Ronald Hurley v. CBS Corporation

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:12-cv-00462-GLR Copies to all parties and the district court/agency. [999814728].. [14-2049, 14-2271]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2049

RONALD F. HURLEY; BONNIE HURLEY, and Ronald P. Hurley, As
Husband and Wife,
Plaintiffs – Appellants,
v.
CBS CORPORATION, f/k/a Westinghouse; GENERAL ELECTRIC
COMPANY; MCIC, f/k/a McCormick Asbestos Co.; PARAMOUNT
PACKING & RUBBER CO.; PHELPS PACKING & RUBBER CO.; WALLACE
& GALE ASBESTOS SETTLEMENT TRUST, Successor to the Wallace
& Gale Company; S. B. DECKING, INC.,
Defendants – Appellees,
and
ALLTITE GASKETS; ANCHOR PACKING COMPANY; A.W. CHESTERTON
COMPANY; 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.; BONDEX INTERNATIONAL, INC.; CERTAINTEED
CORPORATION, Individually and as Successor to Bestwall
Gypsum Co.; CONWED CORPORATION; COOPER INDUSTRIES, INC.,
Individually and as Successors in Interest to Crouse Hinds
Co.; CROKER & STALLLINGS, INC.; DELAVAL, INC.; DURABLA
MANUFACTURING COMPANY; E.L. STEBBING & COMPANY, INC.;
FLINTKOTE COMPANY; FOSTER WHEELER CORPORATION; FOSTER
WHEELER ENERGY CORPORATION; GEORGIA PACIFIC, INC.; GREENE
TWEED & COMPANY, Individually and as Successor in Interest
to Palmetto, Inc.; HAMPSHIRE INDUSTRIES, INCORPORATED,
f/k/a John H. Hampshire Co.; H.B. FULLER COMPANY, f/k/a
Amchem Products, Inc., f/k/a Benjamin Foster; HONEYWELL
INTERNATIONAL, INC., f/k/a Allied Signal, Inc., Successor
in Interest to the Bendix Corporation; HOPEMAN BROTHERS,
INC.; INTERNATIONAL PAPER, Individually and as Successor to
in Interest to Champion International Corporation and U.S.

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Plywood
Corp.;
J.E.
STEIGERWALD
COMPANY,
INC.;
JOHN
CRANE-HOUDAILLE, INC., f/k/a Crane Packing Company; KAISER
GYPSUM COMPANY, INC.; LOFTON CORPORATION, As Successor-inInterest to Wayne Manufacturing Corporation and Hopeman
Manufacturing
Corporation;
MELRATH
GASKET,
INC.;
METROPOLITAN
LIFE
INSURANCE
CO.;
ON
MARINE
SERVICES
COMPANY,
formerly
Oglebay
Norton
Company;
PFIZER
CORPORATION; RPM, INCORPORATED, Individually as Successor
In Interest to and/or alter ego of The Reardon Company and
Bondex International; SELBY, BATTERSBY & COMPANY, a/k/a
Quaker Chemical Corporation; SQUARE D COMPANY; UNIROYAL,
INCORPORATED;
UNION
CARBIDE
CORPORATION;
UNIVERSAL
REFRACTORIES
COMPANY;
WARREN
PUMPS,
INC.;
WAYNE
MANUFACTURING CORPORATION; WORTHINGTON PUMP, INC., f/k/a
Dresser Pump Division; THE GOODYEAR TIRE & RUBBER CO.; ALFA
LAVAL, INC.; FOSECO, INC.; OWENS-ILLINOIS GLASS COMPANY,
f/k/a Owens-Illinois, Incorporated,
Defendants,
and
CROWN CORK & SEAL USA, INC.,
Third Party Defendant.

No. 14-2271

KEVIN HARPER, Kevin Harper Personal Representative of the
Estate of Claude Alvin Harper, Deceased and Surviving Son
of Claude Alvin Harper, Deceased; CAROL JOHNSON HARPER, Use
Plaintiff and Surviving Widow of Claude Alvin Harper,
Deceased; ALEX HARPER, Surviving Son of Claude Alvin
Harper,
Deceased;
NICOLE
COLEMAN,
Use
Plaintiff
and
Surviving Daughter of Claude Alvin Harper, Deceased,
Plaintiffs – Appellants,
and
CLAUDE A. HARPER,
Plaintiff,

