Bing et al v. Alltite Gaskets et al

Filing 83

MEMORANDUM OPINION denying 75 MOTION to Remand by Linda Bing(as Personal Representative for the Estate of Ennis B. Bing, Deceased. Signed by Judge George Levi Russell, III on 10/5/2012. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

LINDA BING, as Personal
:
Representative of the Estate of
Ennis B. Bing, et al.,
:
Plaintiffs,

:
Civil Action No. GLR-12-458

v.

:

ALLTITE GASKETS, et al.,

:

Defendants.

:

MEMORANDUM OPINION
THIS MATTER is before the Court on Plaintiffs’ Linda Bing,
as Personal Representative of the Estate of Ennis B. Bing, et
al., Motion to Remand this civil action to the Circuit Court of
Maryland

for

Baltimore

City.

(ECF

No.

75).

This

action

involves Plaintiffs’ suit against numerous Defendants alleging
liability for Mr. Bing’s (hereinafter “Decedent”) exposure to
asbestos, which ultimately led to his death on January 6, 2005.
The central question before the Court is whether Defendant
General Electric’s (“GE”) Notice of Removal to this Court was
timely.

The issues have been fully briefed and no hearing is

necessary.

See Local Rule 105.6 (D.Md. 2011).

For the reasons

that follow, Plaintiffs’ Motion to Remand will be DENIED.

I.

BACKGROUND

In 2008, Decedent’s estate sued General Electric (“GE”) and
numerous other companies in the Circuit Court of Maryland for
Baltimore City alleging a litany of claims related to Decedent’s
asbestos exposure and subsequent death.

(Compl. ¶¶ 1-13, ECF

No. 2).
On January 11, 2008, GE was served with the Complaint.
(Notice of Removal ¶ 2, ECF No. 1).

The Complaint alleges that

Decedent was employed at Bethlehem Steel Corporation, Sparrows
Point Shipyard from 1951 through 1986 as an outside machinist.
(Compl. ¶ 9).

Thereafter, on January 16, 2012, Plaintiffs’

counsel

Plaintiffs’

filed

Interrogatories.

(Notice

of

Answers
Removal

to
¶

Defendants’
3).

Those

Joint
answers

indicated, for the first time, the U.S. Navy vessels on which
Decedent was allegedly exposed to asbestos.

(Id.)

The vessels

identified were the U.S.S. Suribachi, U.S.S. Mauna Kea, U.S.S.
Nitro, U.S.S. Pyro, U.S.S. Haleakala, U.S.S. Santa Barbara, and
U.S.S. Mount Hood.

(Id.)

On February 14, 2012, GE filed its Notice of Removal to
this Court pursuant to 28 U.S.C. § 1442(a)(1), asserting that if
it

did

manufacture

the

products

contract with the U.S. Navy.

at

issue,

(Id. ¶ 1).

it

did

so

under

Before this Court is

Plaintiffs’ Motion to Remand on the basis of untimely removal,
filed on March 15, 2012.
2

II.
A.

DISCUSSION

Standard of Review
Under 28 U.S.C. § 1441(a), “any civil action brought in a

State court of which the district courts of the United States
have original jurisdiction, may be removed by the defendant . .
. to the district court of the United States for the district
and division embracing where such action is pending.”

To remove

a case, the defendant must file a notice of removal in the
district

court

pleading.

within

30

days

after

receiving

the

28 U.S.C.A. § 1446(a)-(b) (West 2012).

initial

If the case

stated by the initial pleading is not removable, the defendant
may remove within 30 days of receiving “an amended pleading,
motion,

order

or

other
the

paper

case

from

is

one

which
which

it

ascertained

that

is

removable.”

may
or

first
has

be

become

28 U.S.C.A. § 1446(b)(3) (West 2012).

In determining when a defendant first had notice of grounds
for removal, the Court must “rely on the face of the initial
pleading and the documents exchanged in the case.”

Lovern v.

Gen. Motors. Corp., 121 F.3d 160, 162 (4th Cir. 1997).

The

Court need not “inquire into the subjective knowledge of the
defendant,” but consider only whether grounds for removal were
“apparent within the four corners of the initial pleading or
subsequent paper.”

Id.

If “details [we]re obscured or omitted”

or “inadequately . . . stated in the complaint,” the defendant
3

will not have been charged with knowledge of removability within
30 days of the initial pleading.
B.

Id.

Analysis
1.

GE’s Notice of Removal was timely

The Court finds that GE’s Notice of Removal was timely
because removability was not “apparent within the four corners”
of the Complaint.

See Lovern, 121 F.3d at 162.

The Lovern court explained that courts will not be required
to inquire into the subjective knowledge of the defendant.

Id.

As noted above, to remove a case, the defendant must file a
notice

of

pleading.

removal

within

30

days

of

receiving

28 U.S.C.A. § 1446(b) (West 2012).

the

initial

If the case

stated by the initial pleading is not removable, however, 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.”

