v. Wells Fargo , 2020 COA 49 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 26, 2020
2020COA49
No. 18CA1128, Carbajal v. Wells Fargo — Civil Procedure —
Relief From Judgment or Order — Fraud
After plaintiff was convicted of various felony offenses, he sued
the victim and her employer. The district court entered summary
judgment in favor of the defendants. Several years later, plaintiff
moved to set aside the summary judgment, alleging that the
defendants in the earlier action, and their lawyers, had conspired to
withhold documents and information in discovery and, as a result,
summary judgment was erroneously entered. The district court
construed plaintiff’s amended complaint as a motion to set aside a
judgment based on fraud under C.R.C.P. 60(b)(2) and dismissed it
as untimely.
On appeal, the plaintiff contends that his complaint is an
independent equitable action to set aside a judgment and therefore
not subject to the time limitation in Rule 60(b)(2). While the
“savings clause” of Rule 60(b) allows a party to bring an
independent equitable action to set aside a judgment based on
fraud or fraud on the court, a division of the court of appeals
concludes that, as a matter of law, mere discovery violations do not
constitute extrinsic fraud for purposes of satisfying the criteria for
an independent action under Rule 60(b).
COLORADO COURT OF APPEALS 2020COA49
Court of Appeals No. 18CA1128
City and County of Denver District Court No. 17CV742
Honorable Jennifer B. Torrington, Judge
Dean Carbajal,
Plaintiff-Appellant,
v.
Wells Fargo Bank, N.A., a corporation; Melva Selectman, individually; Carol
Dwyer, individually; Faegre Drinker Biddle & Reath LLP, a limited liability
partnership; Marie Williams, individually; Jeffrey Roberts, individually; Holland
& Hart LLP, a limited liability partnership; Michael Carrigan, individually;
Brian Berardini, individually; and Brown Dunning Walker PC, a professional
corporation,
Defendants-Appellees.
JUDGMENT AFFIRMED, ORDER VACATED,
AND CASE REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE HARRIS
J. Jones and Brown, JJ., concur
Announced March 26, 2020
Dean Carbajal, Pro Se
Snell & Wilmer L.L.P., Byeongsook Seo, Cody Bourke, Denver, Colorado, for
Defendants-Appellees Wells Fargo Bank, N.A., Melva Selectman, and Carol
Dwyer
Wheeler Trigg O’Donnell LLP, Carolyn J. Fairless, Theresa Wardon Benz,
Michael A. Blasie, Denver, Colorado, for Defendants-Appellees Faegre Drinker
Biddle & Reath LLP, Marie Williams, Jeffrey Roberts, Holland & Hart LLP, and
Michael Carrigan
Faraci Leasure, LLC, Paul A. Faraci, Glendale, Colorado, for Defendants-
Appellees Brian Berardini and Brown Dunning Walker PC
¶1 Plaintiff Dean Carbajal appeals the dismissal of his
independent equitable action to set aside a 2013 judgment based
on alleged fraud. He also appeals the court’s order granting a
permanent injunction limiting his right to file pro se actions against
certain of the defendants.
¶2 Because the fraud Carbajal has alleged amounts only to
discovery violations, we conclude that he cannot satisfy the criteria
for bringing an independent action under C.R.C.P. 60(b). Thus, we
affirm the judgment dismissing Carbajal’s amended complaint with
prejudice. But because the district court’s order granting the
injunction fails to comply with the requirements of C.R.C.P. 65(d),
we vacate the order and remand for further proceedings.
I. Background
¶3 In 2011, a jury convicted Carbajal of multiple offenses related
to stalking his ex-girlfriend, a Wells Fargo bank teller. He was
sentenced to a lengthy term in the custody of the Department of
Corrections. The judgment of conviction was affirmed on appeal.
People v. Carbajal, (Colo. App. No. 12CA0410, June 30, 2016) (not
published pursuant to C.A.R. 35(e)).
1
¶4 Shortly thereafter, he sued Wells Fargo Bank, the teller, and
two other employees, asserting claims for invasion of privacy,
breach of fiduciary duty, and breach of contract. The complaint
alleged that the teller had used her position at the bank to gain
unauthorized access to Carbajal’s private account information and
then had used the information to extort him. Carbajal claimed that
the bank and the other employees were vicariously liable for the
teller’s actions.
