O'Brien v. Mitchell (883 F. Supp. 2d 1055, 2012)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Plaintiffs’ Motion for • Summary Judgment, filed April 13, 2012 (Doc. 27)(“MSJ”). The Court held a hearing on May 18, 2012. The primary issues are: (i) whether Walter Mitchell committed perjury in the damages trial in Mitchell v. City of Santa Fe, No. CIV 05-1155 (D.N.M.), held on December 10, 2007; and (ii) whether, because W. Mitchell thereby committed a “fraud on the court,” the Court should vacate the judgment in that case. The Court concludes that Plaintiffs Dennis O’Brien and Board of County Commissioners of the County of Santa Fe have not established that W. Mitchell had an intent to deceive or that he committed perjury. The Court further concludes that the Plaintiffs have not established that W. Mitchell and his attorney, Dennis W. Montoya, engaged in a deliberate plan or scheme to defraud the Court, and that the Plaintiffs have failed to establish that the Court should vacate the judgment in Mitchell v. City of Santa Fe, No. CIV 05-1155. Because a genuine issue of material fact exists whether W. Mitchell had an intent to deceive or committed perjury, the Court will deny the MSJ.

FACTUAL BACKGROUND

The record in Mitchell v. City of Santa Fe, affidavits, and exhibits demonstrate that the following facts are undisputed.

1. The November 4, 2002, Indictment in the Criminal Case Underlying the Civil Action in Mitchell v. City of Santa Fe.

On November 4, 2002, W. Mitchell, after voluntarily consuming an excessive dose of medication that apparently caused him to become psychotic and/or hypomanic, attacked his neighbor’s dogs with a sword in Santa Fe, New Mexico and almost struck a young neighbor — Mayre Perez — with his sword. See State v. Mitchell, No. D-101-CR-2002-01027, Findings of Fact and Conclusions of Law ¶¶ 1-15, at 1-3 (dated April 22, 2004), filed April 13, 2012, (Doc. 27-l)(“State Findings of Fact”); MSJ ¶ 1, at 6 (setting forth this fact). M. Perez, believing that W. Mitchell might strike her, called her parents, who in turn called 911. See State Findings of Fact and Conclusions of Law ¶¶ 16-17, at 3; MSJ ¶ 1, at 6 (setting forth this fact); Response in Opposition to O’Brien and Santa Fe County’s Motion for Summary Judgment on Their “Independent Action in Equity to Obtain Relief from a Judgment” at 11-12, filed May 3, 2012 (Doc. 32)(“Response”)(not disputing this fact). Sergeant Dennis O’Brien, Deputy Sheriff Rafael Rodriguez, Deputy Sheriff Fred Borman, and Deputy Sheriff Billy Smith, employees of the Santa Fe County Sheriff’s Department, were dispatched to the scene. See State v. Mitchell, No. D-101-CR-2002-01027, Statement of Probable Cause at 3-4 (dated November 4, 2002), filed April 13, 2012 (Doc. 27-2)(“Statement of Probable Cause”); MSJ ¶ 2, at 6 (setting forth this fact); Response at 11-12 (not disputing this fact). When the four Sheriffs deputies arrived, M. Perez’ father, Filberto Perez, was holding W. Mitchell at bay with a piece of pipe. See Statement of Probable Cause at 6. O’Brien was the lead deputy. See State Findings of Fact ¶ 19, at 3; MSJ ¶ 3, at 7 (setting forth this fact); Response at 11-12 (not disputing this fact).

