                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 11-1547


ROBERT BROCKWAY, individually and on behalf of all others
similarly situated,

                 Plaintiff - Appellant,

           and

CARL KIRCHER, individually        and    on   behalf   of   all   others
similarly situated,

                 Plaintiff,

           v.

EVERGREEN INTERNATIONAL TRUST, a business trust; EVERGREEN
INVESTMENT MANAGEMENT COMPANY, LLC,

                 Defendants – Appellees,

           and

PUTNAM FUNDS TRUST,     a     business   trust;   PUTNAM     INVESTMENT
MANAGEMENT, LLC,

                 Defendants.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:10-cv-01887-JFM; 1:04-md-15863-JFM)


Argued:   September 20, 2012                  Decided:      November 9, 2012
Before SHEDD and DUNCAN, Circuit Judges, and Timothy M. CAIN,
United States District Judge for the District of South Carolina
sitting by designation.


Affirmed by unpublished opinion. Judge Cain wrote the opinion,
in which Judge Shedd and Judge Duncan joined.


ARGUED: Klint Bruno, KOREIN TILLERY LLC, Chicago, Illinois, for
Appellant.   Nicholas George Terris, K&L GATES, LLP, Washington,
D.C., for Appellees.   ON BRIEF: Robert L. King, KOREIN TILLERY
LLC, St. Louis, Missouri, for Appellant.     Jeffrey B. Maletta,
Amy J. Eldridge, K&L GATES, LLP, Washington, D.C., for Appellee
Evergreen Investment Management Company, LLC; Laura Steinberg,
SULLIVAN & WORCESTER LLP, Boston, Massachusetts, for Appellee
Evergreen International Trust.


Unpublished opinions are not binding precedent in this circuit.




                                2
CAIN, District Judge:

      Plaintiff-Appellant   Robert       Brockway    (“Appellant”)   appeals

the   district   court’s    order        administratively     closing   and

terminating with prejudice this action. For the reasons below,

we affirm the district court’s order.



                                    I.

      As the district court aptly stated, “The procedural history

of this case, which has been pending for over seven years, is a

long and tortured one.” In September 2003, Appellant and former

co-Plaintiff Carl Kircher filed this action in Illinois state

court against former defendants Putnam Funds Trust and Putnam

Investment    Management,     LLC,        (“Putnam      Defendants”)     and

Defendants-Appellees Evergreen International Trust and Evergreen

Investment Management Company, LLC (“Evergreen Defendants”), a

mutual fund and the fund’s investment adviser, for their failure

to prevent other investors from engaging in a short-term trading

strategy known as “market timing.” 1

      Market timing is a trading strategy that exploits time
      delay in mutual funds' daily valuation system. The
      price for buying or selling shares of a mutual fund is
      ordinarily determined by the next net asset value

      1
       Kircher brought claims only against the Putnam Defendants
and Appellant brought claims against only the Evergreen
Defendants. The Putnam Defendants and Evergreen Defendants are
collectively referred to as “Defendants” in the procedural
history of this case.


                                     3
     (NAV) calculation after the order is placed. The NAV
     calculation usually happens once a day, at the close
     of the major U.S. markets. Because of certain time
     delays, however, the values used in these calculations
     do not always accurately reflect the true value of the
     underlying assets. For example, a fund may value its
     foreign securities based on the price at the close of
     the foreign market, which may have occurred several
     hours before the calculation. But events might have
     taken place after the close of the foreign market that
     could be expected to affect their price. If the event
     were expected to increase the price of the foreign
     securities, a market-timing investor could buy shares
     of a mutual fund at the artificially low NAV and sell
     the next day when the NAV corrects itself upward.

