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December 2014

November 2014

§ 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.”

Appellate specialization may be coming to Louisiana.

The Appellate Section of the Louisiana State Bar Association has filed a petition with the Louisiana Board of Legal Specialization seeking certification of a specialty in appellate practice. Here are PDF copies of the  petition and the proposed standards for board certification.

The Board has scheduled a public hearing to give bar members an opportunity to comment on the proposed specialty. The hearing is scheduled for Wednesday, December 3, 2014, 4:30 p.m., at the Bar Center, 601 St. Charles Avenue, New Orleans.

p.s. If you cannot attend the December 3 hearing in New Orleans, you may forward any written comments to the Board to consider pertaining to developing a specialty in appellate practice. Any questions or comments should be sent to