Legal Case Summary

.. On the basis on the statement of counsel. Well, it was... The pleading were signed by counsel, of course, Your Honor. So, which... Which is false. Which is false. What was it? I'm sorry. Go ahead. No, that's what got me perked up. I thought you said they went to the federal court and said something to the federal court in a argument. They did. Here's the... Well, then you said it was decided on the papers. On the papers submitted for remand? What was it that was decided on the papers and what was said at the hearing couldn't have anything to do with it? Well, let me... Are you abandoning the contention that what was said at the hearing has nothing to do with it? No, Your Honor, there was no hearing in federal court. Remand... There was no argument. There was no argument. I thought there was an argument. Where was the argument? There was an argument in representations made in the state court, which I'll get to. That was their argument of state court. So, the statements in the federal court were in writing. Correct. And the statements in the state court were oral. They were both. They were both. Yes, Your Honor. So, if I could just go through the statement very quickly for the court. But before we get too far in this to try to clarify what we have before us, I thought that your motions under Rule 11 and 63P were filed in the district court and the district court dismissed them because it concluded it didn't have jurisdiction. That's correct, Your Honor. And you've appealed that. And so, we don't decide the merits of the remand or even the substance of the fraud here, do we? We just decide whether the district court had jurisdiction to consider these. There's two issues there. Your Honor, with respect to what? As to each rule. Rule 11 and Rule 60B3. That's correct. Did the district court have jurisdiction? The district court said that under... If we were oral and those, that's the end of the case. Correct

. We say yes or no, or do you want to? The district court held that under 1447. There is no ability or jurisdiction. I understand what it did, but I just want to understand what the issue is before us because you seem to start to slide into whether you had a good claim on your sanctions or in your fraud. And I'm just suggesting whether you had a good claim or not, you made a motion that was dismissed because of lack of jurisdiction. And so our task is to decide whether the district court had jurisdiction to consider your motions. That's correct, Your Honor. Correct. And so with regard to that, we did not appeal the remand order. What we brought were two separate motions. One under Rule 11 and one under Rule 60B3. And the district court held argument and held that because 1447 prohibits review of a remand order, it could not consider the relief requested on those two motions. And our position on this appeal is that this court is certainly permitted to vacate a fraudulently procured remand order. But we're not trying to do that, are we? You just said the district court ruled it couldn't reach either motion. Didn't have jurisdiction on Rule 11 or 60B3. Correct. The relief requested prohibit by 1447. And the district court, you tell us the district court coupled them together. Yes. It did not them both or dismissed them both on the same reasoning. Right. But if we say answer that he was wrong on both of those, that doesn't have any impact on your remand order. Well, yes, Your Honor, it does. No, it does not. All we've done is saying he was wrong on the answer on saying he didn't have any jurisdiction and he has to consider the two motions. Well, that is one option. That is one option, Judge. Well, there's not any question about whether that's an option or not. And the second option. And the second option, Judge King, given that the record is completely clear. Why would we rule in the first instance on that? If he had jurisdiction Rule 11, he can go after the lawyers for this conduct in their pleadings and representations to one where the two judges could and do whatever need to do to justify the system. That might be 63 if he has jurisdiction. He can decide whether there was a broader misrepresentation made to the court that warrant some relief on the remand issue. Well, Judge King, we don't have to decide any of that other. Well, at the very least, you are correct that 1447 does not prohibit the district court from considering our motions. That is clear legal error. That's one thing, but the record is clear enough as to what the district court would have ruled here that this court can vacant. We don't want us to send it back. You want us to rule now on the merits or lack of merits or whatever of the remand order. It sounds to me like you also wanted us to say as a sanction, you ought to get jurisdiction in the federal court. Well, no, as a sanction, we're not asking for jurisdiction. We're asking for vacatour of the remand. Because it was fraudulently procured. I mean, you can vacate it, but don't have jurisdiction. Subtract amount of jurisdiction is important. You've got to have that. Well, you're honest. I wanted to be able for the court to even consider. If I'm following what Judge Neymar and what Judge King is alluding to, the motions that are before us, the question is whether we have the court had jurisdiction. Once we decide that, then the relief that the court can give is a whole different matter. And if the relief can encompass vacating the remand, we've got, that may be a totally different issue. I'm not sure that fits within the type of relief. You may in fact have some type of paternist fees or something that's collateral

. Maybe to deal with, doesn't deal with the merits. Even in a rule of 11 sanction, you could sanction the law against and do all kinds of stuff. That doesn't necessarily mean that you get to undo the underlying relief that every precedent out there says you can't do. You can't go back and review because, because like I started out this, it may have been getting into it. But the basis of it is that the judge made that decision and it's already been determined when he makes that decision to send it back cannot be reviewed. Right. You're on a run. I've got that. And if it was fraud or whatever happened in the court and the fraud is based on a representation of counsel, it was a decision to accept that representation. And there you in, is your problem. But maybe you get to relieve. Maybe the collateral, we can't look at rule 11 things. But it doesn't necessarily mean we now got to say, okay, vacate the remand. You're on a, you're correct. You can send it just back to the district court. That is one method of relief. However, the record is clear enough about the fraud. And there's no question that under rule. One question would we be deciding then. You would, you had a rule 11 and a rule 63 B. Right. Rule 63 B says when there's fraud, you can open up a judgment or order or proceeding. The question is the district court didn't decide that. Well, he had this hypothetical comment afterwards of what he would do. But we're going to vacate that if we were to send it back to. And have the court address the motions. And with you can put in whatever you want, you can give an evidence and make your arguments. But the sanctions for say you win on your motions, the sanctions for that still have to be decided by the district court. Not us, right. Your honor, again, you are correct at the very least. The district court was an error in not considering the motions and saying that 1447. That's all we have before us because that is the operative order. The court says I don't have jurisdiction. I've sent the case away. Correct. But the court did not reach the merits, but he did indicate how he would rule. I understand. But we can't rule on that type of thing, can we? Well, how can we decide the motions up here and decide the appropriate remedies? We don't have anything in the district court to review. I'm not sure you understand the folks of the public court. If the court didn't think it had jurisdiction and we tell him he had it, then he has to rule. And then the loser can, once it's the final order, can come back up here. Your honor. I think that's the sanctions on lawyers or the 60B3. And there's another. And the vacator of the remand order is a dicey question because it looks on its face, 63B may authorize that. Correct. But there is also the whole concept of, normally, 63B applies to a judgment that's in the court that you're applying to. And now the case has been gone to the state court. Hypothetically, for instance, if the state tried the case to final judgment, and the final judgment had peel time gone by. And then you found fraud in the removal and came back and the district court says, I'm going to vacate the remand because of the fraud. What happens to the state judgment? Oh, judge, should to be clear. It may be without jurisdiction

. But this is a more of a dicey question that you need to explore and argue before the district court. And we don't have the record or the ruling to review on that. We just have one operative ruling. I don't have jurisdiction to consider these motions because I sent the case away. Well, as to your point and judge King's point, certainly you can send this back because under 1447, the district court did have authority to consider the motions. What's not without jurisdiction to do that. But on top of that. I just say that, but isn't that the issue? I mean, we're going to accept your bold allegations. Are cases as we can? With regard to 1447, there are a number of cases, Judge. Well, I know there are actually, I'm asking hypothetically, but I think you're still got the wrong issue on the table. You want us to vacate the remand order. Yes. And again, Judge, the reason I say that is, well, the district court indicated that it would not rule on the sanctions motion, would not grant sanctions no matter what, even if it had jurisdiction. He said the fact that there were two attorneys and two different locations. He wouldn't have granted sanctions anyway. Are you suggesting that we might consider, we have to address the jurisdictional question. Is it your concern that because the district court appears to already have prejudged the 60B3 issue, that it would be futile to argue it before that district court? Your Honor, the district court prejudged the entire sanctions motions, both rule 11 inherent ability to grant sanctions and the rule 60 and indicated that it would not have granted sanctions, because the two representations were made by- I'm saying the court can do that because it's clear how the district court would have ruled. Certainly the court does not have to do it, but it can do it here. Could we send it back, or could we send it to another judge as a protection against the district court rather than a rebuke? Because it appears that the district court may already have decided it and just to protect the district court's ability to address it on a clean slate? Absolutely, Your Honor. But if I am to ask your concern, that would address my concern. You have an ask for that though. No, we have not asked for that. That's correct. We think the record is very clear as to what the district court would do. Is it okay? Yes, Your Honor. Good morning. Good morning. Maybe it's good afternoon. Good afternoon. You know, I feel like I owe my colleagues an apology because you and I both well know that apparently you and I are both well-known. And apparently this is the worst opinion I've ever authored as a judge. Because you and I both know that when I said in my panel opinion that we affirm the district court's conclusion that it lacked jurisdiction. What that meant, and I apologize for not saying it more clearly, what that meant is that the only thing coalgate wanted from the district court and now wants from this court. And that's why you've been having so much difficulty with my colleagues this morning. The only thing you want, as you said in your brief before the panel, and as you've repeated in your brief before the invite court, the only thing you want is restoration of federal jurisdiction. And in fact, at the panel, the descent and the majority actually agreed that there's no way as a sanction under rule 11 to restore federal jurisdiction. No dispute at the panel level about that. Nor is there any dispute, of course, that in a removal case, a federal district court has the authority, the jurisdiction, to impose sanctions on council. No dispute about that. But you could care less if Judge Nickerson imposed $50,000 penalty on these lawyers or their law firm, you don't want that. And that was clear before the panel, and I think it's clear this morning. You say exactly in your brief the only non-abusive discretion, the only non-abusive discretion in this case would be a restoration of federal jurisdiction. It's right there in your brief. If I may. Have I said anything that's incorrect and if so, whatever? Your Honor, I do disagree that we see federal jurisdiction as a penalty here. What we see. Well, whether you call it as a penalty, but that's the only sanction you want. You don't want these lawyers to be their careers to be trashed. You haven't filed a complaint with the Maryland Attorney Grievance Commission. You haven't referred them to the District of Maryland's admissions and disciplinary committee. You don't really want to harm these lawyers by alleging that they made misrepresentations as officers of the court. You don't want to go there