28 U.S.C.A. § 1446(b)(3) (West 2012).

Here, GE’s Notice of Removal was filed under the federal
officer
timely

removal
because

statute.1
it

was

GE

contends

filed

within

1

that
30

its

days

removal
of

was

receiving

The federal officer removal statute authorizes removal of
“civil action[s] . . . commenced in a State court . . . against
. . . [t]he United States or any agency thereof or any officer
(or any person acting under that officer) of the United States
or of any agency thereof . . . relating to any act under color
of such office.” 28 U.S.C.A. § 1442(a)(1) (West 2012).
4

Decedent’s answers to interrogatories.

(Def.’s Opp’n to Pls.’

Mot. to Remand at 1 [“Def.’s Opp’n”], ECF No. 76).

GE asserts

that those answers identified, for the first time, the exact
Navy ships Decedent was aboard when he was allegedly exposed to
asbestos.

(Id. at 4).

not

ticking

start

Thus, GE avers that the 30 day clock did

until

it

was

served

with

the

answers

to

interrogatories, which was the first time GE was given knowledge
that federal officer removability was available.

(Id. at 5).

The answers to interrogatories were served on GE on January 17,
2012.

(Notice of Removal ¶ 3).

The Notice of Removal was filed

less than 30 days later on February 14, 2012.

(Def.’s Opp’n at

7).
Conversely, Plaintiffs maintain that GE’s receipt of the
Complaint gave it sufficient knowledge to ascertain that the
case

was

removable.

Plaintiffs’

argument

(Mot.
is

to

Remand

without

merit,

at

2,

ECF

however,

No.

75).

because

a

perfunctory review of the Complaint reveals Plaintiffs merely
outlined

where

Decedent

was

employed,

employed, and the position he held.

what

dates

(Compl. ¶ 9).

he

was

Plaintiffs

omitted details of the triangular nexus between Decedent, GE,
and

the

exposure.

U.S.

Navy

Vessels

allegedly

a

part

of

the

asbestos

Moreover, because the Complaint never uses the word

“Navy,” GE could not have known from the initial pleading that
the action was removable under the federal officer statute.
5

See

Lovern, 121 F.3d at 162.

The removal was, therefore, timely

pursuant to 28 U.S.C. § 1446(a)-(b).
2.

GE’s burden in determining removability

The Court also finds that the Notice of Removal was timely
because

GE

research

does

in

not

order

bear
to

the

burden

ascertain

of

whether

conducting
the

outside

Complaint

is

removable.
The U.S. Court of Appeals for the Fourth Circuit was clear
when it explained that a court shall only rely on the face of
the initial pleading.

Lovern, 121 F.3d at 162.

The Lovern

court explained that courts will not be required to inquire into
the subjective knowledge of the defendant.

Id.

The grounds for

removal must be apparent within the four corners of the initial
pleading.

Id.

Plaintiffs argue that the initial Complaint made grounds
for removal ascertainable and thus, GE was on inquiry notice
that this action was subject to removal.

(Mot. to Remand at 4).

This contention, however, is unsupported by case law.2

2

As the

Courts outside of the Fourth Circuit have explained that
defendants do not bear the burden of using resources outside the
complaint to ascertain removability. See Akin v. Ashland Chem.
Co., 156 F.3d 1030, 1035 (10th Cir. 2008) (“notice ought to be
unequivocal”; grounds for removal “should not be ambiguous” or
“require[] an extensive investigation”) (internal quotation
marks omitted); see also Whitaker v. Am. Telecasting, Inc., 261
F.3d 196, 206 (2d Cir. 2001) (although the defendant must “apply
a
reasonable
amount
of
intelligence
in
ascertaining
removability,” the defendant need not “look beyond the initial
6

last arrow in their quiver of arguments, Plaintiffs assert that
a transcript of Decedent’s deposition, taken nearly twenty years
prior to commencement of this action, detailed the ships on
which the asbestos exposure allegedly occurred and was readily
available to GE.

The Court finds that this argument is without

merit, however, because GE was not a named defendant in the case
where

the

referenced

deposition

was

taken.

At

bottom,

Plaintiffs’ Complaint fails to include details as to how GE was
involved in contributing to Decedent’s alleged harm.

To be

sure, the Complaint does not include any allegations which would
have informed GE that the harm occurred from contact with GE
products

placed

there

pursuant

entered into with the U.S. Navy.

to

government

contracts

GE

For these reasons, the Court

finds that GE was not charged with the burden of ascertaining
this action’s removability and, consequently, DENIES Plaintiffs’
Motion to Remand.
III. CONCLUSION
For

the

foregoing

reasons,

the

Court

DENIES

Plaintiffs’

Motion to Remand (ECF No. 75).
Entered this 5th day of October, 2012

/s/
_____________________________
George L. Russell, III
United States District Judge
pleading for facts giving rise to removability”).
7