¶5 The district court granted summary judgment for the
defendants on multiple grounds, including that Carbajal had failed
to demonstrate any damages and that, as alleged, the teller was
necessarily acting outside the scope of her employment for
purposes of the vicarious liability claims. Carbajal appealed, and a
division of this court affirmed. See Carbajal v. Wells Fargo, (Colo.
App. No. 13CA1473, Jan. 29, 2015) (not published pursuant to
C.A.R. 35(f)) (Carbajal I).
¶6 In 2017, Carbajal filed the current lawsuit, alleging discovery
misconduct during Carbajal I by Wells Fargo Bank, the two
previously named employees, and the bank’s lawyers (the Wells
2
Fargo defendants), as well as by the law firm and lawyer who had
represented the bank teller (the H&H defendants).1
¶7 The claims were ostensibly prompted by an investigation by
the Consumer Financial Protection Bureau (CFPB) that uncovered
widespread improper banking practices at Wells Fargo. Specifically,
as alleged in the complaint, a CFPB report exposed bank employees’
practices (spurred by employee incentive programs) of opening
customer accounts and enrolling customers in banking services
without their consent.
¶8 The gist of Carbajal’s complaint is that the Wells Fargo and
H&H defendants conspired to conceal and withhold information
about these improper banking practices “with the intent and
understanding to derail [Carbajal I].” The complaint asserts claims
for fraudulent misrepresentation, fraudulent concealment, negligent
misrepresentation, and conspiracy to defraud, based on allegations
exemplified by the following:
1The Wells Fargo defendants are Wells Fargo Bank, N.A.; Melva
Selectman; Carol Dwyer; Faegre Drinker Biddle & Reath LLP; Marie
Williams; Jeffrey Roberts; Brian Berardini; and Brown Dunning
Walker PC. The H&H defendants are Holland & Hart LLP and
Michael Carrigan.
3
 “The [CFPB] exposed Wells Fargo’s corrupt practices and,
further, revealed the defendants’ fraud and misrepresentation
during the course of litigation.”
 During discovery in Carbajal I, the defendants refused to
disclose any evidence “that would have revealed the existence
of a systemic problem with Wells Fargo’s training and
supervision.” The evidence “would have established liability
against” the Carbajal I defendants.
 “The Wells Fargo Defendants . . . worked together in the initial
stages of litigation to conceal Wells Fargo’s corrupt training,
supervision, and fraudulent practices,” and “carelessly or
negligently violated” their obligations under C.R.C.P. 26. The
conduct “misled Mr. Carbajal and the trial court.”
 The Wells Fargo and H&H defendants intentionally concealed
evidence and made misrepresentations during Carbajal I “to
deceive Mr. Carbajal and [the trial court]” and to “prevent
[Carbajal] from substantiating his claims against [the Carbajal
I defendants]”; their conduct “ultimately induced the [trial
court] to wrongfully dismiss” Carbajal’s claims in Carbajal I.
4
 If the Wells Fargo and H&H defendants had not committed
fraud “during the course of discovery and litigation,” the
[Carbajal I] Defendants’ Motion for Summary Judgment would
have failed and [Carbajal I] would have been heard on the
merits.”
Carbajal sought a remedy for the “loss of prior claims and
entitlement to relief” in Carbajal I.
¶9 The Wells Fargo and H&H defendants separately moved to
dismiss Carbajal’s complaint under C.R.C.P. 12(b)(5), supplying
numerous grounds for dismissal, including that the complaint
constituted a motion to set aside a judgment under Rule 60(b)(2)
and, as such, was time barred. In response, Carbajal filed a
substantially identical amended complaint, as well as responses to
the motions to dismiss. As relevant here, he asserted that his
lawsuit was not subject to the deadline for Rule 60(b)(2) motions
because it was an “independent equitable action.”
