United States District Court, D. Nevada
THE STATE OF NEVADA, on relation of its Department of Transportation, Plaintiff,
UNITED STATES DEPARTMENT OF THE TREASURY - INTERNAL REVENUE SERVICE, et al., Defendants.
ORDER RE: MOTION TO STRIKE (ECF NO. 105)
FOLEY, JR. United States Magistrate Judge.
matter is before the Court on Plaintiff's Motion to
Strike Tio DiFederico's Supplemental Report (Second)
Regarding the Temporary Construction Easement (ECF No. 105),
filed on May 12, 2017. Defendants Jackson, Strawn and Levy
filed their Response (ECF No. 108) on May 26, 2017, and
Plaintiff filed its Reply (ECF No. 109) on June 2, 2017. The
Court conducted a hearing in this matter on June 12, 2017.
case involves an action in eminent domain brought by
Plaintiff State of Nevada to condemn and determine the value
of land owned by Defendants adjacent to Interstate 15 in
central Las Vegas, Nevada. The Plaintiff condemned
approximately 20 percent of the Defendants' property
along its eastern edge. The Plaintiff also acquired a four
year temporary construction easement of 1, 728 square feet
(0.04 acres) on the property. In his initial expert report
dated September 27, 2016, Defendants' appraiser-expert
witness, Tio DiFederico, stated that the fair market value of
the real property acquired by the Plaintiff is $205, 000. He
stated that the value of the four year temporary construction
easement obtained by Plaintiff is $10, 000. On February 23,
2017, Defendants served a report by Mr. DiFederico entitled
“A Supplemental Analysis” which was
“prepared to revisit and analyze the valuation of a
temporary construction easement (TCE) acquired for Project
Neon on the above referenced property.” Motion
(ECF No. 105), Exhibit 4, pg. 991. Mr. DiFederico
states that in his original report, he assumed that the
property owners would be able to access and use their site,
although the Nevada Department of Transportation (NDOT) would
have the right to use the area encumbered by the TCE for
approximately 48 months. This assumption was based on the
lack of any specific uses stated in the documents provided to
the land owners, and on Mr. DiFederico's experience that
“governmental agencies typically work with the property
owner on these TCE's to limit the any (sic) disruption of
their remaining property.” Id. at pg. 992. Mr.
DiFederico visited the property several times in January and
February 2017. He observed that NDOT's use of the the
temporary construction easement completely blocked access to
Defendants' property. The eastern portion of the TCE,
which fronts Martin Luther King Boulevard, was fenced off,
except for a temporary driveway for the large trucks being
used for the construction of Project Neon. Based on these
observations, Mr. DiFederico recalculated the value of the
temporary construction easement, for the 48 month period
beginning on February 23, 2016, to be $265, 000. Id.
at pg. 994.
denies that it has blocked or will block access to the
remainder of Defendants' property during its use of the
temporary construction easement. Plaintiff states that the
construction work in the vicinity of Plaintiff's property
will be completed within the next few months, at which point
the Plaintiff will no longer use the temporary construction
easement for that purpose. The subject property is vacant
land whose highest and best use is to hold for investment.
Plaintiff therefore argues that Mr. DiFederico's
supplemental report is simply an untimely and invalid attempt
to increase the alleged value of Defendants' condemnation
award. Plaintiff argues that Mr. DiFederico's April 11,
2017 deposition testimony supports this conclusion. Mr.
DiFederico testified as follows:
Q. But your opinion is that they need to be compensated for
every day for 48 months, correct?
A. Correct. That's because they have the right to block.
They took the right; they have to pay for that right.
Q. Why didn't you say that in September of 2016 when the
exact same legal right was already taken?
A. Because I've never seen anybody do this in my 30 years
block an entire site for months, and that's what
they're doing on this site, and that's what I base my
opinion on. This is a unique situation, I guess, and it
should be valued uniquely. So I did not expect this to happen
because I've never seen it before.
Q. And, again, Tio let's just be very clear, is your
opinion of value based upon the fact that the State has the
legal right to use the property for 48 months or is it based
upon the actual use that's being made of the property? .
A. The Witness: It's the right. You took the right to use
that strip which gives you the right to block their property,
and in my opinion you should pay for that. . . .
Q. Okay. And that legal right is set forth in the TCE, right,
Motion (ECF No. 105), Exhibit 5.