Ripley et al v. J. Henry Holland Corporation et al

Filing 183

ORDER denying 134 Second Motion to Remand to State Court; granting in part and denying in part 140 Motion to Supplement the Record Renewed; adopting and approving 171 Report and Recommendations. Counsel for the parties are DIRECTED to contac t the Court's Docket Clerk at 757-222- 7212 within twenty days of entry of this Order to set a scheduling conference pursuant to Federal Rule of Civil Procedure 16(b). Signed by District Judge Arenda L. Wright Allen and filed on 12/21/17. (tbro)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

Newport News Division

DEBORAH H. RIPLEY,
Administrator of the Estate of

Bernard W. Ripley, deceased, and
DEBORAH H. RIPLEY,

Plaintiffs,

Civil No. 4:14cv70

V.

J. HENRY HOLLAND CORP., et al.
Defendants.

ORDER

Before the Court is Plaintiffs' Second Renewed Motion to Strike and for Remand (ECF
No. 134), and a Renewed Motion to Supplement the Record (ECF No. 140) filed by Defendants
Foster Wheeler LLC and Foster Wheeler Energy Corporation (collectively, "Defendants"). This

Court referred these motions to a United States Magistrate Judge for report and recommendation
in accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil
Procedure 72(b).
I.

BACKGROUND

The Magistrate Judge's Report and Recommendation recommends that Plaintiffs' Second
Renewed Motion to Strike and for Remand be denied and that Defendants' Renewed Motion to

Supplement the Record be granted in part and denied in part. ECF No. 171. Specifically, the
Report and Recommendation concludes that Plaintiffs' motion is without merit because the

"Schroppe Affidavit" is properly admitted and the case is properly removed under 28 U.S.C. §
1442. Id. at 8. The Report and Recommendation also concludes that Defendants' motion should

be granted in part and denied in part because seven documents to which Plaintiffs object should
be excluded, and three documents to which Plaintiffs do not object should be admitted.
This Court must make a de novo determination of those portions of the Report and

Recommendation or specified findings and recommendations to which objection is made. The
district judge may accept, reject, or modify the recommended disposition. See Fed. R. Civ. P.

72(b)(3). The Court has reviewed the disputed issues de novo and considered the Objection and
Response carefully.

The Magistrate Judge's conclusions are sound.

The Report and

Recommendation is adopted in its entirety.
II.

DISCUSSION

The Best Evidence Rule requires "[a]n original writing, recording, or photograph ... in

order to prove its content."

Fed. R. Evid. 1002.

Mr. Schroppe testified to his personal

knowledge. ECF No. 1-10 at 1. He is not attempting to prove the contents of the military
specifications.

Thus, the Best Evidence Rule is inapplicable as a reason for excluding Mr.

Schroppe's Affidavit.

Federal Rule of Evidence 702 allows an expert witness to testify in the form of opinion or
otherwise if this witness meets certain criteria. See Fed. R. Evid. 702. Plaintiffs argue that Mr.
Schroppe's lack of experience with a specific type of document renders his opinion unreliable.

ECF No. 58 at 9-11. However, the Rule does not require that an expert have experience with

every available document. Rather, it states the testimony must be "based on sufficient facts or
data." Fed. R. Evid. 702(b). This criterion is met here and the Affidavit is properly admitted.
Plaintiffs also argue that Defendants have failed to meet their burden of proof for removal
jurisdiction.

ECF No. 172 at 2. Plaintiffs cite Leite v. Crane Co. for the proposition that

Defendants must meet their burden by a preponderance of the evidence. 749 F.3d 1117 (9th Cir.

2014).

However, Leite held that affidavits similar to those presented here satisfactorily

established a colorable federal defense. Id. at 1123.

In evaluating whether Defendants presented a colorable defense sufficient to support

removal, the Magistrate Judge correctly acknowledged that "the defense need only apply to one
claim to remove the case." ECF No. 171 at 12 (quoting Sawyer v. Foster Wheeler LLC, 860 F.3d
249, 257 (4th Cir. 2017)). The Report and Recommendation found correctly that the technical

manuals and drawings were, by themselves, sufficient to support removal. ECF No. 171 at 12.
Plaintiffs' assertion that the Report and Recommendation improperly found a causal
connection in this case is incorrect.

ECF No. 172 at 18. The Magistrate Judge correctly

concluded that Defendants "made out a colorable claim that the Navy exercised discretion over

warnings contained on boilerplates or technical manuals. This colorable defense is sufficiently
connected to plaintiffs' claim that Foster Wheeler failed to warn." ECF No. 171 at 13. "[T]he

[Federal Removal] statute must be 'liberally construed.'" Watson v. Phillip Morris Cos., 551
U.S. 142,147 (2007) (quoting Colorado v. Symes, 286 U.S. 510, 517 (1932)).
III.

CONCLUSION

The Court, having reviewed the record and examined Plaintiffs' objections to the Report
and Recommendation, and having made de novo findings with respect to the portions objected
to, ADOPTS and APPROVES the findings and recommendations set forth in the Report and
Recommendation. ECF No. 171. Accordingly, Plaintiffs' Second Renewed Motion to Strike

and for Remand (ECF No. 134) is DENIED. Defendants' Renewed Motion to Supplement the
Record (ECF No. 140) is GRANTED IN PART and DENIED IN PART.

Counsel for the parties are DIRECTED to contact the Court's Docket Clerk at 757-222-

7212 within twenty days of entry of this Order to set a scheduling conference pursuant to Federal
Rule of Civil Procedure 16(b).

IT IS SO ORDERED.

Wright Allen
United States District Judge
2017

Norfolk, Virginia