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v.
CBS
CORPORATION,
f/k/a
Westinghouse;
FOSTER
WHEELER
CORPORATION;
GENERAL
ELECTRIC
COMPANY;
MCIC,
f/k/a
McCormick Asbestos Co.; PARAMOUNT PACKING & RUBBER CO.;
PHELPS PACKING & RUBBER CO.; WALLACE & GALE ASBESTOS
SETTLEMENT TRUST; SB DECKING, INC.; FOSTER WHEELER ENERGY
CORPORATION,
Defendants – Appellees,
and
ALLTITE GASKETS; ANCHOR PACKING COMPANY; A.W. CHESTERTON
COMPANY;
BONDEX
INTERNATIONAL,
INC.;
CERTAINTEED
CORPORATION, Individually and as Successor to Bestwall
Gypsum Co; CONWED CORPORATION; COOPER INDUSTRIES, INC.,
Individually and as Successors in Interest to Crouse Hinds
Co.; CROKER & STALLINGS, INC.; DELAVAL, INC.; DURABLA
MANUFACTURING
COMPANY;
E.L.
STEBBING
&
COMPANY,
INCORPORATED; FLINTKOTE COMPANY; THE GOODYEAR TIRE & RUBBER
CO.; GREEN, TWEED & CO., Individually and as Successor in
Interest
to
Palmetto,
Inc.;
HAMPSHIRE
INDUSTRIES,
INCORPORATED, f/k/a John H. Hampshire Co.; H.B. FULLER
COMPANY, f/k/a Amchem Products, Inc., f/k/a Benjamin
Foster; HONEYWELL INTERNATIONAL, INCORPORATED, f/k/a Allied
Signal,
Inc.,
Successor
in
Interest
to
the
Bendix
Corporation; HOPEMAN BROTHERS, INC.; INTERNATIONAL PAPER
COMPANY, INCORPORATED, Individually and as Successor to in
Interest to Champion International Corporation and U.S.
Plywood
Corp.;
J.E.
STEIGERWALD
COMPANY,
INC.;
JOHN
CRANE-HOUDAILLE, INCORPORATED, f/k/a Crane Packing Company;
KAISER GYPSUM COMPANY, INCORPORATED; LOFTON CORPORATION, As
Successor-in-Interest to Wayne Manufacturing Corporation
and Hopeman Manufacturing Corporation; MELRATH GASKET,
INCORPORATED; METROPOLITAN LIFE INSURANCE COMPANY; ON
MARINE SERVICES, f/k/a Oglebay Norton Company; PFIZER
CORPORATION;
RPM,
INCORPORATED,
Individually
and
as
Successor in Interest to and/or alter ego of The Reardon
Company and Bondex International; SELBY, BATTERSBY &
COMPANY, a/k/a Quaker Chemical Corporation; SQUARE D
COMPANY; UNIROYAL, INCORPORATED; UNION CARBIDE CORPORATION;
UNIVERSAL REFRACTORIES COMPANY; WARREN PUMPS, INCORPORATED;
WAYNE MANUFACTURING CORPORATION; WORTHINGTON PUMP INC.,
f/k/a Dresser Pump Division; ALFA LAVAL, INCORPORATED;
FOSECO, INC.; REUBEN ERNEST LAWSON, JR.; GEORGIA PACIFIC,
INC.; BAYER CROPSCIENCE, INCORPORATED, Individually and as
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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.; OWENS-ILLINOIS GLASS COMPANY, f/k/a
Owens-Illinois, Incorporated,
Defendants.

Appeals from the United States District Court for the District
of Maryland, at Baltimore.
Timothy J. Sullivan, Magistrate
Judge; George L. Russell, III, District Judge. (1:12-cv-00460GLR; 1:12-cv-00462-GLR)

Submitted:

February 29, 2016

Decided:

May 6, 2016

Before KING, SHEDD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John Amato, IV, GOODMAN, MEAGHER & ENOCH, Baltimore, Maryland;
Harry Goldman, Jr., Robert G. Skeen, SKEEN GOLDMAN LLP,
Baltimore, Maryland, for Appellants. Mitchell Y. Mirviss,
Theodore F. Roberts, Scott M. Richmond, VENABLE LLP, Towson,
Maryland; Donald S. Meringer, David J. Quigg, MERINGER, ZOIS &
QUIGG, LLC, Baltimore, Maryland; Louis E. Grenzer, Jr., BODIE,
DOLINA, HOBBS, FRIDDELL, GRENZER, P.C., Towson, Maryland;
Geoffrey S. Gavett, Laura D. Abenes, GAVATT, DATT & BARISH,
P.C., Rockville, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In
Hurley,

these
and

surviving

consolidated

the

estate

widow

of

Claude

and

Ronald
A.

F.

Harper,

three

“Appellants”),

appeal

judgment

defendants

for

appeals,

court’s

along

children,

district

the

Hurley,

CBS

Corporation,

Bonnie

with

his

(collectively,
grant

of

General

summary
Electric

Corporation (“GE”), MCIC, Paramount Packing & Rubber Co., Phelps
Packing & Rubber Co., Wallace & Gale Asbestos Settlement Trust
(“WGAST”),

SB

Decking

Inc.,

and

Foster-Wheeler

Corporation (collectively, “Appellees”).

