as 

support for its argument that a district court may take some 
10 

remedial action to sanction a lawyer for misconduct.∗ But there 

is nothing in the Federal Rules or the case law bearing on a 

federal court’s inherent authority that authorizes the retention 

of federal jurisdiction as a sanction. Nor could there be: while 

a defendant certainly has a right to a federal forum, it is 

something quite different to argue that a district judge should 

claw a case back into federal court as a remedy to deter future 

attorney misconduct or to remedy a perceived injury to the 

integrity of the litigation process. After all, a state court

“operates with an eye to justice, just the same as that of the 

federal court,” and both equally offer Colgate a meaningful 

opportunity to vigorously litigate its defense on the merits. 20 

Charles Alan Wright & Mary Kay Kane, Federal Practice and 

Procedure § 43 (2d ed. 2011) (quoting Pabst v. Roxana Petroleum 

Co., 30 F.2d 953, 954 (S.D. Tex. 1929)). 

Colgate counters with a clever but ultimately misplaced 

argument: the federal statute prohibits “review” of remand 

 ∗ Rule 11 specifically authorizes the imposition of 

sanctions for misrepresentations, but the sanction “must be 

limited to what suffices to deter repetition of the conduct or 

comparable conduct by others similarly situated,” Fed. R. Civ. 

P. 11(c)(4). Analogously, Rule 60(b)(3) provides that a court 

“may relieve a party” from an “order” for “fraud (whether 

previously called intrinsic or extrinsic), misrepresentation, or 

misconduct by an opposing party,” Fed. R. Civ. P. 60(b)(3). 

Furthermore, “the inherent power . . . allows a federal court to 

vacate its own judgment upon proof that a fraud has been 

perpetrated upon the court,” Chambers v. NASCO, Inc., 501 U.S. 

32, 44 (1991). 
11 

orders, but a “request for vacatur as either a sanction or 

pursuant to Rule 60(b)(3) based on misrepresentations and 

misconduct does not seek . . . ‘review’” of a remand order. App. 

Br. 21. Review, argues Colgate, is “directed at the substance of 

what is being reviewed, not at matters collateral” to the merits 

of the remand order. App. Br. 21. Here, the issue is whether the 

district court should impose a sanction against plaintiffs’ 

counsel for allegedly misrepresenting their intent to pursue 

relief against nondiverse defendants; Colgate argues that its 

request is therefore unrelated to the merits of the remand 

orders and is instead about something collateral to the remand 

orders, i.e., attorney misconduct. 

Colgate’s proffered distinction suffers from three flaws. 

First, creating an attorney-misconduct exception to the 

prohibition on review of remand orders would be contrary to 

Congress’ intent, as evidenced by the text and underlying policy 

goals of the federal statute. The statute provides that “[a]n 

order remanding a case to the State court from which it was 

removed is not reviewable on appeal or otherwise,” 28 U.S.C. § 

1447(d) (emphasis added); a phrase of such breadth clearly 

sweeps collateral challenges on remand orders within the 

statute’s prohibition. Our case law construing the text is even 

clearer: we have said, unequivocally, that “the district court 

has one shot, right or wrong,” to decide whether a removed case 
12 

should be remanded. Lowe, 102 F.3d at 735 (alterations, 

quotations, and citations omitted). 

Even more conclusive is that the policy underlying 28 

U.S.C. § 1447(d) – to neutralize “prolonged litigation on 

threshold nonmeritorious questions” – weighs strongly against 

the argument that Congress intended to carve an attorneymisconduct exception into the federal statute. Powerex, 551 U.S. 

at 237. The prohibition on reviewability of remand orders has

been “a part of American jurisprudence for at least a century,” 

Lowe, 102 F.3d at 734, and we have said that the underlying 

policy is so potent that it mandates nonreviewability “even if 

the remand order is manifestly, inarguably erroneous.” Lisenby, 

674 F.3d at 261 (citations and quotations omitted). The Supreme 

Court has acknowledged that the absolute nature of the 

prohibition creates “undesirable consequences” even in cases 

with significant countervailing federal interests. Powerex, 551 

U.S. at 237. The consequence of all of this is that it is 

difficult, if not impossible, for us to conclude that Congress 

intended implicitly for the rules against litigation misconduct 

to create an escape hatch within its robust statutory 

prohibition on the reviewability of remand orders. 

Second, Colgate’s argument that it is not seeking “review” 

is simply incorrect because its request necessarily requires a 

merits review of the remand orders. Colgate’s argument boils 
13 

down to the following: the plaintiffs’ fraudulent joinder was so 

deeply buried that they managed to deceive the district court 

into remanding, and now that we know the truth because of new 

evidence (the transcript of what plaintiffs’ counsel told the 

state court, post remand), the remand must be vacated as a 

sanction. The argument fails because it seeks to relitigate the 

merits of an issue already litigated: whether the plaintiffs 

fraudulently joined the nondiverse defendants, which was the 

issue the first-time around. Colgate had its chance to prove 

fraudulent joinder. It failed. It does not get a second try with 

an improved record. 

Third, the cases cited by Colgate, in support of the

proposition that its request for vacatur as a sanction is not 

“review” of a remand order, are easily distinguishable because 

they involved vacatur of remands based on rulings several steps 

removed from the core jurisdictional inquiry. In Aquamar v. Del 

Monte Fresh Produce, 179 F.3d 1279, 1285-89 (11th Cir. 1999), 

the Eleventh Circuit reversed the district court’s dismissal of 

claims on the merits, ultimately requiring vacatur of the 

district court’s subsequent remand because the erroneous 

dismissal of the claims removed the nondiverse defendants; in 

Tramonte v. Chrysler Corp., 136 F.3d 1025, 1027-28 (5th Cir. 

1998), the Fifth Circuit held that an erroneous recusal decision

that preceded the remand order required vacatur of the remand 
14 

order; and in Williams v. Beemiller, Inc., 527 F.3d 259, 264 (2d 

Cir. 2008), the Second Circuit assessed the “scope of authority 

of a magistrate judge,” a question not requiring review of the 

merits of the remand order. These cases involved rulings that 

preceded the remand orders and that were on issues of 

substantive law wholly unrelated to the merits of the remand. 

Wright & Kane, supra. Even assuming we agree with these out-ofCircuit cases, which we need not and do not decide, the case 

before us is different because Colgate’s contention attacks the 

district court’s analysis of the merits of the remand. That is, 

Colgate sought a reconsideration of the merits with a new 

(complete) record. And that is barred by statute. 

The bottom line is that if Congress wanted to carve out an 

attorney-misconduct exception to the prohibition on review of 

remand orders, it would have done so: the text of the statute 

itself contains two such exceptions, 28 U.S.C. § 1447(d), and 

other statutes contain express exemptions for certain types of 

cases. E.g., Blackwater Security Consulting, 460 F.3d at 582-83 

n.5 (discussing 25 U.S.C. § 355, which creates an exemption for 

certain cases involving land restrictions to the Five Civilized 

Tribes of Oklahoma). But in the absence of any express 

indication otherwise, “[w]e will not ignore a clear 

jurisdictional statute in reliance upon supposition of what 

Congress really wanted.” Powerex, 551 U.S. at 237. We take the 
15 

Supreme Court at its word in its instruction to us that 

“[a]ppellate courts must take [the § 1447(d)] prescription 

seriously.” Id. at 238. Thus, because remand orders are not 

reviewable on appeal or otherwise, the district court correctly 

ruled that it lacked jurisdiction to revisit its remand orders; 

dressing up the request that it do so as a motion for sanctions 

does not alter the analysis or the result. 

III. 

For the reasons set forth, we DENY AS MOOT Colgate’s motion 

for expedited consideration and we affirm the order of the 

district court insofar as it ruled that it lacked jurisdiction. 

AFFIRMED 
16 

FLOYD, Circuit Judge, dissenting: 

I agree that we cannot vacate the remand orders and return 

the lawsuits to the district court pursuant to Federal Rule of 

Civil Procedure 11; but that determination pertains to the type 

of remedy available, not the threshold issue of whether there is 

jurisdiction to consider the motion. Because I think that the 

district court had jurisdiction to entertain Colgate’s Rule 11 

motion, I would reverse the district court’s order denying that 

motion for lack of jurisdiction. I would also reverse the 

district court’s denial of Colgate’s Rule 60(b)(3) motion for 

lack of jurisdiction insofar as vacating the remand orders does 

not require any prohibited “review” of those orders. Further, 

because the district court indicated how it would have ruled if 

it thought that it had jurisdiction, I would reach the merits of 

Colgate’s motions on appeal. I respectfully dissent.

I. 

