Aubrey et al v. Barlin et al

Filing 465

ORDER DENYING 347 Motion to Compel; GRANTING 353 Motion for Attorney Fees; MOOTING 373 Motion to Substitute; GRANTING 379 Motion to Quash; MOOTING 384 Motion for Extension of Time to Answer ; DISMISSING 396 Motion to Withdraw as At torney. ; GRANTING 413 Motion to Quash; GRANTING IN PART AND DENYING IN PART 424 Motion to Compel; GRANTING IN PART AND DENYING IN PART 425 Motion for Leave to Conduct Additional Depositions; GRANTING 428 Motion to Quash; GRANTING 430 Motion to Quash; GRANTING 431 Motion for Protective Order; GRANTING 438 Motion to Join. Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
STEVEN B. AUBREY, et al.
V.
PETER E. BARLIN, et al.,

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A-10-CV-076-SS

ORDER
Before the Court are the following motions and their associated responses, replies, and
supplements:
(1)

Plaintiffs Steven B. Aubrey and Brian E. Vodicka’s Opposed Motion to Compel
Against First State Bank Central Texas (Dkt. No. 347); Defendant Vitaly Zaretsky’s
Response to Plaintiffs’ Motion to Compel Against First State Bank Central Texas
(Dkt. No. 349); Plaintiffs’ Reply (Dkt. No. 352);

(2)

Movant First State Bank Central Texas’ Motion for Award of Costs and Fees (Dkt.
No. 353); Plaintiffs’ Response to Non-Party First State Bank Central Texas’ Motion
for Award of Costs and Fees (Dkt. No. 372);

(3)

Plaintiffs’ Motion for Substituted Service by Publication as to Defendant Gennady
Borokhovich (Dkt. No. 373);

(4)

Movant REOC’s Motion to Quash Subpoena or, Alternatively, to Extend Time to
Serve Objections (Dkt. No. 379);

(5)

Defendant William Hemphill’s Unopposed Motion to Establish/Extend the Deadline
to Answer or Otherwise Respond to the First Consolidated Amended Complaint
(Dkt. No. 384);

(6)

Motion to Withdraw Attorney Dillon R. Meek (Dkt. No. 396);

(7)

Defendant Peter Barlin’s Motion to Quash Telephone Company Subpoenas (Dkt. No.
413); Plaintiffs’ Response to Defendant Peter Barlin’s Motion to Quash Telephone
Company Subpoenas (Dkt. No. 427); Defendant Peter Barlin’s Reply (Dkt. No. 440);

(8)

Plaintiffs’ Motion to Compel Depositions (Dkt. No. 424); Plaintiffs’ Motion for
Leave to Conduct Additional Depositions (Dkt. No. 425); Count Three Defendants’
Response to Plaintiffs’ Motion to Compel and Motion for Leave to Conduct
Additional Depositions (Dkt. No. 432); Defendant North American Title Company’s

Combined Response to Plaintiffs’ Motions to Compel Depositions and Leave to
Conduct Additional Depositions (Dkt. No. 434); Defendant Vitaly Zaretsky’s
Response to Plaintiffs’ Motion to Compel Depositions and Motion for Leave to
Conduct Additional Depositions (Dkt. No. 435); Defendant Peter Barlin’s Response
to Plaintiffs’ Motion to Compel Depositions (Dkt. No. 436); Defendants Gregory
Lahr and Sandra Gunn’s Response to Plaintiffs’ Motions to Compel Depositions and
Leave to Conduct Additional Depositions (Dkt. No. 437); Plaintiffs’ Combined
Reply to Defendants’ Responses (Dkt. No. 445);
(9)

Count Three Defendants’ Motion to Quash IBC Subpoena (Dkt. No. 428); Plaintiffs’
Response to Count Three Defendants’ Motion to Quash IBC Subpoena (Dkt. No.
439); Count Three Defendants’ Reply in Support of Motion to Quash Subpoena (Dkt.
No. 448);

(10)

Defendant William R. Hemphill, Jr.’s Motion to Quash Subpoena (Dkt. No. 430);
Plaintiffs’ Response to Defendant William R. Hemphill, Jr.’s Motion to Quash
Subpoena (Dkt. No. 442); Defendant William R. Hemphill. Jr.’s Reply (Dkt. No.
451);

(11)

Defendants’ Joint Motion for Protective Order (Dkt. No. 431); Plaintiffs’ Response
to Certain Defendants’ Motion for Protective Order (Dkt. No. 444); and

(12)

Defendant William R. Hemphill, Jr.’s Motion to Join Defendants’ Joint Motion for
Protective Order and Response to Plaintiffs’ Motions to Compel Depositions and
Motion for Leave to Conduct Additional Depositions (Dkt. No. 438).

