Hurley et al v. Alltite Gaskets et al

Filing 88

MEMORANDUM OPINION DENYING 77 Motion of plaintiffs to Remand. Signed by Judge George Levi Russell, III on 10/5/12. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

RONALD P. HURLEY, et al.,

:

Plaintiffs,

:

v.

:

ALLTITE GASKETS, et al.,

:

Defendants.

Civil Action No. GLR-12-462

:

MEMORANDUM OPINION
THIS MATTER is before the Court on Plaintiffs Ronald F.
Hurley

and

Motion

to

Maryland

Bonnie
Remand

for

Hurley’s

this

Baltimore

(collectively

civil

action

City.

to

(ECF

the

the

No.

“Plaintiffs”)

Circuit

77).

Court

This

of

action

involves Plaintiffs’ suit against numerous Defendants alleging
liability

for

Mr.

ultimately

led

to

question

before

Hurley’s
his

the

lung
Court

exposure
cancer
is

to

asbestos,

diagnosis.

whether

The

Defendant

which
central
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.
On

January

13,

2011,

BACKGROUND
Mr.

Hurley

sued

General

Electric

(“GE”) and 47 other companies in the Circuit Court of Maryland

for

Baltimore

City

asbestos exposure.

alleging

numerous

claims

related

to

his

(Compl. ¶¶ 1-12, ECF No. 2).

On January 19, 2011, GE was served with the Complaint.
(Notice of Removal ¶ 2, ECF No. 1).

The Complaint alleges that,

at various times between 1962 and 2000, Mr. Hurley was employed
as a pipefitter and supervisor at both Bethlehem Steel Sparrows
Point and Bethlehem Steel Key Highway Shipyard.

(Compl. ¶ 10).

Thereafter,

counsel

Plaintiffs’

on

January

Answers

17,

to

(Notice of Removal ¶ 3).

2012,

Plaintiffs’

Defendants’

Joint

filed

Interrogatories.

Those answers indicated, for the first

time, the U.S. Navy vessels on which Mr. Hurley was allegedly
exposed to asbestos.
U.S.S.

Fort

(Id.)

Snelling,

Caloosahatchee.

the

The vessels identified were the
U.S.S.

Canisteo,

and

the

U.S.S.

(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

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

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

Id.

3

B.

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.
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

removal

statute.1

GE

contends

that

its

removal

was

timely because it was filed within 30 days of receiving Mr.
Hurley’s answers to interrogatories.

(Def.’s Opp’n to Pls.’

Mot. to Remand at 3 [“Def.’s Opp’n”], ECF No. 78).

GE asserts

that those answers identified, for the first time, the exact
Navy ships aboard which Mr. Hurley alleges asbestos exposure.

1

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

(Id. at 2).

Thus, GE avers that the 30 day clock did not start

ticking 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.
of Removal ¶ 2).

(Notice

The Notice of Removal was filed less than 30

days later on February 14, 2012.

(Def.’s Opp’n at 5).

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

was

removable.

Plaintiffs’

(Mot.

argument

is

to

Remand

without

at

merit,

3,

ECF

however,

No.

77).

because

a

perfunctory review of the Complaint reveals Plaintiffs merely
outlined

where

Mr.

Hurley

was

employed,

and

the

positions

employed,

he

what

held.

dates

(Compl.

¶¶

he

was

9-10).

Plaintiffs omitted details of the triangular nexus between Mr.
Hurley, GE, and the U.S. Navy Vessels allegedly a part of the
asbestos exposure.
the

word

“Navy,”

Moreover, because the Complaint never uses
GE

could

not

have

known

from

the

initial

pleading that the action was removable under the federal officer
statute.

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

does

not

bear

the
5

burden

of

conducting

outside

research

in

order

to

ascertain

whether

the

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

As the

last arrow in their quiver of arguments, Plaintiffs maintain
that a transcript of Mr. Hurley’s deposition, taken more than a
decade prior to commencement of this action, detailed the ships
on

which

the

asbestos

readily available to GE.

exposure

allegedly

occurred

and

was

The Court finds that this argument is

2

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
pleading for facts giving rise to removability”).
6

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 Mr. Hurley’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. 77).
Entered this 5th day of October, 2012

/s/
_____________________________
George L. Russell, III
United States District Judge

7