Id. 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. 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. Godwin further testified that he had reviewed Union Pacific's rerouting costs and crew costs as provided, and the number of trains per day. 3.) 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. Accordingly, the Court denies Union Pacific's seventh motion in limine. Accordingly, Union Pacific's eighth motion in limine (ECF No. 122) is granted in part and denied in part. 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. 702. I-80 and US93, Elko, NV, 89801 - Pasture/Ranch For Sale - LoopNet While the Court expects in-person jury trials to resume in early 2021, the parties should consider the constraints of holding a civil jury trial during the COVID-19 pandemic as they proceed with the litigation of this matter and in determining whether a bench trial via ZOOM video conferencing is a feasible option. R. EVID. How beavers make the desert bloom - High Country News The Court notes that it is open to hearing any other mutually agreeable alternative to the options suggested by the Court as this case proceeds. 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. While it argues that Razavian's use of a topographical quadrangle map does not provide enough detail to map the flooding in the area (ECF No. ECF No. Id. 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. 6. See FED. i. 123) is denied. The Court finds that whether such evidence is relevant is best determined at trial. On or about February 8, 2017, the 23 Mile dam overtopped and breached in two locations. & Constructors Inc., 880 F.2d 219, 221 (9th Cir. [11769734] [20-16411] (Jordan, David) [Entered: 07/28/2020 03:34 PM], Docket(#7) MEDIATION ORDER FILED: This case is RELEASED from the Mediation Program. 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. 9. Under Nevada law, the question of "[w]hether or not a document is ambiguous is a question of law for the court." 170. to simulate and re-create hydrologic process of watershed systems." UniCourt uses cookies to improve your online experience, for more information please see our Privacy Policy. R. EVID. 2018) (holding that the 2015 amendment to Rule 37(e) "foreclose[d] reliance on inherent authority" for sanctioning spoliation of ESI) (quoting Fed. Erica Beck - Winecup Gamble Ranch | ZoomInfo The provinces allowed casino games as well as horse tracks, and video lottery terminals. "A statutory violation is negligence per se if the injured party belongs to the class of persons whom the statute was intended to protect, and the injury suffered is of the type the statute was intended to prevent." 3:20-CV-00293 | 2020-05-18, U.S. District Courts | Contract | 111 at 16-17. Id. 160. i. Godwin's a qualified expert in railroad rerouting, costs, and railroad construction and design. The schedule is set as follows: Appellant Winecup Gamble, Inc. Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence." Rather, Union Pacific argues that its expert's rerouting analysis was more correct than Godwin's opinion based on these considerations. 130) is denied without prejudice. SEND MQ: Yes. Union Pacific's combined fifth and sixth motion in limine to bar two opinions of Derek Godwin (ECF No. 151) is DENIED without prejudice. Finally, Union Pacific requests leave to serve Rule 36 requests to establish admissibility of certain evidence. Amended briefing schedule: Appellant Winecup Gamble, Inc. opening brief due 06/21/2021. Research the case of Winecup Gamble, Inc. v. Gordon Ranch LP, from the D. Nevada, 03-17-2022. 141) is denied. Northeast corner of Nevada bordering Utah. Mason v. Fakhimi, 865 P.2d 333, 335 (Nev. 1993) (citing Haromy v. Sawyer, 654 P.2d 1022, 1023 (Nev. 1982). 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. The case status is Pending - Other Pending. However, the court may exclude otherwise relevant evidence "if its probative value is substantially outweighed by the danger of" unfair prejudice. Winecup Gamble, Inc v Gordon Ranch LP | 20-16411 - UniCourt Ins. IT IS FURTHER ORDERED that Union Pacific's fourth motion in limine to pre-admit exhibits for use in juror binders (ECF No. Co. v. Colorado Cas. Union Pacific has twice amended its complaint (ECF Nos. 33 Ex. 20101. 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. The Court is satisfied that this procedure was effective at the time. 20; ECF No. See Wyeth v. Rowatt, 244 P.3d 765, 775 (Nev. 2010). 