5
¶ 10 The district court, in a thorough written order, granted the
motions to dismiss on all grounds asserted by the defendants,
including that the claims were time barred under Rule 60(b)(2).2
II. Order Dismissing Carbajal’s Action
¶ 11 The district court relied on multiple independent grounds for
dismissal under Rule 12(b)(5). Carbajal challenges each ground on
appeal.
A. Standard of Review
¶ 12 We review de novo a district court’s ruling on a motion to
dismiss under Rule 12(b)(5). Prospect Dev. Co. v. Holland & Knight,
LLP, 2018 COA 107, ¶ 10. We apply the same standards as the
2 On appeal, Carbajal argues that the district court erred by sua
sponte dismissing his action, as the defendants’ motions to dismiss
challenged his original, not his amended, complaint. We reject that
argument. For one thing, Wells Fargo filed a second motion to
dismiss the amended complaint, and the district court considered
the new allegations, including allegations related to the added claim
for conspiracy to defraud. And in any event, because we conclude
the complaint was time barred, any error by the district court in
failing to await a motion by all the other defendants to dismiss the
amended complaint was harmless. See Schwartz v. Owens, 134
P.3d 455, 457 (Colo. App. 2005) (“Even a technically flawed
dismissal may be affirmed if it was entered as a matter of law and
the party that lost its claim had adequate opportunity but did not
offer any evidence or argument on which the claim could have
survived.”).
6
district court, accepting all of the factual allegations in the
complaint as true and viewing those allegations in the light most
favorable to the plaintiff. Id.
¶ 13 When the district court dismisses a complaint on several
independently sufficient grounds, we may affirm on any single
ground. But we may also affirm on a ground not considered by the
district court, if supported by the record. Taylor v. Taylor, 2016
COA 100, ¶ 31.
B. Independent Action to Set Aside the Judgment
¶ 14 Pursuant to Rule 60, a party may move to set aside a
judgment on various grounds, including “fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party.” C.R.C.P. 60(b)(2). A request to
set aside a judgment under Rule 60(b)(2) must be made not more
than 182 days from the date the judgment was entered.
¶ 15 Carbajal’s complaint alleged that the defendants’ fraud during
the discovery process deprived him of an opportunity to pursue his
claims in Carbajal I and resulted in entry of an erroneous judgment.
Thus, the district court construed his complaint as a motion under
Rule 60(b)(2) to set aside the summary judgment in Carbajal I.
7
Because the complaint was filed more than 182 days after the court
entered summary judgment, the district court concluded that
Carbajal’s action was time barred.
¶ 16 On appeal, Carbajal does not dispute that he seeks to set
aside the summary judgment based on the defendants’ alleged
fraud during the discovery process. Indeed, his briefing confirms
that the action is an effort to “attack” and “invalidate” the “wrongful
and fraudulent judgment” entered in Carbajal I.3 But he says his
complaint is not subject to the 182-day deadline because he filed an
independent equitable action, not a motion under Rule 60(b)(2).
¶ 17 Rule 60(b) contains a “savings clause,” In re Marriage of Gance,
36 P.3d 114, 116 (Colo. App. 2001), so that, in addition to setting
aside a judgment on the grounds enumerated in Rule 60(b)(1)-(5),
the district court may (1) “entertain an independent action to relieve
a party from a judgment, order, or proceeding”; or (2) “set aside a
3 Though Carbajal’s amended complaint includes conclusory
requests for various types of money damages, the substantive
allegations in the body of his complaint do not provide a basis for
construing it as anything other than an independent equitable
action to set aside a judgment. See Hansen v. Long, 166 P.3d 248,
250 (Colo. App. 2007) (although the plaintiff ostensibly sought
monetary relief, his allegations demonstrated that he was seeking
relief in the nature of mandamus).
8
judgment for fraud upon the court,” C.R.C.P. 60(b). Neither of these
additional grounds is subject to a time limit.
¶ 18 Carbajal contends that his complaint satisfies the criteria for
bringing an independent action to set aside a judgment based on
fraud. We disagree.
¶ 19 An independent equitable action may be brought to attack a
facially valid judgment on grounds of fraud. Gance, 36 P.3d at 117.
