In 1996, the inspection report provided that the spillway appeared undersized. 157-2 at 66; 157-28. 9. ECF No. Therefore, while the email itself is not hearsay, the at-issue statements contained within it are, and an applicable hearsay exception is needed for them to be admissible. Again, the Court agrees with Winecup: the Court cannot make a ruling on whether judicial notice is proper without sufficient information. 402. UniCourt uses cookies to improve your online experience, for more information please see our Privacy Policy. . ECF No. 158 at 2. Email. 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. 155. 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. The record supports that Winecup had policies and procedures for monitoring and inspecting the dams, including the water level, inflow, and operational controls. Godwin calculated the cost of rebuilding the embankments using data from RS Means 2018 and adjusted the total to 2017 prices. ECF No. 213.33 preempts Winecup from arguing that Union Pacific was contributorily negligence for maintaining culverts not sufficiently large enough to withstand a 50-year storm. The decision on a motion in limine is consigned to the district court's discretionincluding the decision of whether to rule before trial at all. 1398, 1400 (N.D. Ill. 1993) (noting that a court may wait to resolve the evidentiary issues at trial, where the evidence can be viewed in its "proper context"). 207 ) is extended . 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. 3:17-CV-00163 | 2017-03-16, U.S. District Courts | Property | Phillips v. C.R. 1986) (citing Georgia-Pacific Corp. v. U.S., 640 F.2d 328, 334 (Ct. Cl. Cal. 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. 3d 949, 959 (N.D. Cal. ECF No. 20; ECF No. 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. 128. We express no view regarding what attorneys' fees (if any) are reasonable in these circumstances, and leave that determination to the sound discretion of the district court. (ECF No. ECF No. See ECF No. i. (See, e.g., ECF No. See Hal Roach Studios Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1550 (9th Cir. IT IS FURTHER ORDERED that Winecup's fourth motion in limine to exclude evidence and argument that Union Pacific is entitled to punitive damages (ECF 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. ECF No. 2002) (finding that when proper foundation for the authenticity of an employee's email has been laid, and the email was sent within the scope of employment, the email is admissible under Federal Rule of Evidence 801(d)(2)(D)). The Court therefore finds that Union Pacific has failed to provide a statute upon which to argue negligence per se; Winecup's motion (ECF No. Union Pacific's thirteenth motion in limine to bar evidence or argument related to an "Act of God" defense (ECF No. The ranch, in 2016, was for sale again. Razavian declares that "[a]ccepted hydrological methodology requires a hydrologist to consider all of the above evidence in determining flow of flood water." 139) is denied. The Court finds that both arguments go not to Lindon's methodology, but to the data imputed. The lead plaintiff in the lawsuit, Montreal resident Qing Wang, lost $11,720 to enrolment fees charged by C.S.T. The offending language in the email states: A statement that is offered against an opposing party and "was made by the party's agent or employee on a matter within the scope of that relationship and while it existed" is not hearsay. 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. 21-15415 | 2021-03-09, U.S. District Courts | Property | 134. The Court will not exclude Union Pacific from offering Fireman's deposition testimony at this time. Daubert, 509 U.S. at 592-94. 193) is GRANTED in part and DENIED in part in accordance with this Order. 129. La. Razavian's expert report concludes the following regarding the cause of track washouts: Rule 26 of the Federal Rules of Civil Procedure states that an expert must provide "a complete statement of all opinions the witness will express and the basis and reasons for them." The Court has "broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial," which includes "the power to exclude or admit expert testimony, and to exclude testimony of witnesses whose use at trial is in bad faith or would unfairly prejudice an opposing party." Accordingly, Union Pacific has made a threshold showing which could support punitive damages; Winecup's fourth motion in limine is denied without prejudice. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . 1:20-CV-00126 | 2020-09-29, U.S. District Courts | Personal Injury | This is the subject of Winecup's first motion in limine; therefore, Union Pacific's arguments will be addressed below. Winecup also argues that Razavian's opinion on the subject should be excluded under Federal Rule of Evidence 702 because he does not rely on sufficient facts or data and does not use or apply reliable principles and methods to reach his opinion. Therefore, the Court denies Union Pacific's eleventh and nineteenth motions in limine. 117 Ex. iii. at 43:14-25), upgrading to a new computer during this time (Id. 107 Ex. Public Records Policy. 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. It is uncontested that 23 Mile dam is classified as a low hazard dam, and Dake dam as a significant hazard dam. The schedule is set as follows: Appellant Winecup Gamble, Inc. ECF No. See Madrigal v Treasure Island Corp., Case No. See Luce v. United States, 469 U.S. 38, 41 (1984). Thitchener, 192 P.3d at 255. Co. v. Colorado Cas. Union Pacific argues that Winecup is barred from asserting an "Act of God" defense. 