Aubrey et al v. Barlin et al

Filing 648

REPORT AND RECOMMENDATIONS. Recommends 624 Motion in Limine filed by Brian E. Vodicka, Steven B. Aubrey be Granted in Part, Denied in Part and Dismissed as Moot; Recommends 622 Motion in Limine filed by Peter E. Barlin be Granted in Part, Denied in Part and Dismissed as Moot. Signed by Judge Andrew W. Austin. (os)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
STEVE AUBREY and BRIAN VODICKA

§
§
VS.
§
§
PETER E. BARLIN, GREGORY H. LAHR §
and SANDRA G. GUNN
§

NO. 1:10-CV-076 DAE

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE DAVID EZRA
UNITED STATES DISTRICT JUDGE
Before the Court are Plaintiffs Steve Aubrey and Brian Vodicka, and Defendants Peter E.

Barlin, Gregory H. Lahr, and Sandra G. Gunn’s1 Motions in Limine (Dkt. Nos. 624, 622), and the
respective responses. Dkt. Nos. 625, 627. The undersigned submits this Report and Recommendation
to the United States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1(h) of Appendix C of the
Local Court 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.
On January 7, 2016, the Court held a final pretrial conference and addressed the parties’
pending motions in limine. The Court also ordered the parties to file a stipulation regarding any
motions on which they have reached agreement. Dkt. No. 644. The parties filed their stipulation
on January 6, 2016 (Dkt. No. 645), and with regard to the matters on which they have agreed, the
Court has simply incorporated their agreements into the recommendations set forth below, and noted
their agreement. Having reviewed the briefs, the undersigned HEREBY RECOMMENDS that the
Court make the following orders on the motions in limine:

1

In a separate filing Defendants Gregory H. Lahr and Sandra G. Gunn joined Defendant
Peter Barlin’s Motion in Limine. Dkt. No. 623.

I.

Plaintiffs’ Motion in Limine (Dkt. No. 624)
1.

DENY.

2.

GRANT. These matters are directly related to items a - d of the Defendants’
motions. In those motions, Defendants seek to prohibit Plaintiffs from arguing that
Defendants had committed crimes, were part of a criminal conspiracy, or had
dealings with organized crime. In this motion, Plaintiffs seek to exclude any
argument by Defendants that they were never charged with a crime related to the
subject investments, despite investigations by one or more agencies. Defendants only
intend to argue this if Plaintiffs are permitted to argue that Defendants’ or others
affiliated with them were criminal or engaged in criminal behavior. As the Court has
recommended below that Defendants’ items a - d be granted, it recommends that this
item in Plaintiffs’ motion also be granted.

3.

GRANT.

4.

MODIFIED and AGREED to by the parties.

5.

GRANT.

6.

MODIFIED and AGREED to by the parties.

7.

MODIFIED and AGREED to by the parties.

8.

MODIFIED and AGREED to by the parties.

9.

AGREED to by the parties.

10.

GRANT in part and DENY in part. The parties have agreed to the bulk of this
motion, except as to any mention of Defendant Peter Barlin’s cancer diagnosis and
treatment. With regard to Barlin’s cancer diagnosis and treatment, that treatment
occurred during the time of the events giving rise to this case, and the Court

concludes that it is relevant to his state of mind with regard to Plaintiffs’ assertion
that he intentionally defrauded them.
11.

DENY.

12.

AGREED to by the parties.

13.

AGREED to by the parties.

14.

AGREED to by the parties.

15.

AGREED to by the parties.

16.

AGREED to by the parties.

17.

MODIFIED and AGREED to by the parties.

18.

AGREED to by the parties.

19.

MODIFIED and AGREED to by the parties.

20.

AGREED to by the parties.

21.

AGREED to by the parties.

22.

WITHDRAWN.

23.

MODIFIED and AGREED to by the parties.

24.

MODIFIED and AGREED to by the parties.

25.

GRANT.

26.

AGREED to by the parties.

27.

AGREED to by the parties.

28.

AGREED to by the parties.

29.

MODIFIED and AGREED to by the parties.

30.

MODIFIED and AGREED to by the parties.

31.

WITHDRAWN.

32.

DENY. This item primarily relates to prior investment or loan transactions between
the Plaintiffs and Defendant Lahr. Defendants contend that Plaintiffs invested in a
total of ten “hard money loan” deals with Lahr, three of which are the subject matter
of this lawsuit. Defendants argue that they should be permitted to discuss the entire
course of these dealings, as they argue that Plaintiffs have only claimed that Lahr
defrauded them on the investments that turned out to be money losers, and did not
do so on the investments on which they had a positive return. Plaintiffs contend that
the other transactions had nothing to do with the Manor properties at issue here, and
are irrelevant to any issue that will be before the jury.
One of the Plaintiffs’ primary arguments is that they relied heavily on Barlin’s
assurances regarding Lahr’s honesty and integrity in deciding to invest with Lahr, and
would not have invested without those assurances. The fact that the Plaintiffs had
their own business dealings with Lahr directly before the instant investments, and
may or may not have been satisfied with those earlier investments, is probative of
whether Barlin’s assurances were material to Plaintiffs’ decisions to invest. Further,
any prejudice to Plaintiffs from the discussion of the other investments is minor at
best, and is outweighed by the probative value of the information.

33.
II.

MODIFIED and AGREED to by the parties.

Defendant’s Motion in Limine (Dkt. No. 622)
a.-d.

GRANT. Absent a properly laid foundation, statements made connecting any party
to organized crime, any criminal investigation, or Victor Wolf are unlikely to be
probative, and would be greatly prejudicial to Defendants.

e.

DENY, subject to the stipulation by Plaintiffs at the pretrial conference that they

would not characterize the arrangement between Lahr and Barlin as “parking” as that
term of art is defined in securities law.
f.

GRANT.

g.

AGREED to by the parties.

h.

MODIFIED and AGREED to by the parties.

i.

DENIED.

Accordingly, the undersigned Magistrate Judge RECOMMENDS that Plaintiffs’ Motion
in Limine, Dkt. No. 624, be GRANTED IN PART, DENIED IN PART, AND DISMISSED AS
MOOT, as set forth above, and Defendants’ Motion in Limine, Dkt. No. 622, be GRANTED IN
PART, DENIED IN PART, AND DISMISSED AS MOOT, also as set forth above.
IV. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
Given the exigent circumstances, by previous order (Dkt. No. 643) the Court has shortened
the normally applicable 14 day period to file an objection to the findings and recommendations
contained in this Report. See Tripati v. Drake, No. 89–55330, 1990 WL 100242, at *8 (9th Cir. July
19, 1990) (shortening the time period in which objections had to be filed due to “exigent
circumstances”); United States v. Barney, 568 F.2d 134, 136 (9th Cir.1978) (ten day period in which
to object is a maximum, not a minimum, and court may require a response within a shorter period
if “exigencies of the calendar” require); United States v. Doherty, No. 05–CR–0494(JS)(WDW),
2009 WL 1310877, at *10 (E.D.N.Y. May 7, 2009). Thus, a party's failure to file written objections

to the proposed findings and recommendations contained in this Report by 9:00 A.M. on Monday,
January 11, 2016 shall bar that party from de novo review by the District Court of the proposed
findings and recommendations in the Report and, except upon grounds of plain error, shall bar the
party from appellate review of unobjected-to proposed factual findings and legal conclusions
accepted by the District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53,
106 S. Ct. 466, 472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th
Cir. 1996) (en banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 7 day of January, 2016.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE