The Court finds that whether such evidence is relevant is best determined at trial. 128), and its related nineteenth motion in limine to preclude experts disclosed on May 13, 2020 (ECF No. It is clear to the Court that Fireman was, at least to some extent, an agent of Winecup, and Winecup makes no argument to the contrary. (citation omitted). While Winecup clearly could not have disclosed any of these experts at the initial October 2018 disclosure date (as none had yet to be deposed), Winecup could have disclosed that it intended to call Holt and Quaglieri in its November 2018 rebuttal disclosure, and could have disclosed Opperman well before May 13, 2020. 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 . Bates Land Consortium has closed 640 transactions - encompassing nearly 2,600,000 acres of deeded land - approaching $2.70 billion in total value. The Court agrees with Winecup. Public Records Policy. Atkinson v. MGM Grand Hotel, Inc., 98 P.3d 678, 680 (Nev. 2004). 80.) Winecup may submit a response to Union Pacific's reply regarding the standard to be used for damages, within 14 days of the filing of this Order. "A motion in limine is used to preclude prejudicial or objectionable evidence before it is presented to the jury." Date of service: 07/28/2020. Because the district court has now twice erroneously issued pretrial orders terminating the case, see Winecup Gamble, Inc. v. Gordon Ranch LP, 747 F. App'x 632, 633 (9th Cir. Id. 142) is GRANTED, as exhibits 10 and 11 contain information Union Pacific has marked "Confidential" under the Court's April 17, 2018 protective order and the request to seal is unopposed by Winecup. SEND MQ: Yes. . (ECF No. 89. 34 Ex. Id. Fourth, Defendant has shown that Plaintiff acted with the intent to deprive Defendant of the information. Union Pacific argues that it had previously hired consulting experts early in the case who were eventually replaced by those now acting as testifying experts, which Winecup tried to learn about during discovery. 135. Second, Winecup argues that even if it does apply, it cannot have retroactive applicability. It's about 100 miles from Elko, Nev . A reasonable jury could find punitive damages are warranted if it finds that Winecup acted with conscious disregard of the downstream property owners. 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. ECF No. 132) on hearsay grounds. 141. Ex. In the 2012 inspection report, it is noted that the spillway should be cleared of all debris and vegetation, however, in 2016, the inspection report provides that the spillway has lost its design capacity due to vegetation growing and earthen materials sluffing from the hillside. Additionally, the Ninth Circuit did not rule on whether Plaintiff's interpretation of the contract constituted a penalty clause. ECF No. 3:21-CV-00226 | 2021-05-14, U.S. District Courts | Contract | Finally, as an adjunct professor in Civil Engineering at the University of Utah, Lindon taught a graduate level course that included water management and hydrometeorology. 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. 123) is DENIED. P. 26(a)(2)(B)(i). The State Engineer is also authorized to inspect all dams and order dam owners to make modifications and alterations necessary for safety, which presumably is based on the hazard classification of the dam. It also appears that the denial was not based on an assessment of the materials the parties had produced in connection with that motion, which materials may also be considered by the district court on remand. During this period, Defendant claims to have discovered that Plaintiff's agent, Mr. Clay Worden, and its owner, Mr. Paul Fireman, deleted ESI pertinent to the factual issues of this case. WINECUP GAMBLE, INC., Plaintiff-Appellee, v. GORDON RANCH LP, Defendant-Appellant. Union Pacific argues that 49 C.F.R. Under Federal Rule of Civil Procedure 26(b)(4)(D), a party may not discover "by interrogatories or deposition . Upon remand, we instruct the Chief Judge of the District of Nevada to assign this case to a different judge, Full title:WINECUP GAMBLE, INC., Plaintiff-Appellant, v. GORDON RANCH LP, Court:UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. 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.[11771335]. The Court disagrees. IT IS FURTHER ORDERED that Union Pacific's sixteenth motion in limine to bar two words in an email with profane reference (ECF No. 1993) (finding that because the parties retained their own qualified experts, the appointment of a neutral expert was "not likely to enlighten or enhance the ability of the Court to determine the pending issue."). are for the jury.") Godwin testified that the RS Means methodology is the "industry standard" for estimating construction costs. R. EVID. ROBERT C. JONES United States District Judge ORDER Defendant moves for sanctions against Plaintiff alleging that its agents spoliated valuable electronically stored information (ESI). 