UNPUBLISHED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. 
2

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-inInterest 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,
3

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 
4

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.
5

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 federalofficer 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 
6

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). 
7

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 
8

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 
9

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)).
10

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).
11

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