To fully grasp the gravity of plaintiffs’ shifty positions 

and counsel’s misrepresentations in the district court, a more 

detailed recitation of the facts is necessary. The majority 

provided less than two pages of facts and glossed over the 

written declarations made by plaintiffs while the lawsuits were 

removed to federal court. I therefore feel duty-bound to shed 

more light on plaintiffs’ assertions that form the very basis of 

Colgate’s motions and this appeal beyond the general statement 
17 

that, “After removal, the plaintiffs’ lawyers moved to remand 

the case to state court, arguing that they had viable claims 

against the nondiverse defendants.” Ante at 5. 

After Colgate removed Barlow’s and Mosko’s cases to federal 

court, plaintiffs’ counsel1 represented the following in a motion 

for remand in Barlow’s case: 

[T]here is some circumstantial evidence to suggest Ms. 

Barlow could possibly have been exposed to asbestoscontaining products while working at RMR Corporation. 

. . . The evidence is certainly circumstantial, but it 

cannot be said that there is no possibility that a 

claim could be successfully proven against any of the 

non-diverse defendants. 

(J.A. 106.) Based on the above representations, the district 

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

Importantly, the district court relied solely on the claim that 

Barlow was 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 

 1 I use “plaintiffs’ counsel” to refer to both Barlow’s 

attorney and Mosko’s attorney because their attorneys are the 

same person, or at least hale from the same law firm. Although 

different attorneys from the Law Offices of Peter G. Angelos 

represented Barlow and Mosko at different stages of litigation 

(e.g., Jennifer Lilly signed Barlow’s and Mosko’s respective 

motions for remand in federal court, but Thomas Kelly signed 

Barlow and Mosko’s joint motion for severance of their cases 

from a first consolidated trial group and for consolidation of 

their cases into a second trial group with two different cases), 

Barlow and Mosko were at all times represented by the same 

person for the same or similar matters in their separate cases 

and were represented by the same person when matters were argued 

on their behalves together. 
18 

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 368.) 

Similarly, in Mosko’s case, plaintiffs’ counsel represented 

the following in the motion for remand: 

[G]iven the extent of work that [Mosko] recalled being 

done in the [Department of Agriculture] building [her 

place of employment for twenty-eight years], it was 

certainly plausible at the time that [Mosko] filed her 

complaint that local defendants should be implicated. 

. . . In fact, Plaintiff’s counsel do have some 

circumstantial evidence that Mrs. Mosko may have been 

exposed to asbestos at the Department of Agriculture 

in the form of invoices [from an in-state defendant]. 

(Id. at 247.) Based on the above representations, the district 

court (Judge Quarles) remanded Mosko’s case to state court. 

Importantly, the district court relied solely on the claim that 

Mosko was exposed to asbestos at the Department of Agriculture 

(DOA) building: “Mosko has shown more than a ‘glimmer of hope’ 

of recovering against . . . an in-state defendant[] for exposure 

during the renovations to the DOA building. Therefore, removal 

was improper.” (Id. at 358.) 

The remand orders in Mosko’s and Barlow’s cases were handed 

down on September 21, 2012, and November 1, 2012, respectively. 

Just eight days after the remand in Barlow’s case, plaintiffs 

filed a joint motion to sever their cases from a consolidated 

trial group for which trial was scheduled for March 12, 2013, 

and to consolidate their cases with two other asbestos-related 
19 

cases into a separate trial group. See supra note 1. Colgate 

opposed this motion on the basis that all lawsuits should 

proceed separately because the alleged other sources of asbestos 

(i.e., sources other than Cashmere Bouquet, such as the 

plaintiffs’ individual workplaces) are so different that Colgate 

could not receive a fair trial in a consolidated proceeding. In 

reply to Colgate’s opposition, plaintiffs made the following 

statements, which directly contradict their representations that 

formed the bases of the remand orders: 

[Plaintiffs] allege exposure to asbestos-containing 

Cashmere Bouquet power products only and do not allege

exposure to any other asbestos, asbestos-containing 

products or asbestos-containing dust in any other 

form. . . . Colgate attempts to highlight alleged 

differences in Plaintiffs’ worksites and occupations 

as well as their alleged exposures to [other] 

asbestos-containing products. However, neither 

Plaintiffs’ worksites nor their occupations are 

relevant to this consolidation because each of the 

Plaintiffs were exposed, in their homes, to asbestoscontaining Cashmere Bouquet only. . . . The 

occupations or worksites of the Plaintiffs should not 

affect the consolidation of these cases for trial 

because not one of the Plaintiffs testified that they 

were exposed to asbestos as a result of their 

employment. . . . Neither were any Plaintiffs exposed 

to asbestos at any place of residence or secondarily 

through any family member. . . . In short, there is 

absolutely no evidence to indicate or even suggest

that the Plaintiffs were exposed to asbestos in any 

form other than Cashmere Bouquet. 

(J.A. 474–76 (paragraph breaks omitted) (emphases added).) 

This last statement in particular represents a 180-degree 

departure by plaintiffs’ counsel from statements made while the 
20 

cases were removed to federal court, and Colgate’s lawyers were 

not the only ones who were “[i]rritated by [plaintiffs’] change 

in tune.” Ante at 6. At the post-remand hearing in state court 

regarding plaintiffs’ motion for severance and consolidation, 

Judge Glynn recognized the bait-and-switch that occurred in 

federal court and admonished plaintiffs’ counsel, stating, 

“I can’t believe you actually told Judge Nickerson and Judge 

Quarles one thing and tell me another.” (J.A. 494.) Judge 

Glynn then posed the following question to plaintiffs’ counsel: 

“It is a one-defendant case, right?” Counsel answered, “Yes.” 

(Id.) Judge Glynn and plaintiffs’ counsel then engaged in the 

following exchange: 

THE COURT: So you told [Judges Quarles and Nickerson] 

in the U.S. District Court that you were contending 

[that] there was no viable claim against any of these 

[in-state] defendants? 

MR. KELLY: All we had to prove in federal court is 

that there was a glimmer of hope. . . . 

THE COURT: So once the case came back here [to state 

court], the glimmer disappeared? 

. . . 

MR. KELLY: The glimmer is in federal court. What we 

have here is what plaintiffs testified to. . . . The 

federal court is well aware of that. We didn’t tell 

the federal court anything that they didn’t know. We 

didn’t tell the federal court anything different than 

what we put in our pleadings here. . . . 

THE COURT: What exactly did you tell [the federal 

judges]? You told them you filed a claim against instate defendants? 

MR. KELLY: . . . We recited how—what possibility 

there was that each [plaintiff] might have been 

exposed to the products of a Maryland defendant. 

THE COURT: What was the possibility that you recited? 
21 

MR. KELLY: I just told you. Ms. Mosko worked at the 

FDA. . . . But—so there is the possibility. But the 

reality is—and the federal court knew that—is that she 

said before it was removed, I wasn’t exposed at the 

FDA. I wasn’t exposed at any location other than the 

houses where I used Cashmere Bouquet. I mean, nothing 

was held secret from the federal court. To suggest 

other wise is wrong. 

(Id. at 494–95 (emphasis added).) 

Mr. Kelly’s statement above that plaintiffs “didn’t tell 

the federal court anything different than what [plaintiffs] put 

in [their] [post-remand] pleadings” is squarely refuted by 

comparing the statements made in plaintiffs’ motions to remand 

and the statements made in plaintiffs’ joint motion for 

severance and consolidation. As recited above, in one instance, 

after the case was removed, Ms. Lilly proclaimed that, “[T]here 

is some circumstantial evidence to suggest [that] Ms. Barlow 

could possibly have been exposed to asbestos-containing products 

while working at RMR Corporation,” (id. at 106 (all emphasis 

added)), and “Plaintiff’s counsel do have some circumstantial 

evidence that Mrs. Mosko may have been exposed to asbestos at 

the Department of Agriculture,” (id. at 247 (emphasis added)). 

Yet, on remand, Mr. Kelly averred that, “there is absolutely no 

evidence to indicate or even suggest that the Plaintiffs were 

exposed to asbestos in any form other than Cashmere Bouquet.” 

(Id. at 476 (all emphasis added).) What is worse is that the 

respective district court judges based their remand decisions 
22 

precisely (and solely) on counsel’s factual misrepresentations. 

(See id. at 358 (“Mosko has shown more than a ‘glimmer of hope’ 

of recovering against . . . an in-state defendant[] for exposure 

during the renovations to the DOA building. Therefore, removal 

was improper.” (emphasis added)); id. at 368 (“Barlow argues 

that her joinder of the in-state defendants was not fraudulent 

because there remains a possibility that she was exposed to 

asbestos while working at RMR Corporation[.] . . . As a result, 

the Court finds that joinder of the in-state defendants here was 

not fraudulent[.]” (emphasis added)).) In other words, the 

bait-and-switch worked. 

