Razavian declares that "[a]ccepted hydrological methodology requires a hydrologist to consider all of the above evidence in determining flow of flood water." [12101491] (DLM) [Entered: 05/04/2021 12:13 PM], (#7) Filed (ECF) Streamlined request for extension of time to file Opening Brief by Appellant Winecup Gamble, Inc.. New requested due date is 06/21/2021. This is a question of accuracy, not admissibility, and it is best left to the jury to consider the weight of this evidence. Outcome-based Grazing at the Winecup-Gamble Ranch 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." Appellant's optional reply brief is due 21 days after service of the answering brief. Mediation Questionnaire. 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. Union Pacific's arguments against his qualifications go to the weight of his testimony, not admissibility, and are best left to vigorous cross-examination. The parties are reminded that the meet-and-confer is not perfunctory, and the parties should not seek Court intervention unless they have reached an impasse and have no other choice but to seek the Court's guidance. 117 Ex. It is uncontested that 23 Mile dam is classified as a low hazard dam, and Dake dam as a significant hazard dam. Union Pacific may add these facts to the statement of contested issues of fact and Winecup will likewise be permitted to list the facts contested. 108.) 3:17-CV-00163-RCJ-WGC (D. Nev. Jul. i. "); NAC 535.080 ("Probable maximum flood" means "a hypothetical flood whose magnitude is: 1. 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." Co. v. Winecup Ranch, LLC, Case No. The Court heard selected oral argument on four of these motions on June 25, 2020 (ECF No. UniCourt uses cookies to improve your online experience, for more information please see our Privacy Policy. Id. 422 (S.D.N.Y. 131) is denied without prejudice. And courts are hesitant to appoint a neutral expert when parties have retained their own qualified experts. ECF No. 111 at 16-17. 1996) ("By attempting to evaluate the credibility of opposing experts and the persuasiveness of competing scientific studies, the district court conflated the questions of the admissibility of expert testimony and the weight appropriately to be accorded such testimony by a fact finder."). 157-24 at 4. 401. 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. B. Additionally, the Court finds because the juror binders are unnecessary and impracticable, there is no need to pre-admit evidence for such binders. Cancellation and Refund Policy, Privacy Policy, and .." Id. A 43:2-7.) Winecup Gamble Ranch Atmospherics - YouTube See Tennison v. Circus Circus Enterprises, Inc., 244 F.3d 684, 690 (9th Cir. While Plaintiff claims that it orally informed Mr. Worden to preserve ESI, this is woefully inadequate as discussed above, but evinces that Plaintiff and Mr. Worden knew they had a duty to preserve the ESI. Only 7 inches of precipitation is received annually. While a degree or certificate in a certain area is helpful to support expert qualification, a witness can be qualified by "knowledge, skill, experience, [or] training," as well as education. ECF No. Make your practice more effective and efficient with Casetexts legal research suite. (ECF No. Questions about what facts are most relevant or reliable . Godwin declares that he has extensive experience in railroad construction and design, and specializes in "railroad engineering, railroad construction engineering, filed supervision, damage mitigation, working in hurricane, flood, and other emergency situations, and rebuilding railroads to restore service as quickly and efficiently as possible." 1. Why is this public record being published online? Union Pacific seeks to exclude Lindon's criticisms of its hydrology expert, Daryoush Razavian, regarding soil saturation. 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. 149) is granted. Winecup Gamble Ranch - 42 North Land Co. Godwin testified that the RS Means methodology is the "industry standard" for estimating construction costs. Lindon's expert testimony is admissible. 2d 844, 846 (N.D. Ohio 2004). Nevertheless, Mr. Worden claims that he does not have the emails anymore as a result of a company policy to not preserve emails (Id. As part of the agreement, Defendant deposited a million dollars of earnest money in escrow. 160-4 at 6. [12101491] (DLM) [Entered: 05/04/2021 12:13 PM], Docket(#7) Filed (ECF) Streamlined request for extension of time to file Opening Brief by Appellant Winecup Gamble, Inc.. New requested due date is 06/21/2021. 