Barlow v. Colgate Palmolive Co.

• Citation: 772 F.3d 1001
• Decision Date: 25 November 2014
• Docket Number: Nos. 13–1839,13–1840.,s. 13–1839
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Parties: Joyce BARLOW, Plaintiff–Appellee, COLGATE PALMOLIVE COMPANY, Defendant–Appellant, and John Crane–Houdaille, Incorporated ; E.L. Stebbing & Company, Inc.; Hampshire Industries, Inc., f/k/a John H. Hampshire Company; Universal Refractories Company ; J.H. France Refractories Company; The Goodyear Tire & Rubber Company, f/k/a Kelly Springfield Tire Company; MCIC, Inc., and its remaining Director Trustees, Robert I. McCormick, Elizabeth McCormick and Patricia Schunk; CBS Corporation, a Delaware Corporation f/k/a Viacom, Inc., Successor by merger to CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation; Metropolitan Life Insurance Company; A.W. Chesterton Company; Certainteed Corporation, individually and as successor to Bestwall Gypsum Co.; Kaiser Gypsum Company, Inc. ; Union Carbide Corporation; International Paper Company, individually and as successor in interest to Champion International Corporation and U.S. Plywood Corp.; Bayer CropScience, Inc., individually and as successor in interest to Benjamin Foster Co., Amchem Products, Inc., H.B. Fuller Co., Aventis CropScience USA, Inc., Rhone–Poulenc AG Company, Inc., Rhone–Poulenc, Inc. and Rhodia, Inc.; Cooper Industries, Inc., individually and as successors in interest to Crouse Hinds Co.; Pfizer Corporation; Schneider Electric USA, Inc., f/k/a Square D Company, individually and as successor in interest to Electric Controller and Manufacturing Co.; Georgia–Pacific, LLC, individually and as successor to Bestwall Gypsum Co.; Foster Wheeler Corporation; The Wallace & Gale Asbestos Settlement Trust; Conwed Corporation; General Electric Company; Georgia Pacific Corporation, individually and as successor in interest to Bestwall Gypsum Co., Defendants. Clara G. Mosko, Plaintiff–Appellee, v. Colgate Palmolive Company, Defendant–Appellant, and John Crane–Houdaille, Incorporated ; E.L. Stebbing & Co., Incorporated; Hampshire Industries, Inc., f/k/a John H. Hampshire Company; Universal Refractories Company ; J.H. France Refractories Company; The Goodyear Tire & Rubber Company, f/k/a Kelly Springfield Tire Company; MCIC, Inc., and its remaining Director Trustees, Robert I. McCormick, Elizabeth McCormick and Patricia Schunk; CBS Corporation, a Delaware Corporation f/k/a Viacom, Inc., f/k/a Westinghouse Electric Corporation; Metropolitan Life Insurance Company; A.W. Chesterton Company; Certainteed Corporation, individually and as successor to Bestwall Gypsum Co.; Kaiser Gypsum Company, Inc. ; Union Carbide Corporation; International Paper Company, individually and as successor in interest to Champion International Corporation and U.S. Plywood Corp.; Bayer Cropscience, Inc., individually and as successor in interest to Benjamin Foster Co., Amchem Products, Inc., H.B. Fuller Co., Aventis CropScience USA, Inc., Rhone–Poulenc AG Company, Inc., Rhone–Poulenc, Inc. and Rhodia, Inc.; Cooper Industries, Inc., individually and as successors in interest to Crouse Hinds Co.; Pfizer Corporation; Schneider Electric USA, Inc., f/k/a Square D Company, individually and as successor in interest to 3 Electric Controller and Manufacturing Co.; Foster Wheeler Corporation; The Wallace & Gale Asbestos Settlement Trust; Conwed Corporation; Georgia–Pacific, LLC, individually and as successor to Bestwall Gypsum Co.; 3M Company; Mallinckrodt, Inc.; Crown, Cork & Seal Co., Inc.; Koppers Company, Inc.; Walter E. Campbell Co., Inc. ; Krafft–Murphy Company, individually and as successor to National Asbestos Company, a dissolved Delaware Corporation; AC & R Insulation Co., Inc.; Coty, Inc.; Johnson & Johnson; Luzenac America Inc.; R.T. Vanderbilt Company, Inc.; Bayer Corporation, as successor in interest to Sterling Drug, Inc., and Sterling–Winthrop Inc.; General Electric Company, Defendants.