Colgate then moved in the district court for relief from 

the plaintiffs’ (now-confirmed) intentional misrepresentations 

that were perpetrated upon the district judges while the cases 

were removed. In particular, Colgate sought relief pursuant to 

Rule 11 and asked that the district court sanction plaintiffs’ 

attorneys by imposing monetary penalties, referring them to the 

state bar, and awarding to Colgate any other relief that the 

district court deemed appropriate. The nearly identical motions

in Barlow’s and Mosko’s separate cases were consolidated before 

Judge Nickerson. After a hearing on the motions, Colgate also 

moved pursuant to Rule 60(b)(3) as a supplement to its Rule 11 

motion. In its Rule 60(b)(3) motion, Colgate sought vacatur of 

the remand orders. 
23 

On June 26, 2013, Judge Nickerson issued an order denying 

Colgate’s motions. Although the district court characterized 

the allegations in the motions as “substantial,” (id. at 712), 

and acknowledged that the different statements by plaintiffs’ 

counsel “appear to be in sharp conflict” and that such conflict 

is “troubling,” (id. at 1106), the court concluded that it did 

not have jurisdiction to rule on the motions. This appeal 

followed. 

Having provided a more comprehensive account of the facts, 

I will now explain why I disagree with the majority regarding 

the district court’s jurisdiction to consider Colgate’s motions. 

Then, because the district court indicated how it would have 

ruled if it had jurisdiction, I will explain why I would reverse 

the district court’s would-be denials of Colgate’s motions. 

II. Jurisdiction 

Although Colgate’s Rule 11 motion and Rule 60(b)(3) motion 

seek relief based on the same misconduct, the motions require 

separate jurisdictional analyses. Accordingly, I address the 

district court’s jurisdiction regarding each motion in turn. 

A. Rule 11 

Although the majority’s research led the majority to the 

conclusion that “no court has ever embraced the argument Colgate 

puts forward,” ante at 9, my research shows otherwise (as does 

examining the record, namely, Colgate’s motion for sanctions—one 
24 

of the two motions underlying this appeal). In fact, and au 

contraire to the majority’s assertion, it appears that every 

federal court that has addressed the issues of (1) whether 

district courts retain jurisdiction to impose sanctions after 

remand to state court and (2) whether appeals courts can review 

such decisions regarding sanctions, has answered those questions 

affirmatively.2

 Desert Sch. Fed. Credit Union v. Johnson, 473 

 2 To the extent that the majority’s statement that “no court 

has ever embraced the argument Colgate puts forward,” ante at 9, 

is narrowed to focus on Colgate’s request for vacatur of the 

remand orders and reinstatement of federal jurisdiction as a 

Rule 11 sanction, I agree with the majority’s assertion. But 

vacatur pertains to the type of remedy/relief sought by Colgate, 

not the threshold issue of whether the district court had 

jurisdiction to consider Colgate’s Rule 11 motion in the first 

instance. Although the district court appears to think that 

vacatur is the only relief that Colgate now seeks, (see, e.g., 

J.A. 1106 (“A hearing was held on [the sanctions] motions . . . 

and there, [Colgate] clarified that the relief sought was for 

this Court to vacate, or strike, its remand orders.”); id. 

(“[Colgate] clarified in the hearing that the only ‘sanction’ 

being sought was for the Court to strike the orders of 

remand.”)), I could not find any statement in the transcript 

from the motions hearing wherein Colgate disavowed or otherwise 

withdrew its written prayers for any other (nonjurisdictional) 

relief (e.g., monetary penalties and referral of plaintiffs’ 

counsel to the state bar). Moreover, I have a very difficult 

time believing that Colgate’s lawyers abandoned their quest for 

attorneys fees relating to what they believe to be fraudulently 

obtained remand orders. But regardless of whether Colgate did 

narrow the relief that it seeks, the specific remedy sought 

pursuant to Rule 11 does not dictate whether the court has 

jurisdiction to consider the motion in the first place. It is 

wrong for the majority to leapfrog over the antecedent question 

only to look back and claim that the district court lacked 

jurisdiction to consider the relief sought in Colgate’s motion 

because of the very relief sought in Colgate’s motion. This 

bootstrapping approach is, quite simply, not the law. 
25 

F. App’x 804 (9th Cir. 2012) (cited by Colgate; “[T]he district 

court had jurisdiction to impose Rule 11 sanctions in the amount 

of attorney’s fees even after remanding the case to state 

court.”); Bryant v. Britt, 420 F.3d 161, 164 (2d Cir. 2005) (per 

curiam) (cited by Colgate; “[T]he district court was not 

deprived of jurisdiction to resolve the collateral issue of 

Rule 11 sanctions by virtue of its earlier order remanding the 

suit.”); Midlock v. Apple Vacations W., Inc., 406 F.3d 453 (7th 

Cir. 2005) (affirming Rule 11 sanctions imposed subsequent to a 

post-remand hearing); Lazorko v. Penn. Hosp., 237 F.3d 242, 247 

(3d Cir. 2000) (“Although the District Court relinquished 

jurisdiction over this case when it either dismissed or remanded 

all the claims before it, it still had jurisdiction to order 

sanctions.”); Miranti v. Lee, 3 F.3d 925, 927 (5th Cir. 1993) 

(“There is no question but that if an order of sanctions had

been entered under Rule 11 . . . , we would have jurisdiction to 

review it despite the statutory limitation on our review of the 

order of remand.”); Vatican Shrimp Co. v. Solis, 820 F.2d 674, 

680 n.7 (5th Cir. 1987) (“Although 28 U.S.C. § 1447(d) precludes 

our review of the order of remand, it does not shield the 

subsidiary issue of Rule 11 sanctions from appellate review.

. . . [O]ur review on the merits of the Rule 11 sanctions is 

distinct and separable from a review on the merits of the order 

of remand.”); e.g., Pisciotta v. Dobrynina, No. 08-CV-5221, 2009 
26 

WL 1913393, at *2 (E.D.N.Y. July 2, 2009) (“On January 21, 2009, 

the parties appeared for oral argument before the Court 

[regarding the removal notice]. The next day, the Court . . . 

remand[ed] the underlying action to state court but retain[ed] 

jurisdiction to consider sanctions under Rule 11 and costs and 

fees under § 1447(c).” (citing Bryant, 420 F.3d at 162)); Creek 

Ventures, LLC v. World Parts, LLC, No. 01-CV-89C, 2004 WL 

1166642, at *3 (W.D.N.Y. Apr. 14, 2004) (“The court notes that 

it retains continuing jurisdiction over the motion for 

sanctions, despite the remand to state court.”); Park Nat’l Bank 

of Houston v. Kaminetzky, 976 F. Supp. 571, 573 n.2 (S.D. Tex. 

1996) (“Although this Court does not have jurisdiction over the 

merits of the remanded action, the Court retained jurisdiction 

to impose sanctions, costs, and fees.”); see also Perpetual 

Sec., Inc. v. Tang, 290 F.3d 132, 141 (2d Cir. 2002) (“Although 

the district court lacked jurisdiction to decide the merits of 

the underlying action, it retained the power to determine 

collateral issues, such as the appropriateness of [Rule 11] 

sanctions.”); Olcott v. Del. Flood Co., 76 F.3d 1538, 1553 (10th 

Cir. 1996) (“Among the collateral issues a federal court may 

consider after an action is no longer pending is a Rule 11 

sanction.”); Westlake N. Prop. Owners Ass’n v. City of Thousand 

Oaks, 915 F.2d 1301, 1303 (9th Cir. 1990) (“[E]ven if a court 

does not have jurisdiction over an underlying action, it may 
27 

have jurisdiction to determine whether the parties have abused 

the judicial system and whether sanctions are appropriate to 

remedy such abuse.”). 

This Court’s own precedent aligns with the chorus of cases 

cited above, thus exposing as hollow the majority’s far-reaching 

statement that “entry of an order remanding a case to state 

court divests the district court ‘of all jurisdiction in [the] 

case and preclude[s] it from entertaining any further 

proceedings of any character[.]’” Ante at 9 (first and second 

alterations in original) (quoting Three J Farms, Inc. v. Alton 

Box Board Co., 609 F.2d 112, 115 (4th Cir. 1979)). In ITT 

Industrial Credit Co. v. Durango Crushers, Inc.—a case decided 

eight years after Three J Farms—this Court affirmed the district 

court’s award of attorneys’ fees to the plaintiff as a sanction 

based on the defendants’ improper removal of the case to federal 

court. 832 F.2d 307, 308 (4th Cir. 1987). Specifically, this 

Court stated the following: 

Ordinarily, a district court may not award attorneys’

fees absent express Congressional authorization. 

Exceptions to the “American Rule,” whereby each party 

pays its own attorney’s fees, are matters of 

legislative providence. . . . [H]owever, courts do 

have inherent power to award attorney’s fees against a 

party who has acted in bad faith. The limited 

authority of the district courts to award fees as a 

sanction for a removal taken in bad faith is widely 

recognized. Although § 1447(c) itself conveys no 

power on the district courts to award attorneys’ fees, 

the district court did not err in awarding attorney’s 

fees . . . because the[] removal petition was so 
28 

patently without merit that the inescapable conclusion

is that it was filed in bad faith. 