. Well, you want your client to be back in the District of Maryland so that you can then follow motion to transfer this best, this case, to the Eastern District of Pennsylvania where it will join all the other 88,000 asbestos cases. No, Your Honor, all of that is incorrect. Okay. May I just give me a chance? May, of course, Your Honor. But may I just back up for a moment? As far as the motion to transfer in this case belonging in a multi-district, that is not true as far as I know. These are single cases. These are not traditional asbestos cases. Let's say focus on what that might have been a little bit of additional information in Judge Davis' providing. But his point seems to go to the heart of where we're going. If the issue here is whether the court has jurisdiction to determine sanctions, you want us to go to the second issue that is what relief can the judge offer. And you say we ought to reach it and we probably should. But I think the answer to that question is he can give any release except remand his case because that's going to the merits of this case. As law says, no, that's what I think. But the bottom line is, which Judge Davis I appreciate is explanation of his opinion. He's clarified some cases for it significantly. And I don't know if the sentence case agrees with it, but it seems to make sense. If that's all you asked before the court, then that's probably problematic. If that's all you asked before, if you simply want jurisdiction, which the court may be in a position to do, says go back, yeah, you have jurisdiction. And then we'll make the determination, ask of what relief is available because even in an imposing sanction, you may not give relief for which the court could not give. I mean, if you don't have the authority to do so. And that's foreclosed by President. I'm sorry. You're on our... There's... This guy, having written to the Senate, listen to me and read the tea. They want to send your sanctions motion back because, at least I believe the judge had jurisdiction. And send the 60B-3 motion back to see if you can convince District Judge. And the question is going to come down as Judge Neemar said, what is the claim? Is the claim the judgment or something of the case or is it a right to be in federal court? Is that a claim? I don't know the answer to that question. But what you're hearing here is that they don't want to decide, except the jurisdictional issue, as to sanctions and as to 60B-3. And you're on our... Simply as I can put it, I wrote the dissent in your favor. And with regard to that, under 1447, there is nothing in that statute that precludes a court from considering whether there has been a fraudulently obtained judgment. But you're going back and want us to decide the facts. Well, that's been a jurisdictional question, Your Honor. With regard to 1447, the District Court held that 1447 is precluded. Do we have any cases where a court has called or reconsidered remand order? Yes, Your Honor. Okay. And how's that function mechanically? Is the reconsideration by the federal court then transmitted to the state court and they stopped prosecuting or what? No, well, again, the relief we are seeking is... Not what you're seeking these other cases that you see. Yes, the other cases have reconsidered issues that are collateral. No, I'm talking about... There's two motions you have here, and I think it's probably good to get the two to a distinction on the table

. The first one is a rule 11 sanctions motion. Correct. And that consanksion to parties and the attorneys. But then you also have a 63B motion, which is to vacate an order based on fraud. Correct. And the order you want vacated is the remand order. Correct. And that was a dread filed against that. Now, my question is if... And the court said it didn't have jurisdiction on that. And, of course, I think 63B certainly is pretty broad in this sense. But my question is if the court considers a 63B order and decides there was fraudulent jointer, can it vacate the remand order and thereby recover the case? Your honor, what we are asking is slightly different from that. If the court will bear with it. I'd like you to answer mine. That's what I'm trying to say. What we're asking for is a determination under rule 16. What can you answer his question, yes or no? Yes, I can, your honor. What is it, yes or no? That would help me if you can. But if we're not asking for reconsideration of the remand merits itself is what I'm saying, Your Honor. We're asking for a different... What are you asking for in the 63B motion? We're asking for the order to be vacated because of fraud. Not the... That's what I said. Correct. My hypothetical had... Your motion was directed at the remand order and you wanted vacated under 63B. Right, but we don't want a reconsideration of the merits of the remand order as itself. We want it vacated because of fraud. We want vacated, but if... Vacated because of fraud. But you should fill up and answer these questions. Now, if you vacate the remand order under 63B, what happens mechanically in these other cases? If the plaintiffs have some reason to remove the case, they have some other basis for... To remand it again, fine, but right now there is no basis there. The case is before the state court. The state court is proceeding on a remand order. The federal court revokes its remand order. What happens to... Does the court then send that order to the state and the state stops prosecuting the case? Right

. Well, right now the case... These both of these cases are in the midst of discovery. Why don't you answer my... I don't want this case. I want to know the principles applicable. You... Right. I understand. You're going to help me out. Otherwise, you're not going to advance the ball at all. We're talking about a concept of relative jurisdictions between federal and state courts. If the remand order is vacated, it comes back to the federal court. And where is there authority for that? Yes, your honor. And what's that? In...with regard to rule 60 and order... I know that can be... But I'm just talking about we have a particular type of problem here because the case was sent back to the state and the state is prosecuting the case on behalf of pursuant to that order. Correct. The state has general jurisdiction can prosecute it. Now, how are you going to stop the state court? Well, if the remand order is vacated, the cases are still in federal court. Well done. But that puts the cart before the horse again. We keep going around in this circle. What you say that what you want is... Or what I thought we had established early on is that the threshold question is jurisdiction. So, if we decide that the district court aired and concluding that it lacked jurisdiction, then all it does is go back to consider... It doesn't do anything about the case heading back to court. Correct. It goes back to the district court for consideration of the rule 60 and rule 11 motions. And then... It's 11 and the rule 60 motion. Yeah. Correct. Consider both of them

. Correct. Sanctumal lawyers. And then the court then conduct appropriate proceedings and then decide whether to grant relief. Correct. Under rule 60 B3. Right. If you prove the fraud and misrepresentation, perhaps then you can evake the... Correct, Jim. But that would be something that the district court would have to do. Not to get happened up here. But I didn't understand that to be the question. I just wanted the question to be, what happens physically and system-wide, what happens? There's this state... I mean, this court is... This case is now in state court. What happens to the state court case? Let me help you out on that question. You're not exactly correct that if you get a vacatry, it's back in federal court. But the way you would enforce that is using anti-injunction act. And this is one of those exceptions where you could enjoy the state court. And clearly, this court has decided that issue before I think it's right to the road. That's the way it would be done. Third, is that 20-283? The statute. The Injunction Act. It's a federal statute. It's preserved jurisdiction. That's right. That's what it is. But your honor is to... That starts to address my question because the 63... 60 motion, 60 B3, is not a sanction order. It's a... Or a motion to reconsider an order that was entered by fraud. Correct. And in this case, fraudulent jointer, which I'm not sure the district court got right either, doesn't require intent of defrauding somebody deceiving, fraudulent jointer, means joining somebody for the purposes of defeating jurors. Correct. Which is exactly what happened here. Well, I understand that. And it seems to me you didn't make that case very well to the court below. But if there's a fraudulent jointer, you remember the case against Pete Rose and Cincinnati? You know, they filed in State Court and they sued Cincinnati Reds and Pete Rose. And the district.

.. It was removed in the district court, separated the two cases. This is fraudulent jointer. It's staying up against federal court. And that is a concept where you join somebody, not because they're the real party and interest, but to defeat jurors' jurisdiction. Correct. And that's exactly what happened here, your honor. And as I was starting... Right. But the question really, Judge Shed, got to the point that I was asking. And maybe Judge Floyd has answered it. The question is, if you get a vacator, you get a reconsideration on the 63P. You vacate the remand order. Mechanically, the question is, what happens then? I mean, you know, we have respect between the states and the feds. And obviously, the federal judge can send a copy to the order to the state. And maybe the state will abide by it. But maybe not. And then you get the question is, how far long does it go before you have real prejudice? Because you have discovery in the state. Let me ask you this. Did you file a motion to dismiss the fraudulent joined parties in the state court? We did, your honor. You did? We filed and we also filed something. One remand. After the case went back and the lawyer said, we don't really have a claim against these others. We just really want Colgate. Did you file a motion to dismiss based on that? All those, all those defendants are out now. Well, you can remove within 30 days after that. Well, your honor, as far as we understand that we cannot remove. If a court tells you it's not removable, you go back to state court. And once it becomes removable, you have 30 days within which to remove it. But there's a time period on that. Your honor, as we understand that. When it first becomes removable. Your honor, at this point in time, 1446 has been amended to have an extended time period where fraud has been shown. But we are not subject to that because that was only applied to. I'm talking about the principle that a case that's not removable when it's filed. Still can be removed to federal court once it becomes removable. If the court dismisses three defendants who create justice creates diversity. At that point, you can remove it. And your honor with regard to that, we have filed motions in both federal and state court that addresses. And the state court said. Did you file a new motion to remove after it became removable? No, your honor. Not as of yet. Is it 30 days, expire? I don't think I don't believe so. If you don't have to file a motion either, you just have to remove it. You just file a motion removal. But if you did that, that might render the 60B3 motion. It's up here, mood. Already have to. Is the rule 11 stuff? Your honor, may I reserve some time for a rebuttal? What's that? You can answer his question. Yes, I mean, your honor