Upon their arrival, the deputies instructed W. Mitchell to put down the sword; rather than obey their command, W. Mitchell removed the sword from the scabbard and held it in a threatening manner. See State Findings of Fact ¶¶ 20-21, at 3; MSJ ¶4, at 7 (setting forth this fact); Response at 11-12 (not disputing this fact). The deputies continued to instruct W. Mitchell to put down the sword, but he refused to comply and twice advanced on O’Brien while holding the sword in a threatening position. See State Findings of Fact ¶¶ 22-23, at 3; MSJ ¶ 4, at 7 (setting forth this fact); Response at 11-12 (not disputing this fact). On both of those occasions, O’Brien felt threatened and believed that W. Mitchell intended to attack him with the sword. See State Findings of Fact ¶ 25, at 3; MSJ ¶ 4, at 7 (setting forth this fact); Response at 11-12 (not disputing this fact). When W. Mitchell advanced more quickly on O’Brien a third time, O’Brien backed up until he had retreated into a parked vehicle. See State Findings of Fact ¶¶ 26-29, at 3-4; MSJ ¶4, at 7 (setting forth this fact); Response at 11-12 (not disputing this fact). During the incident, W. Mitchell made statements about the apocalypse and said “I hate cops.” Statement of Probable Cause at 4; MSJ ¶ 5, at 7 (setting forth this fact); Response at 11-12 (not disputing this fact). When W. Mitchell made his final advance on O’Brien, he held the sword with the blade facing out and with a look of rage in his eyes. See Statement of Probable Cause at 4; MSJ ¶ 5, at 7 (setting forth this fact); Response at 11-12 (not disputing this fact). After retreating as far as possible, O’Brien shot W. Mitchell three times. See State Findings of Fact ¶¶ 29-32, at 4; MSJ ¶ 4, at 7 (setting forth this fact); Response at 11-12 (not disputing this fact). The deputies then arrested W. Mitchell. See Statement of Probable Cause at 4-5; MSJ ¶ 4, at 7 (setting forth this fact); Response at 11-12 (not disputing this fact). Seven eyewitnesses observed W. Mitchell advancing on O’Brien with the sword, O’Brien’s retreat until he reached the parked car, and the discharge of O’Brien’s firearm. See Statement of Probable Cause at 3-7; MSJ ¶ 6, at 7-8 (setting forth this fact); Response at 11-12 (not disputing this fact).

2. W. Mitchell’s Trial and Conviction in State Court Based on the November 4, 2002 Incident.

On November 15, 2002, a grand jury of Santa Fe County, New Mexico indicted W. Mitchell on two felony charges: (i) aggravated assault upon a peace officer; and (ii) aggravated assault with a deadly weapon. See State v. Mitchell, No. D-101-CR-2002-01027, Grand Jury Indictment (dated November 15, 2002), filed April 13, 2012 (Doc. 27-3); MSJ ¶ 7, at 8 (setting forth this fact); Response at 12 (not disputing this fact). Following a bench trial, from March 16 to March 18, 2004, at which two defense attorneys — Mark Donatelli and John Day — represented W. Mitchell, he was “convicted beyond a reasonable doubt of both of the felony charges, and was found guilty but mentally ill.” State v. Mitchell, No. D-101-CR-2002-01027, Judgment, Partially Suspended Sentence at 1-2 (dated June 15, 2004), filed April 13, 2012 (Doc. 27-4)(“State Criminal Judgment”); State Findings of Fact ¶ 8, at 2; MSJ ¶ 8, at 8 (setting forth this fact); Response at 12 (not disputing this fact). Mr. Donatelli is a principal in the law firm of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienenu, LLP. See Affidavit of Mark H. Donatelli ¶¶ 3-4, at 1 (executed December 29, 2011), filed April 13, 2012 (Doc. 27-10); MSJ ¶¶ 13-14, at 9-10 (setting forth this fact); Response at 13 (not disputing this fact). W. Mitchell subsequently waived his right to appeal those convictions. See State v. Mitchell, No. D-101-CR-2002-01027, Defendant’s Waiver of Appeal (dated July 20, 2004), filed April 13, 2004 (Doc. 27-5); MSJ ¶ 9, at 8 (setting forth this fact); Response at 12 (not disputing this fact). The State Findings of Fact state that O’Brien is a deputy with the Santa Fe Sheriffs Department, and not a city police officer, and that all responding officer’s were deputies with the Santa Fe Sheriffs Department. See State Findings of Fact ¶¶ 18-20, 22, at 3; MSJ ¶ 10, at 8 (setting forth this fact); Response at 12 (not disputing this fact).

