United States District Court, D. Maryland
SMITH, et al .
MCIC, INC., et al.
Catherine C. Blake United States District Judge
Marvin Smith and his wife Patricia sued Union Carbide Corp.,
along with numerous other individuals and companies
(collectively, the “Defendants”), in the Circuit
Court for Baltimore City, Maryland, for products liability
claims related to Mr. Smith's asbestos exposure and
subsequent diagnosis of malignant pleural mesothelioma. On
July 5, 2016, defendant Crane Co. (“Crane”)
removed the action to this court under the federal officer
removal statute, 28 U.S.C. § 1442(a)(1). (Crane Notice of
Removal, ECF No. 1).
before the court is plaintiffs' motion to remand. The
issue has been fully briefed and no oral argument is
necessary. See Local Rule 105.6 (D. Md. 2016). For
the following reasons, the plaintiffs' motion to remand
will be granted.
served as a Fireman in the United States Navy from 1951 until
1954. (Pls.' Answers to Defs.' Joint Interrog. 5, ECF
No. 408-1). After an honorable discharge, Smith worked as a
fireman and warehouseman at various shipyards and warehouses
until his retirement. (Smiths' Mot. for Remand 2-3, ECF
No. 408). In April 2015, Smith was diagnosed with malignant
pleural mesothelioma, a consequence of exposure to asbestos
fibers over the course of his career. (Id. at 2). On
June 11, 2015, plaintiffs filed suit in the Circuit Court for
Baltimore City, alleging strict liability, breach of
warranty, negligence, fraud, conspiracy, market share
liability, and loss of consortium. (Compl., ¶¶ 1-6,
ECF No. 2). Crane was named as a defendant. (Compl., ECF No.
claim that the removability of the case under federal officer
jurisdiction was ascertainable on September 9, 2015, when
Smith was deposed in this case. (Smiths' Mot. for Remand
3). Describing his service in the Navy during his deposition,
Smith stated that he “reported to the [USS]
Dortch January 22, 52 in the Philadelphia Naval
Shipyard.” (Dep. Test. of Marvin Smith 5, ECF No.
408-2). Smith further detailed that he was “assigned to
the after engine room” while on the USS
Dortch, where he served “the whole time [of his
Navy career] until October 1954.” (Id.). While
working in the engine room, Smith “cut gaskets to
repack the pumps” on small steam lines. (Id.
at 6). He also “remove[d] and replace[d]” valves,
including removing the pillows attached to the valves for
metal laces. (Id. at 20). Crane manufactured and
sold “equipment, including valves, for Navy ships under
contracts between Crane Co. and the shipyards and/or the
United States of America, specifically the Navy
Department.” (Aff. of Anthony D. Pantaleoni 2, ECF No.
claims that removability was only ascertainable once
plaintiffs filed supplemental answers to the defendants'
joint interrogatories on June 30, 2016. (Crane Opp'n to
Smiths' Mot. for Remand 1, ECF No. 602). In the June 30,
2016, supplemental answers, plaintiffs stated that Smith was
exposed to asbestos from “equipment . . . manufactured
and sold by . . . Crane Co.” on the USS
Dortch. (Pls.' Suppl. Answers to Defs.' Joint
Interrog. 5, ECF No. 1-2). Crane filed its notice of removal
on July 5, 1016. (Id. at 1). By Crane's
timeline, the notice of removal was within 30 days of its
receipt of plaintiffs' supplemental answers and therefore
timely. Plaintiffs allege removal needed to occur by October
9, 2015, 30 days after the defendants received Smith's
deposition testimony that specified the exact ship he served
on during his Navy career. Alleging untimely removal,
plaintiffs filed a motion for remand on August 19, 2016.
(Smiths' Mot. for Remand 1).
remove a case to federal court under 28 U.S.C §
1446(a)-(b), a defendant ordinarily must file a notice of
removal in district court within 30 days after receiving the
initial pleading. If the removability of the case is not
ascertainable in the initial pleading, the defendant may
remove within 30 days of receiving “an amended
pleading, motion, order or other paper from which it may be
first ascertained that the case is one which is or has become
removable.” 28 U.S.C § 1446(b)(3).
determining when the defendant had notice for grounds of
removal, the court must “rely on the face of the
initial pleading and on the documents exchanged in the
case.” Lovern v. Gen. Motors Corp., 121 F.3d
160, 162 (4th Cir. 1997). Grounds for removal must be
“apparent within the four corners of the initial
pleading or subsequent paper;” the defendant will not
be held liable for knowledge of removability if
“details [we]re obscured or omitted” or
inadequately stated in the complaint. Id. 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).
claim the information in the September 9, 2015, deposition,
specifically Mr. Smith's alleged asbestos exposure while
serving on the USS Dortch in the U.S. Navy at
shipyards in Philadelphia and Brooklyn, was detailed enough
for Crane to ascertain removability.
Russell of this District addressed a similar issue in a trio
of cases decided on October 5, 2012. Bing v. Alltite
Gaskets, No. GLR-12-458, 2012 WL 4764774 (D. Md. Oct. 5,
2012); Covington v. Owens Illinois Glass
Co., No. GLR-12-461, 2012 WL 4764883 (D. Md. Oct. 5,
2012); Hurley v. Alltite Gaskets, No. GLR-12-462,
2012 WL 4764901 (D. Md. Oct. 5, 2012). In each case, General
Electric (one of numerous defendants sued by the respective
plaintiffs) filed a notice of removal under the federal
officer removal statute that the plaintiff contended was
untimely. Bing, 2012 WL 4764774, at *1;
Covington, 2012 WL 4764883, at *1; Hurley,
2012 WL 4764901, at *1.
court held General Electric's removal timely in all three
cases because the notice of removal was filed within 30 days
of defendants' receiving the plaintiffs' answers to
interrogatories. Bing, 2012 WL 4764774, at *2;
Covington, 2012 WL 4764883, at *2; Hurley,
2012 WL 4764901, at *2. The answers to interrogatories
identified, for the first time, “the exact Navy ships
[plaintiff] was aboard when he was allegedly exposed to
asbestos.” Bing, 2012 WL 4764774, at *2. The
additional detail of the exact Navy ships provided “the
triangular nexus between [plaintiff], GE, and the U.S. Navy
Vessels allegedly a part of the asbestos exposure.”
Id. Once General Electric received that information,
it “was given knowledge that federal officer
removability was available.” Id.
Judge Bennett later explained, the 30 day clock for federal
officer removability “begins ticking when the initial
pleading or other appropriate paper reveals the nexus between
the plaintiff's claims and actions allegedly taken by the
defendant under the direction of a federal officer.”
Houser v. Ammco Tools, a/k/a Hennessy Indus., Inc.,
No.RDB-13-1179, 2013 WL 3364377, at *4 (D. Md. July 2, 2013).
In cases involving alleged asbestos exposure aboard Navy
ships, “the identity of the exact U.S. Navy ships on
which the plaintiff was allegedly exposed to the
defendant's asbestos products gave the defendants
adequate notice” to trigger the 30 day removal
timeframe. Id.; see ...