Janus    Capital      Group,    Inc.    v.   First     Derivative     Traders,

131 S.Ct. 2296, 2300 n.1 (2011).

     Defendants timely removed the case to federal court on the

ground   that   the    Securities      Litigation    Uniform     Standards   Act

(“SLUSA”) precluded the claims alleged in the complaint, but the

district court remanded the action to state court. 2 Defendants

appealed and the Seventh Circuit Court of Appeals reversed the

remand order. Kircher v. Putnam Funds Trust, 403 F.3d 478 (7th

Cir. 2005).     The Supreme Court granted certiorari, and in June

2006, vacated the Seventh Circuit’s decision, holding that the

appellate   court      lacked    jurisdiction       over   the    appeal,    and


     2
        The SLUSA preclusion provision, codified at 15 U.S.C. §
78bb(f)(1)(A), states: “No covered class action based upon the
statutory or common law of any State or subdivision thereof may
be maintained in any State or Federal court by any private party
alleging a misrepresentation or omission of a material fact in
connection with the purchase or sale of a covered security.” 15
U.S.C. § 78bb(f)(1)(A).


                                        4
remanded with instructions to dismiss the appeal. Kircher v.

Putnam Funds Trust, 547 U.S. 633 (2006). On October 16, 2006,

the Seventh Circuit dismissed the appeal and remanded the case

back to state court. In re Mut. Fund Market-Timing Litigation,

468 F.3d 439 (7th Cir. 2006).

     On November 14, 2006, Defendants removed the case for a

second time under the same SLUSA provision. While the mandate by

the Seventh Circuit Court of Appeals was issued on November 14,

2006, an order remanding the case to state court was not filed

until November 30, 2006.              Therefore, on December 6, 2006, “to

ensure that there is no doubt” that this action was removed,

Defendants filed a third notice of removal, asserting the same

removal     grounds      as    the    one        filed    on   November     14,    2006.

Defendants argued that the Supreme Court’s decision in Merrill

Lynch, Pierce, Fenner, & Smith, Inc., v. Dabit, 574 U.S. 71

(2006), had changed            the law, making removal permissible. In

July 2007, the district court disagreed and found the removal

untimely and remanded the case to state court. Kircher v. Putnam

Funds Trust, Nos. 06-cv-939 and 06-cv-1001 (S.D. Ill. July 17,

2007).

     Defendants then moved for judgment on the pleadings on the

ground that SLUSA precluded Appellant’s claims. On December 20,

2007,     the    state    court      denied        this    motion     and   Defendants

appealed.       On   January   6,    2010,       the   Illinois     Court   of    Appeals

                                             5
reversed, finding that SLUSA precluded Appellant’s claims, and

directing the state circuit court to dismiss the action. Kircher

v. Putnam Funds Trust, 922 N.E.2d 1164 (Ill. App. Ct. 2010). The

appellate court issued the mandate on March 30, 2010, and on

April 5, 2010, the state circuit court dismissed the action with

prejudice.

     On April 15, 2010, Appellant moved to modify the order                                to

provide       that    the    dismissal    was      without       prejudice      and    also

requested leave to file an amended complaint. On April 29, 2010,

prior    to    the    state     circuit      court      ruling    on   these     motions,

Defendants      removed       the   action    to     the   United      States    District

Court    for    the    Southern     District       of    Illinois      pursuant       to   42

U.S.C. § 1446. 3            On May 17, 2010, Appellant filed a motion to

remand on the ground that the removal was untimely.

     On July 14, 2010, before the district court ruled on the

remand motion, the Judicial Panel on Multidistrict Litigation

transferred the case to the United States District Court for the


     3
          Section 1446(c) provides that

     if the case stated by the initial pleading is not
     removable, a notice of removal may be filed within 30
     days after receipt by the defendant, through service
     or otherwise, of a copy of an amended pleading,
     motion, order or other paper from which it may first
     be ascertained that the case is one which is or has
     become removable.

28 U.S.C. § 1446.


                                             6
District of Maryland. On November 15, 2010, the district court

approved      a    class     settlement      which    settled       Kircher’s    claims

against the Putnam Defendants. Evergreen Defendants then filed a

motion to administratively close the case. Appellant opposed the

motion on the ground that it was premature because his motions

to remand the case to state court, to modify the state court’s

dismissal order, and for leave to file an amended complaint were

still pending.

