v. Wells Fargo

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