. If we can file such a motion, we would. You're still within the 30-day period that does. I am not aware that we are eligible for such a motion. Is there complete diversity now in the state court? There is complete diversity now. You could remove that case once it became completely diverse, but you have a time period. Thank you, your honor. Excuse me, Mr. Unnermow. Good morning, your honor. Your honor is made. Please the court, Jeff Yudermow, on behalf of the appellees, Joyce Barlow and Clara Mosco. And I'm here today with my colleagues, Russell Smouse and Craig Silverman. Your honor is. Good. It does have jurisdiction over those motions, that. I mean, it can decide rule 11 sections. Your honor, we do concede that under. Kootering Gale, there is jurisdiction under rule 11, at least. And under the rule face of the rule, 60 can be decided any time. It won for auditions. 60 B3. Right? Your honor, under 60 B3, the issue is there is no jurisdiction. What? The Congress gave the court the ability on the base fraud to review any order at any time. Is that what that rule says? There is a bad faith exception in 1446. No, no, I'm talking about 60 B3. That's the base language of it, says that any judgment, order or proceeding can be set aside for fraud at any time. Under Kootering Gale, your honor, the distinction is made between emotion for sanctions and emotion for modification of the emotion that requires modification of the original order. You're missing my question. My question is, you can set aside any judgment or order that was entered on the basis of fraud. And the argument they're making is that the remand order was obtained by fraud. And if the court were so to find, it could set aside the order. And I don't understand where there's a lack of jurisdiction. Any order that a judge, federal judge enters can be reviewed by that federal judge under 60 B3 if the right showing is made. There can be no vacator here because of 1446. I'm talking about, well, under 60 B3, you vacate the order you enter. But there's no jurisdiction under 60 B3 to vacate because of 1447 deep prohibition on review. Well, I think you're having a problem responding to Judge Neemar. Clearly, the issue here is, does 1447 Trump 60 B3 or does 60 B3 Trump 1440 set? Isn't that the problem? Now, Judge Floyd has helpedfully said, well, what could happen is we could use the Anti-Junction Act and a federal judge could issue an injunctive order after granting a 60 B3 motion. And I think the question that Judge Neemar put to Ms. Gay that she never answered was, is there any case out there in the 234 years, or I guess the 229 years of diversity jurisdiction since the first Judicial Act of 1789, has any court ever done such a thing? No, the answer is no. The answer is no. Colgate sites, no case, Colgate sites, no cases holding that a 60 B3 vacator did not file in. He didn't ask you if anybody cited cases. He asked you if there were any cases. And the answer to him is? The answer is no. You're out of the... Let me understand this. Has a court ever vacated or reversed itself on a remand order? Yes, but not on a 60 B3 vacator. Forget the reasons. What happened in that case? When they vacate, they reversed themselves on a remand order. What happens? Well, what happened in the Tremonte case was there was a vacator without review. And that exemplifies that principle. But it did not involve 60 B3. And in that case, the court was the district court that had failed to properly consider its own recusal in the remand order, was ordered to then reconsider its recusal decision. But it could not... No, my question is... I don't know. Maybe I'm not expressing it well. But I'm trying to find out. You know, the removal statute is a very sophisticated interplay between state court systems and federal court systems. And my question is, once a federal court remains a case to state court, and then decides it did it wrong and wants to review it and changes its mind. Can it do it number one? And if it does change its mind, what happens? It's not exactly correct to say there's not any cases out there where 60 B3 was used to vacate. There's the Aquamar's head for money. And I mean, there are cases out there. I didn't realize that question with a pop-up. It can be done. Yes, Your Honor. And the distinction between those cases and this case is that Tremonte, Aquamar, and Williams, be a femaleer, none of those involved 60 B3 vacators. That might be a distinction without a difference. Well, what Judge Neymar has been getting that out of the understand is there are cases where it's been done. You said it was done because you had a disqualified or a judge that may have been disqualified, who entered the order. So they backed up, right? Well, that's right, Your Honor. And each one of those cases used frame. Well, here, they would be that the order was procured by fraud on the court. And nobody wants to reward a fraud phaser with something. So you unwind it and try to clean it up. And a fraud phaser for your information is a subclass of tort phaser. Each one of those cases that's been cited, Tremonte, Aquamar, and be a maleer, each one of those cases was decided on the basis that the vacator was a quote unquote essentially. That's a really ministerial task. Let me ask this question over. I'm going to try to get to the answer. Maybe you've given it. I've understood the question. I don't think I understand the answer. In a case, not your case. In a case where there has been a vacating of the remand order. So the case is already back in state court. What then happens to perpetuate the order of the federal district court? What happens? I would think there would be a... You think of that or do you know? A re-removal. A motion for removal. You don't remove them. By the way, I probably shouldn't admit this. I think actually as a district court, I was reversed on remand by the four circuit one time. Those narrow cases are reviewed. But might not just be there's a.

. What happens? Well, what happened in the Tremonte case was there was a vacator without review. And that exemplifies that principle. But it did not involve 60 B3. And in that case, the court was the district court that had failed to properly consider its own recusal in the remand order, was ordered to then reconsider its recusal decision. But it could not... No, my question is... I don't know. Maybe I'm not expressing it well. But I'm trying to find out. You know, the removal statute is a very sophisticated interplay between state court systems and federal court systems. And my question is, once a federal court remains a case to state court, and then decides it did it wrong and wants to review it and changes its mind. Can it do it number one? And if it does change its mind, what happens? It's not exactly correct to say there's not any cases out there where 60 B3 was used to vacate. There's the Aquamar's head for money. And I mean, there are cases out there. I didn't realize that question with a pop-up. It can be done. Yes, Your Honor. And the distinction between those cases and this case is that Tremonte, Aquamar, and Williams, be a femaleer, none of those involved 60 B3 vacators. That might be a distinction without a difference. Well, what Judge Neymar has been getting that out of the understand is there are cases where it's been done. You said it was done because you had a disqualified or a judge that may have been disqualified, who entered the order. So they backed up, right? Well, that's right, Your Honor. And each one of those cases used frame. Well, here, they would be that the order was procured by fraud on the court. And nobody wants to reward a fraud phaser with something. So you unwind it and try to clean it up. And a fraud phaser for your information is a subclass of tort phaser. Each one of those cases that's been cited, Tremonte, Aquamar, and be a maleer, each one of those cases was decided on the basis that the vacator was a quote unquote essentially. That's a really ministerial task. Let me ask this question over. I'm going to try to get to the answer. Maybe you've given it. I've understood the question. I don't think I understand the answer. In a case, not your case. In a case where there has been a vacating of the remand order. So the case is already back in state court. What then happens to perpetuate the order of the federal district court? What happens? I would think there would be a... You think of that or do you know? A re-removal. A motion for removal. You don't remove them. By the way, I probably shouldn't admit this. I think actually as a district court, I was reversed on remand by the four circuit one time. Those narrow cases are reviewed. But might not just be there's a... The court would order district court would order you back into court to defend or prosecute that case. And that might be state court litigation going the same time. The exact same case. Can't that happen? Then you fall to doctrines of withholding or abstention. It might not happen. I mean, you can have cases. Identical cases going through the state system and the federal system, can't you? I'm asking. Or if you don't know, then you don't know. I don't know. Okay. Could I ask a slightly different question? Does in reviewing a motion for vacature, does that necessarily involve a review of the merits of the case? Yes, under 60B3. Now, if it's not a 60B3 vacator such as in Tremonte, Aquamore and B-Miller, then you can have vacator without review. But necessarily where it's not like those cases in essentially ministerial tasks, what you have here is a required judgment call. It's a rec... In order to have vacator, a necessary predicate is to have a judgment call on the very same fraudulent jointer issue that was already decided below. And what defendant... What defendant would never file a 60B3 post-reman if you could get a hearing in federal court for a doover on a fraudulent jointer claim? Why would a defendant never file a 60B motion? If what you get to do is relitigate whether there was fraudulent jointer? I'm done found it. Could I finish? And maybe you could respond to them both at the same time if you remember them. My concern... My question was predicated on the fact that the basis for the fraud claim may not arise as I think is true here until after the remand. Is that correct? There was no... There was no basis for fraud here. No, I didn't say basis... I said... Or what I meant to say is basis for a claim of fraud arose because of the statements that were made in federal court and conflicting statements made in state court. Is that correct so far? Would you agree with what I was going to add? No, if you can answer it that would help. A 60B 3 motion does not focus on the merits of the correctness of an order, but rather the manner in which the order is obtained. Do you agree with that proposition? No, Your Honor, because 60B 3 requires proof of a quote-unquote meritorious fraudulent jointer defense. But meritorious claim of fraud, not claim on the merits. No, it's a meritorious claim of fraud. It's a meritorious claim of fraudulent jointer. You're not reading 60B 3. 60B 3 lets the court open up an order that was entered on the pursuant of fraud on the court. But if the order is one of remand for non-frogulent jointer, the merits question is whether there was fraudulent jointer. Yes, in fact, at page 55 in Judge Floyd's descent, he noted that Colgate must, quote, demonstrate the existence of a meritorious defense to the remand orders, namely that the Maryland in-state defendants were fraudulently joined. Exactly. So it's a do-over. Judge Duncan was asking you about, if she will indulge me, what she was asking you is where the evidence of alleged fraud comes up in state court. Because that's what we have here

