Bard, Inc., Case No. 1. at 432. 111-7 31-33. NAC 535.240 is the only place in Chapter 535 that explains, colloquially, that a significant hazard dam must withstand a 1000-year flood event and a low hazard dam must withstand a 100-year flood event. And while "[i]n some cases, it may be cost-effective for counsel simply to provide jurors with individual binders containing indexed copies of selected exhibits central to the presentation at trial," electronic display systems that show everyone in the courtroom the exhibit simultaneously likewise "significantly assist jury involvement and comprehension and expediate trial." 21-15415 | 2021-03-09, U.S. District Courts | Property | ECF No. [21-15415] (AD) [Entered: 03/16/2021 06:44 PM], (#1) DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. 123. Union Pacific attacks Lindon's meteorology testimony, arguing that Lindon's model used (1) an incorrect time period, and (2) the wrong weather station data. Id. Union Pacific has twice amended its complaint (ECF Nos. 141-2 18), that is an argument best left for cross examination and goes toward the weight not the admissibility of Razavian's opinion. Make your practice more effective and efficient with Casetexts legal research suite. Because we find that the parties' agreement is ambiguous and because the district court does not appear to have considered this issue previously, we do not address Gordon Ranch's argument that the earnest money cannot be awarded to Winecup, because such an award would necessarily render the earnest money provisions of the parties' agreement an unenforceable penalty clause. The Court will address each argument in turn. ), In February 2017, after executing the amendment and before the closing date, substantial flooding damaged the property. [21-15415] (AD) [Entered: 03/16/2021 06:44 PM], Docket(#2) Filed (ECF) Appellant Winecup Gamble, Inc. Id. Finally, one place to get all the court documents we need. Generally, all relevant evidence is admissible. (citation omitted). Id. Union Pacific argues that Winecup should be precluded from arguing before the jury that any of Nevada's dam statutes and regulationsNevada Revised Statutes ("NRS") 535.005 et seq. These two actsmodification and abandonmentconstitute the "construction, reconstruction, or alterations" contemplated in NRS 535.010. P. 32(a)(3) ("An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party's officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4)."). IT IS FURTHER ORDERED that Union Pacific's eleventh motion in limine to bar Rule 702 opinions (A) generally, if not in expert reports, and (B) specifically, from Luke Opperman (ECF No. B at 2. ///. ECF No. 6. See Madrigal v Treasure Island Corp., Case No. Paul Fireman's Nevada Ranch Lists for $50 Million - WSJ See FED. WINECUP GAMBLE, INC., a Nevada corporation, Plaintiff, v. GORDON RANCH, LP, a Texas limited partnership, Defendant Case No. The provinces allowed casino games as well as horse tracks, and video lottery terminals. /// /// ///. (ECF No. Id. Winecup concedes that an accepted methodology includes using topographical survey data to determine if it is possible for water to escape one drainage and enter another. Union Pacific does not provide the actual language of a proposed instruction, but simply lists the statutes and regulations upon which it proposes the parties craft preliminary instructions. Finally, Union Pacific requests leave to serve Rule 36 requests to establish admissibility of certain evidence. facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial." Close to I-80. Section 213.33 "only regulates the maintenance of existing drainage;" the regulations "are otherwise silent on when additional drainage is required, what kind of drainage is appropriate, and how drainage should be installed." Plaintiff admitted that Mr. Worden was the principal negotiator in forming the deal resulting in some text messages between him and Mr. Fireman. Campbell Industries v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 37, 89), to which Winecup has answered (ECF No. ECF No. Of Clark v. LB Props., Inc., 315 P.3d 294, 296 (Nev. 2013) (internal quotation marks and citations omitted). . If you do not agree with these terms, then do not use our website and/or services. Winecup argues that Lindon is qualified to opine on both meteorological and hydrological issues, and that Union Pacific's arguments do not go toward the admissibility of Lindon's opinions, but only the weight, and amount to nothing more than a "battle of the experts." Date of service: 07/29/2020. While section 233.13 touches on drainage, it does not substantially subsume the subject matterthere is no specified standard for culvert size or what type of culvert should be used in this circumstance. If the parties determine that a jury trial is necessary, the Court would likely not be able to set it before the middle of 2021 due to the backlog of criminal jury trials. However, they do not currently have these texts messages, and Mr. Fireman admitted that no one had searched his phone to attempt to preserve the text messages. ECF No. Therefore, as a matter of law, the Court finds that section 2 of this statute cannot form the basis of a negligence