However, relief is available only in “unusual and exceptional
circumstances,” id., “to prevent a grave miscarriage of justice,”
United States v. Beggerly, 524 U.S. 38, 47 (1998).4
¶ 20 To prevail, a plaintiff seeking relief must show that (1) the
judgment should not, in equity and good conscience, be enforced;
(2) he has a meritorious claim in the underlying case that led to the
judgment; (3) fraud, accident, or mistake prevented him from
pursuing his meritorious claim; (4) he is not at fault; and (5) there
4 Our state rule and Fed. R. Civ. P. 60(b) are, in all relevant
respects, substantively identical. “When a state rule is similar to a
Federal Rule of Civil Procedure, courts may look to federal authority
for guidance in construing the state rule.” Maldonado v. Pratt, 2016
COA 171, ¶ 18 n.5.
9
is no adequate remedy at law. See Dudley v. Keller, 33 Colo. App.
320, 324, 521 P.2d 175, 177 (1974).
¶ 21 We turn first to the fraud element. Carbajal’s claims are all
premised on an allegation that, during the discovery process in
Carbajal I, the Wells Fargo and H&H defendants concealed
information, later made public by the CFPB, that Wells Fargo
employees (with the tacit approval of Wells Fargo) had committed
misconduct by opening new accounts for existing customers and
enrolling existing customers in other banking services, all without
the customers’ consent. Carbajal says that this information should
have been disclosed pursuant to Rule 26 and his “formal and
informal [discovery] requests.” Thus, at bottom, Carbajal alleges
that the defendants committed discovery violations.
¶ 22 But those allegations are insufficient to support an
independent action to set aside the judgment: “allegations of
nondisclosure during pretrial discovery do not constitute grounds
for an independent action under [Rule 60(b)].” Mantis Transp. v.
Kenner, 45 F. Supp. 3d 229, 250 (E.D.N.Y. 2014) (citation omitted).
If relief could be obtained through an independent action in a case
where the most that could be charged against the defendants “is a
10
failure to furnish relevant information that would at best form the
basis for a [Rule 60(b)(2)] motion,” the strict 182-day time limit on
such motions “would be set at naught.” Beggerly, 524 U.S. at 46;
see also Gance, 36 P.3d at 118 (“If the scope of fraud allowed to
support an independent equitable action were identical to that
allowed under C.R.C.P. 60(b)(2), the six-month time limit contained
in that rule would be rendered essentially meaningless.”). For that
reason, fraud cognizable to maintain an untimely independent
attack on a final judgment “has long been regarded as requiring
more than common law fraud.” George P. Reintjes Co. v. Riley
Stoker Corp., 71 F.3d 44, 48 (1st Cir. 1995). Independent actions
must be reserved for those cases presenting particularly egregious
circumstances or clear injustices. Beggerly, 524 U.S. at 46.
¶ 23 Consistent with this view, Colorado law requires that the party
asserting an independent action prove “extrinsic” rather than mere
“intrinsic” fraud. See, e.g., Fritsche v. Thoreson, 2015 COA 163,
¶¶ 14-17; Gance, 36 P.3d at 117. “Extrinsic fraud goes to the
jurisdiction of the court to hear a case and amounts to a subversion
of the legal process itself.” Gance, 36 P.3d at 117. Extrinsic fraud
occurs, for example, where a party is deceived into waiving service,
11
id., or fraudulently induced into consenting to entry of final
judgment, Long v. Shorebank Dev. Corp., 182 F.3d 548, 561 (7th
Cir. 1999). In contrast, intrinsic fraud “pertains to an issue in the
original action.” Gance, 36 P.3d at 117. Classic examples of
intrinsic fraud are perjury and nondisclosure between parties. Id.
at 117-18.
¶ 24 We conclude that the alleged discovery violations in this case
fall squarely within the category of “intrinsic fraud.” The Wells
Fargo and H&H defendants’ alleged failure to disclose documents
about Wells Fargo’s banking practices is akin to a husband’s failure
to disclose assets and income in the course of a dissolution
proceeding, which a division of this court characterized as intrinsic
fraud. See id. at 118. The fact that the defendants’ alleged
discovery violations could not have been litigated or resolved in the
underlying action does not turn what is at best common law fraud
into extrinsic fraud. See Fritsche, ¶ 15. Nor do we see the alleged
participation of counsel in the discovery process as dispositive. If in
every case where a party was represented by counsel the opponent
could set aside a judgment based on a purported discovery
violation, the principle of finality would be rendered meaningless.