Id. (emphasis added) (citations omitted) (internal quotation 

marks omitted).3

To be absolutely sure, the opinion in Durango Crushers is 

ambiguous about (1) whether the district court ordered sanctions 

subsequent to remand, as would be the case here (as opposed to 

in conjunction with remand), and (2) whether the court ordered 

sanctions sua sponte or pursuant to a post-remand motion or 

request. However, this Court’s subsequent decision in Anton 

Leasing, Inc. v. Engram, 846 F.2d 69 (4th Cir. 1988) (per 

curiam) (unpublished table decision)—handed down less than six 

months after Durango Crushers—purges any lingering doubt about 

district courts’ ability to order sanctions after remand.4 In 

Engram, the district court granted the plaintiff’s motion to 

remand the case to state court for failure to remove the case to 

the proper venue. Prior to the remand, the plaintiff requested 

costs and fees. “[The defendant] failed to respond to [the 

 3 At the time that this Court decided Durango Crushers, the 

then-current (1982) version of 28 U.S.C. § 1447(c) did not 

include attorneys’ fees as part of the “just costs” available 

based on an improvident removal. See Graphic Commc’ns Local 1B 

Health & Welfare Fund A v. CVS Caremark Corp., 636 F.3d 971, 974 

(8th Cir. 2011). 

4 Two of the three judges who were on the panel for Durango 

Crushers—Judge Wilkinson (author) and Judge Chapman—were also 

panel members for Engram. 
29 

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 the lack of subject jurisdiction. The plaintiff opposed 

this motion and again requested attorneys’ fees, which the 

district court awarded. The defendant appealed. 

On appeal, this Court held that, “While the district court 

was without jurisdiction to rule on the transfer motion, . . .

the court had jurisdiction to review the [post-remand] request 

for just costs and that that part of the order is appealable.” 

Id. (citing News-Texan, Inc. v. City of Garland, 814 F.2d 216, 

220 (5th Cir. 1987), and Vatican Shrimp Co., 820 F.2d at 680 

n.7—both Rule 11 cases). Importantly, and like in Durango 

Crushers, this Court characterized the attorneys’ fees award as 

a sanction. Id. (citing Durango Crushers and noting that the 

then-current version of § 1447(c) “convey[ed] no power on the 

district courts to award attorneys’ fees”); see supra note 3. 

The myriad cases cited above from other circuit courts, 

district courts, and this Court are just appetizers, for the 

Supreme Court itself has spoken on the propriety of Rule 11 

sanctions ordered (1) after a case has been dismissed and 

(2) even when a district court was without jurisdiction in the 

first instance. The first of these two cases is Cooter & Gell 
30 

v. Hartmarx Corp., 496 U.S. 384 (1990). There, the plaintiff 

filed a complaint but then dismissed the complaint pursuant to 

Rule 41(a)(1)(i) after the defendant moved for dismissal and for 

Rule 11 sanctions because of the baseless allegations in the 

complaint. Id. at 389. The district court heard oral argument 

on the Rule 11 motion prior to dismissal but dismissed the case 

without ruling on the motion. Id. More than three-and-a-half 

years later, the district court granted the defendants’ Rule 11 

motion. Id. at 389–90. After losing on appeal, the plaintiff’s 

law firm petitioned the Supreme Court, arguing that the district 

court was without jurisdiction to order sanctions. 

The Supreme Court held that the district court did have 

jurisdiction to sanction plaintiffs’ counsel. Specifically, the 

Court stated that “a voluntary dismissal does not expunge the 

Rule 11 violation,” and “a court must have the authority to 

consider whether there has been a violation of [Rule 11]

regardless of the dismissal of the underlying action.” Id. 

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

may consider collateral issues after an action is no longer 

pending.”); see also id. at 398 (“The 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.”). Although the underlying case 

in Cooter & Gell became “no longer pending” before the district 
31 

court due to the plaintiff’s voluntary dismissal, numerous 

circuit courts have applied Cooter & Gell’s holding to cases 

that were “no longer pending” due to remand to state court. 

E.g., Desert Sch. Fed. Credit Union, 473 F. App’x 804 (“The 

Supreme Court has long held that a district court retains 

jurisdiction to impose Rule 11 sanctions even after a case has 

been dismissed. . . . Thus, the district court had jurisdiction 

to impose Rule 11 sanctions in the amount of attorney’s fees 

even after remanding the case to state court.” (citing Cooter & 

Gell)); Bryant, 420 F.3d at 164 (“Nothing in Cooter & Gell

limits its observations concerning collateral jurisdiction over 

Rule 11 motions to dismissals under Fed. R. Civ. P. 41(a)(1).”). 

The second Supreme Court case that directs the conclusion 

that the district court had jurisdiction to consider Colgate’s 

Rule 11 motion for sanctions is Willy v. Coastal Corp., 503 U.S. 

131 (1992) (9-0) (Rehnquist, C.J.). In Willy, the petitioner 

sued the respondent in state court and the respondent removed 

the case to federal court. Id. at 132. Over the petitioner’s 

objection, the district court concluded that it had subject 

matter jurisdiction and subsequently granted the respondent’s 

motion to dismiss for failure to state a claim. Id. at 132–33. 

At the same time, the district court granted the respondent’s 

motion for Rule 11 sanctions against the petitioner and his 

attorney for certain filings made in the district court, and the 
32 

petitioner appealed. Id. at 133. The appeals court determined 

that federal subject matter jurisdiction over the case was 

improper and reversed the district court’s order dismissing the 

claims with instructions to remand the case to state court. Id. 

However, the appeals court did not reverse the sanctions award. 

Neither did the Supreme Court. Instead, the Court stated 

that, although “[a] final determination of lack of subjectmatter 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.” Id. at 137. Citing 

Cooter & Gell, the Court reiterated that Rule 11 sanctions are 

“collateral to the merits” of an action, id. at 138, and that 

“[t]he interest in having rules of procedure obeyed . . . does 

not disappear upon a subsequent determination that the court was 

without subject-matter jurisdiction,” id. at 139. Like those 

circuit court decisions applying Cooter & Gell, appeals courts 

have likewise relied on Willy for the proposition that district 

courts maintain jurisdiction to order Rule 11 sanctions after 

remand. E.g., Bryant, 420 F.3d at 164 (“[T]he Supreme Court

. . . has . . . held that district courts have jurisdiction over 

Rule 11 motions where the district court has remanded a case to 

state court. It follows that in [appellant]’s case the district 
33 

court was not deprived of jurisdiction to resolve the collateral 

issue of Rule 11 sanctions by virtue of its earlier order 

remanding the suit.” (citing Willy)); see also Lazorko, 237 F.3d 

at 247. 

In view of the above, the district court had, at a minimum, 

jurisdiction to consider Colgate’s Rule 11 motion for sanctions 

and to fashion appropriate relief, if any; the law could not be 

more clear on this point. Jurisdiction is a court’s ability to 

consider a motion in the first instance, not the court’s ability 

to actually grant the relief requested therein. The majority 

misunderstands this basic legal distinction and, in reaching the 

opposite conclusion, maroons itself on an island all alone, 

thereby creating a cosmic circuit split and contravening Supreme 

Court precedent and this Court’s precedent. Indeed, it appears 

that it is the majority’s rigid position that is the “anomaly in 

federal jurisdiction.” Ante at 9. 

B. Rule 60(b)(3) 

 “Exactness in the use of words is the basis of all serious 

thinking.” Felix Frankfurter, Some Reflections on the Reading 

of Statutes, 47 Colum. L. Rev. 527, 546 (1947) (citation 

omitted) (internal quotation marks omitted). “[C]ourts must 

presume that a legislature says in a statute what it means and 

means in a statute what it says there.” Conn. Nat’l Bank v. 

Germain, 503 U.S. 249, 253–54 (1992). “[U]nless otherwise 
34 

defined, words will be interpreted as taking their ordinary, 

contemporary, common meaning.” Perrin v. United States, 444 

U.S. 37, 42 (1979). These are fundamental tenets for drafting 

and interpreting legislation, and yet the majority spurns such 

bedrock principles by failing to appreciate the distinction 

between “vacating” an order and “reviewing” an order, only the 

latter of which is prohibited by 28 U.S.C. § 1447(d). 

The Eleventh Circuit recognized the distinction noted above 

in Aquamar, S.A. v. Del Monte Fresh Produce N.A. and explained 

it as follows: 

Vacatur of a remand order does not necessarily 

constitute a forbidden “review” of the remand 

decision. To “review” an order, a court must do more 

than merely cancel it; it must, to some extent, 

examine it and determine its merits. A “review” is a 

“reconsideration; second view or examination; 

revision; consideration for purposes of correction.” 

