Id. Union Pacific's arguments against his qualifications go to the weight of his testimony, not admissibility, and are best left to vigorous cross-examination. ///. Razavian declares that "[a]ccepted hydrological methodology requires a hydrologist to consider all of the above evidence in determining flow of flood water." Cattle ranch located in Northeastern Nevada, where our goal is to provide a healthy and wholesome be Winecup Gamble Ranch | Montello NV Union Pacific motions the Court to exclude Winecup's expert, Matthew Lindon, from providing opinions on meteorological and hydrological issues. ECF No. To reach his opinion, Godwin considered the drainage area and peak flows for hypothetical storm eventsnothing in the record disputes that this is an appropriate method for making such a determination. Cases involving other real property matters not classified elsewhere, (#8) Streamlined request [7] by Appellant Winecup Gamble, Inc. to extend time to file the brief is approved. Lindon's expert testimony is admissible. 112) is DENIED. ECF No. 126) is DENIED. 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. Union Pacific pleads in its second amended complaint that the following Nevada Administrative Codes impose a standard of conduct obligating Winecup to act in accordance: NAC 535.370, 535.040, 535.240, 535.320. 122) is granted in part and denied in part. Gordon Ranch attempted to purchase real property located in northern Nevada from Winecup Gamble in 2016. 107 Ex. Id. ECF No. . As part of the agreement, Defendant deposited a million dollars of earnest money in escrow. 111) and its second motion in limine to exclude hydrological opinions of Matthew Lindon and to appoint a neutral expert (ECF No. The Court will address each argument in turn. Godwin's opinions on pre-flood design structures are admissible. 111. Alamo Airways, Inc. v. Benum, 374 P.2d 684, 686 (Nev. 1962). It is uncontested that 23 Mile dam is classified as a low hazard dam, and Dake dam as a significant hazard dam. The lead plaintiff in the lawsuit, Montreal resident Qing Wang, lost $11,720 to enrolment fees charged by C.S.T. These facts are sufficient for the Court to draw an inference that Mr. Worden acted intentionally. Transcript due 09/21/2020. [11762326] (JBS) [Entered: 07/22/2020 02:44 PM], U.S. Courts Of Appeals | Property | 129) is DENIED without prejudice. Pyramid Techs., Inc. v. Hartford Cas. 134) is denied without prejudice. 1) is DISMISSED WITH PREJUDICE. In April 2018, the parties deposed Holt and Quaglieri, and in April 2019, the parties deposed Opperman. 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. [21-15415] (AD) [Entered: 03/16/2021 06:44 PM], (#1) DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. 152) is granted in part and denied in part. "The decision of whether to allow the jury to take notes is left entirely to the discretion of the trial court." 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. Such that there is virtually no chance of its being exceeded."). and Nevada Administrative Code ("NAC") 535.010 et seq.do not apply to the Winecup dams. 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]. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . 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. The Court does not presently address the request for attorney's fees. Finally, because Winecup has not "admitted" the facts as presented by Union Pacific, the Court will not permit Union Pacific to add the information to the "undisputed facts" section of the pretrial order. ECF No. i. ECF No. [21-15415] (AD) [Entered: 03/16/2021 06:44 PM], Docket(#2) Filed (ECF) Appellant Winecup Gamble, Inc. The Court reiterates that is open to presiding over a bench trial via ZOOM video conferencing if the parties are amendable to such a solution. "Legal duties imposed on railroads by the common law fall within the scope of these broad phrases." ECF Nos. 133) is DENIED without prejudice. Winecup presents no such exception that would apply. Little pre-trial motion practice has occurred in this case other than the 27 pending motions in limine. at 3. See ECF No. Date of service: 07/28/2020. winecup gamble ranches llc. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . It's about 100 miles from Elko, Nev . Nor has Union Pacific pointed to anything in the record to support that the State Engineer has considered legal action against Winecup under this statute for a violation due to abandonment of the Dake. But Union Pacific does not point to any evidence in the record of "abandonment." After reviewing this agreement and amendment, we disagree with the district court. P. 37(c)(1). ECF No. 15. ECF No. The schedule is set as follows: Appellant Winecup Gamble, Inc. 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." ECF No. 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. 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. 