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. 5. ), After remand, the parties reinitiated discovery. "Legal duties imposed on railroads by the common law fall within the scope of these broad phrases." The parties timely responded. A presumption that the lost information was unfavorable to Plaintiff or an adverse jury instruction would not sufficiently cure Defendant's prejudice. The clause would be an enforceable liquidated damages provision if the amount was a good faith effort to estimate the actual damages, but an unenforceable penalty if the amount is disproportionate to the actual damages sustained. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . This regulation, titled Requirements for approval. This model is "industry standard used by the Army Corps of Engineers . 2:21-CV-00183 | 2021-03-26, U.S. District Courts | Contract | 111 at 16-17. Mediation Questionnaire due on 07/29/2020. ii. Altogether, both ranches encompass one million acres257,000 are deeded, and the remainder is private leases. Appellee Gordon Ranch LP answering brief due 07/21/2021. Winecup opposes. ), Presently, Defendant moves for sanctions against Plaintiff alleging that Mr. Worden and Mr. Fireman, acting as Plaintiff's agents, spoliated the ESI. 123. Union Pacific's seventh motion in limine to bar Winecup's contributory negligence defense and Derek Godwin's contributory negligence opinion (ECF No. ECF No. Winecup's expert, Matthew Lindon, disagrees and opines that the washout was caused by water from the Loray Wash and that floodwater from the 23 Mile dam could not have caused that track washout because the timing evidence shows that water from 23 Mile dam could not have reached mile post 670.03 at the time it was washed out. As of December 2015, Federal Rule of Civil Procedure 37(e) provides the specificand onlybasis for sanctions for spoliation of ESI, which was substantially amended to accommodate advances in technology and provide uniformity among the circuits. Union Pacific seeks to exclude Lindon's criticisms of its hydrology expert, Daryoush Razavian, regarding soil saturation. 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. During the initial proceeding, the jury will decide whether Winecup acted with oppression, fraud, or malice. 44. 122) is granted in part and denied in part. 132) is GRANTED. OWNER BELIEVES THERE MAY BE MORE THAN 100,000 ACRE FEET OF WATER. The high desert of northeastern Nevada poses unique environmental challenges for producers growing forages. 6. Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence." Appellant's optional reply brief is due 21 days after service of the answering brief. IT IS FURTHER ORDERED that Winecup's sixth motion in limine to exclude evidence and argument related to the financial condition of Winecup, Paul Fireman, and the sale of Winecup Gamble Ranch in 2019 (ECF No. Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant settlement discussions while the appeal is pending. ii. Today, the trust and relationships built through ROGER have helped create a working group that is focused on one of the pilot ranches participating in the BLM's Outcome-Based Grazing Authorizations (OBGA) program taking place on the Winecup-Gamble Ranch outside of Wells, Nevada. 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." 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. Cases involving other real property matters not classified elsewhere, (#6) The Mediation Questionnaire for this case was filed on 07/29/2020. /// ///, ii. 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. 111) is DENIED. He has "significant experience with hydrometerorology, surface water hydrology, modeling, and dam safety hydrology." The Court notes that this repair does not show up in either the 2012 or 2016 inspection report which would indicate the repair was made sometime between 2003 and 2012. Id. 141-5 at 9-10, 12, 30-32; ECF No. 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. 2-4. Union Pacific's first amended complaint no longer included defendant Winecup Ranch, LLC, and its second amended complaint no longer included Paul Fireman. 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. Godwin's opinion on reconstruction costs is admissible. ECF No. ECF No. 3. Appellant Winecup Gamble, Inc. opening brief due 05/07/2021. As a general matter, it does not instruct the jurors on substantive issues at that time. IT IS FURTHER ORDERED that Union Pacific's twentieth motion in limine to permit Union Pacific witnesses to testify by video (ECF No. Union Pacific's combined fifth and sixth motion in limine pertains to Godwin's second and third opinions and argues that Godwin is not only unqualified to render opinions on these issues, but has insufficient factual knowledge and lacks any methodology to reach these opinions. See Sea-Land Serv., Inc. v. Lozen Int'l, LLC, 285 F.3d 808, 821 (9th Cir. 150) is DENIED without prejudice. Applying this test, the Court finds that Defendant has satisfied its burden. The parties are encouraged to agree upon pre-admittance of any uncontested exhibits. Counsel are requested to contact the Circuit Mediator should circumstances develop that warrant settlement discussions. 191. Given the nature of the lost ESI, the Court finds that it must give the harshest sanction of a case dispositive ruling. 3:17-CV-00477 | 2017-08-10, U.S. District Courts | Other | Appellant's optional reply brief is due 21 days after service of the answering brief. 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. 