Aubrey et al v. Barlin et al

Filing 768

ORDER DENYING 754 Motion for New Trial. 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.
CHESTER D. TUTOR,
Plaintiff,
v.
NORTHA AMERICAN TITLE
COMPANY, LESLEY KAREN
WILLIAMS, JEFF TURNER, and
VITALEY ZARETSKY,
Defendants.

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1–10–CV–076–DAE

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1–12–CV–403

ORDER DENYING MOTION FOR A NEW TRIAL
Before the Court is a Motion for a Partial New Trial filed by Chester
Tutor (Dkt. # 754), as well as a Response filed by former Defendants North
American Title Company (“NAT”) and Lesley Karen Williams (“Williams”). (Dkt.
# 755.) Pursuant to Local Rule 7(h), the Court finds this matter is suitable for

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disposition without a hearing. For the reasons stated below, Colonel Tutor’s
Motion for a Partial New Trial is DENIED (Dkt. # 754).
BACKGROUND
Tutor’s claims were joined to the instant suit on November 26, 2012,
pursuant to an Unopposed Motion to Consolidate and after a hearing attended by
all relevant parties. (Dkt. # 293; Dkt. # 295 at 2; Dkt. # 69 at 2 in 1:12–CV–503.)
Tutor filed a Second Amended Consolidated Complaint against various defendants
with Plaintiffs Steven Aubrey and Brian Vodicka on December 21, 2013. (Dkt.
# 467.)
On May 7, 2014, United States District Judge Sam Sparks entered an
order granting NAT’s and Williams’ Motion to Dismiss Tutor’s claims, finding
that Tutor’s claims were barred by the applicable statute of limitations. (Dkt.
# 536 at 10–12.) Judge Sparks also dismissed the RICO claims alleged by Tutor,
Aubrey, and Vodicka, after finding these claims were barred by section 107 the
Private Securities Litigation Reform Act, and additionally finding that the claims
were brought in bad faith. (Id. at 6.) Judge Sparks found that Vodicka and Aubrey
were further barred by res judicata from bringing RICO claims, and determined
that Aubrey and Vodicka’s RICO claims should be dismissed for that reason. (Id.
at 6–10.)

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On February 3, 2016, Tutor moved the Court to sever his claims from
those of Plaintiffs Steven Aubrey and Brian Vodicka. (Dkt. # 698.) This Court
reviewed the record, denied Tutor’s motion to sever, and stated that to the extent
Colonel Tutor was seeking reconsideration of the Order dismissing his claims, he
was barred both because he waited nearly two years to file the motion, and because
his motion presented no new evidence to the Court. (Dkt. # 747 at 2–3.)
Tutor subsequently filed the instant Motion for a New Trial (Dkt.
# 754). Former Defendants North American Title Company (“NAT”) and Lesley
Karen Williams (“Williams”) filed a Response (Dkt. # 755).
LEGAL STANDARD
Plaintiff’s case was dismissed on the pleadings alone and no trial
occurred; accordingly, the Court construes the motion as a motion for relief from a
judgment or order, pursuant to Federal Rule of Civil Procedure 60. Rule 60(b)
permits a court to
relieve a party . . . from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial under
rule 59(b); (3) fraud . . . misrepresentation, or misconduct by an
opposing party; (4) the judgment is void; . . . or (6) any other reason
that justifies relief.
Fed. R. Civ. P. 60(b). A Rule 60(b) motion “must be made within a reasonable
amount of time -- and for reasons (1), (2), and (3) no more than a year after the . . .

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order.” Id. at 60(c). “The purpose of Rule 60(b) is to balance the principle of
finality of a judgment with the interest of the court in seeing that justice is done in
light of all the facts.” Hesling v. CSX Transp., Inc., 396 F.3d 632, 638 (5th Cir.
2005). This relief “is considered an extraordinary remedy,” and “the desire for a
judicial process that is predictable mandates caution in reopening judgments.” In
re Pettle, 410 F.3d 189, 191 (5th Cir. 2005) (quoting Carter v. Fenner, 136 F.3d
1000, 1007 (5th Cir. 1998)).
ANALYSIS
Tutor claims he was wrongfully dismissed from the suit for two
reasons: first, because the Court’s May 7, 2014, dismissal order did not address
Tutor’s RICO claims separately from Aubrey and Vodicka’s RICO claims (Dkt.
# 754 at 5, 8); and second, because his claims were not barred by the applicable
statute of limitations because they were tolled on the basis of various equitable
principles (id. at 6–8). Accordingly, Tutor appears to be moving for relief from a
final judgment on the basis of mistake, pursuant to Rule 60(b)(1).
The order dismissing Tutor from the suit was filed on May 7, 2014,
and a motion seeking relief from a final judgment due to alleged mistake would
have to be filed within one year of that date. However, Tutor filed the instant
motion on March 30, 2016—nearly a year after his time to request the Court’s

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reconsideration had expired. Accordingly, Tutor’s motion is time-barred under
Rule 60(c)(3).
Notwithstanding the time bar, Tutor brought his RICO claims together
with those alleged by Aubrey and Vodicka in the Second Amended Complaint, and
there is no reason for the Court to have considered his claims separately when
determining whether they should be dismissed. (Dkt. # 467 ¶¶ 54–89.) Judge
Sparks’ May 7, 2014, order addressed Tutor’s argument regarding equitable tolling,
and found that it did not toll the applicable statute of limitations. (Dkt. # 536 at
11.) Tutor is barred by Rule 60(c)(3) from now re-litigating that claim.
Accordingly, not only did Tutor state no basis for reconsideration of this Court’s
prior order dismissing his claims, but his motion is time-barred by Rule 60(c)(3).
Accordingly, his Motion for a Partial New Trial is DENIED (Dkt. # 754).
I.

Conclusion
For the aforementioned reasons, Tutor’s Motion for a Partial New

Trial is DENIED (Dkt. # 754).
IT IS SO ORDERED.
DATED: Austin, Texas, October 19, 2016.

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