Black’s Law Dictionary 1320 (6th ed. 1990). A vacatur 

does not necessarily implicate this sort of 

examination. 

If we order the district court to vacate an order for 

reasons that do not involve a reconsideration or 

examination of its merits, then we have not “reviewed” 

the order, and therefore have not fallen afoul of 

section 1447(d)’s prohibition on review. 

179 F.3d 1279, 1288 (11th Cir. 1999) (citing U.S. Bancorp Mortg. 

Co. v. Bonner Mall P’ship, 513 U.S. 18, 22–23 (1994)); see also

Tramonte v. Chrysler Corp., 136 F.3d 1025, 1028 (5th Cir. 1998)

(“[V]acatur of the remand order would . . . not constitute a 

review of the merits of that order, prohibited by 28 U.S.C. 

§ 1447(d).”). The majority is speedy to attempt to distinguish 
35 

Aquamar and Tramonte on their facts and the reasons for vacatur 

in those cases, but is conspicuously silent as to why the 

vacate/review distinction ceases to apply in this case, which 

deals with the same statutory provision. Indeed, and just like 

the Aquamar court, this Court has several times relied on 

dictionaries to interpret statutes when the statutes’ words were 

not defined therein. See, e.g., Country Vintner of N.C., LLC v. 

E. & J. Gallo Winery, Inc., 718 F.3d 249, 258–59 & n.10–17 (4th 

Cir. 2013) (Davis, J.); United States v. Hampton, 628 F.3d 654, 

660 (4th Cir. 2010) (Davis, J.); FindWhere Holdings, Inc. v. 

Sys. Env’t Optimization, LLC, 626 F.3d 752, 756 (4th Cir. 2010) 

(Davis, J.); Torres v. O’Quinn, 612 F.3d 237, 243, 245–46 (4th 

Cir. 2010) (Davis, J.); see also United States v. Perez-Perez, 

737 F.3d 950, 955 (4th Cir. 2013) (Davis, J., concurring); David 

v. Alphin, 704 F.3d 327, 339 (4th Cir. 2013) (Davis, J.). 

This Court should not treat this case and this statute any 

differently, and to dismiss the distinction as mere semantics 

runs afoul of long-standing statutory interpretation principles. 

The majority relies heavily on In re Lowe, 102 F.3d 731 

(4th Cir. 1996), and the flowery “one shot”-language contained 

therein, but without solid justification for doing so on these 

facts and without any discussion of the particulars of that 

case. In Lowe, the district court remanded the case due to lack 

of complete diversity between the parties, and the defendants 
36 

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 733 (emphasis added). 

This Court then determined that, “[i]ndisputably, ‘otherwise’ in

§ 1447(d) includes reconsideration by the district court.” Id. 

at 733–34 (emphasis added). 

Lowe’s holding is consistent with the holdings of several 

factually similar cases (i.e., cases wherein a party asked for 

reconsideration of a remand order), all of which I think were 

correctly decided in view of § 1447(d)’s bar on “review.” See, 

e.g., Gravitt v. Sw. Bell Tel. Co., 430 U.S. 723 (1977) (per 

curiam) (reversing judgment where the court of appeals “ordered 

the District Court to vacate its remand order because the latter 

had employed erroneous principles in concluding that it was 

without jurisdiction”); Agostini v. Piper Aircraft Corp., 729 

F.3d 350, 355 (3d Cir. 2013) (“[W]e hold that we do not have 

jurisdiction to review an order denying a motion to reconsider a 

remand order.”); Harris v. Blue Cross/Blue Shield of Ala., Inc., 

951 F.2d 325, 326, 330 (11th Cir. 1992) (addressing the issue of 

“whether the district court had jurisdiction to ‘reconsider’ its 

order remanding the case to state court” and concluding that it 
37 

did not). Fortunately for Colgate, however, the case before the 

Court today is not Lowe, Gravitt, Agostini, or Harris insofar as 

vacatur does not require review or reconsideration of a ruling. 

See Aquamar, 179 F.3d at 1288; Tramonte, 136 F.3d at 1028. 

Contrary to the majority’s claim that “Colgate[] seek[s] to 

draw us into the merits . . . of the district court’s order,” 

ante at 8, Colgate never once argues that remand was wrong based 

on the facts that were presented to the district court at the 

time the cases were removed. Of course, Colgate argues that the 

joinder of certain parties has now been confirmed as fraudulent; 

but this is a separate issue from the question of whether remand 

was proper under the facts as plaintiffs’ counsel originally 

presented them (i.e., that all Maryland defendants were properly 

joined). The majority couches Colgate’s argument as “attacking

the district court’s analysis of the merits of the remand,” id. 

at 14, but has not cited to a single instance—because there is 

not one—where Colgate claims that the district court erred by 

remanding the cases based on the facts as plaintiffs’ counsel 

represented them. Colgate’s real argument, which the majority 

either simply misunderstands or chooses to ignore and remold 

into a new argument, is that plaintiff counsel’s representations 

were not a truthful portrayal of the actual facts of the case; 

Colgate therefore attacks the manner by which the plaintiffs 

secured the remand orders, not the merits or correctness of the 
38 

orders themselves. Compare ante at 12 (“Colgate’s argument that 

it is not seeking ‘review’ is simply incorrect because its 

request necessarily requires a merits review of the remand 

orders.”), with Colgate’s Reply Br. at 3 (“The instant motions 

do not seek relief on the ground that the Remand Orders were 

substantively incorrect. Instead, they contend that the orders 

were procured unfairly through misconduct. Thus the ‘review’ 

requested is of counsel’s conduct—not the orders themselves.” 

(third emphasis added)). 

In view of the proper understanding of Colgate’s argument 

and the fact that Colgate never once argues that the district 

court erred in remanding the cases—only that that the district 

court erred in subsequently denying Colgate’s post-remand 

motions—§ 1447(d) does not prohibit this Court from vacating the 

remand orders pursuant to Rule 60(b)(3) if it is determined that 

such relief is warranted. In Schultz v. Butcher, 24 F.3d 626 

(4th Cir. 1994), this Court clarified that Rule 60(b)(3) does 

not pertain to the merits of a judgment, order, or proceeding, 

but rather ensures the integrity of the manner by which such 

ruling was procured. There, the plaintiff’s lawyer deliberately

withheld a document that fell plainly within the scope of one of 

the defendant’s interrogatories. Id. at 629. The district 

court (by a bench trial) ruled in favor of the plaintiff, and 

the defendant moved post-judgment pursuant to Rule 60(b)(3) for, 
39 

inter alia, a new trial, alleging that the plaintiff concealed 

the pertinent document and that the absence of that document 

prejudiced the defendant. Id. at 630. The district court 

denied the motion because “the report was not newly discovered 

evidence and . . . would not have altered the court’s 

determination as to liability.” Id. at 631. 

This Court reversed on appeal and explained that 

[t]he “newly discovered evidence” provision of 

Rule 60(b)(2) is aimed at correcting an erroneous 

judgment stemming from the unobtainability of 

evidence. Consequently, a party seeking a new trial 

under Rule 60(b)(2) must show that the missing 

evidence was “of such a material and controlling 

nature as [would] probably [have] change[d] the 

outcome” . . . In contrast, Rule 60(b)(3) focuses not 

on erroneous judgments as such, but on judgments which 

were unfairly procured. 

Id. at 631 (alterations in original) (emphasis added) (quoting 

Anderson v. Cryovac, Inc., 862 F.2d 910, 924 n.10 (1st Cir. 

1988)); see also Square Constr. Co. v. Wash. Metro. Area Transit 

Auth., 657 F.2d 68, 72 (4th Cir. 1981) (“Setting aside a 

judgment under [Rule] 60(b)(3) does not require that the [fraud, 

misrepresentation, or misconduct] be sufficient to alter the 

district court's judgment[.]”). As noted above, Colgate does 

not argue that the reasoning of the remand orders was erroneous 

based on the facts as plaintiffs’ counsel presented them when

the cases were removed; rather, Colgate argues only that the 

orders were “unfairly procured” due to the contortion of facts 
40 

and evidence supporting a claim against the in-state defendants. 

The law recognizes such factual manipulation as fundamentally 

unfair and provides to a party the opportunity to seek relief 

pursuant to Rule 60(b)(3). Schultz, 24 F.3d at 631 (“[W]rongful 

[withholding] of . . . material makes it inequitable for the 

withholder to retain the benefit of the [judgment][.]”). 

In Cooter & Gell, the Supreme Court stated that, “If a 

litigant could purge his violation of Rule 11 merely by taking a 

dismissal, he would lose all incentive to stop, think and 

investigate more carefully before serving and filing papers.” 