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 . However, "if a regulation is a first-time interpretive regulation, application to preexisting issues may be permissible." ECF No. 130. In allowing note taking, the Court finds it appropriate to give jurors Ninth Circuit Model Jury Instruction 1.18 Taking Notes, or one comparable, that is agreed on by the parties. Paul Fireman, Winecup Gamble, Inc. and Winecup Ranch, LLC: Case Number: 3:2017cv00477: Filed: August 10, 2017: Court: US District Court for the District of Nevada: Office: Reno Office: . Reading the parties' agreement as a whole, it is reasonably susceptible to more than one interpretation. ECF No. It also helps that the Winecup Gamble has so many pastures to choose from. The Court has fully reviewed the record and considered the parties' oral argument; for the reasons below, the Court grants in part and denies in part these motions. [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. Id. (Id. It is not common for courts to appoint neutral experts and "usually do so only in exceptional cases in which the ordinary adversary process does not suffice or when a case presents compelling circumstances warranting appointment of an expert." Id. S.E.C. (Id.). Cancellation and Refund Policy, Privacy Policy, and [11769971] (BLS) [Entered: 07/28/2020 05:05 PM], (#2) Filed (ECF) Appellant Winecup Gamble, Inc. 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. 108) to add information learned in the depositions of Paul Fireman and Clay Worden in Winecup Gamble, Inc. v. Gordon Ranch, LP, 3:17-cv-00163, related to Winecup's financial situation. Date of service: 03/16/2021. ECF No. Id. WINECUP GAMBLE, INC., Plaintiff-Appellee, v. GORDON RANCH LP, Defendant-Appellant. 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. Terminating Sanctions Reversed After Oral Litigation Hold Goes Awry Cal. The parties shall bear their own costs on appeal. Union Pacific has presented no evidence or rule to support the Court's exclusion of any and all evidence or testimony on the issue. Ins. The following definitions are relevant to making this determination: (1) oppression means "despicable conduct that subjects a person to cruel and unjust hardship with conscious disregard of the rights of the person"; (2) fraud means "intentional misrepresentation, deception or concealment of a material fact known to the person with the intent to deprive another person of his or her rights or property or to otherwise injure another person"; (3) malice, express or implied, means "conduct which is intended to injure a person or despicable conduct which is engaged in with a conscious disregard of the rights or safety of others"; and (4) conscious disregard means "the knowledge of the probable and harmful consequences of a wrongful act and a willful and deliberative failure to act to avoid these consequences." Union Pacific argues that because Winecup was required under Nevada law to maintain the 23 Mile dam to withstand a 100-year flood event and the Dake dam to withstand a 1000-year flood event, the failure of the dams and the subsequent flooding could not be considered "abnormal" or free from "human assistance or influence" such that Winecup could prove the prima facia elements of the defense. 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. Next, Union Pacific argues that two of Godwin's opinion related to Winecup's contributory negligence defense should be excluded: (1) Godwin opines that based on his experience in railroad construction and design, that it is industry standard that railroads throughout the country use culverts large enough to handle flows associated with a 100-year storm; and (2) Godwin opines that the culverts in place before the flood were not large enough to withstand a 50-year storm. 141). 159. Union Pacific filed its original complaint on August 10, 2017, against Winecup Gamble, Winecup Ranch, LLC, and Paul Fireman. 141-2 18), that is an argument best left for cross examination and goes toward the weight not the admissibility of Razavian's opinion. See ECF No. Gamble Ranch - Straddling the Wyoming & Utah Border 1,130 Deeded Acres Tucked Into Butch Cassidy Country Sold Overview & Featured Qualities Previously Offered at $4,300,000 Now Available at $3,850,000 Close to High Uinta Mountain Wilderness Remarkable 3,800 SF Lodge Fine Set of Cattle-Handling Facilities Two Additional Homes for Manager & Guests 91). 111) is DENIED. See Madrigal v Treasure Island Corp., Case No. Under Federal Rule of Evidence 705, "[u]nless the court orders otherwise, an expert may state an opinionand give the reasons for itwithout first testifying to the underlying facts or data. 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. (Id.) Winecup opposes. Mediation Questionnaire. Date of service: 07/28/2020. In 1996, the inspection report provided that the spillway appeared undersized. For 25 years, Lindon worked at the Utah Department of Natural Resources, Division of Water Rights, Dam Safety Section, in part, creating "hydrological models to simulate hypothetical storms and floods and re-create actual events, such as rain on snowpack events, that resulted in flooding and dam failures." 130) is DENIED without prejudice. The provinces allowed casino games as well as horse tracks, and video lottery terminals. 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. at 4 (citing Ringle v. Bruton, 86 P.3d 1032, 1037).) The American Landowner: James Rogers - The Land Report 111-7 43. 107 Ex. (ECF No. This communication will be kept confidential, if requested, and should not be filed with the court. Union Pacific's arguments to exclude Godwin's opinion go not to admissibility, but to the weight and are best left to cross-examination during trial; the exclusion is denied. Ex. 