Energy

Appellants also appeal

from the denial of their motions to remand the case to Maryland
state

court

and

for

partial

summary

judgment

against

WGAST.

Finding no reversible error, we affirm.
Appellants

filed

these

wrongful

death

suits

in

Maryland

state court, alleging that they suffered injuries caused in part
by

Ronald

Hurley’s

and

Claude

Harper’s

exposure

to

asbestos-containing products sold or installed by Appellees (as
well

as

by

other

entities

not

part

of

this

appeal).

GE

ultimately removed the cases to federal court under federalofficer

jurisdiction.

The

motions

to

motions

remand

and

district
for

court
partial

denied

Appellants’

summary

judgment

against WGAST, and granted summary judgment for Appellees.
Appellants first claim that the district court should have
granted

their

motions

to

remand
5

because

the

court

lacked

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federal-officer jurisdiction.
motion to remand.

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We review de novo the denial of a

Dixon v. Coburg Dairy, Inc., 369 F.3d 811,

815-16 (4th Cir. 2004) (en banc).

The burden of establishing

jurisdiction rests with the party seeking removal, and removal
jurisdiction is strictly construed: “[I]f federal jurisdiction
is doubtful, a remand to state court is necessary.”

Id. at 816

(internal brackets and quotation marks omitted).
Under

the

§ 1442(a)(1)

federal-officer

(2012),

suits

removal

against

statute,

federal

28

officers

U.S.C.
may

be

removed if they are “for or relating to any act under color of
such office.”

Wood v. Crane Co., 764 F.3d 316, 318-19 (4th Cir.

2014) (internal quotation marks omitted), cert. denied, 135 S.
Ct. 1426 (2015).

Specifically, section 1442(a)(1) permits a

federal officer to remove adverse suits in which the officer
“can allege a ‘colorable’ defense to that action ‘arising out of
[his] duty to enforce federal law.’”

Jamison v. Wiley, 14 F.3d

222, 238 (4th Cir. 1994) (quoting Mesa v. California, 489 U.S.
121, 133 (1988)).
Thus, to obtain removal under § 1442(a)(1) one must (1) be
a federal officer “or any person acting under that officer,”
1442(a)(1);

(2)

“raise

a

colorable

federal

defense”;

§

and (3)

“show a nexus, a causal connection between the charged conduct
and asserted official authority.”

Jefferson Cty. v. Acker, 527

U.S. 423, 431 (1999) (internal quotation marks omitted).
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After reviewing the record, we conclude that GE satisfied
all three requirements for federal-officer removal.

GE is a

“person acting under” a federal officer because it was acting
under a valid government contract at all times relevant to the
litigation.

See Ruppel v. CBS Corp., 701 F.3d 1176, 1181 (7th

Cir.

(holding

2012)

government
federal

in

building

officer).

Appellants’

corporate

GE

claims,

government contractor.

defendant

warships
raised

namely,

a

was

“person

colorable

that

Id. at 1185.

assisting

GE

acting

federal

was

federal
under”

defense

protected

as

to
a

Finally, GE established a

causal connection between the charged conduct and its asserted
official

authority—Appellants

charge

GE

with

negligence

and

failure to warn related to GE’s production and installation of
turbines and generators, done pursuant to contracts with the
Navy.

We

thus

conclude

that

the

district

court

properly

exercised jurisdiction over these cases.
The Hurleys also protest that the district court should
have remanded their case to state court for a different reason:
GE’s notice of removal was untimely.

A notice of removal must

be filed within 30 days “after receipt by the defendant, through
service or otherwise, of a copy of 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.”
U.S.C. § 1446(b)(3) (2012).

28

Thus, until the defendant receives
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some indicia of removability, the 30-day clock does not begin to
run.

Lovern v. General Motors Corp., 121 F.3d 160, 162 (4th

Cir. 1997).
Our review of the record reflects that GE timely filed its
notice

of

answers

removal,

to

within

30

interrogatories,

removability

under

days

which

of

receiving

first

federal-officer

the

indicated

Hurleys’

the

case’s

jurisdiction.

The

complaint’s reference to unattached deposition testimony in a
different case could not serve as an indicia of removability as
we have defined it.

See id. at 162-63 (holding that this court

need only look to four corners of complaint to assess indicia of
removability).

We therefore affirm the district court’s order

denying Appellants’ motions to remand.
Appellants

next

summary judgment.
novo,

drawing

F.3d

404,

407

the

district

court’s

grant

of

We review the grant of summary judgment de

all

nonmoving party.

challenge

reasonable

inferences

in

favor

of

the

Butler v. Drive Auto. Indus. Of Am., Inc., 793
(4th

Cir.

2015).

Summary

judgment

is

only

appropriate when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed.

R.

Civ.

P.

56(a).