2:12-cv-01727-APG-NJK, 2014 WL 12646048, at *2 (D. Nev. May 28, 2014). Until that secondary proceeding, Union Pacific is precluded from introducing evidence related to Winecup's financial situation or the sale of the Winecup ranch; Winecup's sixth motion is granted in part and denied in part. 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"). See ECF No. Snapp v. United Transportation Union, 889 F.3d 1088, 1103 (9th Cir. 157-2 at 10-15, 26, 30, 52. But the expert may be required to disclose those facts or data on cross-examination." Razavian opines that floodwater from 23 Mile dam split as it came downhill with some water heading toward the Dake dam while other water reached the tracks at mile post 670, causing a build-up of water that ultimately caused the washout of Union Pacific's tracks at mile post 670.03. SEND MQ: Yes. 124) is denied. [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. (ECF No. Winecup's expert Derek Godwin provided opinions on three topics: (1) pre-flood design structures at mileposts 670.03, 672.14, 677.32, and 679.28; (2) re-routing costs and the reasonableness of the routes and costs; and (3) reconstruction costs and the reasonableness of replacement structures. 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. Here, both parties have retained their own experts, and as discussed below, all are qualified. Under the provision, Plaintiff bore the risk of loss until closing, where, in the case of casualty loss before closing, Defendant had the option to take the property as-is with insurance proceeds or to reject the property and take back its earnest money. Accordingly, Union Pacific's ninth motion in limine (ECF No. The Court agrees with Winecup: any ruling that Winecup is precluded from arguing that a specific statute applies in this case must be made on a statute-by-statute/ regulation-by-regulation basis. 125. IT IS FURTHER ORDERED that Union Pacific's fifth and sixth motions in limine to Bar Two Opinions of Derek Godwin (ECF No. [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 Ranch owns extraordinary water rights for 2,500 acres of productive irrigated crop land and 8,750 acres of strong irrigated and sub-irrigated pasture plus . Documentary footage of life and work on the Gamble division of the Winecup Gamble Ranch, Montello, Nevada. A reasonable jury could find punitive damages are warranted if it finds that Winecup acted with conscious disregard of the downstream property owners. 4. Joe Glascock is a General Manager at Winecup Gamble Ranch based in Montello, Nevada. Union Pacific has twice amended its complaint (ECF Nos. Union Pacific motions the Court to exclude both Winecup's contributory negligence defense and Godwin's expert opinions that relate to this defense. Winecup's fifth motion in limine to exclude evidence and argument related to an Emergency Action Plan for the Dake dam (ECF No. Id. With this expeditious timeframe, Defendant has shown that the ESI was deleted after the duty arose to preserve the ESI. 1989)). (emphasis added) While defendant's purported compliance with FAA regulations and maintenance protocols is, , No. The parties shall bear their own costs on appeal. Id. Accordingly, Plaintiff did not perform reasonable steps to preserve the information. IT IS FURTHER ORDERED that the clerk of the court shall close this case. This is the subject of Winecup's first motion in limine; therefore, Union Pacific's arguments will be addressed below. 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. 11. Winecup does not oppose this request. Union Pacific also requests that the Court permit and provide a means for jurors to take notes. 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. Id. Because the agreement is ambiguous, we also vacate the denial of Winecup Gamble's motion for summary judgment. Id. Winecup's second and third motions in limine also relates to the standard of care to be used in this negligence case. REVERSED, VACATED, and . The Court finds that the legal issues and circumstances presented in this case are not so complex or exceptional that a neutral expert is needed to assist the trier of fact and, therefore, denies Union Pacific's motion to do so. 158 at 2. However, as applied and in context, the terms of the parties' amended agreement are ambiguous on the point of whether the contract was intended to shift the risk-of-loss scheme. 129. The parties have submitted a total of 27 motions in limine. 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. 141 at 6. Id. Accordingly, the late disclosure was harmless, and Lindon will be permitted to testify on the subject. However, "[n]othing in NRS 41.141 prohibits a party defendant from attempting to establish that either no negligence occurred or that the entire responsibility for a plaintiff's injuries rests with nonparties[.]" Id. Mediation Questionnaire due on 07/29/2020. Id. 129) is denied without prejudice. Id. Full title:WINECUP GAMBLE, INC., a Nevada corporation, Plaintiff, v. GORDON RANCH, Court:UNITED STATES DISTRICT COURT DISTRICT OF NEVADA. FED. 17. 2019). Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence." ECF No. ECF Nos. 149) is granted. Id. 21-15415 | 2021-03-09, U.S. District Courts | Property | Winecup provides that it only intends to have these experts testify to that which is contained within their respective depositions and reports. Alaska Rent-A-Car, Inc. v. Avis Budget Group, Inc., 738 F.3d 960, 969 (9th Cir. unless the failure was substantially justified or is harmless." Winecup's fourth motion in limine requests the Court exclude Union Pacific's claim of punitive damages. The Offering Included All Owned Deeded Land, All Water Rights, Transfer of a Private-Use Year 'Round BLM Permit for 52,000 AUMs Plus All Machinery & Equipment. ECF No. Bard, Inc., Case No. Id. Additionally, in Mr. Fireman's deposition, he said that he spoke to Mr. Worden about the contract and amendment through personal meetings, telephone calls, text messages, and emails. 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. 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. Co., Case No. 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]. [12048869] (BLS) [Entered: 03/22/2021 11:05 AM], Docket(#3) The Mediation Questionnaire for this case was filed on 03/16/2021. Id. 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. IT IS FURTHER ORDERED that Union Pacific's fourteenth motion in limine to bar evidence or argument about consulting experts (ECF No. 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. (ECF No. (Id.) 112. Northeast corner of Nevada bordering Utah. at 43:14-25), upgrading to a new computer during this time (Id. . Campbell Industries v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 2001); United States v. Layton, 767 F.2d 549, 556 (9th Cir. Accordingly, Union Pacific's third motion in limine (ECF No. (ECF No. Additionally, because the Court is best positioned to rule on relevancy issues at trial when it can consider the evidence in context, the Court will reserve ruling on the relevancy of Fireman's testimony until that second proceeding as well. ), Presently, Defendant moves for sanctions against Plaintiff alleging that Mr. Worden and Mr. Fireman, acting as Plaintiff's agents, spoliated the ESI. 706; Gorton v. Todd, 793 F.Supp.2d 1171, 1178 (E.D. Defendant Winecup Gamble, Inc.'s ("Winecup") time to file a response to Union Pacific's ("Union Pacific") Motion for Clarification (ECF No. While Lindon may not be a meteorologist by degree, he is clearly qualified to conduct the meteorological calculations and consider those calculations in reaching his expert opinion regarding the dam failure and subsequent flooding. On October 15, 2018, the parties exchanged initial disclosures of expert witnesses: the plaintiff disclosed three experts with reports, and five experts without reports, and defendant disclosed two experts with reports. The court's role is to "screen the jury from unreliable nonsense opinions, . In Nevada, "[r]etroactivity is not favored," and courts generally interpret regulations to "only operate prospectively unless an intent to apply them retroactively is clearly manifested." Countrywide Home Loans, Inc. v. Thitchener, 192 P.3d 243, 252-53 (Nev 2008) (citing Evans v. Dean Witter Reynolds, Inc., 5 P.3d 1043, 1052 (2000)). 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. 176. Date of service: 03/16/2021. Winecup opposes this motion for two reasons: (1) because N.A.C. As discussed in full below, the Court will permit Union Pacific to argue the issue of punitive damages. 111-7 43. 130) is DENIED without prejudice. Womack v. GEO Grp., Inc., No. IT IS FURTHER ORDERED that Winecup's third motion in limine to exclude argument related to Union Pacific's claim for negligence per se (ECF No. If you do not agree with these terms, then do not use our website and/or services. 141-2 18), that is an argument best left for cross examination and goes toward the weight not the admissibility of Razavian's opinion. Gordon Ranch filed a motion for judgment on the pleadings; Winecup Gamble filed its motion for summary judgment. NAC 535.140. R.R. 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. Therefore, the Court finds that under Nevada state law, Winecup is not permitted to offer evidence that a non-party is comparatively negligent. Gordon Ranch attempted to purchase real property located in northern Nevada from Winecup Gamble in 2016. 161. IT IS FURTHER ORDERED that 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. Union Pacific argues that doing so would enable a smooth presentation of exhibits to the jury. Public Records Policy. Daubert, 509 U.S. at 592-94. ///. (citing Beaver Valley Power Co. v. Nat'l Eng'g & Contracting Co., 883 F.2d 1210, 1221 (3d. Amarel v. Connell, 102 F.3d 1494, 1515 (9th Cir. See Part III.A.1.iii. Federal Rule of Civil Procedure 37(c)(1) provides that "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness . 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. Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant settlement discussions while the appeal is pending. 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.
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