772 F.3d 1001

Joyce BARLOW, Plaintiff–Appellee

COLGATE PALMOLIVE COMPANY, Defendant–Appellant

and

John Crane–Houdaille, Incorporated ; E.L. Stebbing & Company, Inc.; Hampshire Industries, Inc., f/k/a John H. Hampshire Company; Universal Refractories Company ; J.H. France Refractories Company; The Goodyear Tire & Rubber Company, f/k/a Kelly Springfield Tire Company; MCIC, Inc., and its remaining Director Trustees, Robert I. McCormick, Elizabeth McCormick and Patricia Schunk; CBS Corporation, a Delaware Corporation f/k/a Viacom, Inc., Successor by merger to CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation; Metropolitan Life Insurance Company; A.W. Chesterton Company; Certainteed Corporation, individually and as successor to Bestwall Gypsum Co.; Kaiser Gypsum Company, Inc. ; Union Carbide Corporation; International Paper Company, individually and as successor in interest to Champion International Corporation and U.S. Plywood Corp.; Bayer CropScience, Inc., individually and as successor in interest to Benjamin Foster Co., Amchem Products, Inc., H.B. Fuller Co., Aventis CropScience USA, Inc., Rhone–Poulenc AG Company, Inc., Rhone–Poulenc, Inc. and Rhodia, Inc.; Cooper Industries, Inc., individually and as successors in interest to Crouse Hinds Co.; Pfizer Corporation; Schneider Electric USA, Inc., f/k/a Square D Company, individually and as successor in interest to Electric Controller and Manufacturing Co.; Georgia–Pacific, LLC, individually and as successor to Bestwall Gypsum Co.; Foster Wheeler Corporation; The Wallace & Gale Asbestos Settlement Trust; Conwed Corporation; General Electric Company; Georgia Pacific Corporation, individually and as successor in interest to Bestwall Gypsum Co., Defendants.

Clara G. Mosko, Plaintiff–Appellee

v.Colgate Palmolive Company, Defendant–AppellantandJohn Crane–Houdaille, Incorporated ; E.L. Stebbing & Co., Incorporated; Hampshire Industries, Inc., f/k/a John H. Hampshire Company; Universal Refractories Company ; J.H. France Refractories Company; The Goodyear Tire & Rubber Company, f/k/a Kelly Springfield Tire Company; MCIC, Inc., and its remaining Director Trustees, Robert I. McCormick, Elizabeth McCormick and Patricia Schunk; CBS Corporation, a Delaware Corporation f/k/a Viacom, Inc., f/k/a Westinghouse Electric Corporation; Metropolitan Life Insurance Company; A.W. Chesterton Company; Certainteed Corporation, individually and as successor to Bestwall Gypsum Co.; Kaiser Gypsum Company, Inc. ; Union Carbide Corporation; International Paper Company, individually and as successor in interest to Champion International Corporation and U.S. Plywood Corp.; Bayer Cropscience, Inc., individually and as successor in interest to Benjamin Foster Co., Amchem Products, Inc., H.B. Fuller Co., Aventis CropScience USA, Inc., Rhone–Poulenc AG Company, Inc., Rhone–Poulenc, Inc. and Rhodia, Inc.; Cooper Industries, Inc., individually and as successors in interest to Crouse Hinds Co.; Pfizer Corporation; Schneider Electric USA, Inc., f/k/a Square D Company, individually and as successor in interest to 3 Electric Controller and Manufacturing Co.; Foster Wheeler Corporation; The Wallace & Gale Asbestos Settlement Trust; Conwed Corporation; Georgia–Pacific, LLC, individually and as successor to Bestwall Gypsum Co.; 3M Company; Mallinckrodt, Inc.; Crown, Cork & Seal Co., Inc.; Koppers Company, Inc.; Walter E. Campbell Co., Inc. ; Krafft–Murphy Company, individually and as successor to National Asbestos Company, a dissolved Delaware Corporation; AC & R Insulation Co., Inc.; Coty, Inc.; Johnson & Johnson; Luzenac America Inc.; R.T. Vanderbilt Company, Inc.; Bayer Corporation, as successor in interest to Sterling Drug, Inc., and Sterling–Winthrop Inc.; General Electric Company, Defendants.

Nos. 13–1839

13–1840.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 18, 2014.

Decided: Nov. 25, 2014.

ARGUED:Faith Elizabeth Gay, Quinn, Emanuel, Urquhart & Sullivan, LLP, New York, New York, for Appellant. Jeffrey John Utermohle, Law Offices of Peter G. Angelos, Baltimore, Maryland, for Appellees. ON BRIEF:Thomas P. Bernier, Segal McCambridge Singer & Mahoney, Baltimore, Maryland; William B. Adams, Quinn Emanuel Urquhart & Sullivan, LLP, New York, New York, for Appellant. Jennifer L. Lilly, Thomas Kelly, Craig Silverman, Law Offices of Peter G. Angelos, Baltimore, Maryland, for Appellees.

Before NIEMEYER, KING, SHEDD, DUNCAN, WYNN, DIAZ, and FLOYD, Circuit Judges, and DAVIS, Senior Circuit Judge.