On May 7, 2004, the Honorable Stephen Pfeffer, First Judicial District Court Judge, County of Santa Fe, State of New Mexico, held a sentencing hearing. See State v. Mitchell, No. D-101-CR200201027, Sentencing Hearing (Partial Transcript) (dated May 7, 2004), filed April 13, 2012 (Doc. 27-9)(“State Hearing Transcript”); MSJ ¶ 11, at 8 (setting forth this fact); Response at 12-13 (not disputing this fact). At the state sentencing hearing, W. Mitchell addressed the Court, and made the following statements regarding the events surrounding his conviction:

Mitchell: I suppose I should first address the issue of whether or not I feel remorse. There is no doubt in my mind that I started the ball rolling that morning. I believe a person is responsible for their own actions, that it’s possible to stay out of trouble. I very obviously failed to do so. The extent of my regret is very difficult to express. I, this has been a shattering experience and if you have heard my prayers in the last several months you’d know my remorse. I feel bad about the whole thing. I’ve never been so ashamed in my life. I don’t know what to say, your Honor.

Court: How do you feel about the trauma to which you subjected Officer O’Brien?

Mitchell: That was a horrible thing to do. The sheer madness of the act, if anybody had attacked me with a sword, it’s totally over the top, what I did, what I apparently did. The — I don’t want to hurt anybody, your Hon- or, and the notion of attacking four armed police officers with a sword is perfectly insane. I think about the definition and the staggering quality of the offense, given that if I’d been shot dead that would have been all good and fair.

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* * * * Mitchell: I’m sorry I put him through the trauma.

‡ # # #

Mitchell: Please accept my sincere apologies. I didn’t mean to traumatize you. I didn’t, I surely had no conscious intent of killing you or hurt anyone.

State Hearing Transcript at 2-4; MSJ ¶ 11, at 9 (setting forth this fact); Response at 12-13 (not disputing this fact). At the conclusion of the state sentencing hearing, Judge Pfeffer sentenced W. Mitchell to four and a half years of incarceration, which was suspended in favor of supervised provision for the same period. See State Criminal Judgment at 1-2; MSJ ¶ 12, at 9 (setting forth this fact); Response at 13 (not disputing this fact).

3. W. Mitchell’s Post-Conviction Civil Action in Federal Court, Mitchell v. City of Santa Fe, based on the November 4, 2002 incident.

After the state case ended, Mr. Donatelli provided W. Mitchell with a copy of the State Findings of Fact. See Donatelli Aff. ¶ 5, at 2; MSJ ¶ 14, at 10 (setting forth this fact); Response at 13 (not disputing this fact). Sometime later, Mr. Montoya contacted Mr. Donatelli’s office and made arrangements to examine the criminal case file, which included copies of the State Findings of Fact, pleadings, and other filed documents. See Donatelli Aff. ¶ 8, at 2; MSJ ¶ 15, at 10 (setting forth this fact). Mr. Montoya’s paralegal, Brandon Cummings, went to Mr. Donatelli’s office, scanned some materials in the state criminal file, and took notes on others. See Donatelli Aff. ¶ 8, at 2; Affidavit of Brandon Cummings (executed May 2, 2012), filed May 3, 2012 (Doc. 32-1). Before filing a civil action, W. Mitchell and Mr. Montoya were aware of W. Mitchell’s state prosecution, his convictions, and the State Findings of Fact. See Donatelli Aff. ¶¶ 5-8, at 2; MSJ ¶ 17, at 10-11 (setting forth this fact); Response at 13 (not disputing this fact).

