112.) (#7) MEDIATION ORDER FILED: This case is RELEASED from the Mediation Program. 160-4 at 6. 132) is GRANTED. See Ringle v. Bruton, 86 P.3d 1032, 1037 (Nev. 2004) (holding that parol evidence may be considered to resolve ambiguity and determine the parties' intent). (See, e.g., ECF No. (ECF No. A presumption that the lost information was unfavorable to Plaintiff or an adverse jury instruction would not sufficiently cure Defendant's prejudice. WINECUP GAMBLE, INC., a Nevada corporation, Plaintiff, v. GORDON RANCH, LP, a Texas limited partnership, Defendant. Union Pacific filed its original complaint on August 10, 2017, against Winecup Gamble, Winecup Ranch, LLC, and Paul Fireman. Of Clark v. LB Props., Inc., 315 P.3d 294, 296 (Nev. 2013) (internal quotation marks and citations omitted). Plaintiff admitted that Mr. Worden was the principal negotiator in forming the deal resulting in some text messages between him and Mr. Fireman. 166. 1980) (internal citations omitted). 2001) (citation omitted). 133) is DENIED without prejudice. 139 at 8. Winecup may submit a response to Union Pacific's reply regarding the standard to be used for damages, within 14 days of the filing of this Order. 125) is granted in part and denied in part. ECF Nos. [12029509] (JBS) [Entered: 03/09/2021 01:23 PM], U.S. District Courts | Property | . (Id. Appellant's optional reply brief is due 21 days after service of the answering brief. ///. ECF No. Plaintiff asserts that Mr. Worden is merely a consultant accountant who was employed at a separate firm. 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. 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." 2011). Union Pacific alleges that as a result of the dam's failure, water flowed downstream, in part, to the Dake Reservoir dam, and that the Dake then eroded and breached, causing flooding and ultimately washing out a significant portion of Union Pacific's railroad tracks. 126) is denied. 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. 191 at 2, n.1. 149) is granted. ), The Court ruled in favor of Defendant as a matter of law finding that the contract was unambiguous in its favor. 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. ECF No. The three owners of the province's five franchises filed the lawsuit in Quebec Superior Court on Feb. 14. 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. Co. v. Colorado Cas. 2019), reassignment is appropriate to preserve the appearance of justice, see In re 3 Benvin, 791 F.3d 1096, 1104 (9th Cir. [12048869] (BLS) [Entered: 03/22/2021 11:05 AM], Docket(#3) The Mediation Questionnaire for this case was filed on 03/16/2021. (ECF No. winecup gamble inc. winecup gamble ranch people. ROBERT C. JONES United States District Judge. ECF No. Previously, Joe was a Student at King Ranch and also held pos itions at Roaring Springs Ranch Club. The Court notes Winecup raises such a specific argument in its second motion in liminewhether Winecup can argue that NAC 535.240 does not apply to its damswhich the Court addresses below. Union Pacific's thirteenth motion in limine to bar evidence or argument related to an "Act of God" defense (ECF No. 34 Ex. 10. 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 alternative, Defendant further requests that the Court prevent Plaintiff from relying on any evidence or testimony from Mr. Worden or give the jury an instruction that the deleted evidence is adverse to Plaintiff's claims and defenses. ECF No. "These factors are 'meant to be helpful, not definitive, and the trial court has discretion to decide how to test an expert's reliability as well as whether the testimony is reliable, based on the particular circumstances of the particular case.'" 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. 3. Accordingly, the Court denies Union Pacific's twelfth motion in limine without prejudice and reserves the issue for trial. NRS 42.005(1). 111 & 112. Ins. Id. 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. 8, 2020). UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Plaintiff, v. WINECUP RANCH, LLC, an Idaho Limited Liability Company; and WINECUP GAMBLE, INC., a Nevada corporation; and PAUL FIREMAN, an individual, Defendants. 2013) (internal quotation marks and citations omitted). "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." 