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S.E.C. NRS 42.001(1)-(4). The Court notes Winecup raises such a specific argument in its second motion in liminewhether Winecup can argue that NAC 535.240 does not apply to its damswhich the Court addresses below. 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. Cases involving other real property matters not classified elsewhere, (#6) The Mediation Questionnaire for this case was filed on 07/29/2020. The briefing schedule previously set by the court is amended as follows: appellant's opening brief is due May 21, 2021; appellee's answering brief is due June 21, 2021; appellant's optional reply brief is due within 21 days from the service date of the answering brief. By continuing to use this website, you agree to UniCourts General Disclaimer, Terms of Service, SEND MQ: Yes. The Court recognizes that "[i]t is time-consuming when counsel circulate exhibits among the jurors, and it disrupts the examination of witnesses, except where the physical qualities of an object are themselves relevant." UniCourt uses cookies to improve your online experience, for more information please see our Privacy Policy. Appellant Winecup Gamble, Inc. opening brief due 05/07/2021. He declares that he has been "personally involved with rerouting for a Class 1 railroad approximately twelve times over the past six years." While these regulations do not provide the standard of care, evidence and argument related to NAC 532.240 may be presented to support a standard of care under the reasonable person standard. 141-2 6. The Court finds that whether such evidence is relevant is best determined at trial. FED. The Court will address each in turn. SEE ORDER FOR DETAILS. The briefing schedule previously set by the court remains in effect. After reviewing this agreement and amendment, we disagree with the district court. 160. i. Godwin's a qualified expert in railroad rerouting, costs, and railroad construction and design. When a party challenges the correctness of the opposing party's expert's testimony, "its recourse is not exclusion of the testimony, but, rather, refutation of it by cross-examination and by the testimony of its own expert witnesses." 124) is denied. 141) is denied. 16. 2:08-CV-01243-PMP-GWF, 2008 WL 11389168, at *5 (D. Nev. Dec. 30, 2008) ("Because punitive damages are not available for negligence claims, Plaintiffs are not entitled to pursue punitive damages for the negligence, negligent hiring, and negligent misrepresentation claims."). Union Pacific's third motion in limine to facilitate efficient management of exhibits and testimony (ECF No. ECF No. Additionally, the Court finds that the potential risk for jurors to view exhibits out of order, to lose focus during testimony, or be unable to take notes, weighs against providing such binders. The Court agrees with Winecup. The record indicates that this dam is also known as 21 Mile dam. Union Pacific further argues that evidence of Winecup's financial condition is "to allow the jury to fully evaluate the decades of neglect, to see it was not due to financial straits but was fully calculated and intentional with an eye to profits." 154. AnyLaw is the FREE and Friendly legal research service that gives you unlimited access to massive amounts of valuable legal data. A Test Site for How to Monitor Success. Accordingly, Union Pacific's third motion in limine (ECF No. Winecup opposes, arguing that Union Pacific cites no authority or foundation for the Court on which to make such a ruling. 1989) (reviewing the district court's interpretation of a contract de novo). A at 43:24-25), he also admits that the emails could have been deleted later by receiving a new computer or by failing to change his backup setting (Id. Third, Plaintiff took reasonable steps to prevent the deletions. And, neither Mr. Fireman nor Mr. Worden are able of producing these text messages. Cal. 2-4. Accordingly, Union Pacific's nineteenth motion in limine is granted. First, the Court agrees with Winecup that under Nevada law, a violation of an administrative regulation cannot form the basis of negligence per se because "it lacks the force and effect of a substantive legislative enactment." 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. Northeast corner of Nevada bordering Utah. ECF No. 112. 157-24, 157-28. Here, neither party disputes that Opperman, Holt, or Quaglieri are not retained experts, and therefore, if Winecup intends for them to present evidence under Federal Rules of Evidence 702, 703, or 705, Winecup was only required to disclose "(i) the subject matter on which the witness is expected to present evidence;" and "(ii) a summary of the facts and opinions to which the witness is expected to testify." "The decision of whether to allow the jury to take notes is left entirely to the discretion of the trial court." Lindon declared that he checked and calibrated the model ultimately determining with a "high degree of confidence that the model accurately reflects" the February 2017 flood event. Transcript due 09/21/2020. 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. Some are as large as 67,000 acres, adds Bates' associate David Packer. "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." ECF No. [11770779] [20-16411] (Lundvall, Pat) [Entered: 07/29/2020 01:50 PM], Docket(#4) The Mediation Questionnaire for this case was filed on 07/28/2020. FED. The record supports that Winecup had policies and procedures for monitoring and inspecting the dams, including the water level, inflow, and operational controls. Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant settlement discussions. Godwin calculated the cost of rebuilding the embankments using data from RS Means 2018 and adjusted the total to 2017 prices. ECF No. See General Order 2020-03. This communication will be kept confidential, if requested, and should not be filed with the court. 132) is GRANTED. Include Ninth Circuit case number in subject line. Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence." [20-16411] (AD) [Entered: 07/28/2020 06:44 PM], (#1) DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. 3d 949, 959 (N.D. Cal. Snapp v. United Transportation Union, 889 F.3d 1088, 1103 (9th Cir. 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. Godwin provides two opinions regarding rerouting costs: (1) "[a]ll train traffic should have been re-routed from (or near) Tecoma to (or near) Lucin on the No.2 track;" and (2) that other washouts, not attributable to Winecup, prevented trains from moving, and therefore, Winecup is not responsible for those rerouting costs. Because Union Pacific cannot rely on these administrative regulations to support negligence per se, the Court grants Winecup's motion as it relates to these and any other administrative regulation Union Pacific would consider proffering in support. Gordon Ranch attempted to purchase real property located in northern Nevada from Winecup Gamble in 2016. 3:17-CV-00477 | 2017-08-10, U.S. District Courts | Other | [12048869] (BLS) [Entered: 03/22/2021 11:05 AM], Docket(#3) The Mediation Questionnaire for this case was filed on 03/16/2021. "A contract is ambiguous if it is reasonably susceptible to more than one interpretation." 129) is denied without prejudice. 2019), reassignment is appropriate to preserve the appearance of justice, see In re 3 Benvin, 791 F.3d 1096, 1104 (9th Cir. The Court finds that both arguments go not to Lindon's methodology, but to the data imputed. Id. SEE ORDER FOR DETAILS. ECF No. [12100962] [21-15415] (Jordan, David) [Entered: 05/04/2021 09:06 AM], (#3) The Mediation Questionnaire for this case was filed on 03/16/2021. A reasonable party would have foreseen litigation on the horizon as soon as the parties began exchanging communications expressing their competing interpretations of the contract and the amendment. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Plaintiff, v. WINECUP RANCH, LLC, an Idaho Limited Liability Company; and WINECUP GAMBLE, INC., a Nevada corporation; and PAUL FIREMAN, an individual, Defendants. 12. Extremely limited rainfall, roughly 7 inches annually, makes . Here, both parties have retained their own experts, and as discussed below, all are qualified. Winecup-Gamble Ranch for sale Jump to page : 1 Now viewing page 1 [50 messages per page] View previous thread:: View next thread Forums List-> Stock Talk: Message format . [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. 175-1. Stephanie Hoit Lee & David N. Finley, Federal Motions in Limine 1:1 (2018). ECF No. Lindon disputes both asserted errors. Here, the email communication between Union Pacific's employees appears to be within the scope of their employment. In Union Pacific's second motion in limine, it further asserts that Lindon incorrectly opines that no floodwater from the 23 Mile dam failure reached mile post 670.03 when it was washed out. 120-1 at 5. WINECUP GAMBLE, INC., a Nevada corporation, Plaintiff, v. GORDON RANCH, LP, a Texas limited partnership, Defendant Case No. (citing Beaver Valley Power Co. v. Nat'l Eng'g & Contracting Co., 883 F.2d 1210, 1221 (3d. Winecup's fourth motion in limine requests the Court exclude Union Pacific's claim of punitive damages. He claimed that Plaintiff orally instructed him to preserve his ESI, (Id. 131) is denied without prejudice. 80.) Winecup may motion the Court to reconsider this determination based on the evidence presented at trial. Given this pandemic, the Court will allow witnesses to appear by ZOOM video conferencing. Cnty. SEND MQ: Yes. R. CIV. It also helps that the Winecup Gamble has so many pastures to choose from. The Court finds that the agents did intentionally spoliate ESI vital to the issues of this case, which resulted in prejudice that can only be cured through dispositive rulings in Defendant's favor. Before the court are a total of 27 motions in limine; 21 motions filed by Union Pacific Railroad Company ("Union Pacific") (ECF Nos. Id. "These factors are 'meant to be helpful, not definitive, and the trial court has discretion to decide how to test an expert's reliability as well as whether the testimony is reliable, based on the particular circumstances of the particular case.'" Union Pacific requests that Winecup be barred from offering evidence or argument that a non-party is comparatively negligent, arguing that, under Nevada law, such evidence is irrelevant. 