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. Second, Defendant has not established that the deletions occurred prior to a duty to preserve ESI. 141-2 18), that is an argument best left for cross examination and goes toward the weight not the admissibility of Razavian's opinion. Zubulake v. UBS Warburg LLC, 229 F.R.D. ECF No. "); ECF No. Co., 752 F.3d 807, 814 (9th Cir. . Accordingly, the Court denies Union Pacific's tenth motion in limine (ECF No. 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. Lastly, Union Pacific motions the Court to amend the pretrial order (ECF No. ECF No. Union Pacific argues that doing so would enable a smooth presentation of exhibits to the jury. Terminating Sanctions Reversed After Oral Litigation Hold Goes Awry However, Union Pacific may qualify for punitive damages for its claims of trespass and nuisance. Id. Id. He is "active in the science of meteorology, working constantly with meteorologists at the Division of Water Resources and Salt Lake City National Weather Service office to develop products and methods for calculations." (ECF No. 112) are denied. The firm also values strong cooperating relationships with reputable land brokers in the profession. 157-24 at 4. WINECUP GAMBLE, INC., a Nevada corporation, Plaintiff, v. GORDON RANCH, LP, a Texas limited partnership, Defendant Case No. 157-2 at 10-15, 26, 30, 52. 157-24, 157-28. See Madrigal v Treasure Island Corp., Case No. 127) is DENIED. 107) is GRANTED. ECF No. IT IS FURTHER ORDERED that Winecup's fifth motion in limine to exclude evidence and argument related to an Emergency Action Plan for the Dake Dam (ECF No. . Plaintiff declined to repair the property. Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant settlement discussions. at 43:14-25), upgrading to a new computer during this time (Id. 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. ECF No. (internal quotations and citations omitted)). 3d 949, 959 (N.D. Cal. The Winecup and Gamble Ranch was put back together after the split in 1957, according to ranch history. ECF No. 14. Winecup Gamble Ranch - 42 North Land Co. Further, while Winecup argues that Razavian's observations were "superficial," Winecup has given the Court no reason to discount Razavian's opinion that considering the "empirical data" he observed in the area of a flood is an unacceptable methodology for determining the flow of a flood. Again, Winecup opposes, arguing that its supplemental disclosure was timely and sufficient under Federal Rule of Civil Procedure 26(a)(2)(C). Cases involving other real property matters not classified elsewhere, (#6) The Mediation Questionnaire for this case was filed on 07/29/2020. ECF No. Union Pacific moves this Court to permit its witnesses that must travel by plane or more than three hours by car to testify via videoconference. ECF Nos. ECF Nos. The schedule is set as follows: Appellant Winecup Gamble, Inc. iv. 2:19-CV-00414 | 2019-06-17, U.S. District Courts | Contract | 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. The Court finds that allowing Union Pacific to amend the pretrial order on this issue will not result in injustice to Winecup and any inconvenience to the Court is slight. The Wine Cup headquarters are located on a long, lonely stretch of state highway just north of Wells, Nev., and the Gamble is farther southeast, near the one-bar town of Montello. 7. Lindon disputes both asserted errors. 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. C 06-04435 CRB, 2007 WL 963422, at *1 (N.D. Cal. The standard for calculating damages is an important and critical issue in this case, but it has not been fully or properly briefed by the parties: Winecup briefly noted the standard it believes is proper in its response to Union Pacific's combined fifth and sixth motion, while Union Pacific took the opportunity to argue for its standard in a 13-page reply, without any further response from Winecup. However, the Court is hopeful that the parties can agree upon the admissibility of exhibits as much as reasonably practicable. 1) is DISMISSED WITH PREJUDICE. Atkinson v. MGM Grand Hotel, Inc., 98 P.3d 678, 680 (Nev. 2004). (Id.). This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 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. 15. He declares that he has been "personally involved with rerouting for a Class 1 railroad approximately twelve times over the past six years." It is clear to the Court based on this argument that Union Pacific intends to offer the financial information as it relates to punitive damages. ECF No. 139. There can be no dispute that Godwin's opinion is relevant and advances a material aspect of Winecup's case: Godwin's opinion goes directly to the amount of damages Union Pacific should be permitted to recover if the jury reaches the issue. 