.. The court would order district court would order you back into court to defend or prosecute that case. And that might be state court litigation going the same time. The exact same case. Can't that happen? Then you fall to doctrines of withholding or abstention. It might not happen. I mean, you can have cases. Identical cases going through the state system and the federal system, can't you? I'm asking. Or if you don't know, then you don't know. I don't know. Okay. Could I ask a slightly different question? Does in reviewing a motion for vacature, does that necessarily involve a review of the merits of the case? Yes, under 60B3. Now, if it's not a 60B3 vacator such as in Tremonte, Aquamore and B-Miller, then you can have vacator without review. But necessarily where it's not like those cases in essentially ministerial tasks, what you have here is a required judgment call. It's a rec... In order to have vacator, a necessary predicate is to have a judgment call on the very same fraudulent jointer issue that was already decided below. And what defendant... What defendant would never file a 60B3 post-reman if you could get a hearing in federal court for a doover on a fraudulent jointer claim? Why would a defendant never file a 60B motion? If what you get to do is relitigate whether there was fraudulent jointer? I'm done found it. Could I finish? And maybe you could respond to them both at the same time if you remember them. My concern... My question was predicated on the fact that the basis for the fraud claim may not arise as I think is true here until after the remand. Is that correct? There was no... There was no basis for fraud here. No, I didn't say basis... I said... Or what I meant to say is basis for a claim of fraud arose because of the statements that were made in federal court and conflicting statements made in state court. Is that correct so far? Would you agree with what I was going to add? No, if you can answer it that would help. A 60B 3 motion does not focus on the merits of the correctness of an order, but rather the manner in which the order is obtained. Do you agree with that proposition? No, Your Honor, because 60B 3 requires proof of a quote-unquote meritorious fraudulent jointer defense. But meritorious claim of fraud, not claim on the merits. No, it's a meritorious claim of fraud. It's a meritorious claim of fraudulent jointer. You're not reading 60B 3. 60B 3 lets the court open up an order that was entered on the pursuant of fraud on the court. But if the order is one of remand for non-frogulent jointer, the merits question is whether there was fraudulent jointer. Yes, in fact, at page 55 in Judge Floyd's descent, he noted that Colgate must, quote, demonstrate the existence of a meritorious defense to the remand orders, namely that the Maryland in-state defendants were fraudulently joined. Exactly. So it's a do-over. Judge Duncan was asking you about, if she will indulge me, what she was asking you is where the evidence of alleged fraud comes up in state court. Because that's what we have here. We have a claim of fraudulent jointer, the district court, two different district judges in the district of Maryland, didn't buy the claim of fraudulent jointer, each judge sent it back to state court. And then based on something that happened in state court, a pleading, by the way, right, it was a pleading, it wasn't something that was said orally. Correct. It was an pleading in state court. Now the defendant comes back to state to federal court, who knows, two weeks later, four weeks later, six months later, and says, now I have evidence to support my fraudulent jointer claim. And so to get around 1447, the defendant is relying on 60B3, saying, let's vacate it, because the order was obtained by fraud, but it's in order of remand. Based on the failure of proof, because the burden unquestionably is on the defendant, both to establish federal jurisdiction and to show fraudulent jointer, it's a do-over. You can say it's on the merits of the order, but the merits of the order of remand is whether there was fraudulent jointer. That's right. It's inextrable intertwined with the very same issue that was already decided. But Judge Davis is saying, you agree? Absolutely. Let me ask you. I have a fundamental question. I want to go back to something we started out, but I got thrown off track. Don't you look at this order that the judge that we appealing for on 1106 and 1108, and we started out seeing that Judge says he didn't have jurisdiction. I is not clear to me that in those orders, he's not saying he didn't have jurisdiction. He not only addresses the motion, he conducts a hearing on the motion, and his problem is he's saying, I don't know what relief you want. And then once he gets in that hearing, the other side says, we just want to remain. And then he then says here that I don't have jurisdiction to grant that request. He doesn't say I don't have jurisdiction to decide the motion. In fact, these motions were denied. They were not dismissed for lack of jurisdiction. So I think the issue is back to what we sort of got off track with. I think the issue here is does the court have jurisdiction to grant the request to strike this batter and remand it. And that's where this trial judge went with it. And then the only surplus here is he got into the business after the second sentence, and the last paragraph, he gets into business well, it's not sanctionable conduct. But the initial determination on jurisdiction is he is saying, I don't have jurisdiction to grant the request to strike and remand. That's right. That's the issue on appeal here from this. I don't think it's just jurisdiction. I was led to plead that from the beginning, but just Davis, you sort of had that different, but that order as it reads, it looks clear to me. This judge exercises jurisdiction has a hearing and denies the motion. He doesn't dismiss him and based upon that denial is based on the fact he believed that the relief being requested he can't give. We are on our how is that the possibility of this case. What happened with the order is just looking at the order. I am right there. Judge Nickerson did not say that he had no jurisdiction on a rule 11. So sanctions, I call that rule 11. He didn't have jurisdiction on in the motion. He conducted a hearing on him. And then that's when they brought up the rule 60B business here because that brings in the relief to send it back. What if I can't give that relief? What if the rule 60 is being brought here for purposes of relief, not for purposes of sanction it. The purposes get some relief. Well, that's right. What he said about the sanctions, the rule 11 sanctions, is that they request it been abandoned. It was very clear in this order. He comes back to it. It's in the first paragraph. It's in the last paragraph on the first page, 1106. First, he says, defendants clarified the relief sought for this court was for this court to vacate. And he says it's not available because of 1440. He says that's the only sanction they want