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. The Court dismisses Plaintiff's complaint and enters judgment in favor of Defendant on its counterclaim. Winecup further argues that neither a Daubert hearing nor a neutral expert are necessary. FED. Despite Mr. Worden's prominent role with Plaintiff and with this deal in particular, Mr. Worden has not produced any ESI from his devices to Defendant. The schedule is set as follows: Appellant Winecup Gamble, Inc. IT IS FURTHER ORDERED that Union Pacific's fourteenth motion in limine to bar evidence or argument about consulting experts (ECF No. 122) is granted in part and denied in part. ), The original terms of the agreement contained a comprehensive risk-of-loss provision. Email. ECF No. ECF No. Thus, these regulations are not interpretive, but legislative and should not apply retroactively. 4. Union Pacific's sixteenth motion in limine to bar two words in an email with profane reference (ECF No. 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. Contact. He has taken continuing education courses in hydro-meteorology, and has "operated the National Weather Service Station for Park City, Utah for the past 26 years, measuring and reporting temperatures, snowfall, snowpack and precipitation daily." Pyramid Techs., Inc. v. Hartford Cas. See ECF Nos. At the time of this writing, the undersigned has presided over one criminal in-person jury trial since the COVID-19 lockdown orders went into effect in early March 2020, which included hearing from both witnesses in-person and via ZOOM video conferencing. It's about 100 miles from Elko, Nev . It argues that alone is sufficient grounds for showing that it performed reasonable steps to preserve the ESIit is not. Co., 752 F.3d 807, 814 (9th Cir. 405, 406 (W.D. Rather, "proof of a deviation from an administrative regulation is only evidence of negligence; not negligence per se," and likewise, "proof of compliance with such a regulation" is not proof of due care, but simply evidence of such care. 2001); United States v. Layton, 767 F.2d 549, 556 (9th Cir. at 432. ECF Nos. Accordingly, the Court grants in part and denies in part Union Pacific's twenty-first motion in limine to amend the pretrial order. Union Pacific's eighth motion in limine to bar evidence or argument that a non-party is comparatively negligent (ECF No. 162. Union Pacific argues that good cause appears to permit videoconferencing under Federal Rule of Civil Procedure 43(a) due to the COVID-19 pandemic. Union Pacific requests the Court bar Winecup from admitting a paragraph of an email from a Union Pacific employee discussing traffic incidents with a Nevada Department of Transportation employee. (ECF No. Id. H at 1 (Privilege Log noting that Mr. Worden sent an email with the Bates Number "REV00000041" summarized as "Email re response to Margaret Ludewig" dated March 6, 2017.). Lindon created a hydrological model that simulates the February 2017 flood using the Hydrologic Modeling System created by the Hydrologic Engineering Center within the U.S. Army Corps of Engineers (known as "HEC-HMS"). The Court assumes that the parties will follow these rules; therefore, it denies Union Pacific's fourteenth motion in limine without prejudice (ECF No. 132) is granted. ECF No. IT IS FURTHER ORDERED that Union Pacific's ninth motion in limine to bar mention to jury of notion that Nevada's dam statutes and regulations do not apply to the Winecup dams due to their age (ECF No. 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. 111-7 35-42. 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. 17. 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. See NRS 535.030. 131. 149. WINECUP GAMBLE, INC., a Nevada corporation, Plaintiff, v. GORDON RANCH, LP, a Texas limited partnership, Defendant. Based on these classifications, Union Pacific argues that pursuant to NAC 535.240, Winecup was required to "construct, operate, and maintain," the 23 Mile dam to withstand a 100-year flood event, and the Dake dam to withstand a 1000-year flood event. 1985). Lindon and Razavian are both experts in their fields but have come to differing conclusions on soil saturation. ECF No. Margrave, 878 P.2d at 293; see Bielar v. Washoe Health Sys., Inc., 306 P.3d 360, 364 (Nev. 2013) ("[E]very word [in a contract] must be given effect if at all possible.") 403. 131), and reserves any ruling on this issue for trial. Amended briefing schedule: Appellant Winecup Gamble, Inc. opening brief due 06/21/2021. Close to I-80. wine cup ranch llc. 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. First, as to the gage stream technique, Union Pacific's expert concluded that because none of the six streams Lindon relied on were located in the "relevant watershed," this technique was "inferior" to the technique he used, the CN technique. (See, e.g., ECF No. Nonetheless, even if Mr. Worden deleted the emails immediately after receiving them, the facts show that he was still producing ESI regarding this case after the duty to preserve arose. (Id.). It is this Court's practice to allow jurors to take notes and given the complexity of this case, the number of exhibits, and the scientific expert testimony expected to be presented, the Court sees no reason to deviate from this practice. The Winecup Gamble is owned by Paul Fireman,. . 129. 