Sawyer v. Union Carbide Corporation, 1:16-cv-00118

Background

Decedent Joseph Morris worked as a boilermaker/riveter at Bethlehem Steel Sparrows Point Shipyard from 1948 through the 1970s and later died of mesothelioma; plaintiffs sued Foster Wheeler alleging asbestos exposure from boilers Foster Wheeler made for ships.
Foster Wheeler removed the tort action to federal court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), claiming it manufactured boilers for the U.S. Navy under Navy contracts.
The district court initially remanded, finding Foster Wheeler had not shown a colorable federal defense or a causal nexus to federal activity; the Fourth Circuit reversed that remand and returned the case for further proceedings concerning timeliness of removal.
Removal timing turns on 28 U.S.C. § 1446(b): a defendant must remove within 30 days of when removability first becomes ascertainable from the complaint or any “other paper.”
Key factual dispute for timeliness: whether Foster Wheeler learned (within the four corners of a paper) the necessary ‘‘triangular nexus’’ among decedent, Foster Wheeler, and U.S. Navy work before or at David Williams’s December 11, 2015 deposition; plaintiffs argue earlier discovery (interrogatories, witness list, corporate designee materials) supplied that information.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether removability was ascertainable before Williams’s Dec. 11, 2015 deposition	Plaintiffs: interrogatories and witness list (including ship lists and corporate designee) put Foster Wheeler on notice that Navy ships were built when Morris worked, triggering the 30‑day removal clock by Nov. 30, 2015	Foster Wheeler: removability first became ascertainable from Williams’s deposition showing he worked with Morris while building U.S. Navy ships; removal filed within 30 days of that deposition	Court: removability was first ascertainable from Williams’s deposition on Dec. 11, 2015; removal on Jan. 11, 2016 was timely
What satisfies the “other paper” showing removability under § 1446(b)	Plaintiffs: informal discovery and witness listings suffice to establish nexus	Foster Wheeler: the “other paper” must itself, within its four corners, show the requisite nexus; listing ships or witnesses without connecting Morris to specific Navy vessels is insufficient	Court: the “other paper” must show the triangular nexus within its four corners; mere lists of ships or a witness listing did not meet that standard
Whether the court may consider defendants’ subjective knowledge for removability timing	Plaintiffs: defendants had knowledge via earlier materials or could have discovered it	Foster Wheeler: timing depends on objective ascertainability from papers, not subjective awareness	Court: follows precedent refusing to inquire into subjective knowledge; focuses on whether nexus appears on the face of a paper
Whether Fourth Circuit’s summary about Navy contracts means earlier removability	Plaintiffs: Fourth Circuit relied on corporate designee testimony and contracts, implying earlier notice	Foster Wheeler: Fourth Circuit merely summarized that Foster Wheeler manufactured boilers under Navy contracts during Morris’s employment; it did not hold removability was earlier	Court: Fourth Circuit’s statement did not show a four‑corners nexus before Williams’s testimony; removal remained timely after Williams’s deposition

Key Cases Cited

Yarnevic v. Brink’s, Inc., 102 F.3d 753 (4th Cir. 1996) (the “other paper” rule is broadly construed to include informal communications)
Lovern v. General Motors Corp., 121 F.3d 160 (4th Cir. 1997) (removability must be evident within the four corners of the initial pleading or subsequent paper)
Sawyer v. Foster Wheeler LLC, 860 F.3d 249 (4th Cir. 2017) (reversed district court remand and remanded for reconsideration of removal timeliness)
Citrano v. John‑Crane‑Houdaille, Inc., 1 F. Supp. 3d 459 (D. Md. 2014) (removability requires that grounds be apparent within the four corners of the pleading or subsequent paper)