winecup gamble ranch lawsuit

While ultimately whether to award punitive damages is a question for the jury, the district court must first make a "threshold determination that a defendant's conduct is subject to this form of civil punishment." "The decision of whether to allow the jury to take notes is left entirely to the discretion of the trial court." Having reviewed Lindon's declaration detailing his 40-year work history in the field of hydrology, including work in hydrological assessments and modeling, dam inspections, and evaluations, the Court agrees that Lindon is qualified to opine on hydrology issues. 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. Case No. Id. 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." ECF No. 1985). 80 at 2. i. B. 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. Again, Winecup opposes, arguing that its supplemental disclosure was timely and sufficient under Federal Rule of Civil Procedure 26(a)(2)(C). See ECF Nos. The Court heard selected oral argument on four of these motions on June 25, 2020 (ECF No. Amended briefing schedule: Appellant Winecup Gamble, Inc. opening brief due 06/21/2021. A, 47:2-6.) 120. 141 at 20-21. A at 14.) . 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. 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. 2. 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. See Land Baron Ivs., Inc. v. Bonnie Springs Family LP, 356 P.3d 511, 522 (Nev. 2015) (affirming an award of punitive damages for a nuisance counterclaim); Parkinson v. Winniman, 344 P.2d 677, 678 (Nev. 1959) (holding that an award of exemplary damages was proper upon proof of intentional trespass). 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. 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." 156. 3:21-CV-00226 | 2021-05-14, U.S. District Courts | Contract | Extremely limited rainfall, roughly 7 inches annually, makes . 129) is denied without prejudice. unless the failure was substantially justified or is harmless." [11785954] (BLS) [Entered: 08/12/2020 08:52 AM], Docket(#6) The Mediation Questionnaire for this case was filed on 07/29/2020. 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." Only 7 inches of precipitation is received annually. 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). Winecup opposes, arguing that (1) it has not admitted these facts and they are not "undisputed;" (2) the facts are irrelevant; (3) Worden is a third-party witness whose deposition testimony is not admissible under Federal Rule of Evidence 801(d)(2) and Federal Rule of Civil Procedure 32(a)(8); and (4) that Union Pacific's failure to conduct this discovery during this case precludes it from now using the information. Moreover. 14. Mediation Questionnaire. at 813 (internal quotation marks and citations omitted). 2018) (holding that the 2015 amendment to Rule 37(e) "foreclose[d] reliance on inherent authority" for sanctioning spoliation of ESI) (quoting Fed. 207 ) is extended . Plaintiff declined to repair the property. The case status is Pending - Other Pending. 132) is granted. 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. Because the agreement is ambiguous, we also vacate the denial of Winecup Gamble's motion for summary judgment. Union Pacific filed its original complaint on August 10, 2017, against Winecup Gamble, Winecup Ranch, LLC, and Paul Fireman. B, 22:14-21.) [20-16411] (AD) [Entered: 07/28/2020 06:44 PM], Docket(#3) MEDIATION ORDER FILED: By 08/11/2020, counsel to email Circuit Mediator regarding settlement potential. 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. 112, 2:15-22.) 170. Additionally, the Court finds because the juror binders are unnecessary and impracticable, there is no need to pre-admit evidence for such binders. Before deciding on how damages are to be calculated, the Court will permit Winecup the opportunity to respond to Union Pacific's reply; briefing is not to exceed 15 pages of argument, excluding tables of contents and authorities and administrative notices. Union Pacific attacks Lindon's meteorology testimony, arguing that Lindon's model used (1) an incorrect time period, and (2) the wrong weather station data. Appellee Gordon Ranch LP answering brief due 06/07/2021. Union Pacific's fourteenth motion in limine to bar evidence or argument about consulting experts (ECF No. WINECUP GAMBLE, INC., Plaintiff-Appellant, v. GORDON RANCH LP, Defendant-Appellee. Banks ex rel Banks v. Sunrise Hosp., 102 P.3d 52, 67 (Nev. 2004). 134. (ECF No. 132. "A contract is ambiguous if it is reasonably susceptible to more than one interpretation." The determination of whether evidence is relevant to an action or issue is expansive and inclusive. 2:21-CV-00183 | 2021-03-26, U.S. District Courts | Contract | of San Bernardino, 750 F. App'x 534, 537 (9th Cir. Date of service: 07/29/2020. ECF No. Moreover, Opperman, Holt, and Quaglieri are all listed in the parties' joint pre-trial order as witnesses that both Union Pacific and Winecup may call, and both parties are well aware of the proposed testimony of each witness. ECF No. 112 at 10-12. Godwin's curriculum vitae provides that he has a degree in civil engineering with a concentration in "structures," and holds professional membership in the American Railway Engineering and Maintenance-of-Way Association, the American Short Line and Regional Railroad Association, and the Regional Engineering-Maintenance Suppliers Association. 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. 111, 112, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 139, 175, 176 & 193), and 6 motions in limine filed by Winecup Gamble, Inc. ("Winecup") (ECF Nos. Because Winecup's arguments go to the weight of Razavian's opinion on the subject, not admissibility of his opinions, the Court denies Winecup's first motion in limine (ECF No. j***@winecupgambleranch.com. Razavian's February 27, 2019 deposition (occurring approximately two years before trial) and Razavian's January 17, 2020 declaration (provided approximately one year before trial) provide his opinion regarding the mile post 670.03 washout in great detail. Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence." 7. The Court agrees with Winecup. Similarly, in its second motion in limine, Union Pacific motions the Court to exclude Winecup's expert, Matthew Lindon, from testifying on the same subject. 120-1 at 5. However, the statements contained within the email are articulating what an NDOT manager told the Union Pacific employee. 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. He further provides that he has been working for Class 1 and shortline railroads since 2005, starting his own railroad engineering and construction observation company in 2013. Here, both parties have retained their own experts, and as discussed below, all are qualified. Union Pacific rebuilt these areas with steel bridges instead of rebuilding the embankments and culverts. R. Civ. The Court finds that this experience makes him qualified to offer opinions on rerouting, costs and repair, design, and construction of railroads, bridges, and culverts. 1. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . Accordingly, Union Pacific's ninth motion in limine (ECF No. Id. ECF No. The case involved the sale of a ranch and whether $5 million in . to simulate and re-create hydrologic process of watershed systems." are for the jury.") See ECF No. ECF No. 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. 157-2 at 66; 157-28. Winecup provides that it only intends to have these experts testify to that which is contained within their respective depositions and reports. ECF No. 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. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. To succeed on this motion, the moving party must prove the following three elements: Defendant also moves for sanctions under the Court's inherent authority. 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. Accordingly, the Court denies Union Pacific's tenth motion in limine (ECF No. The parties shall bear their own costs on appeal. Winecup's first motion in limine to exclude Union Pacific's expert Daryoush Razavian's testimony related to mile post 670.03 (ECF No. 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. 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. 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." On the one hand, if the spoliation prejudiced the moving party, then the Court may order measures no greater than necessary to cure the prejudice. ///. Additionally, the Court finds that Union Pacific's request that evidence of weather and flood conditions in watersheds other than in the "relevant one," with no definition of "relevant," is overly broad and the Court cannot make a ruling on that basis. 128. (ECF No. 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. Union Pacific's first amended complaint no longer included defendant Winecup Ranch, LLC, and its second amended complaint no longer included Paul Fireman. for two RESP plans he'd opened for his two children, the lawsuit alleges. Description PROPERTY HAS A PROVEN SOURCE OF AT LEAST 60,000 ACRE FEET OF WATER AND ALL RIGHTS TO THAT WATER. 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." at 4. 157-2 at 10-15, 26, 30, 52. ), The original terms of the agreement contained a comprehensive risk-of-loss provision. 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. The Court finds that while Winecup's disclosure that it intends to have these witnesses testify as a non-retained experts was technically late, Union Pacific has not been prejudiced by this late disclosure and it is harmless. CV-12-1524-PHX-SRB (LOA), 2013 WL 2422691, at *3 (D. Ariz. June 3, 2013) (citations and internal quotations omitted). Id. (ECF No. 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). 2-4. Here, the material in the supplemental disclosure relates to Lindon's analysis after hearing Razavian's opinion from his February 2017 deposition. IT IS FURTHER ORDERED that Union Pacific's fifteenth motion in limine to bar one paragraph in an email referencing contract truck driver incidents (ECF No. 20101. During this period, Defendant claims to have discovered that Plaintiff's agent, Mr. Clay Worden, and its owner, Mr. Paul Fireman, deleted ESI pertinent to the factual issues of this case. The Secretary of Transportation is given broad discretion to "prescribe regulations and issue orders for every area of railroad safety . ECF No. (ECF No. ECF No. Date of service: 03/16/2021. However, without reference to that section, the amendment contained the clause: "Notwithstanding anything to the contrary in the Agreement, the Earnest Money, as increased by the Additional Earnest Money, shall be nonrefundable under all circumstances other than a default by Seller." /// ///, ii. IT IS FURTHER ORDERED that Union Pacific's third motion in limine to facilitate efficient management of exhibits and testimony (ECF No. Accordingly, Union Pacific's nineteenth motion in limine is granted. Lastly, Union Pacific motions the Court to amend the pretrial order (ECF No. The district court's attorneys' fees decision is moot and is vacated as well. See Daubert, 509 U.S. at 596. ii. ECF No. Union Pacific requests the Court bar Winecup from asking questions or offering evidence or argument about "consulting experts," pursuant to Federal Rule of Civil Procedure 26(b)(4)(D). 111-7 (Union Pacific's hydrology expert declared that the HEC-HMS is an acceptable method to calculate runoff). MANUAL FOR COMPLEX LITIGATION (FOURTH) 12.32 (2004). 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. 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. [12048869] (BLS) [Entered: 03/22/2021 11:05 AM], (#2) Filed (ECF) Appellant Winecup Gamble, Inc. 111 & 112. 