On November 2, 2005, W. Mitchell, represented by Mr. Montoya, filed Mitchell v. City of Santa Fe, in the United States District Court for the District of New Mexico, docketed as No. CIV 05-1155, alleging that the deputies used excessive force when arresting him on November 4, 2002 in violation of 42 U.S.C. § 1983 and asserting supervisory liability against the City of Santa Fe. See Mitchell v. City of Santa Fe, No. CIV 05-1155, Complaint for Civil Rights Violations, filed November 2, 2005 (Doc. l)(“Mitchell Complaint”); MSJ ¶ 18, at 11 (setting forth this fact); Response at 13 (not disputing this fact). W. Mitchell named the City of Santa Fe, its “subsidiary” the Santa Fe Police Department, and O’Brien, individually as an office of the Santa Fe Police Department, as defendants. Mitchell Complaint at 1; MSJ ¶ 18, at 11 (setting forth this fact); Response at 13 (not disputing this fact). The Mitchell Complaint alleged that O’Brien shot W. Mitchell in the back as W. Mitchell was walking away and that, at the time he was shot, W. Mitchell posed no threat to O’Brien or to others. See Mitchell Complaint ¶ 11, at 3; MSJ ¶ 19, at 11 (setting forth this fact); Response at 13 (not disputing this fact). It further alleged that O’Brien was, at all relevant times, “a law enforcement officer employed by the Santa Fe Police Department” who was acting within the scope and course of his employment and under the color of state law. Mitchell Complaint ¶¶ 4-7, at 2; MSJ ¶ 19, at 11 (setting forth this fact); Response at 13 (not disputing this fact). The Mitchell Complaint omits any mention of W. Mitchell’s altercation with M. Perez, his altercation with the deputies, the sword, the standoff, the trial, or the convictions. See Mitchell Complaint at 2-4; MSJ ¶ 19, at 11-12 (setting forth this fact); Response at 13 (not disputing this fact). W. Mitchell verified the Mitchell Complaint under oath. See Mitchell Complaint at 9; MSJ ¶ 20, at 12 (setting forth this fact); Response at 13 (not disputing this fact).

