(ECF No. This communication will be kept confidential, if requested, and should not be filed with the court. Full title:WINECUP GAMBLE, INC., a Nevada corporation, Plaintiff, v. GORDON RANCH, Court:UNITED STATES DISTRICT COURT DISTRICT OF NEVADA. 1980) (internal citations omitted). 160. i. Godwin's a qualified expert in railroad rerouting, costs, and railroad construction and design. IT IS FURTHER ORDERED that Union Pacific's thirteenth motion in limine to bar evidence or argument related to an "Act of God" defense (ECF No. [12043650] [21-15415] (Peterson, William) [Entered: 03/16/2021 05:14 PM], Docket(#1) DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. Id. C at 6.) 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. Union Pacific argues that Lindon is not a qualified expert in meteorology because he does not hold a degree or certificate in the field. 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: . [11762326] (JBS) [Entered: 07/22/2020 02:44 PM], U.S. Courts Of Appeals | Property | Email. Fourth, there was no prejudice to 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. 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. While Union Pacific argues that these witnesses may not be qualified to offer opinion testimony, the Court reserves ruling on specific testimony for trial. 122) is granted in part and denied in part. Winecup opposes this motion for two reasons: (1) because N.A.C. 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. at 43:14-25), upgrading to a new computer during this time (Id. 141 at 6. As discussed in full below, the Court will permit Union Pacific to argue the issue of punitive damages. The language of the amendment does not specifically state that this result was desired or intended, and, in the absence of such a clear statement of the parties' intent, we find that the parties' agreement is ambiguous in this particular respect. Accordingly, Union Pacific's ninth motion in limine (ECF No. 8, 2020). And while "[i]n some cases, it may be cost-effective for counsel simply to provide jurors with individual binders containing indexed copies of selected exhibits central to the presentation at trial," electronic display systems that show everyone in the courtroom the exhibit simultaneously likewise "significantly assist jury involvement and comprehension and expediate trial." 36 Ex. 149) is granted. Plaintiff conducted a deposition of Mr. Worden subpoenaing all of his documents (including ESI) regarding discussions of the sale of ranch and amendments, the damage to the property, the repairs of the property, breakage of dams, and insurance information. 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. The ranch, in 2016, was for sale again. 111-7 31-33. Union Pacific has twice amended its complaint (ECF Nos. 1. 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. 150) is DENIED without prejudice. Again, Winecup opposes, arguing that its supplemental disclosure was timely and sufficient under Federal Rule of Civil Procedure 26(a)(2)(C). 2001) (citation omitted). Newberry v. Cty. FED. 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. And such communications took place shortly after the flood on February 21, 2017. at 44:19-45:1), inappropriate backup settings (Id. Section 213.33 provides: "Each drainage or other water carrying facility under or immediately adjacent to the roadbed shall be maintained and kept free of obstruction, to accommodate expected water flow for the area concerned." In 1996, DWR indicated that it appeared that new hydraulic controls were presented, and that plans and specifications for these plans needed to be submitted. 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. 158 at 2. at 44:8-14). Date of service: 03/16/2021. 33 Ex. (ECF No. The Court agrees with Union Pacific that under Rule 26 of the Federal Rules of Civil Procedure, Winecup is prohibited from asking questions or offering evidence or argument about the plaintiff's consulting experts. Id. Womack v. GEO Grp., Inc., No. The lead plaintiff in the lawsuit, Montreal resident Qing Wang, lost $11,720 to enrolment fees charged by C.S.T. 1985). 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. Bates Land Consortium has closed 640 transactions - encompassing nearly 2,600,000 acres of deeded land - approaching $2.70 billion in total value. 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."). ECF No. (emphasis added) While defendant's purported compliance with FAA regulations and maintenance protocols is, , No. (ECF No. It is uncontested that 23 Mile dam is classified as a low hazard dam, and Dake dam as a significant hazard dam. Second, Defendant has not established that the deletions occurred prior to a duty to preserve ESI. at 3. Co. v. Gen. Elec. Ex. 3:17-CV-00477 | 2017-08-10, U.S. District Courts | Other | 150. 