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In re United States v. 5.62 Acres of Land

United States District Court, D. Arizona

April 29, 2016

IN THE MATTER OF United States of America, Plaintiff,
5.62 Acres of Land, More or Less, Situated in Santa Cruz County, State of Arizona; Landmark Title Assurance Agency of Arizona, an Arizona LLC under Trust 18223-T, et al., Defendants.



This Order rules on motions in limine filed In CV 13-198 TUC DCB, which is one of four related condemnation proceedings involving what this Court refers to as the border-security towers project. The four cases have now all been transferred to this Court: United States v. 5.62 Acres of Land (Landmark), CV 13-198 TUC DCB; United States v. 0.96 Acres of Land (Martinez), CV 13-441 TUC DCB; United States v. 2.83 Acres of Land (Carmencita), CV 13-443 TUC DCB; and United States v. 0.41 Acres (Hanna), CV 13-480 TUC DCB. The parties filed identical motions in limine in the four cases, which have been resolved in all the cases except this one. The takings in the four cases are for public purposes related to the construction, installation, operation, and maintenance of border-security towers along with all necessary related structures and roads designed to help secure the United States border within the State of Arizona. (Complaint in Condemnation (Doc. 1) CV 13-198 TUC DCB)). Two of the condemnation cases are to take land for the public purpose of building, maintaining and constructing border-security towers and related structures and roads, the Landmark and Carmencita cases, and two are for the purpose of securing a utility easement and constructing related roads, the Martinez and Hanna cases. The Plaintiff is the United States in all four cases and is represented by the same attorney. The Defendants, while different, are also all represented by the same attorney.

This case, Landmark, is like the Carmencita case, CV 13-443 TUC DCB. Prior to it being transferred here, the Honorable Rosemary Marquez issued an order addressing the motions in limine in the Carmencita case on February 25, 2016. This case, which was then assigned to the Honorable James A. Soto, was referred to Magistrate Judge Macdonald, and he issued a Report and Recommendation (R&R) on February 4, 2016, addressing the motions in limine. This Court has reviewed the Order issued in CV 13-443 TUC DCB, the R&R issued by Magistrate Judge Macdonald in this case, and the parties’ objections to the R&R, which were informed by Judge Marquez’ ruling in the Carmencita case. See (D’s Response to P’s Motion to Modify in part and Adopt in part R&R (D’s Objection) (Doc. 128) at 3-7 (comparing R&R with Carmencita ruling).

This Court is persuaded by Judge Marquez’ approach to the motions in limine. Additionally, Judge Marquez’ approach for the most part coincides with Judge Macdonald’s recommendation that various objections go to the weight of the evidence and can be addressed by cross-examination, with limiting jury instructions at trial. The Court adopts the law as discussed in CV 13-443 TUC DCB, which pursuant to the Fifth Amendment of the United States Constitution, ensures just compensation be provided to the owner of condemned property to put him in as good a pecuniary position as if his property had not been taken but he is not entitled to more. (Order (Doc. 103): CV 13-443 TUC DCB).

Before addressing the four motions in limine, the Court considers the standard of review for Judge Macdonald’s R&R. The duties of the district court in connection with a R&R by a magistrate judge are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1). Where the parties object to the R&R, “‘[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made.’” Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). To the extent that no objection has been made, arguments to the contrary have been waived. Fed.R.Civ.P. 72; see 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within fourteen days of service of the R&R), see also McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal); Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation)).

The Defendant asserts that Rule 72(b), which applies to this Court’s review of dispositive motions, does not apply because the motions in limine involve nondispositive matters and are governed by Rule 72(a). Under subsection a, this Court may “modify or set aside any part of the order that is clearly erroneous or is contrary to law, ” as compared to the de novo standard of review, when a magistrate judge issues a R&R. In both circumstances, the parties may file objections. Fed.R.Civ.P. 72 (party objecting to the recommended disposition has fourteen (14) days to file specific, written objections).

The Magistrate Judge treated the motions in limine as dispositive and issued a R&R, instead of an Order. Fed.R.Civ.P. 72 (compare subsections a (providing for written order stating decision) and b (providing for recommended disposition)).

The court finds that by their conduct the parties intended these motions in limine to be treated like dispositive motions. In all four cases, the parties filed identical Joint Reports for purposes of the Rule 16 scheduling conferences. They agreed that the ultimate issue of just compensation is generally determined by the finder of fact and not subject to disposition by motion, but there may be motions directed at the claims related to the determination of just compensation. (Order (Doc. 19) ¶ 7: CV 13-198 TUC DCB); (Order (Doc. 14) ¶7: CV 13-441 TUC DCB); (Order (Doc. 18) ¶ 7: CV 13-443 TUC DCB; (Order (Doc. 18) ¶ 7: CV 13-480 TUC DCB).

Based on this assertion, three of the courts did not set a dispositive motion’s case management deadline, but this Court issued a Scheduling Order setting a dispositive deadline of June 2, 2014, and a Pretrial Order deadline of June 14, 2014, to be extended if dispositive motions were filed for 30 days subsequent to the Court’s disposition of the motion. ((Order (Doc. 17) ¶5: CV 13-480 TUC DCB). After two extensions, on February 23, 2015, the parties filed a stipulated motion for a third extension of the deadlines, and the Court reset the deadlines including a deadline of June 10, 2015, for filing dispositive motions. The parties filed the motions in limine on June 10, 2015. Later in response to inquiries from this Court’s staff regarding the July 10, 2015, deadline for filing the Joint Pretrial Order, the parties jointly represented that they considered the motions in limine to be dispositive and would file the Joint Pretrial Order, accordingly.

The Court makes a de novo review of the issues raised by objection of the parties to the Magistrate Judge’s R&R, which are: 1) listing and after sales; 2) lost profits; 3) non-compensable severance damages; and 4) impact opinions.

I. Plaintiff seeks to Exclude Defendants’ After Sales and Listings evidence.

Plaintiff objects to the conclusion in the R&R that Mr. Sanders’ expert report leaves the issue of whether he used listing in his valuation “unresolved.” The Plaintiff cites to specific points in Mr. Sanders’ report where he uses listings in his valuation. (U.S. Objection (Doc. 122) at 7.) Plaintiff’s position coincides with Judge Marquez’ conclusion, which this Court adopts. The Court will allow the listings to be used by Mr. Sanders to come up with his opinion, but Defendant may not disclose evidence of particular listings or list prices to the jury. See (Order (Doc. 103) at 6: CV 13-443 TUC DCB.)

As for “after sale” evidence, this Court agrees with Judge Marquez’ conclusion that comparing vacant ranch lands in Southern Arizona, generally, instead of in the Nogales area goes to the weight of the evidence, and Plaintiff may cross examine Mr. Sanders regarding the ...

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