. We have a claim of fraudulent jointer, the district court, two different district judges in the district of Maryland, didn't buy the claim of fraudulent jointer, each judge sent it back to state court. And then based on something that happened in state court, a pleading, by the way, right, it was a pleading, it wasn't something that was said orally. Correct. It was an pleading in state court. Now the defendant comes back to state to federal court, who knows, two weeks later, four weeks later, six months later, and says, now I have evidence to support my fraudulent jointer claim. And so to get around 1447, the defendant is relying on 60B3, saying, let's vacate it, because the order was obtained by fraud, but it's in order of remand. Based on the failure of proof, because the burden unquestionably is on the defendant, both to establish federal jurisdiction and to show fraudulent jointer, it's a do-over. You can say it's on the merits of the order, but the merits of the order of remand is whether there was fraudulent jointer. That's right. It's inextrable intertwined with the very same issue that was already decided. But Judge Davis is saying, you agree? Absolutely. Let me ask you. I have a fundamental question. I want to go back to something we started out, but I got thrown off track. Don't you look at this order that the judge that we appealing for on 1106 and 1108, and we started out seeing that Judge says he didn't have jurisdiction. I is not clear to me that in those orders, he's not saying he didn't have jurisdiction. He not only addresses the motion, he conducts a hearing on the motion, and his problem is he's saying, I don't know what relief you want. And then once he gets in that hearing, the other side says, we just want to remain. And then he then says here that I don't have jurisdiction to grant that request. He doesn't say I don't have jurisdiction to decide the motion. In fact, these motions were denied. They were not dismissed for lack of jurisdiction. So I think the issue is back to what we sort of got off track with. I think the issue here is does the court have jurisdiction to grant the request to strike this batter and remand it. And that's where this trial judge went with it. And then the only surplus here is he got into the business after the second sentence, and the last paragraph, he gets into business well, it's not sanctionable conduct. But the initial determination on jurisdiction is he is saying, I don't have jurisdiction to grant the request to strike and remand. That's right. That's the issue on appeal here from this. I don't think it's just jurisdiction. I was led to plead that from the beginning, but just Davis, you sort of had that different, but that order as it reads, it looks clear to me. This judge exercises jurisdiction has a hearing and denies the motion. He doesn't dismiss him and based upon that denial is based on the fact he believed that the relief being requested he can't give. We are on our how is that the possibility of this case. What happened with the order is just looking at the order. I am right there. Judge Nickerson did not say that he had no jurisdiction on a rule 11. So sanctions, I call that rule 11. He didn't have jurisdiction on in the motion. He conducted a hearing on him. And then that's when they brought up the rule 60B business here because that brings in the relief to send it back. What if I can't give that relief? What if the rule 60 is being brought here for purposes of relief, not for purposes of sanction it. The purposes get some relief. Well, that's right. What he said about the sanctions, the rule 11 sanctions, is that they request it been abandoned. It was very clear in this order. He comes back to it. It's in the first paragraph. It's in the last paragraph on the first page, 1106. First, he says, defendants clarified the relief sought for this court was for this court to vacate. And he says it's not available because of 1440. He says that's the only sanction they want. It's the only sanction. And I don't have jurisdiction to give that particular relief because it's under the ignited motions. I have just a little bit of a twist on that. But if we conclude that the court had jurisdiction to address both motions and to grant the potentially grant relief, what should we do? Hypothetically, if we can come to that conclusion, what should we do with the court statement that if it were considered the merits it would deny? Well, it was not an abusive discretion to so find. There was certainly no. My question is what should we do with that? Should we review it or not or let the judge develop the appropriate sanctions? No, with regard to vacator, he properly determined that there was no jurisdiction because we have to stick with my hypothetical, which is if we were to conclude he has jurisdiction on both the rule 11 and the 60 B3. And what else should we do if we were to conclude that would be sent back? But then my question addresses, if we send it back, what should we be doing with the court statement that even if it had jurisdiction it would deny the motions? We are on our, I would say if the court were to find that it had jurisdiction that Judge Nicherson had jurisdiction under both 11 and 60, he should still be affirmed under, under discretion, abusive discretion standard. I shouldn't be your answer. Your answer should be to court beside it it had jurisdiction. There's no statement in here that says if I have jurisdiction, then I would do this. What he says is I'm going to decide he has hearing, he actually puts those motions out and then he says what's the relief? And the only thing he says is I can't give you that relief. He doesn't say I don't have jurisdiction over these motions. He in fact considers the motions and denies them. There's no if in this. Well, he says on the basis that the court held this was in low, the entry of a remand order divested the federal court of jurisdiction. What am I reading? I'm reading. On 1106, that's true. I believe that Judge Nicherson found. I'm going to the basis of the relief in that paragraph. He's not talking about the motion. He's talking about the relief being asked for there. Well, that's in the first paragraph. He's dealing specifically with the motion. That sentence comes in the second Senate second paragraph. If he says such relief is not available, the court has no jurisdiction to grant their relief and he used the basis of that the low case. He's talking about he's not talking about the motions. I think he's talking about both under under 11 or 60. There's no jurisdiction to vacate. That's because vacator is not an appropriate sanction under rule 11. It simply isn't. Do you think that the district court had jurisdiction under 60 B three? Yes or no? No, because of the violate. It would necessarily violate 1447 because of the meritorious defense requirement. Do you think? Okay. You don't think the argument could be that he had jurisdiction. He properly exercised that jurisdiction and refused to grant the merit relief that the other side asked. You don't think that. Well, you think he just didn't have jurisdiction to even taint entertain such a recluse. I think the latter because it goes on to say it goes on to give the basis. He didn't think he had any business considering. What he's saying there is even even if there had not been an abandonment of rule 11 sanctions, which he found there was, but even if there was not an abandonment of rule 11 sanctions, he would deny them for the reason that it is a markedly different litigation context. And that does not address that doesn't address my point, which is as I understood the order, and it's right going back to look at it. I thought he was denying the relief because the entry of a ringland order divests the court of jurisdiction, which is why he cites love holding that removal statutes preclude reconsideration. Reconciteration of a ringland order. Well, that's right. I think some of the confusion is arises because Colgate sought vacator under both 11 and 60. And it kind of was it in 1447 that you think denies the court the right to enter a 60 B3 order. The Maritorious Defense Requirement and it runs smack into 14. The language there what to say of 1447. An order remaining a case to the state court from which it was removed is not reviewable on appeal or otherwise. Well, that's review on appeal. Well, that doesn't have anything to do with the district courts or otherwise or otherwise language has been interpreted to include reviewed by the district court as well. By who? The otherwise means for sure, which is that we include to mandamus

. It's the only sanction. And I don't have jurisdiction to give that particular relief because it's under the ignited motions. I have just a little bit of a twist on that. But if we conclude that the court had jurisdiction to address both motions and to grant the potentially grant relief, what should we do? Hypothetically, if we can come to that conclusion, what should we do with the court statement that if it were considered the merits it would deny? Well, it was not an abusive discretion to so find. There was certainly no. My question is what should we do with that? Should we review it or not or let the judge develop the appropriate sanctions? No, with regard to vacator, he properly determined that there was no jurisdiction because we have to stick with my hypothetical, which is if we were to conclude he has jurisdiction on both the rule 11 and the 60 B3. And what else should we do if we were to conclude that would be sent back? But then my question addresses, if we send it back, what should we be doing with the court statement that even if it had jurisdiction it would deny the motions? We are on our, I would say if the court were to find that it had jurisdiction that Judge Nicherson had jurisdiction under both 11 and 60, he should still be affirmed under, under discretion, abusive discretion standard. I shouldn't be your answer. Your answer should be to court beside it it had jurisdiction. There's no statement in here that says if I have jurisdiction, then I would do this. What he says is I'm going to decide he has hearing, he actually puts those motions out and then he says what's the relief? And the only thing he says is I can't give you that relief. He doesn't say I don't have jurisdiction over these motions. He in fact considers the motions and denies them. There's no if in this. Well, he says on the basis that the court held this was in low, the entry of a remand order divested the federal court of jurisdiction. What am I reading? I'm reading. On 1106, that's true. I believe that Judge Nicherson found. I'm going to the basis of the relief in that paragraph. He's not talking about the motion. He's talking about the relief being asked for there. Well, that's in the first paragraph. He's dealing specifically with the motion. That sentence comes in the second Senate second paragraph. If he says such relief is not available, the court has no jurisdiction to grant their relief and he used the basis of that the low case. He's talking about he's not talking about the motions. I think he's talking about both under under 11 or 60. There's no jurisdiction to vacate. That's because vacator is not an appropriate sanction under rule 11. It simply isn't. Do you think that the district court had jurisdiction under 60 B three? Yes or no? No, because of the violate. It would necessarily violate 1447 because of the meritorious defense requirement. Do you think? Okay. You don't think the argument could be that he had jurisdiction. He properly exercised that jurisdiction and refused to grant the merit relief that the other side asked. You don't think that. Well, you think he just didn't have jurisdiction to even taint entertain such a recluse. I think the latter because it goes on to say it goes on to give the basis. He didn't think he had any business considering. What he's saying there is even even if there had not been an abandonment of rule 11 sanctions, which he found there was, but even if there was not an abandonment of rule 11 sanctions, he would deny them for the reason that it is a markedly different litigation context. And that does not address that doesn't address my point, which is as I understood the order, and it's right going back to look at it. I thought he was denying the relief because the entry of a ringland order divests the court of jurisdiction, which is why he cites love holding that removal statutes preclude reconsideration. Reconciteration of a ringland order. Well, that's right. I think some of the confusion is arises because Colgate sought vacator under both 11 and 60. And it kind of was it in 1447 that you think denies the court the right to enter a 60 B3 order. The Maritorious Defense Requirement and it runs smack into 14. The language there what to say of 1447. An order remaining a case to the state court from which it was removed is not reviewable on appeal or otherwise. Well, that's review on appeal. Well, that doesn't have anything to do with the district courts or otherwise or otherwise language has been interpreted to include reviewed by the district court as well. By who? The otherwise means for sure, which is that we include to mandamus. The I don't know the case citation, your honor, but the that has been clearly established, I believe in the fourth circuit that that broad language includes both at the or otherwise. The district court was relying on row exactly as Judge Duncan asked you saying that once I've entered the remand order, the case is gone. I'm divested of jurisdiction. Therefore, I can't act further. There's a distinction between low and answer my question. Isn't that what the district court was doing? Certainly, this report cited low. And what did it say after it cited low? In low, the fourth circuit looked to the language of the federal removal statute. And what is valid in its courts reliance on low is the fact that there can be no vacator under rule 60. But there can't be any vacator under rule 11 for another reason. You keep coming back to your argument. I'm trying to find out what the district court did and you're not helping me. I asked you didn't the court appear to say that once it issued the remand order, it was divested of jurisdiction. Not with regard to the rule 11 request for vacator or the rule 11 request for sanctions. The court did not rely on a lack of jurisdiction to deny vacator under rule. Or is it say that in there? And how could that be based on 1447, which you tell us makes things not reviewable on appeal or otherwise to anyone, to any forum? I'm sorry, Your Honor. Could you give me the question again? Well, why don't you start with Judge Neem, Myers and Judge Kings and then work your way around mine? You know, I have a question to go out. Simply that it seems to me very clear and it's too bad we're having some trouble getting to understand what was done. And we're not even getting to the real tough issues as to what to do. But in this case, the court cited low and said that under 1447, it construed the otherwise like you said. It couldn't review it again on the basis. The court held that the entry of a remand ordered divested the federal court of jurisdiction in low like the instant case, the defendant challenged the remand on the basis of broader enjoyment. Now isn't that a jurisdictional issue he's saying I don't have the power to see it anymore. It's gone. Only as to vacator. If you need to answer Judge Neem, Myers question directly and point to the first sentence and then point to the words see. Low, which lets you know he's referring to low to support that first sentence, which is the grant is only on the reason he says he doesn't have your six is that to he can't have your six to grant that request. See low all that stuff he says about low he didn't put in there. Now I'm going to give Judge Nicholson credit for this he knows he has to know this law as well as what we're talking about. And I think he put that low decision in that to explain that little extra why he's saying that for sentence because it then goes to the next paragraph and that's what he's saying he's essentially saying the only sanction being sought was about to strike. And there is clearly a question of does the court have jurisdiction to strike remain orders that's his determination here we can we can read in and says because he doesn't even say the entry to order to best the court of you he quotes low. And the first sentence he says the court has no jurisdiction to grant that request and that request is the only request that's being asked that's exactly correct but you can't have jurisdiction. If the court is divested of jurisdiction it's divested of jurisdiction it's not peace meal. It's either to it either has jurisdiction or it doesn't well no trouble back in motion. Well, respectfully your honor under Kudur and Gal they make a distinction and they say that rule 11 sanctions maybe considered even after dismissal and here's after a remand and we wouldn't we can see that there would be jurisdiction for rule 11 sanctions and I don't think judge Nicholson found otherwise. So is it a good or nothing is it an all enough proposition that the court that only have jurisdiction over the old matter or is it is what he is saying I have jurisdiction over this but to give that relief I don't have jurisdiction to give you that relief is that something he could say. No, I don't have to jurisdiction to give you to relieve you being asked then then or and maybe jurisdiction is not right word he doesn't have the authority under Kudur and Gal he would have jurisdiction to do rule 11 sanctions but not a request for modification the order. Under 1447 D which you rely on in order remanding a case to the state court for which it was removed is not reviewable and in reload review includes reconsideration by the district court. The what I understood the district court to say based on that whole paragraph is that he was divested of jurisdiction to review or reconsider or do anything with respect to what remained there wasn't anything that remained the entry of the remand order took the case away and sent it to state court. It didn't I don't think the order could be fairly read as saying that it took away the right for rule 11 sanctions what he said is that I'm sorry don't you want to use the term answer large jurisdiction. If you say so I mean there's there's ancillary jurisdiction for federal district judge to do any number of things review a cost order impose rule 11 sanctions right. That's the term of art Kudur and Gal I believe recognize this and and judge neckerson did not say he didn't have jurisdiction for rule 11 sanctions you just said that though you told me right here right here you answer my question you said he didn't have jurisdiction and I said and you said he did not have jurisdiction and I said or you confusing jurisdiction. And authority you didn't buy that line you are giving no jurisdiction that's what you've argued you answer my question over five minutes ago no jurisdiction for vacator under rule 60 B three that's not let me say this much that is not a term of art and I shouldn't have used it in my panel opinion that's why we're here that's exactly right. I don't know if it's terrible opinion. So can we go home now. Let me ask you this question just a hypothetical question I'm trying to understand your your view of the law hypothetical it's not the facts in this case. Why do I have a party of tains reman by absolute fraud but nobody knows that till after the fact is the party who committed fraud on the federal court insulated as far as the litigation itself from anything the court can do apart from getting to spark now under under Kudur and Gal there may be rule 11 sanctions absolutely. There may not be if the motion involves a 60 B as providing just 60 B is a general proposition what does it do. 60 B three requires as a precondition to relief proof or proper of a meritorious defense what to say. The language just read the language of be three. Don't have anything about that the Schultz case gives the three what's the 60 B what's rule 16 all about it's about relief from judgment relief from a judgment or order then say anything about the court may relieve a party or it's legal representative of me final judgment order or proceeding for fraud this representation or misconduct by an opposing party. What's that mean relief is not saying I think about vacancy or this because you get relief. Your honors the focus on the word fraud points out that I'd like to point out that the AIDS counseling case the four circuit case says the fraudulent jointer is a term of art it does not reflect on the integrity of plaintiff or cancer 60 B three does it