The City of Santa Fe and the Santa Fe Police Department had no involvement in the events of November 4, 2002, and all responding officers were Sheriffs deputies and a Sheriffs Sergeant. See State Findings of Fact ¶¶ 18-20, at 3; MSJ ¶ 21, at 12 (setting forth this fact); Response at 13 (not disputing this fact). O’Brien has never worked for the City of Santa Fe. See Mitchell v. City of Santa Fe, No. CIV 05-1155, Affidavit of Dennis O’Brien ¶¶ 3-4, at 1-2 (executed March 18, 2010), filed March 23, 2010 (Doc. 49-10); MSJ ¶22, at 12 (setting forth this fact); Response at 13 (not disputing this fact). Before filing the Mitchell Complaint, W. Mitchell was aware that the Santa Fe Police Department had no involvement in the incident and that O’Brien was a sergeant with the Santa Fe County Sheriffs Department, and a paralegal from Mr. Montoya’s office had reviewed information reflecting the same. See State Findings of Fact ¶¶ 18-20, at 3; Donatelli Aff. ¶¶ 5-8, at 2; Cummings Aff. ¶¶ 11-13, at 2. Mr. Montoya, on behalf of W. Mitchell, prepared a typed summons for “Officer Dennis O’Brian [sic], Santa Fe Police Dept.’ ” Mitchell v. City of Santa Fe, No. CIV 05-1155, Summons in a Civil Case, filed November 2, 2005 (Doc. 1-l)(“0’Brien Summons”); Mitchell v. City of Santa Fe, No. CIV 05-1155, Return of Service, file December 29, 2005 (Doc. 3)(“0’Brien Docket Entry Return of Service”); MSJ ¶ 24, at 12 (setting forth this fact). The O’Brien Summons reflects a procedural anomaly, in that the caption did not include O’Brien’s name as a defendant, but instead named the City of Santa Fe and “et al.”; thus, O’Brien’s name does not appear in the caption on the O’Brien Summons as a defendant. O’Brien Summons at 1; Fed.R.Civ.P. 4(a)(1)(A); MSJ ¶ 25, at 13 & n. 5 (setting forth this fact). There is a dispute whether O’Brien was served. See Mitchell v. City of Santa Fe, No. CIV 05-1155, Summons in a Civil Case, filed March 23, 2010 (Doc. 49-6)(“Issued Summons”); Mitchell v. City of Santa Fe, No. CIV 05-1155, Affidavit of Ken Johnson (executed March 19, 2010), filed March 23, 2010 (Doc. 49-7); O’Brien Summons at 1; Mitchell v. City of Santa Fe, No. CIV 05-1155, Sheriff of Santa Fe County Court Services-Docket Sheet, filed March 23, 2010 (Doc. 49-9); Mitchell v. City of Santa Fe, No. CIV 05-1155, Affidavit of Dennis O’Brien (executed March 18, 2010), filed March 23, 2010 (Doc. 49-10); Cummings Aff. ¶¶ 5, 9, at 2; MSJ ¶ 26, at 13 (setting forth this fact). On December 29, 2005, Mr. Montoya filed a Return of Service as to O’Brien, stating that personal service was made on “the defendant” at the Santa Fe County Sheriffs Department, without specifieally indicating that it was made on O’Brien. Mitchell v. City of Santa Fe, No. CIV 05-1155, Return of Service at 2 (dated November 18, 2005), filed April 13, 2012 (Doc. 27-6)(“Signed Return of Service”); MSJ ¶ 27, at 13 (setting forth this fact). The docket in Mitchell v. City of Santa Fe, No. CTV 05-1155, reflects that service was executed on O’Brien on November 18, 2005. See O’Brien Docket Entry Return of Service; Response at 14-15 (setting forth this fact). The Issued Summons was altered so that the typed words “Police Dept.” were whited out and were replaced ■with the handwritten words “County Sheriffs Dept.” Issued Summons at 1; O’Brien Summons at 1; MSJ ¶ 27, at 13 (setting forth this fact); Response at 14-15 (not disputing this fact). Major Kenneth Johnson, then a sergeant, signed the Issued Summons, the handwritten “County Sheriffs Dept.” is not in his handwriting, and he does not know who wrote these words or when. Johnson Aff. ¶ 5, at 2; MSJ ¶28, at 13-14 (setting forth this fact). Cummings changed the words before the complaint and summons were served. See Cummings Aff. ¶ 9, at 2; Response at 15 (setting forth this fact). Johnson acknowledges his signature on the Signed Return of Service, but states that he has no independent recollection of what documents he served. See Johnson Aff. ¶¶ 7-8, at 2; Response (setting forth this fact). O’Brien did not appear in Mitchell v. City of Santa Fe, No. CIV 05-1155, and he avers that he was never served with a summons or a copy of the complaint in that case. See O’Brien Aff. ¶ 5, at 2; MSJ ¶ 29, at 14 (setting forth this fact).

County Sheriff Greg Solano knew of the existence of this suit within five days of its filing, after commenting for and reading a newspaper article, but understood that the suit was against the City of Santa Fe, and spoke with O’Brien who was concerned about the lawsuit. See Mark Oswald, “Inventor Sues City for Shooting by Sheriffs Deputy,” Albuquerque Journal at 1-2 (dated November 7, 2005), filed May 3, 2012 (Doc. 32-5); Deposition of Greg Solano at 13:16-21, 15:2-25 (February 10, 2012), filed May 3, 2012 (Doe. 32-4); Deposition of Greg Solano at 35:13-18 (February 10, 2012), filed May 16, 2012 (Doc. 33-3); Response at 17 (setting forth this fact). Solano spoke to O’Brien after he read the article, they discussed the article, and Solano noted that O’Brien was upset and worried about the lawsuit. See Solano Depo. at 15:20-25; Deposition of Dennis O’Brien at 7:3-9:11 (February 10, 2012), filed May 3, 2012 (Doc. 32-6); Response at 18 (setting forth this fact).