per se claim and Winecup's motion is granted. Erica Beck - Winecup Gamble Ranch | ZoomInfo Importantly, the parties dispute whether the February 2017 storm was greater or less than a 100-year storm eventUnion Pacific's expert concluded that the storm event did not exceed the 100-year event, while Winecup's expert, Lindon, concluded that it did. 16. Winecup further argues that Razavian fails to offer an opinion that floodwater from the 23 Mile dam caused the washout at mile post 670.03. Joe Glascock Email & Phone Number - Winecup Gam.. | ZoomInfo 157-24, 157-28. ECF Nos. Winecup does not dispute that some of Nevada's dam statutes and regulations apply to its 23 Mile and Dake dams; however, it argues that a blanket ruling that it can't argue that any of these regulations or statutes do not apply is overbroad and contrary to a plain reading of many of the sections. Razavian provides that his opinion on the mile post 670.03 washout is based on (1) his personal aerial observations and photographs taken of the area during a February 11, 2018 helicopter ride; (2) the lay of the vegetation in the area and damage to track embankments; (3) review of a topographic map of the area and the features of the land; (4) a photograph take by a news helicopter the day of the flood; (5) the presence of ice blocks on the tracks between mile post 669 at 670; and (6) an account in the Elko Daily from an NDOT Sheriff who noted that the water went around the Dake Reservoir. prescribes a regulation or issues an order covering the subject matter of the State requirement." 125) is GRANTED in part and DENIED in part, in accordance with this Order. 149) is granted. However, Union Pacific may present this evidence only in the secondary proceeding to determine the amount of punitive damages, should the case reach this proceeding. R. CIV. Winecup opposes the admittance of this contested evidence on relevancy and admissibility grounds arguing that whether these exhibits should be admitted should be determined within the context of trial. (internal quotations and citations omitted)). As the parties have already agreed to prepare their exhibits electronically, juror binders are unnecessarily redundant. ECF No. Appellee Gordon Ranch LP answering brief due 07/21/2021. On 03/13/2017 Gordon Ranch LP filed a Property - Other Real Property lawsuit against Winecup Gamble Inc.This case was filed in U.S. District Courts, Nevada District. 175. Additionally, the Court finds because the juror binders are unnecessary and impracticable, there is no need to pre-admit evidence for such binders. Transcript due 09/21/2020. Gordon Ranch filed a motion for judgment on the pleadings; Winecup Gamble filed its motion for summary judgment. MANUAL FOR COMPLEX LITIGATION (FOURTH) 12.32 (2004). Defendant moves for sanctions against Plaintiff alleging that its agents spoliated valuable electronically stored information (ESI). IT IS FURTHER ORDERED that all other motions are DENIED AS MOOT. Gordon Ranch attempted to purchase real property located in northern Nevada from Winecup Gamble in 2016. Contact. of San Bernardino, 750 F. App'x 534, 537 (9th Cir. Second, Winecup argues that even if it does apply, it cannot have retroactive applicability. However, the Advisory Committee Notes make clear that the 2015 amendment forecloses a court from imposing sanctions for spoliation of ESI under that basis. During the deposition of Winecup's designated Rule 30(b)(6) witness, James Rogers, he testified that he "did not know" the answers to several of Union Pacific's questions. The existing briefing schedule remains in effect. Winecup opposes, arguing that Union Pacific cites no authority or foundation for the Court on which to make such a ruling. Accordingly, the Court grants Union Pacific's fifteenth motion in limine (ECF No. See NAC 535.055 ("Inflow design flood" means "a hypothetical flood of a given magnitude that is used to determine the design of a dam and its related hydraulic features. Lastly, Union Pacific motions the Court to amend the pretrial order (ECF No. Plaintiff advocated for and successfully obtained a remand from the Ninth Circuit instructing this Court to comb through the parol evidence to determine the intent of the parties regarding the objective interpretation of the contractthe very information that its primary negotiator ought to possess. As discussed above, Razavian's opinion the subject was first disclosed during his February 2017 deposition. Union Pacific's eighth motion in limine to bar evidence or argument that a non-party is comparatively negligent (ECF No. "Legal duties imposed on railroads by the common law fall within the scope of these broad phrases." Second, Defendant has not established that the deletions occurred prior to a duty to preserve ESI. Winecup Gamble Ranch has 1,500 acres of pivot-irrigated fields and another 500 acres under wheel and flood irrigation. The Court is open to presiding over a bench trial via ZOOM video conferencing if the parties are amendable to such a solution. 160-4 at 26. 1996), as amended (Jan. 15, 1997) (internal quotation marks and citation omitted). But the expert may be required to disclose those facts or data on cross-examination." IT IS FURTHER ORDERED that Union Pacific's second motion in limine to exclude hydrological opinions of Matthew Lindon and to appoint a neutral expert (ECF No. P. 26(a)(2)(B)(i). 175), are denied without prejudice. Id. Ranch shifts focus to soil organic matter - Hay and Forage Union Pacific rebuilt these areas with steel bridges instead of rebuilding the embankments and culverts. Shot over two years on the spring wagon. Winecup intends to introduce Godwin's opinion as evidence of what size culverts should be used based on the industry standard. ECF Nos. 126) for a blanket ruling is denied. Owners Russell Wilkins and Martin Wunderlich had divided the ranch in 1945. 2015) (per curiam). Id. 139-4 at 4. Union Pacific does not argue that the considerations Godwin looked at, including tracks in service, crew variability, and trains per day, are not to be considered in reaching such a conclusion on rerouting costsits own expert Stephen Dolezal considered characteristics for available tracks, which included run time between the end points of damaged tracks, track speeds, expected train sizes, and siding and auxiliary track availability. The Court finds that Lindon's opinions on both meteorology and hydrology are reliable. 157-2 at 66; 157-28. UNITED STATES DISTRICT COURT DISTRICT OF NEVADA. The FRSA also includes an express preemption provision: "A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation . Union Pacific motions the Court to exclude both Winecup's contributory negligence defense and Godwin's expert opinions that relate to this defense. FED. 131) is denied without prejudice. Federal Rule of Evidence 702 governs the admissibility of expert testimony, providing: To determine the reliability of the principles and methods used, the court looks to: (1) whether a theory or technique can be or has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; (4) whether there are standards controlling the technique's operation; and (5) whether the theory or technique has general acceptance within the relevant scientific community. Winecup further argues that because Opperman is a neutral expert, deposed by both parties, and listed in Union Pacific's witness disclosures, Union Pacific will not be prejudiced by his testimony. Union Pacific's eighteenth motion in limine to bar Winecup from offering evidence or argument about preserving the Dake dam for pike (ECF No. 89 22-24. A, 47:2-6.) 176. The Court therefore finds that Union Pacific has failed to provide a statute upon which to argue negligence per se; Winecup's motion (ECF No. 151. As the Court articulated above, Godwin is qualified to opine on such topics as railroad design and construction, based on his training and experience, which includes opining on the industry standard for culvert size in this context. Union Pacific alleges that as a result of the dam's failure, water flowed downstream, in part, to the Dake Reservoir dam, and that the Dake then eroded and breached, causing flooding and ultimately washing out a significant portion of Union Pacific's railroad tracks. The amended agreement is certainly not susceptible only to the interpretation adopted by the district court, regarding whether the amendment sought to change or modify the detailed risk-of-loss scheme detailed in the terms of the parties' original agreement. 1398, 1400 (N.D. Ill. 1993) (noting that a court may wait to resolve the evidentiary issues at trial, where the evidence can be viewed in its "proper context"). In the court application, the franchisees are . Before deciding on how damages are to be calculated, the Court will permit Winecup the opportunity to respond to Union Pacific's reply; briefing is not to exceed 15 pages of argument, excluding tables of contents and authorities and administrative notices. In Zubulake, the court held that it was insufficient for a party to send a litigation hold letter to an IT department without ensuring that "all relevant information (or at least sources of relevant information) is discovered," "that relevant information is retained on a continuing basis," and "that relevant nonprivileged material is produced to the opposing party." Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant settlement discussions while the appeal is pending. Plaintiff had imposed an oral litigation hold that proved insufficient and a good deal of ESI went missing. Id. 112, 2:15-22.) Having reviewed Lindon's declaration detailing his 40-year work history in the field of hydrology, including work in hydrological assessments and modeling, dam inspections, and evaluations, the Court agrees that Lindon is qualified to opine on hydrology issues. ECF No. Cancellation and Refund Policy, Privacy Policy, and It is uncontested that 23 Mile dam is classified as a low hazard dam, and Dake dam as a significant hazard dam. Stephanie Hoit Lee & David N. Finley, Federal Motions in Limine 1:1 (2018). Godwin testified at his deposition that he was familiar with what railroads need to consider when addressing rerouting, including which tracks were in service, crew variability, how many crews they have on standby, how many trains are running per day. /// /// /// /// /// /// /// /// /// ///. IT IS FURTHER ORDERED that Union Pacific's eighteenth motion in limine to bar Winecup from offering evidence or argument about preserving the Dake dam for pike (ECF No. Story continues below advertisement. Amended briefing schedule: Appellant Winecup Gamble, Inc. opening brief due 06/21/2021. Likewise, Union Pacific's other arguments go to the weight of his testimony, not admissibility, and are best left to vigorous cross examination. 