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§ 1447(d) does not prevent vacatur of remand order under Rule 60(b)(3)

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.”

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