55.) 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. Appellee Gordon Ranch LP answering brief due 07/21/2021. 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."). 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. Appellant's optional reply brief is due 21 days after service of the answering brief. Union Pacific Railroad Company v. Winecup Ranch, LLC et al, Prime Healthcare Services - Reno, LLC v. Hometown Health Providers Insurance Company, Inc. et al, Elko Broadband Ltd. v. Haidermota BNR, Lawyers and Counsel with Offices in Islamadad, Islamic Republic of Pakistan et al. See ECF Nos. Accordingly, the Court finds that section 213.33 does not preempt Winecup's affirmative defense. 107 Ex. The firm also values strong cooperating relationships with reputable land brokers in the profession. 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). Id. 30, 2007). 141) is DENIED. Under Nevada law, punitive damages are available in a negligence suit "where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice, express or implied[.]" Campbell Industries v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 3d 949, 959 (N.D. Cal. j***@winecupgambleranch.com. 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. Daubert, 509 U.S. at 592-94. P. 26(a)(2)(B) (emphasis added). Godwin's opinion on reconstruction costs is admissible. La. 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. 112, 2:15-22.) 89 22-24. (ECF No. ECF No. 403. Mediation Questionnaire due on 03/16/2021. IT IS FURTHER ORDERED that Union Pacific's fifth and sixth motions in limine to Bar Two Opinions of Derek Godwin (ECF No. ECF No. 127) is denied without prejudice. A.) 422 (S.D.N.Y. WINECUP GAMBLE, INC., a Nevada corporation, Plaintiff, v. GORDON RANCH, LP, a Texas limited partnership, Defendant. 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)."). ECF No. 141-5 at 9-10, 12, 30-32; ECF No. ECF No. Id. 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. In the event of a dam failure, a significant hazard dam carries a "(1) reasonable probability of causing loss of life; or (2) high probability of causing extensive economic loss or disruption in a lifeline;" and a low hazard dam carries a "(1) Very low probability of causing a loss of human life; and (2) Reasonable probability of causing little, if any, economic loss or disruption in a lifeline." [20-16411] (AD) [Entered: 07/29/2020 06:44 PM], Docket(#5) Filed (ECF) Appellee Gordon Ranch LP Mediation Questionnaire. The Court heard selected oral argument on four of these motions on June 25, 2020 (ECF No. The parties subsequently signed a three-page amendment to the agreement that changed the closing date and increased the earnest money to five million dollars. at 813 (internal quotation marks and citations omitted). 37, 89. Winecup objects to the presentation of exhibit binders arguing that doing so would require the court to rule on the admissibility of all contested exhibits prior to trial, and that given the number of exhibits, juror binders are "impractical, burdensome, and awkward." NRS 42.005(1). ECF No. ), After remand, the parties reinitiated discovery. (ECF No. 127). 143) is denied. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . UniCourt uses cookies to improve your online experience, for more information please see our Privacy Policy. See Madrigal v Treasure Island Corp., Case No. At nearly a million acres, the Winecup Gamble Ranch, a mountainous Nevada spread hard up against the Utah border, puts Rhode Island to shame. Accordingly, Union Pacific's third motion in limine (ECF No. 2. Id. Union Pacific's first motion in limine to exclude meteorological opinions of Matthew Lindon and to appoint a neutral expert (ECF No. 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." .." Id. The Court finds that this trial presents no extenuating circumstance or reason to deviate from this process, especially given that the parties are not in agreement as to any of the proposed instructions. 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. P. 37(e)(2) are available. The briefing schedule previously set by the court remains in effect. [12048869] (BLS) [Entered: 03/22/2021 11:05 AM], Docket(#3) The Mediation Questionnaire for this case was filed on 03/16/2021. Notably, Union Pacific's expert did not conclude that the technique was generally improper. If the jury finds in the affirmative, a subsequent proceeding will occur during which the parties will be permitted to present evidence of the financial condition of the defendant and the jury could award punitive damages. 