                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-1839


JOYCE BARLOW,

                Plaintiff - Appellee,

          v.

COLGATE PALMOLIVE COMPANY,

                Defendant – Appellant,

          and

JOHN CRANE−HOUDAILLE, INCORPORATED; E.L. STEBBING & COMPANY,
INC.; HAMPSHIRE INDUSTRIES, INC., f/k/a John H. Hampshire
Company;   UNIVERSAL   REFRACTORIES  COMPANY;   J.H.   FRANCE
REFRACTORIES COMPANY; THE GOODYEAR TIRE & RUBBER COMPANY,
f/k/a Kelly Springfield Tire Company; MCIC, INC., and its
remaining Director Trustees, Robert I. McCormick, Elizabeth
McCormick and Patricia Schunk; CBS CORPORATION, a Delaware
Corporation f/k/a Viacom, Inc., Successor by merger to CBS
Corporation, a Pennsylvania Corporation, f/k/a Westinghouse
Electric Corporation; METROPOLITAN LIFE INSURANCE COMPANY;
A.W.    CHESTERTON    COMPANY;    CERTAINTEED    CORPORATION,
individually and as successor to Bestwall Gypsum Co.; KAISER
GYPSUM    COMPANY,   INC.;    UNION   CARBIDE    CORPORATION;
INTERNATIONAL PAPER COMPANY, individually and as successor
in interest to Champion International Corporation and U.S.
Plywood Corp.; BAYER CROPSCIENCE, INC., individually and as
successor in interest to Benjamin Foster Co., Amchem
Products, Inc., H.B. Fuller Co., Aventis CropScience USA,
Inc., Rhone−Poulenc AG Company, Inc., Rhone−Poulenc, Inc.
and Rhodia, Inc.; COOPER INDUSTRIES, INC., individually and
as successors in interest to Crouse Hinds Co.; PFIZER
CORPORATION; SCHNEIDER ELECTRIC USA, INC., f/k/a Square D
Company, individually and as successor in interest to
Electric Controller and Manufacturing Co.; GEORGIA−PACIFIC,
LLC, individually and as successor to Bestwall Gypsum Co.;
FOSTER WHEELER CORPORATION; THE WALLACE & GALE ASBESTOS
SETTLEMENT TRUST; CONWED CORPORATION; GENERAL ELECTRIC
COMPANY; 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;

                                     2
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.




                                3
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



                                           4
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

                                           5
(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 asbestos-

containing 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

                                             6
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

                                                7
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 subject-

matter 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



                                                8
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




                                               9
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).


                                           10
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

                                          11
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      attorney-

misconduct 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

                                                  12
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

                                           13
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-of-

Circuit 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

                                          14
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




                                         15
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

                                         16
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’ counsel 1 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 asbestos-
     containing products while working at RMR Corporation.
     . . . The evidence is certainly circumstantial, but it
     cannot be said that there is no possibility that a
     claim could be successfully proven against any of the
     non-diverse defendants.

(J.A. 106.)      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.


                                       17
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

                                    18
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 asbestos-
     containing   Cashmere   Bouquet   only.   .   .   .   The
     occupations or worksites of the Plaintiffs should not
     affect the consolidation of these cases for trial
     because not one of the Plaintiffs testified that they
     were exposed to asbestos as a result of their
     employment. . . . 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


                                           19
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 in-
     state 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?


                                        20
       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


                                       21
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.

                                    22
      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

                                      23
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.


                                     24
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

                                            25
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

                                          26
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

                                  27
      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 is 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.


                                         28
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

                                          29
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

                                          30
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

                                              31
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    subject-

matter jurisdiction of a case in a federal court . . . precludes

further adjudication of it[,] . . . such a determination does

not automatically wipe out all proceedings had in the district

court   at   a    time   when   the   district   court   operated        under   the

misapprehension that it had jurisdiction.”               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

                                         32
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

                                         33
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

                                  34
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

                                           35
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

                                   36
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

                                37
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,

                                          38
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


                                                  39
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’”).


                                   40
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

                                    41
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.

                                      42
     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.


                                         43
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)
                                          44
         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.


                                                45
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

                                          46
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.




                                           47
                             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.


                                       48
       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.

                                             49
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


                                    50
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

                                         51
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

                                                    52
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

                                                53
“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 three-

pronged test for a moving party to obtain Rule 60(b)(3) relief:

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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

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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 in-

state    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

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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

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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.




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