496 U.S. at 398 (citation omitted) (internal quotation marks 

omitted). The same is true in the context of a remand order: if 

a litigant could flout his duty of candor before a district 

court and secure remand by misrepresentation, knowing that such 

remand is never subject to vacatur, he would lose all incentive 

to present the facts of a case honestly to the court during 

removal. Righting this wrong and protecting the sanctity and 

integrity of judicial proceedings overrides the value of any 

purported finality of a remand order.5

 Green v. Foley, 856 F.2d 

 5 It is ironic that the majority would lean on the notion 

that “it is manifest that the law favors finality.” Ante at 9; 

see Whiteside v. United States, __ F.3d __, No. 13-7152, 2014 WL 

1364019, at *11 (4th Cir. Apr. 8, 2014) (Davis, J., concurring) 

(criticizing one of our colleagues for “prostrat[ing] . . . at 

the altar of finality” and for “favor[ing] what’s ‘finished’ 

over what’s ‘right’”). 
41 

660, 667 (4th Cir. 1988) (“[T]he policy of deterring misconduct 

which threatens the fairness and integrity of the fact finding 

process must outweigh considerations of finality. Any other 

result would reward [a litigant’s] wrongful acts by permitting 

him to retain the benefit of those acts . . . in derogation of 

the proper function of the federal courts.” (emphasis added) 

(citation omitted) (internal quotation marks omitted)). 

Finally, before proceeding to the merits of Colgate’s 

motions, a word about Powerex Corp. v. Reliant Energy Services, 

Inc., 551 U.S. 224 (2007), is in order. The majority erects a 

cathedral around Powerex but, as with Lowe and every other case 

that the majority relies upon, provides no discussion of the 

facts—only selective sound bytes in support of its position. In 

Powerex, two foreign defendants (including Powerex Corp.) and 

two federal defendants removed a state-law action, claiming that 

the district court had subject matter jurisdiction pursuant to

28 U.S.C. § 1441(d) (authorizing removal by a “foreign state” as 

defined in the Foreign Sovereign Immunities Act (FSIA)) and 

28 U.S.C. § 1442(a) (authorizing removal by federal agencies). 

Id. at 227–28. The plaintiffs moved to remand the case, and the 

district court determined that the two federal defendants and 

one of the foreign defendants were immune from suit, but that 

Powerex Corp. did not qualify as a “foreign state.” Id. at 228. 

Accordingly, because Powerex Corp. did not satisfy the criteria 
42 

for federal jurisdiction pursuant to § 1441(d) and all other 

defendants were immune from suit, the district court remanded

the case. Id. at 228. 

Powerex Corp. appealed, arguing that it was “foreign state” 

for FSIA purposes, and the plaintiffs countered, arguing that

the appeal was barred by § 1447(d). The Ninth Circuit held that 

it “ha[d] jurisdiction to review the underlying merits of the 

district court’s substantive rulings on immunity and sovereign 

status[,]” California v. NRG Energy, Inc., 391 F.3d 1011, 1022 

(2004) (emphasis added)—or in the words of the Supreme Court, 

the Ninth Circuit held that § 1447(d) “did not preclude it from 

reviewing substantive issues of law that preceded the remand 

order,” Powerex, 551 U.S. at 228 (emphasis added). The Ninth 

Circuit then affirmed the district court’s ruling that Powerex 

Corp. was not a “foreign state” for purposes of § 1441(d). Id. 

The Supreme Court subsequently vacated that decision and 

remanded the case with instructions to dismiss the appeal for 

lack of jurisdiction. The Court reasoned that “[n]othing in the 

text of § 1447(c) supports the proposition that a remand for 

lack of subject-matter jurisdiction is not covered so long as 

the case was properly removed in the first instance.” Id. 

at 230. Specifically, the Court held that “§ 1447(d) bars 

appellate consideration of [Powerex Corp.]’s claim that it is a 

foreign state for purposes of the FSIA.” Id. at 239. 
43 

At the end of this discussion of Powerex, one might be left 

wondering, “Well, so what? How does Powerex apply here, where 

Colgate does not claim that the district court erred as a matter 

of law in granting plaintiffs’ motions for remand and does not 

seek appellate review of the merits of the remand orders?” And 

that is precisely the point—Powerex does not apply to this case 

insofar it is no different from Lowe, Gravitt, Agostini, and 

Harris (except that Powerex Corp. did not seek reconsideration 

of the remand order by the district court, but instead jumped 

straight to the court of appeals for review of the district 

court’s decision on the merits). I belabor the details of 

Powerex merely to show that the majority’s quoting here and 

there of the case without any facts is nothing but an attempt to 

distract and divert attention away from the critical distinction 

between “vacatur” and “review”, which goes wholly unaddressed by 

the majority.6 Powerex is a case about the jurisdiction of an 

appeals court to review a district court’s reasoning on issues 

 6 Well, almost unaddressed—the majority does state that 

Colgate’s proffered review/vacatur distinction fails “because it 

seeks to relitigate the merits of an issue already litigated.” 

Ante at 13. But the majority has not explained how relitigating 

an issue using completely different facts and, more importantly, 

without referring back to the first remand orders disposing of 

that issue, in any way requires reviewing the first orders. By 

engaging in such linguistic gymnastics, the majority declares 

that “review” now also means “to litigate anew on a blank 

slate,” thus expanding its definition far beyond Mr. Webster’s, 

Mr. Garner’s, and Congress’s wildest imaginations. 
44 

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

an appeals court to vacate an order procured by alleged 

fraudulent representations and attorney misconduct. Indeed, if 

Powerex does anything, it underscores the difference between 

vacatur and review insofar as the Supreme Court never reached 

the merits of (“reviewed”) the principal issue for which it 

granted certiorari—“whether, under [FSIA], [Powerex Corp.] is an 

‘organ of a foreign state or political subdivision thereof,’” 

id. at 226 (citation omitted)—because it vacated the appeals 

court’s decision on jurisdictional grounds.7

 7 It is curious that the statement, “If Congress wanted to 

carve out an attorney-misconduct exception to the prohibition on 

review of remand orders, it would have done so[,]” ante at 14, 

appears in an opinion that places such heavy reliance on Powerex 

when all nine Justices in Powerex recognized that § 1447(d) has 

exceptions that were not carved out by Congress. Powerex, 551 

U.S. at 229 (“[W]e have interpreted § 1447(d) to cover less than

its words alone suggest.”); id. at 240 (Breyer, J., dissenting) 

(“[T]his Court has found exceptions to § 1447’s seemingly 

blanket prohibition [on review].” (citing Thermtron Prods., Inc. 

v. Hermansdorfer, 423 U.S. 336, 350–52 (1976), and Osborn v. 

Haley, 549 U.S. 225, 240–44 (2007))); see also Bujanowski v. 

Kocontes, 359 F. App’x 112, 113 (11th Cir. 2009) (per curiam) 

(“Generally, 28 U.S.C. § 1447(d) provides that ‘[a]n order 

remanding a case to the State court from which it was removed is 

not reviewable on appeal.’ We have, however, carved out a 

limited exception in that the appellate court ‘may review the 

merits of a remand order in considering whether the district 

court abused its discretion by awarding attorneys' fees and 

costs under 28 U.S.C. § 1447(c).’” (quoting Legg v. Wyeth, 428 

F.3d 1317, 1319 (11th Cir. 2005))); In re Blackwater Sec. 

Consulting, LLC, 460 F.3d 576, 587 (4th Cir. 2006) (relied upon 

by the majority; “Having determined that the order before us 

was, indeed, predicated upon § 1447(c), and therefore within the 

purview of § 1447(d), we turn now to a consideration of whether 

(Continued) 
45 

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

courts’ interpretation thereof bars vacatur of the district 

court’s remand orders. Although I agree that reconsideration is 

a subspecies of review, see Lowe, 102 F.3d at 733–34, vacatur, 

without revisiting the merits of the prior order, is no such 

cousin or relative. 

III. Merits 

 Having concluded that the district court had jurisdiction 

to rule on Colgate’s Rule 11 and Rule 60(b)(3) motions, I will 

now proceed to analyze the merits of those motions. See Liberty 

Univ., Inc. v. Geithner, 671 F.3d 391, 422 (4th Cir. 2011) 

(Davis, J., dissenting) (“My good colleagues in the majority 

hold that the Anti–Injunction Act strips us of jurisdiction in 

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

As I reject the reasoning and the result of the majority’s 

 

one of the other judicially created exceptions to § 1447(d) 

applies.” (emphasis added)); Nutter v. Monongahela Power Co., 

4 F.3d 319, 321 (4th Cir. 1993) (“Although § 1447(d) appears to 

foreclose any review of remand orders, that limitation is 

subject to several exceptions.” (citing Brannon v. Babcock & 

Wilcox Co., 940 F.2d 832, 848 (3d Cir. 1991), which held that 

§ 1447(d) does not bar review of remand orders where the 

district court determines it lacks jurisdiction because the 

federal statute conferring jurisdiction is unconstitutional)). 