12
¶ 25 The nature of the alleged fraud is not Carbajal’s only obstacle.
Even if he could establish extrinsic fraud, he cannot show that the
fraud prevented him from pursuing a meritorious claim in the
underlying action. Relief pursuant to an independent action is
appropriate only if the district court has a “reason to believe that
vacating the judgment will not be an empty exercise.” Teamsters,
Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v.
Superline Transp. Co., 953 F.2d 17, 20 (1st Cir. 1992). Here it
would be.
¶ 26 As we have noted, in Carbajal I the district court entered
summary judgment in favor of Wells Fargo bank, the teller, and the
other two employees on Carbajal’s claims for invasion of privacy,
breach of fiduciary duty, and breach of contract. Carbajal insists
that if he had obtained the concealed information about Wells
Fargo’s improper banking practices, he could have prevailed on his
claims. We are not persuaded.
¶ 27 The invasion of privacy claim failed as a matter of law because
Carbajal did not allege any damages, he presented no evidence of
disclosure of his private information to third parties, and he could
not establish vicarious liability for the teller’s actions. Carbajal I,
13
slip op. at 14-15. In the present case, Carbajal appears to argue
that the concealed information would have established Wells
Fargo’s vicarious liability. But there is no vicarious liability unless
there is wrongdoing by the employee. See Ferrer v. Okbamicael,
2017 CO 14M, ¶ 30. And because Carbajal failed to present any
evidence that his private information was disclosed to the public —
an element of the claim entirely unrelated to the information
purportedly withheld during discovery — he cannot prove any
wrongdoing by the employees. So setting aside the judgment to
allow him to pursue an invasion of privacy claim against the
Carbajal I defendants would be an exercise in futility.
¶ 28 Nor could he prevail on his breach of fiduciary duty claim.
The Carbajal I division determined that “none of the defendants
owed Mr. Carbajal a fiduciary duty.” Slip op. at 23. Evidence of
Wells Fargo’s improper banking practices does not affect that legal
determination.
¶ 29 As for his breach of contract claims, the district court
concluded, and the division agreed, that Carbajal did not have a
contract with the teller or other employees, so there was no viable
claim for breach of contract. Id. at 24. And although Carbajal had
14
a standard customer contract with Wells Fargo, the district court
found that he could not prove his claim because he failed to present
evidence of a breach or recoverable damages. The division agreed
that, without evidence of disclosure of his private information to
third parties, Carbajal’s breach of contract claim failed as a matter
of law. Id. at 24-26. Because the breach of contract claims do not
depend on the content of any withheld documents or
representations about the bank’s practices, Carbajal cannot show
that the discovery violations prevented him from pursuing these
claims.
¶ 30 Finally, we have no difficulty concluding that Carbajal cannot
satisfy the first criterion of an independent equitable action: that
the judgment should not, in equity and good conscience, be
enforced. As Carbajal himself acknowledged, he initiated Carbajal I
for the purpose of obtaining “some information that w[ould] benefit
[him] in [his] other cases” — specifically, his criminal cases. Id. at
20; see also Carbajal v. Wells Fargo Bank, No. 12CV689 (City and
Cty. of Denver Dist. Ct. July 2, 2013) (order granting summary
judgment) (“Mr. Carbajal testified that ‘the only reason this suit
15
exists’ was to obtain discovery from his criminal cases and to
expose the purported abuses against him.”).
C. Fraud on the Court
¶ 31 Interspersed throughout Carbajal’s briefing are allegations
that the Wells Fargo and H&H defendants’ discovery violations
constituted a fraud on the court.
¶ 32 Fraud on the court provides a separate ground for setting
aside a judgment under the savings clause of Rule 60(b). Fraud on
the court is a concept closely aligned with, but even narrower than,
extrinsic fraud. Gance, 36 P.3d at 118.