In

opposing

summary

judgment,

“the

nonmoving party must rely on more than conclusory allegations,
mere speculation, the building of one inference upon another, or

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the

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mere

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existence

of

a

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scintilla

of

evidence.”

Dash

v.

Mayweather, 731 F.3d 303, 311 (4th Cir. 2013).
In

challenging

orders,

Appellants

incorrect

first

standard

Appellants’

the

to

injuries

district
claim

determine
were

court’s

that

the

court

whether,

proximately

summary

under

judgment

applied
Maryland

caused

by

the
law,

Appellees’

asbestos-containing products.
Because “a federal court’s role under § 1442 is similar to
that of a federal court sitting in diversity,” Kolibash v. Comm.
On Legal Ethics of W. Va. Bar, 872 F.2d 571, 576 (4th Cir.
1989),

the

dispute.
Cir.

law

Maryland,

the

forum

state,

governs

this

Francis v. Allstate Ins. Co., 709 F.3d 362, 369 (4th

2013).

Appeals

of

Over

adopted

twenty

the

years

so-called

ago,

the

Maryland

“frequency,

Court

regularity,

of
and

proximity” test as “the governing standard for liability in an
asbestos case.”

Dixon v. Ford Motor Co., 70 A.3d 328, 335-36

(Md. 2013); see Eagle-Picher Indus., Inc. v. Balbos, 604 A.2d
445,

460

(Md.

1992)

(citing

Lohrmann

v.

Pittsburgh

Corning

Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986)).

Since then, the

Maryland

reaffirmed

Court

of

Appeals

has

repeatedly

the

applicability of this test to asbestos exposure cases governed
by Maryland law.

See Dixon, 70 A.3d at 336 (citing Scapa v.

Saville, 16 A.3d 159, 163 (Md. 2011)).

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district

court

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properly

applied

the

“frequency,

regularity, and proximity” test to determine whether Appellants
had shown they were exposed to Appellees’ asbestos-containing
products in a manner sufficient to create an issue of material
fact.

Appellants’ argument that the test is inapplicable in

cases

of

rejected

direct—rather
by

the

than

Maryland

circumstantial—evidence

Court

of

Appeals.

has

been

Georgia-Pacific

Corp. v. Pransky, 800 A.2d 722, 725 (Md. 2002) (clarifying that
the

relevant

distinction

is

“not

between

direct

and

circumstantial evidence, . . . but between those who actually
handled the product, and those who did not but were in the
immediate vicinity,” and observing no “legitimate basis for not
applying the Balbos[ *] standards in any bystander situation”).
Appellants
regularity,

next

and

contend

that

proximity”

test,

even

under

they

the

“frequency,

alleged

sufficient

exposure to Appellees’ asbestos-containing products to survive
summary judgment.
and

proximity”

As already noted, the “frequency, regularity,
test

provides

the

standard

for

determining

whether a defendant’s negligent conduct is a proximate cause of
the plaintiff’s injury.
the

record

*

convinces

Dixon, 70 A.3d at 335.
us

that

Appellants

did

Our review of
not

make

a

Eagle-Picher Indus., Inc. v. Balbos, 604 A.2d 445 (Md.

1992).

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sufficient showing of exposure to survive summary judgment.

See

Reiter v. Pneumo Abex, LLC, 8 A.3d 725, 728 (Md. 2011).
Appellants next complain that summary judgment was granted
without allowing them a hearing, a decision that we review for
abuse

of

discretion.

Coakley

&

Williams

Const.,

Inc.

v.

Structural Concrete Equip., Inc., 973 F.2d 349, 352 (4th Cir.
1992).

There

judgment

be

is

no

requirement

preceded

by

a

that

hearing.

a

ruling

Cray

on

summary

Commc’ns,

Inc. v.

Novatel Comput. Sys., Inc., 33 F.3d 390, 396 (4th Cir. 1994).
Moreover, Rule 105.6 of the United States District Court for the
District

of

Maryland

specifically

provides:

“Unless

otherwise

ordered by the Court . . . , all motions shall be decided on the
memoranda without a hearing.”

D. Md. R. 105.6.

We perceive no

abuse of discretion in the district court’s decision to grant
Appellees’ motions for summary judgment without a hearing.
In their final claim, Appellants assert that the district
court

erred

in

denying

judgment against WGAST.

their

motions

for

partial

summary

More specifically, Appellants sought to

preclude WGAST from litigating the issue of exposure in light of
the terms of its trust settlement agreement.

Having examined

the terms of the agreement, however, we discern no error in the
district

court’s

decision

to

deny

partial summary judgment.

11

Appellants’

motions

for

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Accordingly, we affirm the district court’s orders denying
Appellants’ motions to remand and for partial summary judgment,
and

granting

dispense

Appellees’

with

contentions

are

oral

motions

argument

adequately

for

summary

because

presented

in

the
the

judgment.

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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