On April 11, 2006, W. Mitchell filed a motion for default judgment against O’Brien, and, on April 12, 2006, the Clerk of the Court entered default. See Mitchell v. City of Santa Fe, No. CIV 05-1155, Motion and Application for Default Judgment, file April 11, 2006 (Doc. 6); Mitchell v. City of Santa Fe, No. CIV 05-1155, Clerk’s Entry of Default, filed April 12, 2006 (Doc. 10); MSJ ¶ 30, at 14 (setting forth this fact); Response at 15 (not disputing this fact). The Court subsequently granted the motion. See Mitchell v. City of Santa Fe, No. CIV 05-1155, Order on Plaintiffs Motion for Default Judgment, filed May 9, 2006 (Doc. 15)(“Default Judgment”); MSJ ¶ 30, at 14 (setting forth this fact); Response at 15 (not disputing this fact). On April 20, 2006, five months after the purported service of process on O’Brien, W. Mitchell filed a first amended complaint. See Mitchell v. City of Santa Fe, No. CIV 05-1155, First Amended Complaint for Civil Rights Violations, filed April 20, 2006 (Doc. 13)(“Mitchell’s Amended Complaint”); MSJ ¶ 31, at 14 (setting forth this fact); Response at 15 (not disputing this fact). In Mitchell’s Amended Complaint, he corrected the spelling of O’Brien’s name and O’Brien’s title, and named the Board of County Commissioners of the City of Santa Fe, in place of the City of Santa Fe. See Mitchell’s Amended Complaint ¶¶ 4-7, at 1-2; MSJ ¶ 32, at 14-15 (setting forth this fact); Response at 15 (not disputing this fact); Response at 18 (setting forth this fact). Mitchell’s Amended Complaint repeated verbatim the allegations that O’Brien shot W. Mitchell in the back as W. Mitchell was walking away and when he posed no legitimate threat. See Mitchell’s Amended Complaint ¶ 11, at 3; MSJ ¶ 32, at 15 (setting forth this fact); Response at 15 (not disputing this fact). As with the original complaint, W. Mitchell omits any mention of the sword, his attacks on O’Brien, his criminal trial, or his related convictions. See Mitchell’s Amended Complaint at 1-9; MSJ ¶ 32, at 15 (setting forth this fact); Response at 15 (not disputing this fact). Mitchell’s Amended Complaint alleges that O’Brien acted within the course and scope of his employment as a law enforcement officer of Santa Fe County, and under the color of state law. See Mitchell’s Amended Complaint ¶ 12, at 15; MSJ ¶ 33, at 15 (setting forth this fact); Response at 15 (not disputing this fact). W. Mitchell and Mr. Montoya did not serve a copy of Mitchell’s Amended Complaint on O’Brien. See Mitchell v. City of Santa Fe, No. CIV 05-1155; MSJ ¶ 34, at 15 (setting forth this fact); Response at 15 (not disputing this fact). The Clerk of the Court issued a summons as to the Board of County Commissioners, but W. Mitchell did not serve the Board of County Commissioners or the County Clerk. See Mitchell v. City of Santa Fe, No. CIV 05-1155, Docket Entry Summons, filed April 20, 2006; Mitchell v. City of Santa Fe, No. CIV 05-1155, Clerk’s Minutes, filed December 10, 2007 (Doc. 31)(noting that Mr. Montoya stated that he had chosen not to serve the County defendants); MSJ ¶34, at 15-16 (setting forth this fact); Response at 15 (not disputing this fact).

On December 10, 2007, the Court held a jury trial on the issue of damages in Mitchell v. City of Santa Fe, No. CIV 05-1155, in which neither O’Brien or the Board of County Commissioners participated nor attended. See Mitchell v. City of Santa Fe, No. CIV 05-1155, Special Verdict Form, filed December 10, 2007 (Doc. 43); MSJ ¶ 35, at 16 (setting forth this fact); Response at 15 (not disputing this fact). If that case had gone to trial on the merits, the defendants would have called most or all of the seven eyewitnesses to testify, and such witnesses would have testified that W. Mitchell made a frontal attack on O’Brien, while O’Brien was retreating. See Statement of Probable Cause at 3-7; MSJ ¶ 36, at 16 (setting forth this fact). W. Mitchell testified at trial without cross-examination, although Mr. Montoya questioned him. See Mitchell v. City of Santa Fe, No. CIV 05-1155, Transcript of Hearing at 1-8 (December 10, 2007)(Doc. 27-8)(“No. CIV 05-1155 Dec. 10, 2007 Tr.”); MSJ ¶ 37, at 16 (setting forth this fact). W. Mitchell testified:

Q: [by Montoya]: What were you doing at that moment?

