The Third Circuit Court of Appeals recently held that unreviewable remand orders can be vacated. In Barlow v. Colgate Palmolive Co., 772 Fd. 1001 (4th Cir. 11-25-2014) plaintiff”?s sued Colgate and numerous other companies claiming that defendants”? products had at some point exposed them to asbestos. Despite Plaintiff”?s joinder of in-state defendants, Colgate removed the cases to federal court on the basis of diversity or citizenship claiming that there was fraudulent joinder of in-state defendants. Plaintiffs moved to remand and the motion was granted by the District Court on the basis of plaintiffs assertions that whey had viable claims against one or more of the non-diverse defendants.
At a hearing in the state court one of the plaintiffs”? attorneys stated that it was one defendant [Colgate] case. Colgate then went back to the District Court and moved for Rule 11sanctions and, as a supplement, moved for vacator of the remand orders pursuant to Rule 60(b)(3). While recognizing the problem presented key plaintiffs”? conflicting statements, the Court concluded that Rule 28 U.S.C. ?1447(d) deprived it of jurisdiction to vacate or strike its remand orders.
The Court of Appeals disagreed and said that “the type of relief afforded by Rule 60(b)(3) do not involve “review” as proscribed by ?1447(d)” (P 1008). The Court further said:
“We further find that ? 1447(d) does not limit a court”?s authority to provide relief-in this case, through vacatur – from a fraudulently obtained remand order under Rule 60(b)(3). Critically, ?1447(d) prohibits “reviewing” an order, but it does not prohibit “vacating” an order as permitted by Rule 60(b)(3). This distinction is not merely semantic. Rather, as several fundamental tenets of statutory construction demonstrate, it is a distinction with an important difference. Felix Frankfurter, Some Reflections on the Reading of Statues, 47 Colum. L.Rev. 527, 546 (1947) (“Exactness in the use of words is the basis of all serious thinking.” (citation Omitted)); Conn. Nat”?l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (“[C]courts must presume that a legislature says in a statute what it means and means in a statute what it says there.”); Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct. 311, 62 L.Ed. 2d 199 (1979_ (“[U]nless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.”).(P. 1013)