Although I do not think that we need to carve out any new 

exception to § 1447(d) because vacatur does not require review 

and, thus, Colgate’s request is outside the reach of the 

statute, it is nonetheless worth noting that, even if that is 

what we were doing, we would certainly not be the first court to 

do so. 
46 

jurisdictional analysis, I am entitled to reach the merits of 

appellants’ claims.”). Although normally all that would be 

required of this Court at this particular procedural juncture 

would be to reverse and remand for further consideration on the 

merits, the district court indicated how it would have ruled if 

it thought that it had jurisdiction. Specifically, the district 

court stated that, although there is a “sharp conflict” between 

plaintiff counsel’s statements made while the cases were removed 

and those statements made subsequent to remand, and that such 

conflict is “troubling,” the statements “are attributable to 

different attorneys in markedly different litigation contexts,” 

(J.A. 1106); therefore, the court was “not convinced that 

counsel’s conduct is sanctionable,” (id.). These statements by 

the district court were made after the parties had the 

opportunity to brief whether plaintiff counsel’s conduct 

warranted sanctions and after a hearing was held regarding the 

same; in other words, the merits of the issue have been fully 

presented and argued. 

In such a situation, this Court has the ability to rule on 

the merits of Colgate’s motions even though the district court 

technically did not. See Brown & Williams Tobacco Corp. v. FTC, 

710 F.2d 1165, 1172–73 & n.3 (6th Cir. 1983) (“The District 

Court never ruled on [plaintiffs’] two arguments on the merits 

because the court below erroneously held that it lacked 
47 

jurisdiction. Rather than remand the case which would entail 

further delay, we have decided in the interest of judicial 

economy to reach the merits of this case.”). This is especially 

the case where the proper exercise of discretion could lead to 

only one outcome and the district court has already shown how it 

would rule if this Court were to simply remand the case. See 

United States v. Fenner, 147 F.3d 360, 363 (4th Cir. 1998) 

(“[W]e need not remand to permit the district court to exercise 

its discretion [regarding an issue that it did think that it had 

the authority to decide] if its decision to do so on remand 

would constitute an abuse of discretion.”). 

This Court reviews district courts’ decisions on Rule 11 

and Rule 60(b)(3) motions for an abuse of discretion. Hunter v. 

Earthgrains Co. Bakery, 281 F.3d 144, 150 (4th Cir. 2002) 

(standard of review for Rule 11 motions); Green, 856 F.2d at 665 

(standard of review for Rule 60(b) motions). “A district court 

abuses its discretion if it bases its ruling on an erroneous 

view of the law or on a clearly erroneous assessment of the 

evidence.” Brubaker v. City of Richmond, 943 F.2d 1363, 1374 

(4th Cir. 1991). As noted above, the same underlying conduct 

forms the bases of each of Colgate’s respective motions. 
48 

A. Rule 11 Sanctions 

In relevant part, Federal Rule of Civil Procedure 11(b) 

provides as follows: 

By presenting to the court a pleading, written motion, 

or other paper—whether by signing, filing, submitting, 

or later advocating it—an attorney or unrepresented 

party certifies that to the best of the person’s 

knowledge, information, and belief, formed after an 

inquiry reasonable under the circumstances . . . the 

factual contentions have evidentiary support or, if 

specifically so identified, will likely have 

evidentiary support after a reasonable opportunity for 

further investigation or discovery[.] 

Fed. R. Civ. P. 11(b)(3). Here, Colgate seeks sanctions for 

plaintiff counsel’s averments to Judge Nickerson that “there is 

some circumstantial evidence to suggest [that] Ms. Barlow could 

possibly have been exposed to asbestos-containing products while 

working at RMR Corporation,” (J.A. 106), and to Judge Quarles 

that “Plaintiff’s counsel do have some circumstantial evidence

that Mrs. Mosko may have been exposed to asbestos at the 

Department of Agriculture,” (id. at 247). Colgate claims that, 

in view of plaintiff counsel’s subsequent statement after remand 

that “there is absolutely no evidence to indicate or even 

suggest that the Plaintiffs were exposed to asbestos in any form 

other than Cashmere Bouquet,” (id. at 476), counsel’s statements 

in federal court were without evidentiary support and deceived 

the district court into ordering remand based on a sham factual 

record. 
49 

At the hearing on the motions for sanctions, plaintiffs’ 

counsel claimed that the statements made in federal court were 

“legal conclusion[s]” and “legal argument[s],” not “factual 

contention[s]” subject to Rule 11 sanctions. (Id. at 1070–71.) 

Counsel maintained this purported distinction on appeal, 

claiming that “[t]he fact that an attorney calls evidence 

circumstantial, or claims a piece of evidence gives rise to an 

inference, falls squarely into the category of legal argument.” 

Plaintiffs’ Br. at 37. Although I agree that characterizing the 

type of evidence can, at times, be subject to some legal 

significance, I strongly disagree that a statement regarding the 

existence of evidence—be it direct, circumstantial, or some 

other type—requires application of any law. Evidence exists or 

it does not exist; this is a binary factual determination. 

On appeal, plaintiffs’ counsel attempted to backpedal and 

retreat further from the prior statements made during removal 

proceedings by framing those statements as follows: 

The truth is that the Plaintiffs in this case never 

represented to the federal court that it intended to 

generate evidence against any of the in-state 

defendants, or even that they would prevail against 

the in-state defendants. Indeed, such representations 

would have been irrelevant to the inquiry, because 

that is not what the federal standard [for remand] 

requires. Instead, the Plaintiffs argued that there 

was a possibility that evidence could be generated or 

a possibility that the Plaintiffs could prevail 

against the local defendants, and that is all that is 

required to obtain remand in a fraudulent joinder 

argument. 
50 

Id. at 29 (emphasis added on all words but the first 

“possibility” and the first “could”). This qualification of the 

previous statements is wholly unavailing and, worse, all but 

confirms that counsel’s prior statements in federal court were 

misrepresentations. While the cases were removed, plaintiffs 

did not merely claim that evidence against in-state defendants 

“could be generated”; rather, counsel told the district court 

that “there is some circumstantial evidence” and “Plaintiff’s 

counsel do have some circumstantial evidence.” (J.A. 106, 247 

(emphases added).) In other words, counsel told the district 

court that such evidence against the in-state defendants was 

already in the plaintiffs’ possession. Insofar as plaintiffs’ 

counsel is on the record as telling the court that plaintiffs 

had evidence that apparently did not exist, counsel’s misconduct 

is subject to Rule 11. See, e.g., Pope v. Fed. Express Corp., 

39 F.3d 1327, 1328 (8th Cir. 1995) (affirming award of Rule 11 

sanctions for offering a falsified document into evidence). 

Plaintiffs’ constant altering of their position to cater to 

the forum of the day is further demonstrated by Ms. Lilly’s 

statements at the hearing on Colgate’s motions for sanctions 

before Judge Nickerson. There, Ms. Lilly claimed that Mr. Kelly 

“overstated things” subsequent to remand when he submitted that

“there is absolutely no evidence to indicate or even suggest 
51 

that the Plaintiffs were exposed to asbestos in any form other 

than Cashmere Bouquet.” (J.A. 1092.) Ms. Lilly then asserted, 

“Yes, there was some evidence[,]” referring to the alleged 

existence of evidence that Barlow could have been exposed to 

asbestos at her place of employment and not via Cashmere Bouquet 

only. (Id.) But even setting aside the existence (or not) of 

evidence, Mr. Kelly also asserted after remand that Barlow and 

Mosko “do not allege exposure to . . . asbestos . . . in any 

other form” other than Cashmere Bouquet. (J.A. 474 (emphasis 

added).) In other words, notwithstanding the named defendants 

in the complaint, plaintiffs had no intention to pursue claims 

against any party but Colgate; Mr. Kelly therefore confirmed 

that this truly is a “one-defendant” case, (see J.A. 494). 

“[W]here a party assumes a certain position in a legal 

proceeding, and succeeds in maintaining that position, he may 

not thereafter, simply because his interests have changed, 

assume a contrary position[.]” New Hampshire v. Maine, 532 U.S. 

742, 749 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689 

(1895)) (internal quotation marks omitted)). That is precisely 

what happened here: first, there was evidence in federal court 

of other sources of exposure to asbestos when the existence of 

such evidence was advantageous for defeating complete diversity 

and obtaining remand; then, just eight days after the remand 

order in Barlow’s case was handed down, there was no such 
52 

evidence in state court when the lack of any evidence was 

advantageous for reconsolidating plaintiffs’ cases for trial; 

then, there was again evidence in federal court when Ms. Lilly 

had to answer for her prior representations made during removal 

proceedings to avoid being sanctioned. This ping-pong match 

must come to an end. 