10. Winecup argues that Union Pacific should only be permitted to recover the cost of replacing the culverts and embankments rather than the bridge "upgrade," and that it does not intend to argue whether culverts or bridges should have been built. Union Pacific concedes that Lindon is a qualified expert in hydrology. In addition to other research goals, Rogers hopes that the scientists will work with ranchers from the ground up to develop outcome-based grazing metrics that are relevant to how ranchers manage their operations. Such that there is virtually no chance of its being exceeded."). ON-SITE RAIL SPUR AND 2 LANDING STRIPS. Sprawling across the very heart of buckaroo country, the Winecup Gamble Ranch encompasses a checkerboarded landscape of 984,000 acres, more than half of which is owned by the public and managed by the Bureau of Land Management (BLM). However, the Court is hopeful that the parties can agree upon the admissibility of exhibits as much as reasonably practicable. 2:19-CV-00414 | 2019-06-17, U.S. District Courts | Contract | 175-2. The ranch, in 2016, was for sale again. Accordingly, the Court denies Union Pacific's tenth motion in limine (ECF No. By continuing to use this website, you agree to UniCourts General Disclaimer, Terms of Service, "Expert witnesses should not be appointed where they are not necessary or significantly useful for the trier of fact to comprehend a material issue in a case." See Sea-Land Serv., Inc. v. Lozen Int'l, LLC, 285 F.3d 808, 821 (9th Cir. ECF No. Lastly, Union Pacific motions the Court to amend the pretrial order (ECF No. Whether an Act of God caused 23 Mile dam's failure and subsequent flooding and damage to Union Pacific's railroad tracks is an issue of fact for the jury. See order for instructions and details. 6. 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. ), 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. The parties have submitted a total of 27 motions in limine. Second, Winecup addresses Nevada Revised Statute 535.030, which it claims also cannot provide the basis for Union Pacific's negligence per se claim. However, the Advisory Committee Notes make clear that the 2015 amendment forecloses a court from imposing sanctions for spoliation of ESI under that basis. The proponent of preemption must establish that the regulations more than "touch upon" or "relate to" the subject matter"pre-emption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law." However, without reference to that section, the amendment contained the clause: "Notwithstanding anything to the contrary in the Agreement, the Earnest Money, as increased by the Additional Earnest Money, shall be nonrefundable under all circumstances other than a default by Seller." Motions in limine should not be used to resolve factual disputes or to weigh evidence, and evidence should not be excluded prior to trial unless the "evidence is clearly inadmissible on all potential grounds." As discussed in full below, the Court will permit Union Pacific to argue the issue of punitive damages. Winecup presents no such exception that would apply. at 44:19-45:1, 46:19-22). 141). At that time, the Court would expect participating attorneys to appear in-person, but it would again leave it to each party's counsel to determine which of its witnesses would appear by video or in-person. at 48:8-13), and that he told his IT department to preserve the relevant ESI (Id. 155. 152. 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]. 130) is DENIED without prejudice. Amarel v. Connell, 102 F.3d 1494, 1515 (9th Cir. 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." ), In February 2017, after executing the amendment and before the closing date, substantial flooding damaged the property. 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 . Accordingly, Union Pacific's sixteenth motion is denied without prejudice and the Court reserves ruling on whether the terminology is either irrelevant, unfairly prejudicial or overly technical such that an expert is needed to testify, based on the context in which it is presented at trial. Union Pacific's first amended complaint no longer included defendant Winecup Ranch, LLC, and its second amended complaint no longer included Paul Fireman. Co. v. Mendelsohn, 552 U.S. 379, 384-87 (2008). 175), are DENIED without prejudice. Union Pacific's twelfth motion in limine to bar evidence or argument about (A) the Oroville Dam spillway failure, or (B) weather or (C) flood conditions in watersheds west of the relevant one (ECF No. Mediation Questionnaire. 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." Godwin further testified that he had reviewed Union Pacific's rerouting costs and crew costs as provided, and the number of trains per day. (ECF No. If you do not agree with these terms, then do not use our website and/or services. In conducting his hydrology analysis, Razavian used a "Curved Number" of 92, which Lindon criticizes as being "too high." Plaintiff declined to repair the property. Federal Rule of Evidence 706 permits district courts, in their discretion, to appoint a neutral expert. ECF No. Mediation Questionnaire. ECF No. Mediation Questionnaire. Specifically, the accountings of Plaintiff's ranch are pertinent to whether Plaintiff's interpretation of the contract amounts to an unenforceable penalty. 1. REVERSED, VACATED, and . Rather, Union Pacific argues that its expert's rerouting analysis was more correct than Godwin's opinion based on these considerations. [11769971] (BLS) [Entered: 07/28/2020 05:05 PM], Docket(#2) Filed (ECF) Appellant Winecup Gamble, Inc.