Aubrey et al v. Barlin et al

Filing 747

ORDER DENYING 695 Motion to Unseal Document ; DENYING 698 Motion to Sever. Signed by Judge David A. Ezra. (dm)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
STEVEN B. AUBREY
and BRIAN E. VODICKA,

§
§
§
§
§
§
§
§
§
§

Plaintiffs,
vs.
PETER E. BARLIN, GREGORY
H. LAHR, SANDRA F. GUNN,
Defendants.

1-10-CV-076-DAE

ORDER DENYING (1) MOTION TO UNSEAL; (2) MOTION TO SEVER
Before the Court are Colonel Chester Tutor’s Motions to
Unseal (Dkt. # 695) and Motion to Sever (Dkt. # 698), as well as a Response
to the Motion to Sever filed by Defendants Sandra Gunn and Gregory Lahr.
(Dkt. # 713.) Pursuant to Local Rule 7(h), the Court finds these matters are
suitable for disposition without a hearing. For the reasons stated below,
Colonel Tutor’s Motion to Unseal is DENIED, and his motion to Sever is
DENIED.
I. Motion to Unseal
Colonel Tutor wishes to unseal two motions, and their
associated exhibits, filed in Case No. 1:12–cv–503 prior to consolidation
with the instant case: a Motion for Leave to Seal Court Records (Dkt. # 7),
1

and Motion for Leave to File Second Amended Complaint (Dkt. # 50). (Dkt.
# 695 ¶¶ 9–11, 23, 34.) It appears Tutor wishes to unseal the documents to
ensure that his case can be reviewed by the Fifth Circuit. (Id. ¶ 23.) That
the records are sealed has no effect over the Fifth Circuit’s ability to hear an
appeal.
Further, Colonel Tutor’s concern that the above-mentioned
documents and associated exhibits were lost in the move to the new federal
courthouse is unfounded. (Dkt. # 695 ¶ 22.) These documents, as well as all
of this Court’s records, are electronically imaged upon filing, and are intact.
Accordingly, Colonel Tutor’s Motion to Unseal is DENIED.
II. Motion to Sever
Colonel Tutor seeks to sever his claims from those of Plaintiffs
Steven Aubrey and Brian Vodicka so that “the record is not clouded for
appellate purposes.” (Dkt. # 698 ¶ 4.) Tutor’s claims were joined to the
instant suit on November 26, 2012, pursuant to an Unopposed Motion to
Consolidate Case No. 1:12–cv–503 with Case No. 1:12–cv–768 filed by
now–dismissed Defendants North American Title Company (“NAT”) and
Lesley Karen Williams. (Dkt. # 69 at 2 in 1:12–CV–503.)
On November 16, 2012, the Court held a hearing attended by
all relevant parties, at which it confirmed its intention to consolidate 1:12–

2

CV–503 and 1:12–CV–768 with the instant case. (Dkt. # 293; Dkt. # 295
at 2.) Colonel Tutor did not object to the consolidation of the cases at that
time. Colonel Tutor cites no law, and the Court can find none, that would
permit Colonel Tutor to move to sever his dismissed causes of action from
the suit more than three years after the cases were consolidated without
opposition.
On May 7, 2014, United States District Judge Sam Sparks
entered an order granting NAT’s and Williams’ Motion to Dismiss Colonel
Tutor’s claims, finding that his claims were barred by the applicable statute
of limitations. (Dkt. # 536 at 10–12.) To the extent that Colonel Tutor now
wishes the Court to reconsider that Order (Dkt. # 698 ¶¶ 2–3), he is barred
from doing so; he has waited nearly two years to raise the issue and has
presented no new information to support such extraordinary action by the
Court. See S.E.C. v. Life Partners Holdings, Inc., 41 F. Supp. 3d 550, 562
(W.D. Tex. 2013).
Colonel Tutor has presented no viable legal theory to support
his Motion to Sever, and the Motion is DENIED. (Dkt. # 698.)

3

III. Conclusion
For the aforementioned reasons, Colonel Tutor’s Motion to
Unseal is DENIED (Dkt. # 698). Colonel Tutor’s Motion to Sever is
DENIED (Dkt. # 698).
IT IS SO ORDERED.
DATED: Austin, Texas, March 21, 2016.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

4