157-31; 157-32. ECF No. ON-SITE RAIL SPUR AND 2 LANDING STRIPS. The parties timely responded. ECF No. [11770779] [20-16411] (Lundvall, Pat) [Entered: 07/29/2020 01:50 PM], (#3) MEDIATION ORDER FILED: By 08/11/2020, counsel to email Circuit Mediator regarding settlement potential. winecup gamble inc. winecup gamble ranch people. However, there is also evidence in the record that DWR instructed Winecup to complete specific tasks that were not done: The 1996 inspection report for 23 Mile dam indicates that the "wing walls at the downstream invert should have the concrete repaired," and this repair was again noted in the 2003 report. The lawsuit would cover athletes who were training and competing between 2010 and 2020, and seeks compensation of $250,000 for punitive damages, as well as moral damages in the amount of $12,000 . "A contract is ambiguous if it is reasonably susceptible to more than one interpretation." The Court finds that whether the proffered evidence is relevant or if it would be unfairly prejudicial is best determined at trial when it can be adjudged in context. Union Pacific's thirteenth motion in limine to bar evidence or argument related to an "Act of God" defense (ECF No. This communication will be kept confidential, if requested, and should not be filed with the court. The duty to preserve commenced at least by this date. Co., 752 F.3d 807, 814 (9th Cir. Pyramid Techs., Inc. v. Hartford Cas. i. Mediation Questionnaire due on 07/29/2020. The briefing schedule previously set by the court remains in effect. The schedule is set as follows: Appellant Winecup Gamble, Inc. 160-3 at 77. Union Pacific's ninth motion in limine to bar mention to the jury of the notion that Nevada's dam statutes and regulations do not apply to the Winecup dams due to their age (ECF No. 126) is denied. See Luce v. United States, 469 U.S. 38, 41 (1984). 149) is GRANTED. FED. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. [12077160] (AF) [Entered: 04/16/2021 11:36 AM], Docket(#5) MEDIATION CONFERENCE RESCHEDULED - DIAL-IN Assessment Conference, 04/14/2021, 9:30 a.m. Pacific Time (originally scheduled on 03/31/2021). The parties stipulated to extend rebuttal expert disclosures until November 19, 2018, at which time, Winecup disclosed two rebuttal witnesses. Accordingly, Union Pacific's motion (ECF No. The schedule is set as follows: Appellant Winecup Gamble, Inc. While Union Pacific argues that these witnesses may not be qualified to offer opinion testimony, the Court reserves ruling on specific testimony for trial. 135. at 4. IT IS FURTHER ORDERED that Winecup's first motion in limine to exclude Daryoush Razavian's testimony related to mile post 670.03 (ECF No. 155-5. Id. Appellee Gordon Ranch LP answering brief due 06/07/2021. ROBERT C. JONES United States District Judge. By that time, it had over 9,000 cattle and a reputation as one of the great ranches of Nevada. Winecup motions the Court exclude the opinions and testimony of Union Pacific's hydrology expert, Daryoush Razavian, regarding the washout at mile post 670.030. ROBERT C. JONES United States District Judge ORDER Defendant moves for sanctions against Plaintiff alleging that its agents spoliated valuable electronically stored information (ESI). Nevertheless, Mr. Worden claims that he does not have the emails anymore as a result of a company policy to not preserve emails (Id. Some are as large as 67,000 acres, adds Bates' associate David Packer. 161. Alaska Rent-A-Car, Inc. v. Avis Budget Group, Inc., 738 F.3d 960, 969 (9th Cir. However, Plaintiff did nothing more than orally inform their chief negotiator and accountant to preserve the ESI, and Mr. Worden allowed his computer to be upgraded without backing up his information and did not suspend his company's aggressive deletion policy and backup settings to accommodate his duty to preserve evidence. Ind. The schedule is set as follows: Appellant Winecup Gamble, Inc. 1980)). 155. However, Winecup argues that they should be permitted to ask questions about any expert or employee hired by the plaintiff that was not "in anticipation of litigation or to prepare for trial." Additionally, the Court finds that Union Pacific's request that evidence of weather and flood conditions in watersheds other than in the "relevant one," with no definition of "relevant," is overly broad and the Court cannot make a ruling on that basis. IT IS FURTHER ORDERED that Union Pacific's fifteenth motion in limine to bar one paragraph in an email referencing contract truck driver incidents (ECF No. at 3. Winecup opposes this request as unnecessary. See ECF Nos. 127). Winecup's fourth motion in limine requests the Court exclude Union Pacific's claim of punitive damages. The Court will not preclude Union Pacific from presenting evidence and argument that a reasonable dam owner would