      On April 20, 2011, the district court denied Appellant’s

motions    to      remand    to   state     court    and    for   leave   to    file    an

amended complaint and then granted Evergreen Defendants’ motion

to administratively close and terminate with prejudice the case.

In   regard       to   the   remand,   the       district   court    found     that    the

removal was timely, based upon Defendants’ removal of the action

within thirty days of the mandate being issued.                           Further, the

district court found that Appellant had waived his right to seek

remand     by      participating       in     the     multidistrict        litigation.

Finally, the district court denied Appellant’s motion to file an

amended complaint, finding it futile.



                                            II.

      On appeal, Appellant contends that the district court erred

in denying his motion to remand to state court. Specifically,

Appellant contends that the district court erred in finding the

                                             7
removal   timely   and   that   he    had   waived   his   right    to   seek   a

remand.



                                     III.

                                      A.

     We review de novo the denial of a motion to remand to state

court. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815-16 (4th

Cir. 2004) (en banc).      Furthermore, we may affirm on any grounds

apparent on the record. United States v. Smith, 395 F.3d 516,

519 (4th Cir. 2005).

                                      B.

     While Appellant contends that the removal was untimely, in

this case, we need not decide whether the removal was improper.

“[E]ven if remand would have been proper, once an improperly

removed case has proceeded to final judgment in federal court

that judgment should not be disturbed so long as the federal

court had jurisdiction over the claim at the time it rendered

its decision.” Aqualon Co. v. Mac Equip. Inc., 149 F.3d 262, 264

(4th Cir. 1998); see also Caterpillar Inc. v. Lewis, 519 U.S.

61, 77 (1996) (“To wipe out the adjudication               postjudgment, and

return    to   state   court    a    case   now   satisfying       all   federal

jurisdictional requirements, would impose an exorbitant cost on

our dual court system, a cost incompatible with the fair and

unprotracted administration of justice.”).

                                       8
     Here, while Appellant specifically acknowledges that SLUSA

bars the original complaint in state court, he contends that the

original complaint was no longer operative based upon the state

court’s order of dismissal and, therefore, the district court

lacked subject matter jurisdiction. 4 Although the state court had

dismissed the case prior to removal, the state court still had

the authority to modify, amend, or vacate the dismissal order

and, in fact, prior to removal, Appellant had filed motions to

modify the dismissal order and amend the original complaint. At

the time of removal, therefore, the original complaint remained

the operative complaint and the case was removable based upon

Appellant’s claims set forth in the original complaint, which

were precluded by SLUSA. 5 Further, because the district court

possessed subject matter jurisdiction pursuant to SLUSA at the



     4
       Appellant did not cite to any authority to support this
proposition.
     5
       SLUSA precludes class action claims based upon state law
in any state or federal court by any private party alleging “a
misrepresentation or omission of a material fact in connection
with the purchase or sale of a covered security.” 15 U.S.C. §
78bb(f)(1)(A). In Dabit, the Supreme Court held that SLUSA's
operative language must be read broadly and includes not only
purchasers and sellers of securities, but also holders of
securities. 547 U.S. at 85.      Accordingly, under Dabit, the
market timing claims of Appellant, who is a holder of
securities, are included in those class actions claims precluded
by SLUSA. Moreover, as noted above, Appellant does not contest
that the claims he raises in the operative complaint are
precluded by SLUSA. (Appellee’s Reply Br. at 1).



                                9
time       final   judgment   was   entered,      we   will    not     disturb    the

district      court’s   order   denying     Appellant’s       motion    to   remand.

Aqualon, 149 F.3d 262. 6



                                            IV.

       For the foregoing reasons, the district court’s order is

                                                                          AFFIRMED.




       6
        In light of the disposition of this                      case,       we   deny
Appellees’ motion to file a supplemental brief.



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