. The I don't know the case citation, your honor, but the that has been clearly established, I believe in the fourth circuit that that broad language includes both at the or otherwise. The district court was relying on row exactly as Judge Duncan asked you saying that once I've entered the remand order, the case is gone. I'm divested of jurisdiction. Therefore, I can't act further. There's a distinction between low and answer my question. Isn't that what the district court was doing? Certainly, this report cited low. And what did it say after it cited low? In low, the fourth circuit looked to the language of the federal removal statute. And what is valid in its courts reliance on low is the fact that there can be no vacator under rule 60. But there can't be any vacator under rule 11 for another reason. You keep coming back to your argument. I'm trying to find out what the district court did and you're not helping me. I asked you didn't the court appear to say that once it issued the remand order, it was divested of jurisdiction. Not with regard to the rule 11 request for vacator or the rule 11 request for sanctions. The court did not rely on a lack of jurisdiction to deny vacator under rule. Or is it say that in there? And how could that be based on 1447, which you tell us makes things not reviewable on appeal or otherwise to anyone, to any forum? I'm sorry, Your Honor. Could you give me the question again? Well, why don't you start with Judge Neem, Myers and Judge Kings and then work your way around mine? You know, I have a question to go out. Simply that it seems to me very clear and it's too bad we're having some trouble getting to understand what was done. And we're not even getting to the real tough issues as to what to do. But in this case, the court cited low and said that under 1447, it construed the otherwise like you said. It couldn't review it again on the basis. The court held that the entry of a remand ordered divested the federal court of jurisdiction in low like the instant case, the defendant challenged the remand on the basis of broader enjoyment. Now isn't that a jurisdictional issue he's saying I don't have the power to see it anymore. It's gone. Only as to vacator. If you need to answer Judge Neem, Myers question directly and point to the first sentence and then point to the words see. Low, which lets you know he's referring to low to support that first sentence, which is the grant is only on the reason he says he doesn't have your six is that to he can't have your six to grant that request. See low all that stuff he says about low he didn't put in there. Now I'm going to give Judge Nicholson credit for this he knows he has to know this law as well as what we're talking about. And I think he put that low decision in that to explain that little extra why he's saying that for sentence because it then goes to the next paragraph and that's what he's saying he's essentially saying the only sanction being sought was about to strike. And there is clearly a question of does the court have jurisdiction to strike remain orders that's his determination here we can we can read in and says because he doesn't even say the entry to order to best the court of you he quotes low. And the first sentence he says the court has no jurisdiction to grant that request and that request is the only request that's being asked that's exactly correct but you can't have jurisdiction. If the court is divested of jurisdiction it's divested of jurisdiction it's not peace meal. It's either to it either has jurisdiction or it doesn't well no trouble back in motion. Well, respectfully your honor under Kudur and Gal they make a distinction and they say that rule 11 sanctions maybe considered even after dismissal and here's after a remand and we wouldn't we can see that there would be jurisdiction for rule 11 sanctions and I don't think judge Nicholson found otherwise. So is it a good or nothing is it an all enough proposition that the court that only have jurisdiction over the old matter or is it is what he is saying I have jurisdiction over this but to give that relief I don't have jurisdiction to give you that relief is that something he could say. No, I don't have to jurisdiction to give you to relieve you being asked then then or and maybe jurisdiction is not right word he doesn't have the authority under Kudur and Gal he would have jurisdiction to do rule 11 sanctions but not a request for modification the order. Under 1447 D which you rely on in order remanding a case to the state court for which it was removed is not reviewable and in reload review includes reconsideration by the district court. The what I understood the district court to say based on that whole paragraph is that he was divested of jurisdiction to review or reconsider or do anything with respect to what remained there wasn't anything that remained the entry of the remand order took the case away and sent it to state court. It didn't I don't think the order could be fairly read as saying that it took away the right for rule 11 sanctions what he said is that I'm sorry don't you want to use the term answer large jurisdiction. If you say so I mean there's there's ancillary jurisdiction for federal district judge to do any number of things review a cost order impose rule 11 sanctions right. That's the term of art Kudur and Gal I believe recognize this and and judge neckerson did not say he didn't have jurisdiction for rule 11 sanctions you just said that though you told me right here right here you answer my question you said he didn't have jurisdiction and I said and you said he did not have jurisdiction and I said or you confusing jurisdiction. And authority you didn't buy that line you are giving no jurisdiction that's what you've argued you answer my question over five minutes ago no jurisdiction for vacator under rule 60 B three that's not let me say this much that is not a term of art and I shouldn't have used it in my panel opinion that's why we're here that's exactly right. I don't know if it's terrible opinion. So can we go home now. Let me ask you this question just a hypothetical question I'm trying to understand your your view of the law hypothetical it's not the facts in this case. Why do I have a party of tains reman by absolute fraud but nobody knows that till after the fact is the party who committed fraud on the federal court insulated as far as the litigation itself from anything the court can do apart from getting to spark now under under Kudur and Gal there may be rule 11 sanctions absolutely. There may not be if the motion involves a 60 B as providing just 60 B is a general proposition what does it do. 60 B three requires as a precondition to relief proof or proper of a meritorious defense what to say. The language just read the language of be three. Don't have anything about that the Schultz case gives the three what's the 60 B what's rule 16 all about it's about relief from judgment relief from a judgment or order then say anything about the court may relieve a party or it's legal representative of me final judgment order or proceeding for fraud this representation or misconduct by an opposing party. What's that mean relief is not saying I think about vacancy or this because you get relief. Your honors the focus on the word fraud points out that I'd like to point out that the AIDS counseling case the four circuit case says the fraudulent jointer is a term of art it does not reflect on the integrity of plaintiff or cancer 60 B three does it. I mean our questions are focusing you are unwilling to address the role and function of 63 60 B three. 60 it's a wild card which says that nothing becomes settled that's committed on fraud you can go 50 years after a judgment and open it up if fraud is discovered. True your honor but with regard to the interal record is pretty serious things because the theory behind is what I always thought absolutely and lawyers is a new the of candor to the court you can have lawyers shop in different round and commit fraud now whether they did here and I don't know but the courts have a right to try to figure it out. Absolutely and it's the interplay between 60 B three and 1447 D that that precludes and judge Nickerson correctly ruled so that because of the meritorious defense requirement of 60 B three. That precludes it maybe all does come down to what judge Davis said while ago is which one of those two things Trump. The 60 B three relief from judgment. It's authorized for fraud or this thing about 1447 where he says you can't get a review. I agree whether they're mutually exclusive in which one takes precedent agree your honor and judge Davis thought one thing judge. It's not another at the panel here. We got to figure it out. What's wrong Senate case back to the district judge and saying just that. You have jurisdiction make make a ruling on the merits of that whether or not you can give relief and if he may say well y'all apparently didn't read my order because that's what I said but you'll just get it will have it straight. We'll know what he did what's wrong with that your honor is that in order to do that the court would first have to consider the elements under the Schultz test of 60 B three including the meritorious defense requirement and in doing so would necessarily. What do you keep coming up this meritorious defense under 60 B three not then under the Schultz case the three part test for 60 B three relief under the Schultz for circuit case the show talks of that. Relief for for judgments that will unfairly procure that suggestion of the Schultz case and and they're not 60 B three is to determine whether or not. The matter was remanded and it was unfairly secured a fraud or misrepresentation that's. And it requires proper of a meritorious defense and that this court decision a judgment call on whether there was a meritorious defense of fraudulent judge fraudulent jointer runs smack into the fraudulent jointer I never understood without having to much for fraud to join the court. It's about lawyers committing fraud on the court. Brought on the court misrepresentation and lines of the court. And there was respect to an order that's not reviewable so a lawyer stands in front of the court and tells outright lies and he knows they're outright lies and it's demonstrable court doesn't know it so the court enters a remand order which and then it comes back for review when the fraud is uncovered and you're saying. And the court can't correct that. Because it's not reviewable under the otherwise clause. Well that's right your honor that's what you're saying. There can be sanctions under rule 11 but not vacator under rule 60 B three because I'm not talking about a vacator I'm talking about the court issues in order hypothetical order based on a fraudulent misrepresentations of an attorney. And it's pretty clearly fraudulent court acts on the basis of that fraud and doesn't know about it and then the victim the other party comes in and says hold it this order was obtained by fraud I'd like to have it set aside under 60 B three because of the fraud and you come in and say on a court you can't review it because it's not reviewable. It's not review. That's what you say right. There can be rule 11 sanctions but not 60 B three sanctions under that hypothetical. The idea that a company required to litigate a defense in state court rather than federal court is a victim of anything is pretty remarkable. I'd like to address the merits and in terms of whether in fact there was any improper procurement. I do believe you have to red light how long have you had that red light on. We don't give tickets but we do stop you. I'm 10 minutes. You're under me. I beg the courts indulgence for the one point. 30 seconds. The improper procurement argument relies on a false premise that plaintiffs represented their subject of intent subjective intent to district court. They did not and that's because the only inquiry was whether there was a good a glimmer of hope standard satisfied. That's all that was addressed. There was never a representation of intent to pursue that would require a flipping up the burden of proof under fraudulent joiner which is always on the defendant. Thank you. Thank you. Okay. First of all, you're on to correct one thing on whether we could remove now. There's a one year limit on diversity removal which was long passed by the time this was discovered. In terms of rules 60 be three, the questions the court asked were way beyond the year. Yes, way beyond the year. In terms of rules 60 be three, the test is on not whether the outcome was changed, not reviewing the merit, but on whether the judgment was unfairly procured. And when Judge Davis refers to going back to looking at the fraud again revisiting the fraud, we're not talking about the fraudulent joiner. We're talking about as Judge King mentioned the fraud on the court. The fraud of in one court saying we are going to pursue. There is a glimmer of hope

