Denial of Remand When Removal Under Federal Officer Removal Statute Deemed Timely

MARYLAND — The plaintiff filed her lawsuit in the Circuit Court for Baltimore County on June 5, 2015, alleging the decedent was exposed to asbestos at Bethlehem Steel Sparrows Point Shipyard as a riveter heater and boiler maker from 1948 through the 1970s. A co-worker was deposed on December 11, 2015, and testified that decedent was exposed to asbestos from Foster Wheeler products while building ships for the Vietnam War. Foster Wheeler removed the case base on the Federal Officer Removal Statute to the U.S. District Court for the District of Maryland on January 11, 2016. The plaintiff filed a motion to remand on February 9, 2016 on the basis that Foster Wheeler had not established a colorable federal defense. Foster Wheeler appealed to the Fourth Circuit Court of Appeals, and prevailed on that issue. The Fourth Circuit remanded to the District Court to consider whether the removal was timely.

Pursuant to statute, removal must be effected within 30 days of receiving the initial pleading or “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.” Foster Wheeler argued that the removal was timely because the co-worker testimony was the first time the necessary “triangular nexus” between the defendant and decedent’s alleged exposure aboard a U.S. Navy vessel had been established. The plaintiff countered that Foster Wheeler was aware of the information in the co-worker’s testimony no later than November 30, 2015, when a list of ships constructed at the shipyard from 1948 to 1979 was provided to Foster Wheeler. The plaintiff had also previously produced Answers to Interrogatories indicating decedent was exposed to asbestos from Foster Wheeler boilers at Sparrows Point. The District Court noted that the Fourth Circuit has cautioned against inquiring into defendants’ subjective knowledge. The District Court found that whether decedent actually worked on any of the Navy ships was not apparent from the four corners of the discovery materials provided by plaintiff. The court therefore held that the co-worker testimony was the first “paper” that established the “triangular nexus.” Removal was therefore timely, and the motion to remand was denied.

Read the full decision here.