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. 3:17-cv-00477-LRH-CLB (D. Nev. Dec. 4, 2020). 152. 34 Ex. at 44:19-45:1, 46:19-22). vigorous cross-examination and presentation of contrary evidence, not exclusion, are the appropriate means of attacking whether Lindon used the "best" or "most accurate" data points, and therefore created an accurate model of the flood event. Cir. Include Ninth Circuit case number in subject line. 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." See Daubert, 509 U.S at 596 ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."). Union Pacific argues that not only does NRS 535.030 provide an appropriate basis for its negligence per se claim, but so does NRS 535.010. 195. Mediation Questionnaire. Transcript ordered by 08/21/2020. Lindon's opinion on the subject remained the same in this disclosure as it was in his prior report. 3. However, the Court also agrees with Winecup that if Union Pacific's testifying expert relied on information from a consulting expert, that information would be admissible under Rule 705 of the Federal Rules of Evidence. Additionally, the Ninth Circuit did not rule on whether Plaintiff's interpretation of the contract constituted a penalty clause. The schedule is set as follows: Appellant Winecup Gamble, Inc. 801(d)(2)(D). The electronic display system further allows the parties to show the electronic exhibit to the witness first, before it is published to the jurors, and the witness may make useful electronic marks on the exhibit, such as circling or pointing to relevant portions. The existing briefing schedule remains in effect. [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). It also helps that the Winecup Gamble has so many pastures to choose from. Atkinson v. MGM Grand Hotel, Inc., 98 P.3d 678, 680 (Nev. 2004). 2. 6. While Union Pacific pleads that it "may rely on additional statutes and administrative codes that may become known to be applicable in the future," it does not list any Nevada Revised Statute that would provide the basis for its negligence per se claim. It's about 100 miles from Elko, Nev . Winecup opposes this motion arguing that Ninth Circuit precedent permits a 30(b)(6) deponent that answered "I don't know" to supplement, contextualize, and even contradict such statements at trial, and that a 30(b)(6) deponent who answers "I don't know" to questions outside the scope of the 30(b)(6) notice is not penalized. not exclude opinions merely because they are impeachable." In Winecup Gamble, Inc. v. Gordon Ranch, LP, 2021 WL 2481861 (9 th Cir. in conjunction with its third motion in limine, Union Pacific motions this Court to pre-admit a number of exhibits (approximately 167) that would go in the requested juror binders. 3/13/2023 7:21 PM. Appellee Gordon Ranch LP answering brief due 06/07/2021. 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 . Transcript due 09/21/2020. Union Pacific's arguments in opposing Godwin's testimony are best left to cross-examination and presentation of opinion evidence by Union Pacific's own experts rather than exclusion. Union Pacific cites several sections of the NRS and NAC that it argues plainly apply to the Winecup dams, and letters from the State Engineer which show that Winecup was aware that certain sections of these statutes and regulations applied to the dams. Today, the provinces of Canada still uphold their own gambling laws, making it a little tricky to gamble online legally if you live in a province with a negative attitude towards gambling. 134) is denied without prejudice. 129) is DENIED without prejudice. Union Pacific argues that the Dake dam's inoperable outlet and failed embankment section near the spillway intensified the flood waters and contributed to the damage to Union Pacific's tracks, and had an emergency action plan been in place, these inadequacies would have been addressed. 126) for a blanket ruling is denied. Some are as large as 67,000 acres, adds Bates' associate David Packer. Story continues below advertisement. Applying this test, the Court finds that Defendant has satisfied its burden. Again, whether a technique is better or worse than another, or whether the expert made a computational error, should be left to cross-examination and presentation of contrary evidence; it is not appropriate to exclude such expert testimony. 122) is GRANTED in part and DENIED in part in accordance with this Order. 155. IT IS FURTHER ORDERED that Union Pacific's third motion in limine to facilitate efficient management of exhibits and testimony (ECF No.