157-31; 157-32. ECF No. The Court will address each in turn. ECF No. Work Experience Gamble Ranch Manager Winecup Gamble Ranch 2015-2023 Board Memberships & Affiliations Board Member Western Landowners Alliance 2019-2021 Advisory Board Member Seventh Generation Institute 2019-2021 View James Rogers's full profile Id. 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. ///. 3:20-CV-00293 | 2020-05-18. Banks ex rel Banks v. Sunrise Hosp., 102 P.3d 52, 67 (Nev. 2004). See order for instructions and details. ECF No. Winecup concedes that the Nevada Department of Water Resources classified the 23 Mile dam as a low hazard dam and the Dake dam as a significant hazard dam. And the best part of all, documents in their CrowdSourced Library are FREE! 18. While questions regarding estimations of the percentage overflow that came from 23 Mile dam verses from the floodwater in the Loray Wash due to the storm, and whether the Loray Wash had overtopped its banks without the addition of floodwater from 23 Mile dam go to the issue of causation, those are ultimately for the jury to decide and are different questions from whether Razavian offered an opinion that floodwater from 23 Mile dam caused the washout. 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]. The provinces allowed casino games as well as horse tracks, and video lottery terminals. 2. Previously, Joe was a Student at King Ranch and also held pos itions at Roaring Springs Ranch Club. Amarel v. Connell, 102 F.3d 1494, 1515 (9th Cir. The firm also values strong cooperating relationships with reputable land brokers in the profession. SMITH, Circuit Judges, and OLGUIN, District Judge. 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. 2001); United States v. Layton, 767 F.2d 549, 556 (9th Cir. Mediation Questionnaire. See Ambrosini v. Labarraque, 101 F.3d 129, 141 (D.C. Cir. R. EVID. 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. 111-7 43. (emphasis added) While defendant's purported compliance with FAA regulations and maintenance protocols is, , No. 149) is GRANTED. Accordingly, the Court finds that section 213.33 does not preempt Winecup's affirmative defense. Why is this public record being published online? 20103(a). 535.300 sets forth the requirement for new construction of dams, not existing dams; and (2) because there is ample evidence that the storm that preceded 23 Mile dam's failure, exceeded a 100-year flood event. (citing Beaver Valley Power Co. v. Nat'l Eng'g & Contracting Co., 883 F.2d 1210, 1221 (3d. not exclude opinions merely because they are impeachable." Union Pacific motions the Court to prohibit Winecup from offering any expert witnesses, including expert testimony from Luke Opperman, the Nevada Department of Water Resources engineer who inspected both the 23 Mile Dam and the Dake Dam before and after the incident, because he was not disclosed as an expert and Winecup failed to provide a written report as required under Federal Rule of Civil Procedure 26(a)(2)(A)-(B). 1989) (reviewing the district court's interpretation of a contract de novo). ; ECF No. UNITED STATES DISTRICT COURT DISTRICT OF NEVADA. While 23 Mile dam is classified as a low hazard dam, meaning it carries a "very low probability of causing a loss of human life;" and a "reasonable probability of causing little, if any, economic loss or disruption in a lifeline," that does not negate a dam owner's statutory mandate to perform "work necessary to maintenance and operation which will safeguard life and property." The Court finds that multiple exhibit binders each with a few hundred exhibits is impractical and unnecessary given the electronics available in the courtroom. Date of service: 07/28/2020. 133; 133-1. 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." 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. 166. 143) is DENIED. Fifth, the ESI was deleted without the intent to deprive Defendant of evidence. Winecup intends to introduce Godwin's opinion as evidence of what size culverts should be used based on the industry standard. The parties are encouraged and permitted to file a stipulation requesting pre-admittance of any uncontested exhibits. . Here, both parties have retained their own experts, and as discussed below, all are qualified. Id. By that time, it had over 9,000 cattle and a reputation as one of the great ranches of Nevada. 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. 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. While section 233.13 touches on drainage, it does not substantially subsume the subject matterthere is no specified standard for culvert size or what type of culvert should be used in this circumstance. 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. After the sale fell through, both parties filed suit, arguing that they were entitled to Gordon Ranch's earnest money deposit pursuant to the terms of the parties' purchase and sale agreement, as amended by the parties in December 2016. (Id.). 55.) ECF No. 801(d)(2)(D). 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. 155-4 at 5; ECF No. 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. (ECF No. 132. And courts are hesitant to appoint a neutral expert when parties have retained their own qualified experts. Union Pacific's first motion in limine to exclude meteorological opinions of Matthew Lindon and to appoint a neutral expert (ECF No. All foota. 157-24 at 3-4. "A contract is ambiguous if it is reasonably susceptible to more than one interpretation." 125) is granted in part and denied in part. If expert opinions are not disclosed, "the party is not allowed to use that information or witness to supply evidence .

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