The District Court referred the above non-dispositive motions to the undersigned Magistrate
Judge for resolution pursuant to 28 U.S.C. §636(b)(1)(A), FED. R. CIV. P. 72, and Rule 1(c) of
Appendix C of the Local Rules of the United States District Court for the Western District of Texas,
Local Rules for the Assignment of Duties to United States Magistrate Judges. Having considered
the above-motions, their respective responses and replies, as well as the entire record in this case,
the Court now issues the following orders.
The long history of this case was detailed in the undersigned’s Report and Recommendation
dated November 27, 2013. See Dkt. No. 463. As noted therein, the current case represents a
consolidation of three separate but related cases. As noted in that R&R, and as stated during the
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hearing on these motions, Judge Sparks held a status conference in these matters on November 16,
2012, and at that time counsel for the plaintiffs indicated that—at most—only minimal additional
discovery (one deposition and four or five requests for production or inspection) would be needed
to proceed to trial. Based on the First Amended Consolidated Complaint, Plaintiffs have sought
substantial additional discovery, including loan files, phone records, bank records, and approximately
fifteen additional depositions. This discovery is inconsistent with the representations made to the
Court in November 2012, and Plaintiffs have made no attempt to seek leave to pursue the discovery,
nor have they shown good cause for being permitted to conduct the discovery at this late date.
Furthermore, the undersigned has recommended that Judge Sparks strike Plaintiffs’ First Amended
Consolidated Complaint and require Plaintiffs to submit a revised pleading limited to the parties and
claims pending at the time of consolidation. See Dkt. No. 463. If adopted by Judge Sparks, this
recommendation would effectively remove from the case all parties added as defendants in Plaintiffs’
First Amended Consolidated Complaint. Consequently, discovery related to those parties would
certainly not be pertinent to the remaining claims in this case.
Further, to the extent that any party believes additional discovery is necessary because they
may not be able to make use of depositions taken or documents produced prior to consolidation,
Judge Sparks addressed that issue at the November 2012 hearing, and indicated that he would permit
discovery taken in one of the cases pre-consolidation to be used in the consolidated action.
ACCORDINGLY, it is ORDERED that Plaintiffs Steven B. Aubrey and Brian E. Vodicka’s
Opposed Motion to Compel Against First State Bank Central Texas (Dkt. No. 347) is DENIED.

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It is FURTHER ORDERED that Movant First State Bank Central Texas’ Motion for Award
of Costs and Fees (Dkt. No. 353) is GRANTED. Plaintiff shall pay the amount of $3,053.50 to First
State Bank Central Texas, consisting of $137.50 for research costs, $284.00 for copy costs, and
$2,632.00 for attorneys’ fees.
It is FURTHER ORDERED that Plaintiffs’ Motion for Substituted Service by Publication
as to Defendant Gennady Borokhovich (Dkt. No. 373) is DENIED AS MOOT.
It is FURTHER ORDERED that Movant REOC’s Motion to Quash Subpoena or,
Alternatively, to Extend Time to Serve Objections (Dkt. No. 379) is GRANTED.
It is FURTHER ORDERED that Defendant William Hemphill’s Unopposed Motion to
Establish/Extend the Deadline to Answer or Otherwise Respond to the First Consolidated Amended
Complaint (Dkt. No. 384) is DENIED AS MOOT.
It is FURTHER ORDERED that the Motion to Withdraw Attorney Dillon R. Meek (Dkt.
No. 396) is GRANTED.
It is FURTHER ORDERED that Defendant Peter Barlin’s Motion to Quash Telephone
Company Subpoenas (Dkt. No. 413) is GRANTED.
It is FURTHER ORDERED that Plaintiffs’ Motion to Compel Depositions (Dkt. No. 424)
and Plaintiffs’ Motion for Leave to Conduct Additional Depositions (Dkt. No. 425) are GRANTED
IN PART AND DENIED IN PART. Plaintiffs may proceed with the deposition of Vitaly Zaretsky
without leave of Court. In all other respects, the motions are denied. If a party wishes to take any
more depositions in this case, and is unable to come to an agreement with the deponent and parties
involved, the requesting party shall file a motion with the Court.

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It is FURTHER ORDERED that Count Three Defendants’ Motion to Quash IBC Subpoena
(Dkt. No. 428) is GRANTED.
It is FURTHER ORDERED that Defendant William R. Hemphill, Jr.’s Motion to Quash
Subpoena (Dkt. No. 430) is GRANTED to the extent Plaintiffs seek additional discovery outside
of the agreement between Hemphill and Plaintiffs regarding Hemphill’s production of bank records.
Finally, it is FURTHER ORDERED that Defendants’ Joint Motion for Protective Order
(Dkt. No. 431) and Defendant William R. Hemphill, Jr.’s Motion to Join Defendants’ Joint Motion
for Protective Order (Dkt. No. 438) are GRANTED.
SIGNED this 6th day of December, 2013.

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ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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