Federal appellate practitioners should take note of the U.S. Fourth Circuit’s recent decision in Barlow v. Colgate Palmolive Co., No. 13-1839 (4th Cir. Nov. 25, 2014). The decision holds that an order to remand a removed case to state court—ordinarily unreviewable under 28 U.S.C. § 1447(d)—can be vacated under Fed. R. Civ. P. 60(b)(3) for “fraud ..., misrepresentation, or misconduct” in obtaining the remand order. The court reasoned that a Rule 60(b)(3) vacatur is not “review,” forbidden by § 1447(d), because it is not focused on the merits of the remand; rather it is focused on the “contaminated process” by which the order was obtained.
So what was the conduct deemed worthy of scrutiny under Rule 60(b)(3)? A flip-flop by plaintiffs' counsel after remand. In arguing for remand, plaintiffs' counsel insisted that they had a glimmer of hope in recovery from an in-state defendant. But after remand to state court, they argued that the only defendant they were pursuing was the out-of-state defendant.
A dissenting judge opined that “this case is a first-round draft choice for summary reversal should plaintiffs choose ... to file a petition for certiorari.”