¶ 33 Fraud between the parties does not constitute fraud on the
court. United States v. Buck, 281 F.3d 1336, 1342 (10th Cir. 2002).
Fraud on the court “is defined in terms of its effect on the judicial
process, not in terms of the content of a particular
misrepresentation or concealment.” Gance, 36 P.3d at 118 (quoting
12 Moore’s Federal Practice § 60.21[4][a] at 60-52 (3d ed. 1997)).
Thus, “[f]raud on the court must involve more than injury to a
single litigant; it is limited to fraud that ‘seriously’ affects the
integrity of the normal process of adjudication.” Id.
16
¶ 34 Carbajal relies primarily on Foxley v. Foxley, 939 P.2d 455
(Colo. App. 1996), to support his position that fraud purportedly
involving a lawyer amounts to fraud on the court. That reliance is
misplaced.
¶ 35 In Foxley, a division of this court concluded that dismissal
under Rule 12(b)(5) was improper, as the plaintiff had sufficiently
pleaded a fraud on the court. But there, the plaintiff alleged a
complex scheme involving the presentation of a sham appraisal to
the dissolution court, resulting in a $30 million discrepancy in the
court’s valuation of the distributable marital estate. Id. at 457-58.
¶ 36 Foxley presented an egregious case of fraud that tainted the
court’s decision-making process. Indeed, fraud on the court is
usually found only in cases that involve “an ‘unconscionable
scheme calculated to interfere with the judicial system’s ability
impartially to adjudicate a matter’ involving an officer of the court.”
Roger Edwards LLC v. Fiddes & Sons Ltd., 427 F.3d 129, 133 (1st
Cir. 2005) (quoting George P. Reintjes Co., 71 F.3d at 48 n.5).
¶ 37 Here, while Carbajal alleges a conspiracy to defraud involving
multiple lawyers, his claim is actually that the lawyers agreed not to
turn over documents in discovery. The “mere nondisclosure to an
17
adverse party and to the court of facts pertinent to a controversy
before the court does not add up to ‘fraud upon the court’ for
purposes of vacating a judgment under Rule [60].” Wilson v.
Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989)
(citation omitted); see also LinkCo, Inc. v. Naoyuki Akikusa, 367 F.
App’x 180, 182-83 (2d Cir. 2010) (“Obstruction of discovery”
indicates fraud on a single litigant, rather than fraud on the court.);
Weese v. Schukman, 98 F.3d 542, 552-53 (10th Cir. 1996)
(discovery violations do not constitute fraud on the court). Thus, as
a matter of law, Carbajal’s allegations do not establish fraud on the
court.
¶ 38 In sum, Carbajal did not file his complaint within the time
provided by Rule 60(b)(2), and he did not and cannot show that his
claim for relief from judgment comes under one of the exceptions to
the time limit. For these reasons, we conclude that the district
court properly dismissed the complaint with prejudice as time
barred. See Se. Colo. Water Conservancy Dist. v. Cache Creek
Mining Tr., 854 P.2d 167, 177 (Colo. 1993) (where party’s complaint
did not satisfy criteria for independent equitable action or motion to
18
set aside judgment based on fraud on the court, Rule 60(b)’s time
limit barred the action).
III. Order Granting Motion for Permanent Injunction
¶ 39 Contemporaneously with their motion to dismiss, the H&H
defendants moved for a permanent injunction enjoining Carbajal
from filing pro se actions against Holland & Hart or any of its
lawyers without prior court approval. Certain of the Wells Fargo
defendants later joined in the H&H defendants’ motion. The district
court granted the motion, but without making any findings or
specifying the terms of the injunction.
¶ 40 On appeal, Carbajal generally contends that the injunction
infringes his right to access the courts and is designed to punish
him.
¶ 41 We review a district court’s injunction enjoining pro se
appearances for an abuse of discretion. Bd. of Cty. Comm’rs v.
Winslow, 706 P.2d 792, 795 (Colo. 1985). A court abuses its
discretion when its decision is manifestly arbitrary, unreasonable,
or unfair. Rinker v. Colina-Lee, 2019 COA 45, ¶ 29.
¶ 42 Carbajal has a constitutional right to access the state courts.
