United States District Court, D. Maryland
Janya Sawyer, et al.
Union Carbide Corporation, et al.
Catherine C. Blake United States District Judge.
The estate of Joseph Morris, his surviving spouse, and his surviving children sued Foster Wheeler, LLC (“Foster Wheeler”) in the Circuit Court for Baltimore City. Morris died from mesothelioma, and the plaintiffs claim under various state law theories that the defendants were responsible for exposing him to the asbestos that caused his disease. Foster Wheeler removed Morris’s action to this court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). Now pending is the plaintiffs’ motion to remand the case to state court. The issues have been fully briefed, and no hearing is necessary. See Local R. 105.6 (D. Md. 2014). For the reasons stated below, the court will grant the plaintiffs’ motion to remand.
The plaintiffs claim that Morris was diagnosed with asbestos-related mesothelioma on December 1, 2014 and died as a result of this disease on March 1, 2015. (Compl. 12-13, ECF No. 2.) Allegedly he was exposed to asbestos at Bethlehem Steel Sparrows Point Shipyard (the “shipyard”), where he worked as a “riveter heater and boiler maker in the ‘boiler shop’” from 1948 through the 1970s. (Compl. 12; Pls.’ Mot. Remand 3, ECF No. 138-1.) The plaintiffs filed their complaint in the Circuit Court for Baltimore City on June 5, 2015, alleging theories of strict liability, breach of warranty, negligence, fraud, conspiracy, market share liability, loss of consortium, and wrongful death. (Compl. 10.) Foster Wheeler filed its notice of removal on January 11, 2016.
Foster Wheeler claims it “manufactured marine boilers and auxiliary equipment for use on Navy ships pursuant to contracts and specifications executed by the Navy.” (Notice of Removal ¶ 6, ECF No. 1.) The defendant’s basis for removal is that Foster Wheeler was acting under an officer or agency of the United States within the meaning of 28 U.S.C. § 1442(a)(1) in the manufacture and sale of boilers for the Navy.
In their motion for remand, the plaintiffs argue that (1) Foster Wheeler’s notice of removal was not timely and (2) Foster Wheeler fails to meet the requirements of the federal officer removal statute. As to the second point, the plaintiffs claim that the boilers were constructed in the shipyard’s boiler shop under the direction of Foster Wheeler personnel and were only transported and installed on Navy ships after their completion. They do not dispute that the boilers were built pursuant to Navy specifications, and that the Navy controlled the warnings that accompanied the boilers when they were placed on Navy ships, but they contend the Navy did not restrict Foster Wheeler’s ability to warn its employees in the shipyard’s boiler shop about the presence of asbestos and their need to take proper safety precautions while constructing the boilers. Additionally, the plaintiffs say there is no evidence that warning individuals in the shipyard’s boiler shop would have conflicted with the Navy’s specifications, and none of the Navy guidelines cited by Foster Wheeler relate to warning workers in the boiler shop.
Under 28 U.S.C. § 1442(a)(1), a civil defendant may remove a case to federal court where the removing defendant (1) is a federal officer or person who “acted under” the direction of a federal officer, (2) raises a colorable federal defense, and (3) demonstrates a causal nexus between the plaintiff’s claims and the conduct performed under color of federal law. See, e.g., Hagen v. Benjamin Foster Co., 739 F.Supp.2d 770, 776 (E.D.Pa.2010). Such a defendant may remove the case without the consent of its codefendants. See Citrano v. John Crane-Houdaille, Inc., 1 F.Supp. 3d 459, 465 (D. Md. 2014). The defendant bears the burden of proving that removal is proper. Md. Stadium Auth. v. Ellerbe Becket, Inc., 407 F.3d 255, 260 (4th Cir. 2005).
However, a defendant does not need to prove that its federal immunity defense will succeed to obtain removal. Jamison v. Wiley, 14 F.3d 222, 238 (4th Cir. 1994). The Supreme Court has cautioned against a “narrow, grudging” interpretation of the federal officer removal statute, explaining that, “the validity of the defense of official immunity [should be] tried in a federal court.” Willingham v. Morgan, 395 U.S. 402, 407 (1969); see also Kolibash v. Comm. on Legal Ethics of W. Virginia Bar, 872 F.2d 571, 576 (4th Cir.1989) (“[T]he right of removal conferred by § 1442(a)(1) is to be broadly construed.”).
1. Timeliness of Removal
To remove a case, the defendant must file a notice of removal in the district court within 30 days after receiving the initial pleading. 28 U.S.C. § 1446(b)(1). Where, as here, the complaint does not provide details of the plaintiffs’ claims, the defendant may remove within 30 days of receiving “an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” Id. § 1446(b)(3). The “other paper” requirement “is broad enough to include any information received by the defendant, whether communicated in a formal or informal manner.” Yarnevic v. Brink’s, Inc., 102 F.3d 753, 755 (4th Cir. 1996) (internal quotation marks omitted).
Foster Wheeler argues that its January 11, 2016 notice of removal was timely because it was filed within 30 days of David Williams’s deposition on December 11, 2015. (Notice of Removal ¶¶ 2-3.) In his deposition, Williams said he worked in the boiler shop of the shipyard, and Morris was “[t]he helper most of the time” when Williams worked there. (Williams Dep. 11, 13, Notice of Removal Ex. B, ECF No. 1-1.) Foster Wheeler claims it was first ascertainable that the case was removable when Williams responded to the question, “Do you know the names of any of the ships that you were building boilers for?” (Williams Dep. 68.) Williams testified, “No. When I went there, I knew Vietnam War and we were building Navy ships for that, but as far as the names and things like that, no.” (Id.)
The plaintiffs claim that Foster Wheeler was aware of the information contained in Williams’ testimony no later than November 30, 2015, when the plaintiffs filed interrogatories and document requests directed to Foster Wheeler, which provided Foster Wheeler with a list of ships constructed at the shipyard from 1948 through 1979. (Interrog. No. 11, Mot. Remand Ex. 9, ECF No. 138-12.) Some of those ships were designated as “USS, ” or “United States Ship, ” in the interrogatory, and the plaintiffs asked Foster Wheeler to provide all documents and information relating to the construction of boilers for use on these ships. (Id.) The plaintiffs had previously provided an answer to an interrogatory indicating that Morris was exposed to asbestos from Foster Wheeler boilers in his work as a boilermaker at the shipyard from 1948 through the 1970s. (Pls.’ Suppl. Answers to Interrogs. 4, Mot. Remand Ex. 8, ECF No. 138-11.) Together, these two pieces of information alerted Foster Wheeler that some Navy ships were built at the shipyard during the time period that Morris was allegedly exposed to asbestos while constructing Foster Wheeler boilers there.
Whether the information provided by the plaintiffs prior to Williams’s deposition rendered removability “ascertainable” is a close question which does not need to be resolved. Assuming without deciding that removal was timely, the ...