A: [by Mitchell]: I was standing, holding the fake sword that I used to drive off my neighbor’s Rottweiler, who had attacked me that morning- — I did not injure the dog, mind you — and looking out into the sky, spacing out wondering what the whether was going to be like that day.

Q: Did you see the officer approach you?

A: No, I did not. His own testimony was that he approached by stealth.

A: ... The first I knew that somebody was standing behind me was when I heard a command to “Put down your weapon,” bang, bang, bang.

Q: What was the bang, bang, bang?

A: He began firing before he finished the sentence.

Q: Was there anyone else near you?

A: Not that I saw.

Q: Were you facing the officer?

A: No. * * * *

A: Well, he shot me without giving me proper warning, shot me in the back, which is generally considered dirty pool, shot me when I was not a threat to anyone else, altered evidence and concocted an absurd story afterwards to posit the scenario that I had attacked him.

No. CIV 05-1155 Dec. 10, 2007 Tr. at 21:5-22:13 (Montoya, W. Mitchell); id. at 22:5-13 (Montoya, W. Mitchell); id. at 49:13-17 (W. Mitchell); MSJ ¶ 37, at 16-17 (setting forth this fact); Response at 15 (not disputing this fact). The jury returned a verdict in favor of W. Mitchell in the amount of three-million dollars, including punitive damages, and the Court entered a final judgment. See Special Verdict Form at 1-2; Final Judgment at 1, filed December 31, 2007 (Doc. 45)(“05-1155 Final Judgment”); MSJ ¶ 38, at 17 (setting forth this fact); Response at 15 (not disputing this fact).

On December 28, 2007, after the trial in abstentia and with his verdict, W. Mitchell filed a dismissal without prejudice of his claims against Santa Fe County. See Mitchell v. City of Santa Fe, No. CIV OS-1155, Plaintiffs Rule 41 Dismissal of the Board of County Commissioners of Santa Fe County, filed December 28, 2007 (Doc. 44); MSJ ¶ 39, at 17 (setting forth this fact); Response at 15 (not disputing this fact). On July 29, 2009, W. Mitchell filed a Notice of Lis Pendens against O’Brien, which targeted O’Brien’s personal residence in Santa Fe. See Mitchell v. City of Santa Fe, No. CIV 05-1155, Notice of Lis Pendens, filed July 29, 2009 (Doc. 47); MSJ ¶ 40, at 17 (setting forth this fact); Response at 15 (not disputing this fact). Cummings mailed a copy of the Default Judgment to O’Brien two days after the Court filed that document. See Mitchell v. City of Santa Fe, No. CIV 05-1155, Affidavit of Brandon Cummings ¶ 7, at 1 (executed April 3, 2010), filed April 9, 2010 (Doc. 51-1); Response at 18 (setting forth this fact). O’Brien and the County of Santa Fe first became aware of the three-million dollar judgment against O’Brien through an unrelated ease and the resulting media publicity. See O’Brien Aff. ¶ 5, at 2; MSJ ¶41, at 17-18 (setting forth this fact).