Reversed and remanded by published opinion. Judge FLOYD wrote the opinion, in which Judges NIEMEYER, KING, SHEDD, DUNCAN, and DIAZ joined. Judge WYNN wrote a separate opinion concurring in part and dissenting in part. Senior Judge DAVIS wrote a dissenting opinion.

ON REHEARING EN BANC

FLOYD, Circuit Judge:

This appeal involves the interplay between 28 U.S.C. § 1447(d), which prohibits federal courts from reviewing orders remanding cases to state court, and Federal Rules of Civil Procedure 11 and 60(b)(3), which provide means for federal courts to remedy and deter the perpetration of fraud on the courts. Despite strong evidence that the plaintiffs in these consolidated actions misrepresented their intent to pursue claims against certain defendants, the lower court found that § 1447(d) deprived it of jurisdiction to either impose certain sanctions under Rule 11 or afford relief under Rule 60(b)(3). Because we conclude that using these rules to safeguard the courts from fraud does not amount to the “review” proscribed by § 1447(d), we reverse.

I.

A.

This action arises from asbestos litigation brought by two individuals in Maryland state court. Plaintiffs Joyce Barlow and Clara Mosko separately sued Colgate–Palmolive Company—among numerous other companies¹ —and asserted that each of the defendants' products had at some point exposed them to asbestos. As to Colgate, Plaintiffs' theory was that the company's “Cashmere Bouquet” line of powder makeup products contained harmful levels of asbestos and had thereby contributed to Plaintiffs' health problems.

Despite Plaintiffs' joinder of in-state defendants, Colgate removed the two cases to federal court on the basis of diversity of citizenship—asserting fraudulent joinder of the in-state defendants, and alleging that Plaintiffs' deposition testimony and interrogatory responses demonstrated that they did not intend to pursue a claim against any defendant other than Colgate, a diverse defendant.²

Plaintiffs' counsel³ then moved to remand the cases to state court, arguing that Plaintiffs had viable claims against the non-diverse defendants. In a motion for remand in Barlow's case, counsel represented the following:

[T]here is some circumstantial evidence to suggest Ms. Barlow could possibly have been exposed to asbestos-containing products while working at RMR Corporation.... The evidence is certainly circumstantial, but it cannot be said that there is no possibility that a claim could be successfully proven against any of the non-diverse defendants.

(J.A. 106.) In support, Barlow's counsel cited Barlow's statement to a physician on or about June 21, 2011, that she “may have been” exposed to asbestos while working the assembly lines of RMR Corporation.⁴ (Id. at 96, 145.) Although Plaintiffs' counsel admitted that the evidence of liability was hardly “unequivocal,” counsel maintained that Barlow's testimony showed “that there is a possibility that Ms. Barlow could successfully pursue a claim against the non-diverse defendants.” (Id. at 114.)

Based on the above representations, the district court (Judge Nickerson) remanded Barlow's case to state court. The district court relied solely on the claim that Barlow was exposed to asbestos at RMR Corporation: “Barlow argues that her joinder of the in-state defendants was not fraudulent because there remains a possibility that she was exposed to asbestos while working at RMR Corporation.... As a result, the Court finds that joinder of the in-state defendants here was not fraudulent....” (Id. at 367–68.)

Similarly, in Mosko's case, Plaintiffs' counsel represented that she may have a viable claim against at least one of the non-diverse defendants:

[I]t was certainly plausible at the time [that Mosko] filed her Complaint that local defendants should be implicated.... In fact, Plaintiff's counsel do have some circumstantial evidence that Ms. Mosko may have been exposed to asbestos at the Department of Agriculture in the form of invoices [from an in-state defendant, Walter E. Campbell Co., Inc.].

(Id. at 247.) Based on the above representations,⁵ the district court (Judge Quarles) found a possibility that Ms. Mosko could successfully pursue a claim against the non-diverse defendants and remanded Mosko's case to state court. (Id. at 351–61.) In doing so, the district court relied solely on the claim that Mosko was exposed to asbestos at the Department of Agriculture (DOA) building: “Mosko has shown more than a ‘glimmer of hope’ of recovering against ... an in-state defendant[ ] for exposure during the renovations in the DOA building. Therefore, removal was improper.” (Id. at 358–59.)

B.

Shortly after returning to state court, Plaintiffs filed a joint motion to consolidate their cases with two other asbestos-related cases.⁶ Colgate opposed the motion, arguing that it could not receive a fair trial in a consolidated proceeding because the alleged sources of asbestos (other than Cashmere Bouquet) were too different among the cases. In a reply brief, Plaintiffs made the following statements, which contradict their representations to the federal district court judges:

[Plaintiffs] allege exposure to asbestos-containing Cashmere Bouquet powder products only and do not allege exposure to any other asbestos, asbestos-containing products or asbestos-containing dust in any other form .... Colgate attempts to highlight alleged differences in Plaintiffs' worksites and occupations as well as their alleged exposures to [other]

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