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." Union Pacific's first amended complaint no longer included defendant Winecup Ranch, LLC, and its second amended complaint no longer included Paul Fireman. 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. 141) is DENIED. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . As discussed above, Razavian's opinion the subject was first disclosed during his February 2017 deposition. /// ///, ii. Winecup and Gordon Ranch entered into a Purchase and Sale Agreement with an effective date of October 18, 2016 (the "Purchase Agreement") for sale of approximately 247,500 acres, together with other real and personal property rights, interests, and cattle, in Elko County, Nevada. If you do not agree with these terms, then do not use our website and/or services. 89. /// ///. WINECUP GAMBLE, INC., a Nevada corporation, Plaintiff, v. GORDON RANCH, LP, a Texas limited partnership, Defendant. Date of service: 07/29/2020. 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. Second, Winecup addresses Nevada Revised Statute 535.030, which it claims also cannot provide the basis for Union Pacific's negligence per se claim. The lead plaintiff in the lawsuit, Montreal resident Qing Wang, lost $11,720 to enrolment fees charged by C.S.T. Union Pacific also requests the Court take judicial notice of seven exhibits. 37, 89. Historic Winecup Gamble ranch for sale - Elko Daily Free Press On May 13, 2020, two days before Winecup filed this opposition, it served Union Pacific with a supplemental expert disclosure that provided that Winecup intended to call Luke Opperman, and April Holt and Edward Quaglieri (additional individuals that inspected Winecup's dams), as non-retained experts. Union Pacific has twice amended its complaint (ECF Nos. Little pre-trial motion practice has occurred in this case other than the 27 pending motions in limine. (ECF No. Union Pacific also requests that the Court permit and provide a means for jurors to take notes. And the best part of all, documents in their CrowdSourced Library are FREE! 155-4 at 5; ECF No. 111 at 16. 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. Winecup argues this would apply to all of Union Pacific's witnesses. Winecup Gamble, Inc. v. Gordon Ranch LP | D. Nevada | 03-16-2022 | www 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 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. 112 at 10-12. In April 2018, the parties deposed Holt and Quaglieri, and in April 2019, the parties deposed Opperman. 207 ) is extended . Here, culverts and earthen embankments existed at the washed-out track locations. 108.) IT IS FURTHER ORDERED that Winecup's second motion in limine to exclude evidence and argument that NAC 535.240 applies to the 23 Mile and Dake dams (ECF No. Accordingly, the Court denies Union Pacific's twelfth motion in limine without prejudice and reserves the issue for trial. Winecup Gamble, Inc v Gordon Ranch LP | 20-16411 - UniCourt Stephanie Hoit Lee & David N. Finley, Federal Motions in Limine 1:1 (2018). This model is "industry standard used by the Army Corps of Engineers . 139) is DENIED. REVERSED, VACATED, and . Defendant rejected the property and demanded a return of its earnest money arguing (1) that the amendment did not change the original contract provision that placed the risk of loss on Plaintiff's shoulders and (2) that Plaintiff's interpretation of the contract provision is not a liquidated damages clause but an unenforceable penalty clause as five million dollars was not an accurate prediction of Plaintiff's damages. ///. Id. Winecup may motion the Court to reconsider this determination based on the evidence presented at trial. The optional reply brief is due 21 days from the date of service of the answering brief. R. EVID. ECF No. 131) is DENIED without prejudice. 141, 143, 149, 150, 151, 152). ECF No. See ECF Nos. 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. Date of service: 07/28/2020. Appellee Gordon Ranch LP answering brief due 06/07/2021. Winecup Gamble Ranch on Vimeo 88.) IT IS FURTHER ORDERED that Union Pacific's sixteenth motion in limine to bar two words in an email with profane reference (ECF No. As discussed in full below, the Court will permit Union Pacific to argue the issue of punitive damages. ///. 112.) However, Winecup may argue that it is not negligent or that a non-party is solely responsible, and Winecup may proffer admissible evidence in support thereof. This regulation, titled Requirements for approval. 