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. However, each regulation was enacted under the authority of NRS 532.120, which confers upon the State Engineer the power to make such rules and regulations as may be necessary for the proper and orderly execution of its powers. 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. The district court's attorneys' fees decision is moot and is vacated as well. Lindon is a qualified expert in hydrology and meteorology. See Sea-Land Serv., Inc. v. Lozen Int'l, LLC, 285 F.3d 808, 821 (9th Cir. 1990). 1985). and Nevada Administrative Code ("NAC") 535.010 et seq.do not apply to the Winecup dams. 15, 2021) (unpublished), the Ninth Circuit reversed entry of terminating sanctions, vacated the judgment, and remanded for further proceedings. 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. [12077160] (AF) [Entered: 04/16/2021 11:36 AM], (#5) MEDIATION CONFERENCE RESCHEDULED - DIAL-IN Assessment Conference, 04/14/2021, 9:30 a.m. Pacific Time (originally scheduled on 03/31/2021). 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. IT IS FURTHER ORDERED that all other motions are DENIED AS MOOT. Winecup does not oppose prohibiting asking questions or offering evidence or argument about the plaintiff's consulting experts, so long as "consulting expert" means "expert employed only for trial preparation." The parties timely responded. 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." Under Federal Rule of Civil Procedure 32(a)(8), the deposition from an earlier action "may be used in a later action involving the same subject matter between the same parties." Defendant moves for sanctions against Plaintiff alleging that its agents spoliated valuable electronically stored information (ESI). 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 . [12048869] (BLS) [Entered: 03/22/2021 11:05 AM], (#2) Filed (ECF) Appellant Winecup Gamble, Inc. A at 14.) Once a prevailing party has been determined, that party should be allowed to request or move for an award of reasonable attorneys' fees, as such an award is available to the prevailing party under the plain terms of the agreement. IT IS FURTHER ORDERED that Union Pacific's motion to seal (ECF No. ECF No. 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. Finally, one place to get all the court documents we need. FED. Id. The Ninth Circuit has made clear that district courts "should generally allow amendments of pretrial orders provided three criteria are met: (1) no substantial injury will be occasioned to the opposing party, (2) refusal to allow the amendment might result in injustice to the movant, and (3) the inconvenience to the court is slight." Quebec authorized a class-action lawsuit against group RESPs. It may 34 Ex. This communication will be kept confidential, if requested, and should not be filed with the court. ECF No. Accordingly, the Court grants in part and denies in part Union Pacific's twenty-first motion in limine to amend the pretrial order. Winecup Gamble Ranch corporate office is located in #1 Winecup Rd, Montello, Nevada, 89830, United States and has 4 employees. FED. Union Pacific motions the Court to bar Winecup from offering evidence of the Oroville Dam spillway failure and the weather and flood conditions that occurred in February 2017 in California and western Nevada. 2014) ("Even if data are imperfect, and more (or different) data might have resulted in a 'better' or more 'accurate' estimate in the absolute sense, it is not the district court's role under Daubert to evaluate the correctness of facts underlying an expert's testimony. The Court took numerous safety precautions in the courtroom to ensure that all participants, attorneys, witnesses, and the Court staff, were protected, which included installing plexiglass partitions and implementing sanitization protocols. FED. Winecup Gamble Ranch Global Presence. 403. ECF No. The Court disagrees. P. 37 Advisory Committee Notes to the 2015 Amendment). La. 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." 3:20-CV-00293 | 2020-05-18. Altogether, both ranches encompass one million acres257,000 are deeded, and the remainder is private leases. 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. 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. 1. 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. The high desert of northeastern Nevada poses unique environmental challenges for producers growing forages. 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. 2011). 