Although one might expect a multinational corporation, 

embroiled in several types of lawsuits around the country and 

represented by different law firms, to now and again take 

inconsistent positions without being aware that it has done so 

(not that doing so is excusable), the constant shifting of 

positions by the same two lawyers from the same law firm and in 

the same matters for two individual plaintiffs is unacceptable. 

Lawyers are mouthpieces for their clients; they do not speak for 

themselves. Thus, regardless of which lawyer makes an argument

on behalf of a client, it is still the client (i.e., party to 

the lawsuit) who is taking a certain position, and this position 

cannot change as does the weather in spring whenever it favors 

the client’s instant cause or depending on which lawyer is 

appearing to represent the client on any given day. 

The district court provided no explanation as to why it 

would not award sanctions other than counsel’s statements “are 

attributable to different attorneys in markedly different 

litigation contexts.” (J.A. 1106.) As explained above, the 
53 

fact that different lawyers made the statements is wholly 

irrelevant. Moreover, the fact that the statements were made in 

different contexts is precisely what makes the misconduct so 

egregious—one would not expect a party to even attempt such a 

blatant about-face before the same judge; but plaintiffs’ 

counsel knew that it was making the post-remand statements 

before a different judge and in a different forum. When this is 

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

pinnacle to ensure the fair adjudication of claims based on 

prior rulings that impacted those same claims. To not order 

sanctions on these facts would be an abuse of a district court’s 

discretion. See, e.g., Judin v. United States, 110 F.3d 780, 

781 (Fed. Cir. 1997) (“Because we find a clear violation of 

Rule 11, we hold that the trial court abused its discretion in 

determining otherwise.”); see also Thompson v. RelationServe 

Media, Inc., 610 F.3d 628, 671 (11th Cir. 2010) (Tjoflat, J., 

concurring in the appeal and dissenting the cross-appeal) 

(“[T]he district court necessarily abused its discretion when it 

denied sanctions. That is, the violations are so clear that no 

matter what rationale the district court might have had, it 

abused its discretion when it denied sanctions.”); Rentz v. 

Dynasty Apparel Indus., Inc., 556 F.3d 389, 400–03 (6th Cir. 

2009) (concluding that the district court abused its discretion 

for not ordering more severe sanctions because the amount of the 
54 

“token sanction” that was ordered was “insufficient to serve 

Rule 11’s deterrent purposes”).

Rule 11(c)(1) provides, “If . . . the court determines that 

Rule 11(b) has been violated, the court may impose an 

appropriate sanction on any attorney, law firm, or party that 

violated the rule or is responsible for the violation.” I agree 

with the majority that we cannot order that the case be returned 

to district court as a sanction; federal jurisdiction is not a 

tool by which to ensure deterrence of future misconduct. But we 

can compensate Colgate for any attorneys’ fees and costs that it 

has amassed as a result of plaintiffs’ shifty positions. I 

therefore would sanction the plaintiffs and their counsel by 

ordering that plaintiffs pay Colgate’s attorneys’ fees and costs 

for the following proceedings and any related filings: (1) the 

original removal proceedings before Judge Nickerson and Judge 

Quarles; (2) any proceedings in state court subsequent to 

remand, including the hearing before Judge Glynn; (3) the 

proceedings in the district court relating to Colgate’s motions 

for sanctions; and (4) this appeal. Further, I would refer 

plaintiffs’ counsel to the bars of any states in which they are 

licensed to practice law. 

B. Rule 60(b)(3) Relief 

 In Square Construction Co., this Court established a threepronged test for a moving party to obtain Rule 60(b)(3) relief: 
55 

the movant must (1) “demonstrate the existence of a meritorious 

claim or defense”; (2) “prove the misconduct complained of by 

clear and convincing evidence”; and (3) “demonstrate that such 

misconduct prevented him from fully and fairly presenting his 

claim or defense.” 657 F.2d at 71. “In consideration of these 

proofs, the court must balance the competing policies favoring 

the finality of judgments and justice being done in view of all 

the facts, to determine, within its discretion, whether relief 

is appropriate in each case.” Id. In analyzing these factors 

as applied to this case, Colgate satisfies them all. 

First, Colgate demonstrated the existence of a meritorious 

defense to the remand orders, namely that the Maryland in-state 

defendants were fraudulently joined. Colgate maintained this 

position from the time that Colgate filed its notices of removal 

in the respective state-court actions throughout this appeal. 

(See, e.g., J.A. 30–31 (Notice of Removal in Barlow’s case); id. 

at 39–40 (Notice of Removal in Mosko’s case); id. at 377–78 

(Motion for Sanctions in Mosko’s case); id. at 530–31 (Motion 

for Sanctions in Barlow’s case)); Colgate’s Opening Br. at 18. 

And just as the district court in Schultz “observed that the 

[meritorious defense] was a close question” but ultimately 

denied the plaintiff’s Rule 60(b) motion, see 24 F.3d at 630, 

the district court here similarly observed that plaintiff 

counsel’s statements “appear to be in sharp conflict” and that 
56 

such conflict is “troubling,” (J.A. 1106), even though it 

likewise denied Colgate’s motion. 

Second, Colgate proved the misconduct complained of by 

clear and convincing evidence. Although the burden belongs to 

Colgate, the contradictory assertions contained in plaintiffs’ 

filings and the statements made by plaintiffs’ counsel speak for 

themselves. See supra at 2–7. Moreover, as demonstrated above, 

plaintiff counsel’s attempts to backpedal and cover their tracks 

all but confirmed their prior misrepresentations. See supra 

at 34–37. 

Third, counsel’s misconduct prevented Colgate from fully 

presenting its case as to federal jurisdiction. As noted above, 

the plaintiffs’ alleged existence of evidence against the instate defendants is the precise and only reason that the 

respective district judges granted plaintiffs’ motions for 

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

Lastly, any finality of the remand orders yields to 

“justice being done in view of all of the facts.” Schultz, 24 

F.3d at 630. The majority claims that the representations by 

plaintiffs’ counsel on remand merely form a more “improved” and 

“complete” record, ante at 13, 14; this is an understatement, to 

put it lightly. In reality, the record on remand is starkly 

different than the record put forth prior to remand. Apples and 

oranges. Night and day. Although I agree that the district 
57 

court “‘has one shot, right or wrong,’ to decide whether a 

removed case should be remanded,” ante at 11–12 (quoting Lowe, 

102 F.3d at 735), this “one shot” must be based on an honest and 

candid (i.e., accurate) representation of the facts and record. 

Here, it was not, and the law provides a remedy to Colgate for 

such misconduct. See, e.g., Schultz, 24 F.3d at 632 (reversing 

denial of Rule 60(b)(3) motion for withholding key evidence); 

see Square Constr. Co., 657 F.2d at 68 (vacating denial of 

Rule 60(b)(3) motion and concluding that the district court’s 

finding that evidence was not withheld was clearly erroneous). 

For the reasons set forth above, I would vacate the denial 

of Colgate’s Rule 60(b)(3) motion and remand the case for a 

hearing in federal court regarding whether subject matter 

jurisdiction over plaintiffs’ claims against Colgate exists 

based on the facts as presented at the post-remand, state-court 

hearing on plaintiffs’ motion for severance and consolidation. 

IV. 

It is a truly sad day for this Court to claim that a party 

“failed” to make its case, ante at 13, and should be deprived of 

a forum to which it is entitled when its adversary concealed or 

otherwise obfuscated the information that would have allowed the 

party to do so. Under this disquieting logic, the majority 

would also claim that a person “fails” to compute the 

circumference of a circle when that person is not provided with 
58 

the circle’s radius or diameter or the value of pi. This simply 

cannot be the law, should not be the law, and is not the law. 

Because the law is clear that remand does not deprive a 

court of jurisdiction to sanction a party pursuant to Rule 11, 

I would reverse the district court’s denial of Colgate’s Rule 11 

motion. And because it would have been an abuse of discretion 

to not sanction plaintiffs and their counsel, I would sanction 

plaintiffs and their counsel as set forth above in Part III.A. 

Furthermore, because vacatur of the remand orders does not 

require “review” of the merits of those orders, I would reverse 

the district court’s denial of Colgate’s Rule 60(b)(3) motion 

for lack of jurisdiction. And because I think that Colgate has 

met the criteria to obtain relief under Rule 60(b)(3) and that 

it would have been an abuse of discretion to not grant relief to 

Colgate, I would vacate the remand orders and remand the cases 

with instructions as set forth above in Part III.B. 

If honesty in the judicial system means anything, it means 

proceeding with candor before the tribunal, which plaintiffs’ 

counsel did not do during the removal proceedings. Whatever 

prolonging of this litigation vacatur of the remand orders might 

cause, Barlow and Mosko have only their own lawyers to blame. 

And the truth is well worth the delay.