Colo. Const. art. II, § 6. But under certain circumstances, that
19
right must yield to “the interests of other litigants and of the public
in general in protecting judicial resources from the deleterious
impact of repetitious, baseless pro se litigation.” Karr v. Williams,
50 P.3d 910, 913 (Colo. 2002) (quoting Winslow, 706 P.2d at 794).
While mere litigiousness is not grounds for an injunction
prohibiting a party from proceeding pro se, no party may use the
judicial process to harass or intimidate his adversaries. Id. at 914.
When a party has abused the judicial process by filing duplicitous
and groundless complaints and appeals, and other penalties have
proven ineffective, an injunction is the proper remedy. Id.; see also
Bd. of Cty. Comm’rs v. Winslow, 862 P.2d 921, 922-23 (Colo. 1993)
(in determining whether to enjoin pro se appearances, a court may
consider whether pro se litigant has a history of bringing cases
summarily dismissed for failure to allege cognizable claims or
failure to allege claims that have not been previously adjudicated).
¶ 43 As outlined in the H&H defendants’ motion, Carbajal has a
significant litigation history. Most relevant to the motion, this is the
second time Carbajal has sued the lawyers involved in Carbajal I.
¶ 44 In 2012, while Carbajal I was pending, Carbajal filed an action
in federal district court in Colorado against nineteen defendants,
20
including Michael Carrigan (who represented the teller-victim in
Carbajal I) and Brian Berardini and Marie Williams (who
represented Wells Fargo). As to Carrigan, Berardini, and Williams,
Carbajal alleged, just as he does in this case, that the lawyers
committed litigation misconduct — specifically, suppression and
destruction of material evidence. His fifty-nine-page complaint,
according to the federal magistrate judge who reviewed it, consisted
of a “rambling, massive collection of facts” that were not organized
into any manageable format. Carbajal v. Morrissey, No. 12-CV-
3231, at 4 (D. Colo. Feb. 20, 2014) (quoting Mitchell v. City of Colo.
Springs, Colo., 194 F. App’x 497, 498 (10th Cir. 2006)). The
“verbose” and “all-but impenetrable” complaint, id. at 13, placed an
unjustified burden on the court to “ascertain [Carbajal’s] claims and
to determine whether each [was] viable,” id. at 4. In the end, the
magistrate judge’s sixty-seven-page order recommended dismissal
of all of Carbajal’s claims against Carrigan, Berardini, and Williams.
(Indeed, the order recommended dismissal of all but one of the
claims against one of the defendants.)
¶ 45 Then, while the federal district court action was pending,
Carbajal filed the present case. He submitted a 105-paragraph
21
complaint, again asserting claims of litigation misconduct against
the defendants. Like his complaint in the federal case, his amended
complaint in the current case is verbose and confusing; his
pleading improperly shifts the burden to the court and the
defendants to discern the precise nature of his claims. And, like
the federal action, the current case turns out to be entirely lacking
in merit.
¶ 46 Thus, in theory, we cannot say that it was manifestly
arbitrary, unreasonable, or unfair for the court to impose certain
conditions on Carbajal’s right to continue to sue the lawyers
involved in Carbajal I.
¶ 47 However, the court’s order in this case does not comply with
Rule 65(d). The rule provides that
[e]very order granting an injunction and every
restraining order shall set forth the reasons for
its issuance; shall be specific in terms; shall
describe in reasonable detail, and not by
reference to the complaint or other document,
the act or acts sought to be restrained.
¶ 48 The court did not prepare an order that set forth the reasons
for issuing the injunction and described in reasonable detail the act
or acts sought to be restrained. We therefore have no separate
22
order to review, and we cannot say with assurance that any
injunction will conform to the rules or implement the relevant
principles of law.
¶ 49 Accordingly, we vacate the court’s order granting the H&H
defendants’ motion for a permanent injunction and remand to the
district court to formulate a compliant injunction, if on remand the
court again determines that an injunction is warranted.
IV. Conclusion
¶ 50 The judgment is affirmed. The order granting the motion for a
permanent injunction is vacated, and the case is remanded for
further proceedings.
JUDGE J. JONES and JUDGE BROWN concur.
23