123) is denied. at 44:19-45:1), inappropriate backup settings (Id. See Shaw v. CitiMortgage, Inc., 201 F.Supp.3d 1222, 1264 (D. Nev. 2016) (the company's serious lack of practices, policies and procedures to deal with and explain the company's positions and actions supported the Court's punitive damage award). Union Pacific concedes that Lindon is a qualified expert in hydrology. ECF No. 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. 175), are DENIED without prejudice. 130. 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. In conducting his hydrology analysis, Razavian used a "Curved Number" of 92, which Lindon criticizes as being "too high." [11785954] (BLS) [Entered: 08/12/2020 08:52 AM], (#5) Filed (ECF) Appellee Gordon Ranch LP Mediation Questionnaire. And such communications took place shortly after the flood on February 21, 2017. Lindon's opinion on the subject remained the same in this disclosure as it was in his prior report. The court's role is to "screen the jury from unreliable nonsense opinions, . ECF No. (ECF No. 1989) (reviewing the district court's interpretation of a contract de novo). In the court application, the franchisees are . Contact. [20-16411] (AD) [Entered: 07/29/2020 06:44 PM], (#4) The Mediation Questionnaire for this case was filed on 07/28/2020. Winecup may motion the Court to reconsider this determination based on the evidence presented at trial. The American Landowner: James Rogers - The Land Report The district court based its decision on the fact that the terms of the parties' agreement, as amended, were clear and unambiguous on the critical question of whether the amendment was intended to shift or modify the risk-of-loss scheme. Id. A, 45:18-46:13.) It's as wide and wild and complicated a landscape as there is in today's West. This communication will be kept confidential, if requested, and should not be filed with the court. Briefing is not to exceed 15 pages of argument , excluding tables of contents and authorities and administrative notices. Winecup opposes, arguing that Union Pacific cites no authority or foundation for the Court on which to make such a ruling. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). ECF No. Id. 3:17-cv-00477-LRH-CLB (D. Nev. Dec. 4, 2020). IT IS FURTHER ORDERED that Union Pacific's fourteenth motion in limine to bar evidence or argument about consulting experts (ECF No. Ins. Winecup opposes, arguing that the proposed instructions are improper standard of care instructions for a negligence case, the proposed list is biased in favor of Union Pacific, and if the Court is inclined to give such instructions, then it should also preliminarily instruct the jury as to all elements of negligence in a neutral and accurate manner. 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. Appellant's optional reply brief is due 21 days after service of the answering brief. [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. Little pre-trial motion practice has occurred in this case other than the 27 pending motions in limine. As the parties have already agreed to prepare their exhibits electronically, juror binders are unnecessarily redundant. The briefing schedule previously set by the court remains in effect. (#7) MEDIATION ORDER FILED: This case is RELEASED from the Mediation Program. ECF No. Here, culverts and earthen embankments existed at the washed-out track locations. In that case, participating attorneys would appear in-person, and the Court would leave it to each party's counsel to determine which of its witnesses would appear by video or in-person. R. Civ. Lindon's expert testimony is admissible. (ECF No. ECF No. WINECUP GAMBLE, INC., a Nevada corporation, Plaintiff, v. GORDON RANCH, LP, a Texas limited partnership, Defendant. 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 . 89. 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. 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. 34 Ex. 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]. (citing Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 744 n.3 (1996)). ECF No. Id. 2. 55.) 36 Ex. Lindon will be permitted to disagree with Razavian's conclusions just as Razavian will be permitted to disagree with Lindon's. Joe Glascock is a General Manager at Winecup Gamble Ranch based in Montello, Nevada. 120-1 at 5. 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.") Accordingly, Union Pacific's third motion in limine (ECF No. Alaska Rent-A-Car, Inc. v. Avis Budget Group, Inc., 738 F.3d 960, 969 (9th Cir. Campbell Industries v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 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." at 46:19-22), or some combination of these factors. 2001); United States v. Layton, 767 F.2d 549, 556 (9th Cir.