. I mean our questions are focusing you are unwilling to address the role and function of 63 60 B three. 60 it's a wild card which says that nothing becomes settled that's committed on fraud you can go 50 years after a judgment and open it up if fraud is discovered. True your honor but with regard to the interal record is pretty serious things because the theory behind is what I always thought absolutely and lawyers is a new the of candor to the court you can have lawyers shop in different round and commit fraud now whether they did here and I don't know but the courts have a right to try to figure it out. Absolutely and it's the interplay between 60 B three and 1447 D that that precludes and judge Nickerson correctly ruled so that because of the meritorious defense requirement of 60 B three. That precludes it maybe all does come down to what judge Davis said while ago is which one of those two things Trump. The 60 B three relief from judgment. It's authorized for fraud or this thing about 1447 where he says you can't get a review. I agree whether they're mutually exclusive in which one takes precedent agree your honor and judge Davis thought one thing judge. It's not another at the panel here. We got to figure it out. What's wrong Senate case back to the district judge and saying just that. You have jurisdiction make make a ruling on the merits of that whether or not you can give relief and if he may say well y'all apparently didn't read my order because that's what I said but you'll just get it will have it straight. We'll know what he did what's wrong with that your honor is that in order to do that the court would first have to consider the elements under the Schultz test of 60 B three including the meritorious defense requirement and in doing so would necessarily. What do you keep coming up this meritorious defense under 60 B three not then under the Schultz case the three part test for 60 B three relief under the Schultz for circuit case the show talks of that. Relief for for judgments that will unfairly procure that suggestion of the Schultz case and and they're not 60 B three is to determine whether or not. The matter was remanded and it was unfairly secured a fraud or misrepresentation that's. And it requires proper of a meritorious defense and that this court decision a judgment call on whether there was a meritorious defense of fraudulent judge fraudulent jointer runs smack into the fraudulent jointer I never understood without having to much for fraud to join the court. It's about lawyers committing fraud on the court. Brought on the court misrepresentation and lines of the court. And there was respect to an order that's not reviewable so a lawyer stands in front of the court and tells outright lies and he knows they're outright lies and it's demonstrable court doesn't know it so the court enters a remand order which and then it comes back for review when the fraud is uncovered and you're saying. And the court can't correct that. Because it's not reviewable under the otherwise clause. Well that's right your honor that's what you're saying. There can be sanctions under rule 11 but not vacator under rule 60 B three because I'm not talking about a vacator I'm talking about the court issues in order hypothetical order based on a fraudulent misrepresentations of an attorney. And it's pretty clearly fraudulent court acts on the basis of that fraud and doesn't know about it and then the victim the other party comes in and says hold it this order was obtained by fraud I'd like to have it set aside under 60 B three because of the fraud and you come in and say on a court you can't review it because it's not reviewable. It's not review. That's what you say right. There can be rule 11 sanctions but not 60 B three sanctions under that hypothetical. The idea that a company required to litigate a defense in state court rather than federal court is a victim of anything is pretty remarkable. I'd like to address the merits and in terms of whether in fact there was any improper procurement. I do believe you have to red light how long have you had that red light on. We don't give tickets but we do stop you. I'm 10 minutes. You're under me. I beg the courts indulgence for the one point. 30 seconds. The improper procurement argument relies on a false premise that plaintiffs represented their subject of intent subjective intent to district court. They did not and that's because the only inquiry was whether there was a good a glimmer of hope standard satisfied. That's all that was addressed. There was never a representation of intent to pursue that would require a flipping up the burden of proof under fraudulent joiner which is always on the defendant. Thank you. Thank you. Okay. First of all, you're on to correct one thing on whether we could remove now. There's a one year limit on diversity removal which was long passed by the time this was discovered. In terms of rules 60 be three, the questions the court asked were way beyond the year. Yes, way beyond the year. In terms of rules 60 be three, the test is on not whether the outcome was changed, not reviewing the merit, but on whether the judgment was unfairly procured. And when Judge Davis refers to going back to looking at the fraud again revisiting the fraud, we're not talking about the fraudulent joiner. We're talking about as Judge King mentioned the fraud on the court. The fraud of in one court saying we are going to pursue. There is a glimmer of hope. We're going to pursue these defendants and the next week going to the state court. I don't know whether it was a fraud on the court or not, but that's what I think the rule talks about. That's correct. I mean they could have been telling the truth to the federal court line to the state court, which case it would be the fraud here, I guess. Well, you just say they're they're lined here because they lied over there or because it's inconsistent over there. And just to be to be telling the truth one place. Well, to be cleared maybe both of them are maybe they're just inconsistent. Well, maybe it's two different lawyers and they misremember. Judges the same two lawyers in a very small firm knew exactly what they were doing. Maybe they got a good explanation. And with regard to Judge Davis's point that these were just written representations, that is not the case. Both in writing and orally to the state court immediately after a week thereafter. What I was referring to was what you have highlighted in your arguments was a pleading filed in state court. And then at the hearing, the second lawyer, I understand you disagree with the characterization, but the second lawyer, according to the to the plaintiffs here, the appellees clarified what was intended by that statement in the pleading. Now, if that's wrong, Judge Davis with all due respect, it couldn't be more wrong. If you could just bear. So you're saying that first statement about was not an emotion paper in the state court, filed in state court. Both in writing and before the state court. Well, you could say both the first statement, the statement that you highlight in your papers came out of a pleading. One of them did and one of them was said the first one was in a pleading. And then at the oral hearing, the lawyer clarifies. Absolutely not your honor. Absolutely not. Both in both the pleading and in state court, the plaintiffs said this is a... What is talking about the state court? I'm talking about the pleading and state court. Yes. Okay. And both of those statements were, this is a one defendant case. There is no evidence, not even a suggestion of evidence against any... And when Judge Glenn... And when Judge Glenn questioned the lawyer, it's right here in the record. Yes, your honor. The lawyer said she mispoke. It's a different standard. Absolutely not. Okay. And I'm imagining the record. No, the record, if I can just be clear on that, your honor, is it could not be clear. On page 8863 and 8476 of the record, the state court representation, there is absolutely no evidence to indicate or even suggest that plaintiffs were exposed to his bestows by anybody except Colgate. On the record in state court, agreed with the state court judge that this is a one defendant case, on the record in state court. What was relied on in federal court was deposition testimony by the plaintiff and an inference drawn from that testimony about whether one or both of the plaintiffs had been exposed at work because of this government contract. I understand your advocacy. I don't blame you for trying to keep it as narrow as possible. No, no, no, no, no, no. I'm not.