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. In Winecup's sixth and final motion in limine, it motions the Court to exclude evidence and argument related to the financial condition of Winecup, Paul Fireman, or the sale of Winecup Gamble Ranch in 2019, as it is irrelevant and would be unfairly prejudicial. 33 Ex. P. 37 Advisory Committee Notes to the 2015 Amendment). Notably, Union Pacific's expert did not conclude that the technique was generally improper. 3:17-cv-00477-LRH-CLB (D. Nev. Dec. 4, 2020). SEND MQ: Yes. . iii. [12043650] [21-15415] (Peterson, William) [Entered: 03/16/2021 05:14 PM], Docket(#8) Streamlined request [7] by Appellant Winecup Gamble, Inc. to extend time to file the brief is approved. 250,000 ACRES DEEDED LAND WITH GRAZING RIGHTS ON OVER 1,000,000 ACRES. The Winecup Gamble is owned by Paul Fireman,. 108 19. After the sale fell through, both parties filed suit, arguing that they were entitled to Gordon Ranch's earnest money deposit pursuant to the terms of the parties' purchase and sale agreement, as amended by the parties in December 2016. The parties are encouraged to agree upon pre-admittance of any uncontested exhibits. However, the statements contained within the email are articulating what an NDOT manager told the Union Pacific employee. This short-term action was again noted in the 2016 inspection report which would indicate that Winecup had failed to provide these plans for 20 years. Union Pacific also requests that the Court permit and provide a means for jurors to take notes. [11762326] (JBS) [Entered: 07/22/2020 02:44 PM]. Email. See ECF Nos. Though the Winecup Gamble does not cover 3 million acres anymore, it is still a large ranch operating on about 1,000,000 acres of the original ranch running Brangus and Angus cattle bred to Herefords. As discussed above, Razavian's opinion the subject was first disclosed during his February 2017 deposition. Some of the most important evidence for this inquiry would be the work papers of Plaintiff's accountant, Mr. Worden, who no longer has any ESI on his devices regarding this case. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). FED. ECF No. ), Plaintiff argues against sanctions asserting the following defenses: First, the deletions did not amount to any deprivation of evidence to Defendant claiming that it has produced all of the material, non-privileged ESI through other sources in spite of the deletions. 1. Questions about what facts are most relevant or reliable . Generally, all relevant evidence is admissible. Humetrix, Inc. v. Gemplus S.C.A., 268 F.3d 910, 919 (9th Cir. Union Pacific's late disclosure regarding Razavian's opinion on the washout at mile post 670.03, while untimely, is harmless and Razavian's opinions on the subject are admissible. Since, the Courts finds intentionality the harsher sanctions of Fed. We are so incredibly thankful that Patrick Bates and David Packer of Bates Land Consortium, Inc chose us to produce this mammoth of a marketing video. 31). Id. 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. ///. C at 6.) [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). Appellee Gordon Ranch LP answering brief due 06/07/2021. Here, both parties have retained their own experts, and as discussed below, all are qualified. 80 at 2. Id. The Court will address each argument in turn. Union Pacific argues that Winecup is barred from asserting an "Act of God" defense. The Secretary of Transportation is given broad discretion to "prescribe regulations and issue orders for every area of railroad safety . "Legal duties imposed on railroads by the common law fall within the scope of these broad phrases." While 23 Mile dam is classified as a low hazard dam, meaning it carries a "very low probability of causing a loss of human life;" and a "reasonable probability of causing little, if any, economic loss or disruption in a lifeline," that does not negate a dam owner's statutory mandate to perform "work necessary to maintenance and operation which will safeguard life and property." Accordingly, the Court denies Union Pacific's tenth motion in limine (ECF No. i. See Daubert, 509 U.S. at 596. ii. However, the Advisory Committee Notes make clear that the 2015 amendment forecloses a court from imposing sanctions for spoliation of ESI under that basis. IT IS FURTHER ORDERED that Union Pacific's seventh motion in limine to bar Winecup's contributory negligence defense and Derek Godwin's contributory negligence opinion (ECF No. 2:21-CV-00183 | 2021-03-26, U.S. District Courts | Contract | Date of service: 07/28/2020. ECF No. at 44:19-45:1), inappropriate backup settings (Id. Winecup's expert, Matthew Lindon, disagrees and opines that the washout was caused by water from the Loray Wash and that floodwater from the 23 Mile dam could not have caused that track washout because the timing evidence shows that water from 23 Mile dam could not have reached mile post 670.03 at the time it was washed out. IT IS FURTHER ORDERED that the clerk of the court shall close this case. [21-15415] (AD) [Entered: 03/16/2021 06:44 PM], (#1) DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. A at 14.) . 