155-4 at 5; ECF No. A.) Mediation Questionnaire. Additionally, the Ninth Circuit did not rule on whether Plaintiff's interpretation of the contract constituted a penalty clause. IT IS THEREFORE ORDERED that Union Pacific's first motion in limine to exclude meteorological opinions of Matthew Lindon and to appoint a neutral expert (ECF No. Id. Therefore, the Court denies Union Pacific's eleventh and nineteenth motions in limine. This regulation, titled Requirements for approval. Accordingly, the Court grants in part and denies in part Union Pacific's twenty-first motion in limine to amend the pretrial order. 2014) (quoting Primiano, 598 F.3d at 564). Judgment was entered accordingly. Union Pacific also requests that the Court permit and provide a means for jurors to take notes. ECF No. The Court will address each in turn. 3:17-CV-00163-RCJ-WGC (D. Nev. Jul. See Francis v. MSC Cruises, S.A., Case 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. IT IS FURTHER ORDERED that Union Pacific's eighth motion in limine to bar evidence or argument that a non-party is comparatively negligent (ECF No. [11770779] [20-16411] (Lundvall, Pat) [Entered: 07/29/2020 01:50 PM], Docket(#4) The Mediation Questionnaire for this case was filed on 07/28/2020. Union Pacific's first motion in limine to exclude meteorological opinions of Matthew Lindon and to appoint a neutral expert (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. ECF No. ECF No. Lindon used "data from the U.S. Geological Survey stream gages and Nation Weather Service stations to help form the model and calibrate the results." at a trial, unless the failure was substantially justified or is harmless." 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. Cancellation and Refund Policy, Privacy Policy, and In the court application, the franchisees are . Altogether, both ranches encompass one million acres257,000 are deeded, and the remainder is private leases. Winecup Gamble Ranch corporate office is located in #1 Winecup Rd, Montello, Nevada, 89830, United States and has 4 employees. 11. ECF No. Accordingly, Plaintiff did not perform reasonable steps to preserve the information. United States v. Baker, 10 F.3d 1374, 1403 (9th Cir. Following the Nevada Supreme Court in Thitchener, as a matter of law, a plaintiff is not entitled to pursue punitive damages on negligence claims. The trend, however, did not spread to the rest of the 10 provinces. 8. 126. Case Summary. The record indicates that this dam is also known as 21 Mile dam. 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. That is part of the adversarial processboth sides present their expert's opinions, challenging each other where they think the other erred, and then it is up to the jury to decide whom to believe. 91). 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. ///. Winecup's second motion in limine to exclude evidence and argument that NAC section 535.240 applies to the 23 Mile and Dake dams (ECF No. 405, 406 (W.D. ECF No. P. 37(e). Make your practice more effective and efficient with Casetexts legal research suite. ECF Nos. By continuing to use this website, you agree to UniCourts General Disclaimer, Terms of Service, Transcript due 09/21/2020. 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. ), After remand, the parties reinitiated discovery. 55.) Union Pacific's combined fifth and sixth motion in limine to bar two opinions of Derek Godwin (ECF No. MANUAL FOR COMPLEX LITIGATION (FOURTH) 12.32 (2004). Second, Winecup addresses Nevada Revised Statute 535.030, which it claims also cannot provide the basis for Union Pacific's negligence per se claim. La. 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. Why is this public record being published online? 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. (ECF No. Read More . 160-2. 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. No other issues will be entertained without leave of the Court. SMITH, Circuit Judges, and OLGUIN, District Judge. Moreover, the Court finds that it would be illogical that a plaintiff would not be preempted from suing Union Pacific under a negligence theory for failure to maintain appropriate drainage, but that a defendant would not be able to assert an affirmative defense of contributory negligence for the same alleged failure. Because Union Pacific cannot rely on these administrative regulations to support negligence per se, the Court grants Winecup's motion as it relates to these and any other administrative regulation Union Pacific would consider proffering in support. 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.
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