. We're going to pursue these defendants and the next week going to the state court. I don't know whether it was a fraud on the court or not, but that's what I think the rule talks about. That's correct. I mean they could have been telling the truth to the federal court line to the state court, which case it would be the fraud here, I guess. Well, you just say they're they're lined here because they lied over there or because it's inconsistent over there. And just to be to be telling the truth one place. Well, to be cleared maybe both of them are maybe they're just inconsistent. Well, maybe it's two different lawyers and they misremember. Judges the same two lawyers in a very small firm knew exactly what they were doing. Maybe they got a good explanation. And with regard to Judge Davis's point that these were just written representations, that is not the case. Both in writing and orally to the state court immediately after a week thereafter. What I was referring to was what you have highlighted in your arguments was a pleading filed in state court. And then at the hearing, the second lawyer, I understand you disagree with the characterization, but the second lawyer, according to the to the plaintiffs here, the appellees clarified what was intended by that statement in the pleading. Now, if that's wrong, Judge Davis with all due respect, it couldn't be more wrong. If you could just bear. So you're saying that first statement about was not an emotion paper in the state court, filed in state court. Both in writing and before the state court. Well, you could say both the first statement, the statement that you highlight in your papers came out of a pleading. One of them did and one of them was said the first one was in a pleading. And then at the oral hearing, the lawyer clarifies. Absolutely not your honor. Absolutely not. Both in both the pleading and in state court, the plaintiffs said this is a... What is talking about the state court? I'm talking about the pleading and state court. Yes. Okay. And both of those statements were, this is a one defendant case. There is no evidence, not even a suggestion of evidence against any... And when Judge Glenn... And when Judge Glenn questioned the lawyer, it's right here in the record. Yes, your honor. The lawyer said she mispoke. It's a different standard. Absolutely not. Okay. And I'm imagining the record. No, the record, if I can just be clear on that, your honor, is it could not be clear. On page 8863 and 8476 of the record, the state court representation, there is absolutely no evidence to indicate or even suggest that plaintiffs were exposed to his bestows by anybody except Colgate. On the record in state court, agreed with the state court judge that this is a one defendant case, on the record in state court. What was relied on in federal court was deposition testimony by the plaintiff and an inference drawn from that testimony about whether one or both of the plaintiffs had been exposed at work because of this government contract. I understand your advocacy. I don't blame you for trying to keep it as narrow as possible. No, no, no, no, no, no. I'm not... But the lawyer... The lawyer on federal court drew an inference from his client... Her client's deposition testimony that she was at a work site where certain of your client's products may have been used to suggest to the federal court that we may have a glimmer of hope. Absolutely. And as you said, there was no oral hearing in federal court, judge Quarrels and Judge Nicherson decided to grant the motion to remand. And they get back to state court and in front of Judge Blin, they say, well, we made that argument over there, but this is now a one defendant case. And you adopted the argument that they had made in federal court, essentially. No, you're honest. It's all tactics, Miss Kay. We understand that. No, you're honest. It's regrettable that I wrote such a terrible opinion. I won't say that again. They're tired of hearing it. Judge James, if I may... It's not clear that your client wanted to be back in federal court and Judge Nicherson said, I don't have jurisdiction to grant that relief. He didn't say it with the illacrity and the irredition that we might like, but that's exactly what he said. That's exactly what he said. Your honor. He knows well, he could have imposed a fine of $10,000 on these lawyers. He could have sent these lawyers to the district court's admission and disciplinary committee. He could send... Just as you could, he could send a complaint to the Maryland Attorney Agreements Commission saying these lawyers have committed fraud on the court. He could have done any of those things. You're right. And neither you nor your firm nor your client nor Judge Kowals nor Judge Nicherson did any of those things. Because this is the normal fight between defendants who want to be in federal court and the plaintiffs who want to keep them in state court. It happens every day. There's nothing special about this case. Your honor, I respectfully disagree and may I respond? Of course, yes, of course. I hope and pray. It doesn't happen every day. That in federal court, someone says they are intending to pursue certain defendants and they walk across the street and they say, this is a one defendant case. I have never seen it happen. I can't imagine that that happens every day. It happens every day. Well, if it does, it happens every day. It cannot be that this court, nor the federal district court, is without ability when there is fraud procured that procures a judgment to grant relief. It cannot be so. It cannot be that rule, any rule, trumps this court's ability when a... What is a blatant misrepresentation is put to there

.. But the lawyer... The lawyer on federal court drew an inference from his client... Her client's deposition testimony that she was at a work site where certain of your client's products may have been used to suggest to the federal court that we may have a glimmer of hope. Absolutely. And as you said, there was no oral hearing in federal court, judge Quarrels and Judge Nicherson decided to grant the motion to remand. And they get back to state court and in front of Judge Blin, they say, well, we made that argument over there, but this is now a one defendant case. And you adopted the argument that they had made in federal court, essentially. No, you're honest. It's all tactics, Miss Kay. We understand that. No, you're honest. It's regrettable that I wrote such a terrible opinion. I won't say that again. They're tired of hearing it. Judge James, if I may... It's not clear that your client wanted to be back in federal court and Judge Nicherson said, I don't have jurisdiction to grant that relief. He didn't say it with the illacrity and the irredition that we might like, but that's exactly what he said. That's exactly what he said. Your honor. He knows well, he could have imposed a fine of $10,000 on these lawyers. He could have sent these lawyers to the district court's admission and disciplinary committee. He could send... Just as you could, he could send a complaint to the Maryland Attorney Agreements Commission saying these lawyers have committed fraud on the court. He could have done any of those things. You're right. And neither you nor your firm nor your client nor Judge Kowals nor Judge Nicherson did any of those things. Because this is the normal fight between defendants who want to be in federal court and the plaintiffs who want to keep them in state court. It happens every day. There's nothing special about this case. Your honor, I respectfully disagree and may I respond? Of course, yes, of course. I hope and pray. It doesn't happen every day. That in federal court, someone says they are intending to pursue certain defendants and they walk across the street and they say, this is a one defendant case. I have never seen it happen. I can't imagine that that happens every day. It happens every day. Well, if it does, it happens every day. It cannot be that this court, nor the federal district court, is without ability when there is fraud procured that procures a judgment to grant relief. It cannot be so. It cannot be that rule, any rule, trumps this court's ability when a... What is a blatant misrepresentation is put to there. There was no correction. In fact, every time there has been a correction as Judge Floyd points out, the plaintiffs go deeper and deeper and deeper. They said in five... May I suggest... Yes. I think we take your point that there's some disagreement. Just make... And you started to do it. Maybe you've done it. I just want to give you a legal argument in response to what the other side said. That's... That's for me. I'd like to hear that. And I think I've heard it. It cannot be that when fraud is used to procure something to the federal court, the federal courts have no authority to do anything about it. That's your argument. Anything else you want to add to it? Well, yeah, absolutely. 1447 does not preclude this court or any federal court from addressing fraud on the court. Nor have we asked for review of the remandor. We have asked for under Rule 60B3 for... And we have made a sufficient showing that there was fraud procured in the actual order itself, which was the remand order. And we've made the three prong showing that we... We were required to make. Do you think the district court felt it had authority under 60B3? It had jurisdiction under 60B3 or not? I believe the court erroneously felt that 1447 prohibited it considering the Rule 60B3 relief. I don't... That's not asking my question. Okay. Do you think that the district court felt it had jurisdiction to entertain a 60B3 motion to entertain the motion? I don't think so because of 1447. That's how I read that order, Your Honor. And just to be clear, the showing... Yes, this would be the last point. The Schultz case is dispositive here, the four circuit Schultz case, which does lay out the three elements of a 60B3 showing none of which require reconsideration of the merit. They require a showing that a fair hearing was deprived and that there was fraud, not fraudulent, jointer Judge Davis, but fraud in the context of the hearing itself. And that was missed in the court below. Thank you, Your Honor. Yes, Miss Gay

. We'll adjourn Court for the day. Come down to Greek Council