1:08-cv-000640-LJO-DLB PC, 2013 WL 396009, at *2 (E.D. Lindon disputes both asserted errors. Mediation Questionnaire due on 07/29/2020. 127) is denied without prejudice. The Court directs readers to Part III.B.2-3 below for a larger discussion on this issue, as it is related but not entirely on point to Union Pacific's tenth motion in limine. These two actsmodification and abandonmentconstitute the "construction, reconstruction, or alterations" contemplated in NRS 535.010. 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. ECF No. The existing briefing schedule remains in effect. 1985). In the alternative, Defendant further requests that the Court prevent Plaintiff from relying on any evidence or testimony from Mr. Worden or give the jury an instruction that the deleted evidence is adverse to Plaintiff's claims and defenses. The Court reiterates that the District Court has temporarily suspended all jury trials until further notice. Union Pacific filed its original complaint on August 10, 2017, against Winecup Gamble, Winecup Ranch, LLC, and Paul Fireman. 91). 124) is DENIED. And, "[u]nless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report--prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony." IT IS FURTHER ORDERED that Winecup's sixth motion in limine to exclude evidence and argument related to the financial condition of Winecup, Paul Fireman, and the sale of Winecup Gamble Ranch in 2019 (ECF No. ECF No. It was first added to the regulatory schedule in 2003, along with the definitions in NAC 535.055, Inflow design flood, and NAC 535.080, probable maximum flood. unless the failure was substantially justified or is harmless." SEND MQ: Yes. Id. 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 . UNITED STATES DISTRICT COURT DISTRICT OF NEVADA. Again, there can be no dispute that Godwin's opinion is relevant and advances a material aspect of Winecup's case and that the RS Means methodology for determining costs is standard in the industry. 1) is DISMISSED WITH PREJUDICE. 108.) IT IS THEREFORE ORDERED that Union Pacific's first motion in limine to exclude meteorological opinions of Matthew Lindon and to appoint a neutral expert (ECF No. Union Pacific Railroad Company v. Winecup Ranch, LLC et al, Elko Broadband Ltd. v. Haidermota BNR, Lawyers and Counsel with Offices in Islamadad, Islamic Republic of Pakistan et al, Vincent G. Dimaggio v. Jacqueline L. Stoever. Date of service: 03/16/2021. Union Pacific cites an email from Bill Nisbet to James Rogers, in which he states: It is unclear whether the parties are referring to the Federal or State agency. Accordingly, Union Pacific's first and second motions in limine are denied. Under Nevada law, a "jury may not apportion fault to non-parties, and evidence or argumentation directed to showing non-parties' comparative fault is therefore inadmissible." The offending language in the email states: A statement that is offered against an opposing party and "was made by the party's agent or employee on a matter within the scope of that relationship and while it existed" is not hearsay. CV-12-1524-PHX-SRB (LOA), 2013 WL 2422691, at *3 (D. Ariz. June 3, 2013) (citations and internal quotations omitted). Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant settlement discussions while the appeal is pending. 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." (ECF No. C. Patrick Bates 801-560-4259 cpb@bateslandco.com. [20-16411] (AD) [Entered: 07/28/2020 06:44 PM], Docket(#3) MEDIATION ORDER FILED: By 08/11/2020, counsel to email Circuit Mediator regarding settlement potential. 3:20-CV-00293 | 2020-05-18. 111-7 43. 37, 89. 135) is denied in part and granted in part. 2004); see Mizzoni v. Allison, 2018 WL 3203623 at*5 (D. Nev. 2018) (citing to Zubulake). 133) is denied without prejudice. Id. R. EVID. 157-24 at 3-4. Union Pacific also requests the Court take judicial notice of seven exhibits. 422 (S.D.N.Y. The Court relies on its above statements of law regarding its gatekeeper function in determining the admissibility of expert testimony and sees no reason to reiterate it here. 112.) Though not addressed in Winecup's motion, Union Pacific argues that it also pleads violations of NRS 535.010 to support its negligence per se theory. See ECF No. The high desert of northeastern Nevada poses unique environmental challenges for producers growing forages. Defendant aptly analogizes to a Southern District of New York case that predates the 2015 amendment, but which this District has relied on subsequent to the amendment. at 840. See ECF No. 