15, 2021) (unpublished), the Ninth Circuit reversed entry of terminating sanctions, vacated the judgment, and remanded for further proceedings. Therefore, the Court finds that only the drastic case dispositive sanctions are appropriate in this case. (Id. Appellant Winecup Gamble, Inc. opening brief due 05/07/2021. Union Pacific argues that doing so would enable a smooth presentation of exhibits to the jury. ECF No. The Largest that could be expected from the most severe combination of critical meteorological and hydrological conditions that are reasonably possible for the region in which the dam is located; and 2. Gallo v. Union Pacific R.R. Second, Defendant has not established that the deletions occurred prior to a duty to preserve ESI. AnyLaw is the FREE and Friendly legal research service that gives you unlimited access to massive amounts of valuable legal data. Id. Fla. 2018) ("[T]he issue of whether there was a force majeure or Act of God that caused the incident is an issue of fact, which cannot be decided on a motion to strike."). See NAC 535.140. ECF No. Id. Winecup Gamble, Inc. v. Gordon Ranch LP | D. Nevada | 03-17-2022 | www Co., 326 F. Supp. Date of service: 03/16/2021. See Hal Roach Studios Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1550 (9th Cir. Winecup only argues that Fireman's deposition should be excluded as irrelevant and fails to make any showing that it will be substantially injured if the testimony is permitted. The Court does not presently address the request for attorney's fees. 1. Id. However, Union Pacific may qualify for punitive damages for its claims of trespass and nuisance. The district court's attorneys' fees decision is moot and is vacated as well. 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. I-80 and US93, Elko, NV, 89801 - Pasture/Ranch For Sale - LoopNet ECF No. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . However, the Court agrees with Winecup that whether the email is admissible is a different question from whether evidence or argument regarding the preservation of the dam for pike is admissible. The Court finds that Lindon's opinions on both meteorology and hydrology are reliable. 156. 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)."). Accordingly, the Court denies Union Pacific's tenth motion in limine (ECF No. But Union Pacific does not point to any evidence in the record of "abandonment." 132. Winecup Gamble, Inc. v. Ranch - casetext.com Union Pacific requests the Court bar Winecup from admitting a portion of an email from a Union Pacific employee that contains the profane reference, "Sandbagging S.O.B's," arguing that if the email is admitted, the offending language should be redacted because it is irrelevant, unfairly prejudicial, and inadmissible opinion evidence. ECF No. Again, the Court agrees with Winecup: the Court cannot make a ruling on whether judicial notice is proper without sufficient information. See Francis v. MSC Cruises, S.A., Case No. 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. 149) is granted. James Rogers Email & Phone Number | ZoomInfo 20; ECF No. 8, 2020). Plaintiff relied on the amendment to say that the earnest money was not refundable for casualty losses. A reasonable jury could find punitive damages are warranted if it finds that Winecup acted with conscious disregard of the downstream property owners. 141-5 at 9-10, 12, 30-32; ECF No. 131), and reserves any ruling on this issue for trial. 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."). The Federal Railroad Safety Act ("FRSA") was enacted "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." ECF No. Of Clark v. LB Props., Inc., 315 P.3d 294, 296 (Nev. 2013) (internal quotation marks and citations omitted). 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. Johnson v. Dunnahoe, Case No. 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. [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. at 432. ECF No. ECF No. i. Winecup's contributory negligence defense is not preempted. Moreover, the Court finds that it would be illogical that a plaintiff would not be preempted from suing Union Pacific under a negligence theory for failure to maintain appropriate drainage, but that a defendant would not be able to assert an affirmative defense of contributory negligence for the same alleged failure. FED. 1. Generally, all relevant evidence is admissible. 107 Ex. IT IS FURTHER ORDERED that Union Pacific's twentieth motion in limine to permit Union Pacific witnesses to testify by video (ECF No. 111. [20-16411] (AD) [Entered: 07/29/2020 06:44 PM], (#4) The Mediation Questionnaire for this case was filed on 07/28/2020. Winecup opposes the motion, arguing that it is permitted to argue and offer evidence that they are either not negligent or that another party is completely negligent. A, 47:2-6.) UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. ECF No. Accordingly, the Court denies Union Pacific's seventh motion in limine. [12029509] (JBS) [Entered: 03/09/2021 01:23 PM], U.S. District Courts | Property | 1980)). ECF No. 111-7 (Union Pacific's hydrology expert declared that the HEC-HMS is an acceptable method to calculate runoff). Mediation Questionnaire due on 03/16/2021. Gordon Ranch attempted to purchase real property located in northern Nevada from Winecup Gamble in 2016. 1993) (internal quotation marks omitted), overruled on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir. Fourth, there was no prejudice to Defendant. Moore et al., Moore's Federal Practice 30.25[3] (3d ed. L at 62:23-63:19. 107, Ex. Second, Defendant has shown that Plaintiff failed to take reasonable steps to preserve the ESI after the duty arose to preserve it.