108 at 11. See ECF Nos. However, the court may exclude otherwise relevant evidence "if its probative value is substantially outweighed by the danger of" unfair prejudice. 195), and rules on all now pending. Plaintiff had imposed an oral litigation hold that proved insufficient and a good deal of ESI went missing. Accordingly, the late disclosure was harmless, and Lindon will be permitted to testify on the subject. 88.) ///. In October 2016, the parties entered into a detailed seventeen-page agreement, where Plaintiff was to sell a ranch property in Northern Nevada to Defendant. Winecup further argues that because Opperman is a neutral expert, deposed by both parties, and listed in Union Pacific's witness disclosures, Union Pacific will not be prejudiced by his testimony. 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."). 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. 122) is GRANTED in part and DENIED in part in accordance with this Order. Winecup opposes this motion for two reasons: (1) because N.A.C. The Court agrees with Winecup. Winecup's fourth motion in limine to exclude evidence and argument that Union Pacific is entitled to punitive damages (ECF No. Id. Id. 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. . R. CIV. Union Pacific seeks to exclude Lindon's criticisms of its hydrology expert, Daryoush Razavian, regarding soil saturation. ECF No. 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. 151) is denied without prejudice. Id. Lindon's opinion on the subject remained the same in this disclosure as it was in his prior report. ///. As part of the agreement, Defendant deposited a million dollars of earnest money in escrow. winecup gamble ranch. Union Pacific also requests the Court take judicial notice of seven exhibits. Get free access to the complete judgment in Winecup Gamble, Inc. v. Ranch on CaseMine. R. EVID. Oklahoma Natural Gas Co. v. Mahan & Rowsey, Inc., 786 F.2d 1004, 1007 (10th Cir. 402. (Id.) 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. 107 Ex. In Zubulake, the court held that it was insufficient for a party to send a litigation hold letter to an IT department without ensuring that "all relevant information (or at least sources of relevant information) is discovered," "that relevant information is retained on a continuing basis," and "that relevant nonprivileged material is produced to the opposing party." Thus, these regulations are not interpretive, but legislative and should not apply retroactively. 3. 107 Ex. Judgment on the pleadings should not have been granted, because the ambiguity described above and the dispute over the parties' intent when they amended their agreement presents a disputed issue of material fact. (ECF No. Cal. Lindon is a qualified expert in hydrology and meteorology. [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. Id. ECF No. Because we find that the parties' agreement is ambiguous and because the district court does not appear to have considered this issue previously, we do not address Gordon Ranch's argument that the earnest money cannot be awarded to Winecup, because such an award would necessarily render the earnest money provisions of the parties' agreement an unenforceable penalty clause. 112.) Given the nature of the lost ESI, the Court finds that it must give the harshest sanction of a case dispositive ruling. (ECF No. 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." 2014) (quoting Primiano, 598 F.3d at 564). However, electronic exhibits are capable of display on equipment in the jury room. 143) is denied. The parties stipulated to extend rebuttal expert disclosures until November 19, 2018, at which time, Winecup disclosed two rebuttal witnesses. OWNER BELIEVES THERE MAY BE MORE THAN 100,000 ACRE FEET OF WATER. Second, Winecup addresses Nevada Revised Statute 535.030, which it claims also cannot provide the basis for Union Pacific's negligence per se claim. 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. & Constructors Inc., 880 F.2d 219, 221 (9th Cir. ECF No. After reviewing this agreement and amendment, we disagree with the district court. Finally, Union Pacific requests leave to serve Rule 36 requests to establish admissibility of certain evidence. Joe Glascock's Phone Number and Email Last Update. ECF No. 127. 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. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . All foota. /// /// /// /// /// /// /// /// /// ///. On 03/09/2021 Winecup Gamble, Inc filed a Property - Other Real Property lawsuit against Gordon Ranch LP.This case was filed in U.S. Courts Of Appeals, U.S. Court Of Appeals, Ninth Circuit. Union Pacific's eighth motion in limine to bar evidence or argument that a non-party is comparatively negligent (ECF No. 149) is granted. ECF No. ECF No. 3:19-CV-00700 | 2019-11-20. Little pre-trial motion practice has occurred in this case other than the 27 pending motions in limine. 20106(a)(2). In Union Pacific's second motion in limine, it further asserts that Lindon incorrectly opines that no floodwater from the 23 Mile dam failure reached mile post 670.03 when it was washed out. 124) is DENIED. Id. Winecup did not undertake a program for investigation of the hydraulic adequacy of 23 Mile dam with respect to flood and seeping under a full hydraulic head, admittedly a safety concern, as noted in the 2003 inspection report under long term actions (3 years). 2:19-CV-00414 | 2019-06-17, U.S. District Courts | Contract | A, 45:18-46:13.) The trend, however, did not spread to the rest of the 10 provinces. 190. 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. "When experts serve as testifying witnesses, the discovery rules generally require the materials reviewed or generated by them to be disclosed, regardless of whether the experts actually rely on those materials as a basis for their opinions." 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).").
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