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. 193) is GRANTED in part and DENIED in part in accordance with this Order. Appellee Gordon Ranch LP answering brief due 11/30/2020. at 45, 50. Winecup Gamble Ranch - 42 North Land Co. winecup gamble ranches llc. Union Pacific's arguments in opposing Godwin's testimony are best left to cross-examination and presentation of opinion evidence by Union Pacific's own experts rather than exclusion. Mediation Questionnaire. WINECUP GAMBLE, INC., a Nevada corporation, Plaintiff, v. GORDON RANCH, LP, a Texas limited partnership, Defendant. Union Pacific argues that due to the complexity of the Oroville Dam failure, evidence and argument on the topic would result in a "mini trial," and as the weather and flooding occurred outside the relevant watershed, the evidence is irrelevant. According to ZoomInfo records, James Rogers's professional experience began in 2015. Of Clark v. LB Props., Inc., 315 P.3d 294, 296 (Nev. 2013) (internal quotation marks and citations omitted). Winecup's second motion in limine to exclude evidence and argument that NAC section 535.240 applies to the 23 Mile and Dake dams (ECF No. This is the subject of Winecup's first motion in limine; therefore, Union Pacific's arguments will be addressed below. 193. 154. Union Pacific argues that doing so would enable a smooth presentation of exhibits to the jury. NAC 535.140. See ECF No. "The fact that the parties' experts have a divergence of opinion does not require the district court to appoint experts to aid in resolving such conflicts." 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. However, Plaintiff appealed, and the Ninth Circuit reversed and remanded holding that the intent of the parties was not clear as to whether they meant for the amendment to trump the original agreement's risk of loss language. Razavian testified that it was his opinion that the "destructive force" of the runoff associated with the "flood pulse" from the 23 Mile dam failure washed out the tracks. The Court will address each in turn. Conversely, Clay Worden was never an employee of Winecup, and testified in Gordon Ranch in his individual capacity, not as a corporate witness or agent of Winecup. Northeast corner of Nevada bordering Utah. The Winecup and Gamble Ranch was put back together after the split in 1957, according to ranch history. Therefore, the Court denies Union Pacific's eleventh and nineteenth motions in limine. These facts are sufficient for the Court to draw an inference that Mr. Worden acted intentionally. Mediation Questionnaire. The most relevant evidence for these determinations would again be Mr. Worden's lost ESI. Winecup Gamble Ranch corporate office is located in #1 Winecup Rd, Montello, Nevada, 89830, United States and has 4 employees. 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. [12029509] (JBS) [Entered: 03/09/2021 01:23 PM]. (ECF No. Great Ranches of the Great Basin - American Cowboy 127). However, the Court also agrees with Winecup that if Union Pacific's testifying expert relied on information from a consulting expert, that information would be admissible under Rule 705 of the Federal Rules of Evidence. . Zubulake, 229 F.R.D. R. CIV. Winecup argues that this regulation does not "substantially subsume the subject matter of" culvert size, and therefore, it cannot preempt the state common law standard. eDiscovery Assistant This communication will be kept confidential, if requested, and should not be filed with the court. Winecup concedes that the Nevada Department of Water Resources classified the 23 Mile dam as a low hazard dam and the Dake dam as a significant hazard dam. 163. Further, evidence may be excluded when there is a significant danger that the jury might base its decision on emotion, or when non-party events would distract reasonable jurors from the real issues in a case. Accordingly, the Court grants Union Pacific's eighteenth motion in limine as it relates to the cited email and denies it without prejudice as it relates to the subject as a whole. He further provides that he has been working for Class 1 and shortline railroads since 2005, starting his own railroad engineering and construction observation company in 2013. Winecup did not undertake a program for investigation of the hydraulic adequacy of 23 Mile dam with respect to flood and seeping under a full hydraulic head, admittedly a safety concern, as noted in the 2003 inspection report under long term actions (3 years). Cancellation and Refund Policy, Privacy Policy, and 126) for a blanket ruling is denied. Fed. The Court finds Lindon is a qualified expert in meteorology and hydrology, as it relates to his opinions in this specific case. 112) are denied. The existing briefing schedule remains in effect. Further, Union Pacific indicates that the parties have separately agreed to amend the pretrial order to add trial exhibits.
