In Barlow v. Colgate Palmolive Co., 772 F.3d 1001 (4th Cir. 2014), an en banc decision, the United States Court of Appeals for the Fourth Circuit considered two cases where plaintiffs allegedly misrepresented their intent to pursue claims against non-diverse defendants in actions that were removed to federal district court based upon diversity jurisdiction; after remand of the cases back to state court, the removing defendant filed motions in the federal district court under Federal Rule of Civil Procedure 11 for sanctions and Rule 60(b)(3) for vacatur of the remand orders. The Fourth Circuit held that the district court had jurisdiction, post remand, to rule on the motions for sanctions and vacatur, and that its determination of the motions did not constitute a “review” under 28 U.S.C. § 1447(d), which prohibits federal courts from reviewing orders remanding cases to state court. Id. at 1004, 1009-10.
The decision is significant because it provides a route, albeit a difficult one, to seek vacatur of a remand order where the conduct of the opposing party amounts to fraud, misrepresentation or misconduct within the meaning of Rule 60(b)(3).The consolidated appeals in Barlow involved asbestos claims brought by two individuals, plaintiffs Barlow and Mosko, in separate Maryland state court actions against Colgate-Palmolive Company (“Colgate”) and a number of other entities. In their lawsuits, Barlow and Mosko alleged that the products of each of the defendants had at some point exposed them to asbestos. Id. at 1004. Although the plaintiffs also alleged claims against certain in-state defendants, Colgate removed the two cases to the United States District Court for the District of Maryland on the basis of diversity of citizenship and contended that the plaintiffs had fraudulently joined the in-state defendants. Colgate based its contention on the plaintiffs’ deposition testimony and interrogatory responses, which purportedly demonstrated that they did not intend to “pursue a claim against any defendant other than Colgate, a diverse defendant.” Id. (citation omitted). The plaintiffs moved for remand of the two cases to state court, asserting that they had viable claims against the non-diverse defendants. Id. at 1005. They admitted, however, that the evidence was circumstantial. Id. at 1005 (citation omitted).
In considering the motions for remand, the district judges in both cases found that there was a possibility that each plaintiff could...
