Ronald Hurley v. CBS Corporation

UNPUBLISHED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.
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-in-
Interest 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-00460-
GLR; 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 these consolidated appeals, Ronald F. Hurley, Bonnie
Hurley, and the estate of Claude A. Harper, along with his
surviving widow and three children, (collectively,
“Appellants”), appeal the district court’s grant of summary
judgment for defendants CBS Corporation, General Electric
Corporation (“GE”), MCIC, Paramount Packing & Rubber Co., Phelps
Packing & Rubber Co., Wallace & Gale Asbestos Settlement Trust
(“WGAST”), SB Decking Inc., and Foster-Wheeler Energy
Corporation (collectively, “Appellees”). 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 federal-
officer jurisdiction. The district court denied Appellants’
motions to remand and motions for partial summary judgment
against WGAST, and granted summary judgment for Appellees.
Appellants first claim that the district court should have
granted their motions to remand because the court lacked
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federal-officer jurisdiction. We review de novo the denial of a
motion to remand. 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 federal-officer removal statute, 28 U.S.C.
§ 1442(a)(1) (2012), suits against federal officers 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. 2012) (holding corporate defendant assisting federal
government in building warships was “person acting under”
federal officer). GE raised a colorable federal defense to
Appellants’ claims, namely, that GE was protected as a
government contractor. Id. at 1185. 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.” 28
U.S.C. § 1446(b)(3) (2012). 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 removal, within 30 days of receiving the Hurleys’
answers to interrogatories, which first indicated the case’s
removability under federal-officer 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 challenge the district court’s grant of
summary judgment. We review the grant of summary judgment de
novo, drawing all reasonable inferences in favor of the
nonmoving party. Butler v. Drive Auto. Indus. Of Am., Inc., 793
F.3d 404, 407 (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 mere existence of a scintilla of evidence.” Dash v.
Mayweather, 731 F.3d 303, 311 (4th Cir. 2013).
In challenging the district court’s summary judgment
orders, Appellants first claim that the court applied the
incorrect standard to determine whether, under Maryland law,
Appellants’ injuries were proximately caused by 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 law of Maryland, the forum state, governs this
dispute. Francis v. Allstate Ins. Co., 709 F.3d 362, 369 (4th
Cir. 2013). Over twenty years ago, the Maryland Court of
Appeals adopted the so-called “frequency, regularity, 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 Court of Appeals has repeatedly reaffirmed 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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The district court 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 direct—rather than circumstantial—evidence has been
rejected by the Maryland Court of Appeals. 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 next contend that even under the “frequency,
regularity, and proximity” test, they alleged sufficient
exposure to Appellees’ asbestos-containing products to survive
summary judgment. As already noted, the “frequency, regularity,
and proximity” test provides the standard for determining
whether a defendant’s negligent conduct is a proximate cause of
the plaintiff’s injury. Dixon, 70 A.3d at 335. Our review of
the record convinces us that Appellants did 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 is no requirement that a ruling on summary
judgment be preceded by a hearing. Cray 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 their motions for partial summary
judgment against WGAST. 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 Appellants’ motions for
partial summary judgment.
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Accordingly, we affirm the district court’s orders denying
Appellants’ motions to remand and for partial summary judgment,
and granting Appellees’ motions for summary judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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