have followed this regulation and maintained all dams to withstand the particular flood event based on the assigned hazard classification of its dam, including the flood standard. The State Engineer will assign all dams a hazard classification. Moore-Brown v. City of North Las Vegas Police Dep't, Federal Rule of Civil Procedure 26(a)(2)(A), Federal Rule of Civil Procedure 26(a)(2)(C), Federal Rule of Civil Procedure 26(b)(4)(D), Rule 26 of the Federal Rules of Civil Procedure, Rule 705 of the Federal Rules of Evidence. Email. ECF No. Winecup opposes the motion arguing that the relevance and prejudicial impact of the evidence is best determined at trial, and that Union Pacific provides no argument why lay opinion that certain people were "sandbagging" requires an expert. In its second motion, though Union Pacific concedes that Lindon is qualified to opine on hydrology, it argues that his opinions should be excluded because his methodology and data were flawed. Id. 91). If the jury finds in the affirmative, a subsequent proceeding will occur during which the parties will be permitted to present evidence of the financial condition of the defendant and the jury could award punitive damages. Moreover, Opperman, Holt, and Quaglieri are all listed in the parties' joint pre-trial order as witnesses that both Union Pacific and Winecup may call, and both parties are well aware of the proposed testimony of each witness. Confidential submissions may include any information relevant to mediation of the case and settlement potential, including, but not limited to, settlement history, ongoing or potential settlement discussions, non-litigated party related issues, other pending actions, and timing considerations that may impact mediation efforts.[11770017]. R. EVID. See Daubert, 509 U.S at 596 ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."). Winecup argues that because the Dake dam did not fail or overtop, whether Winecup failed to submit an emergency action plan for the dam, as all significant hazard dam owners are required to do under NAC 535.320, is irrelevantthere can be no causal connection between Union Pacific's injury and Winecup's failure to submit the plan. See Daubert, 509 U.S. at 596. ii. to simulate and re-create hydrologic process of watershed systems." By continuing to use this website, you agree to UniCourts General Disclaimer, Terms of Service, Winecup Gamble Ranch corporate office is located in #1 Winecup Rd, Montello, Nevada, 89830, United States and has 4 employees. not exclude opinions merely because they are impeachable." The decision on a motion in limine is consigned to the district court's discretionincluding the decision of whether to rule before trial at all. Even then, rulings on these motions are not binding on the court, and the court may change such rulings in response to developments at trial. The Court will address each in turn. As part of the agreement, Defendant deposited a million dollars of earnest money in escrow. ECF No. 168 at 2. In conducting his hydrology analysis, Razavian used a "Curved Number" of 92, which Lindon criticizes as being "too high." 141-2 7-8. Winecup Gamble Ranch Atmospherics - YouTube 3.) Alternatively, even if the regulation did preempt the state common law standard, the federal standard would apply and not preclude the defense itself. While this disclosure is technically untimely, it was harmless; therefore, the procedural failure does not provide a basis for exclusion under Rule 37. This statute, titled Construction, reconstruction or alteration of dam: Permit to appropriate water required; notice; approval of plans and specifications; inspection; exemptions; penalty, provides: Union Pacific further argues that Winecup "abandoned" the Dake dam which constitutes an "alteration" within the meaning of NRS 535.010 and required Winecup to submit a plan for approval, which it failed to do. 44. Bates Land Consortium has closed 640 transactions - encompassing nearly 2,600,000 acres of deeded land - approaching $2.70 billion in total value. 128), and Union Pacific's related nineteenth motion in limine to preclude experts disclosed on May 13, 2020 (ECF No. Id. The Judges overseeing this case are Robert C. Jones and Valerie P. Cooke. Again, Winecup opposes, arguing that its supplemental disclosure was timely and sufficient under Federal Rule of Civil Procedure 26(a)(2)(C). The electronic display system further allows the parties to show the electronic exhibit to the witness first, before it is published to the jurors, and the witness may make useful electronic marks on the exhibit, such as circling or pointing to relevant portions. ECF No. WINECUP GAMBLE, INC., Plaintiff-Appellant, v. GORDON RANCH LP, Defendant-Appellee. Co., 372 F.Supp.3d 470, 484 (W.D. Gamble Ranch - Straddling the Wyoming & Utah Border Specifically, the accountings of Plaintiff's ranch are pertinent to whether Plaintiff's interpretation of the contract amounts to an unenforceable penalty. Again, whether a technique is better or worse than another, or whether the expert made a computational error, should be left to cross-examination and presentation of contrary evidence; it is not appropriate to exclude such expert testimony.