4. Ethical Misconduct of Mr. Montoya.

Mr. Montoya filed Mitchell v. City of Santa Fe, No. CIV 05-1155. See MSJ ¶42, at 18 (setting forth this fact); Response at 16 (not disputing this fact). On November 9, 2011, the Supreme Court of New Mexico suspended Mr. Montoya from the practice of law based on what it called “a deeply troubling mosaic of ethical misconduct,” that “unquestionably calls for discipline and seriously calls into question Montoya’s fitness to practice law.” In re Montoya, 150 N.M. 731, 266 P.3d 11, 14 (2011); MSJ ¶ 43, at 18 (setting forth this fact). Some of the alleged misconduct included making false statements of fact and making material omissions of facts to courts as well as altering deposition testimony to favor his client. See In re Montoya, 150 N.M. 731, 266 P.3d at 20; MSJ ¶ 43, at 18 (setting forth this fact); Response at 16 (not disputing this fact). On multiple occasions, the United States District Court for the District of New Mexico has sanctioned or chided Mr. Montoya for a variety of misconduct. See Doe v. Martinez, No. CIV 09-0104 WJ/WPL, Memorandum Opinion and Order at 15-19, filed June 11, 2009 (Doc. 34); Hernandez v. Potter, No. CIV 08-0323 JCH/CEG, Memorandum Opinion and Order at 11 n. 4, filed August 4, 2009 (Doc. 51); MSJ ¶44, at 18-19 (setting forth this fact); Response at 16 (not disputing this fact). The United States Court of Appeals for the Tenth Circuit has also commented on and affirmed the imposition of various sanctions imposed on Mr. Montoya and his clients. See Holguin v. Burge, 240 Fed.Appx. 250 (10th Cir.2007)(unpublished); McGuinness v. Univ. N.M. Sch. of Med., 170 F.3d 974, 980 (10th Cir.1998); Archibeque v. Atchison, Topeka and Santa Fe Ry. Co., 70 F.3d 1172 (10th Cir.1995); MSJ ¶ 45, at 19 (setting forth this fact); Response at 16 (not disputing this fact).

PROCEDURAL BACKGROUND

On May 11, 2011, the Plaintiffs filed their Complaint to Set Aside Judgment. See Doc. 1. “This action is an independent action in equity to obtain relief from a judgment, and a motion to set aside a judgment for fraud upon the court,” pursuant to rules 60(d)(1) and 60(d)(3) of the Federal Rules of Civil Procedure and the common law. Complaint to Set Aside Judgment at 1. The Plaintiffs are suing D. Mitchell, W. Mitchell’s brother, because W. Mitchell died intestate on or about October 16, 2008, and because D. Mitchell is the court-appointed personal representative of his estate. See Complaint to Set Aside Judgment at ¶ 4, at 2. They assert that the Court has jurisdiction, pursuant to 28 U.S.C. § 1331, because “the judgment was entered in a civil action arising under the Constitution and laws of the United States, and the Court has inherent jurisdiction to redress fraud upon the Court” and because “this is a civil action between citizens of different states, where the matter in controversy exceeds the sum of $75,000.” Complaint to Set Aside Judgment ¶ 5, at 2-3. The Plaintiffs assert three Counts: (i) Count I-Denial of Due Process to Dennis O’Brien; (ii) Count II — Unfairness, Inequity and Miscarriage of Justice as to Santa Fe County; and (iii) Count III— Fraud Upon the Court. See Complaint to Set Aside Judgment at 15-17. The Plaintiffs demand a jury trial and ask that the Court: (i) set aside and make null and void the 05-1155 Final Judgment; (ii) vacate the Notice of Lis Pendens; (iii) award the Plaintiffs their costs and attorney’s fees; and (iv) grant any other relief that the Court deems appropriate. See Complaint to Set Aside the Judgment at 18. On June 18, 2011, D. Mitchell filed the Answer by Defendant David Mitchell to Complaint to Set Aside Judgment. See Doc. 6 (“Answer”). As affirmative defenses, D. Mitchell asserts that: (i) the doctrine of unclean hands bars the Plaintiffs’ request for relief; (ii) the Plaintiffs have defaulted on their defenses and their allegations that they were not on notice of the Mitchell Complaint is a fraud on the Court; and (iii) the doctrine of laches bars the Plaintiffs’ Complaint to Set Aside the Judgment. See Answer ¶¶ 36-38, at 9.

On April 13, 2012, the Plaintiffs filed their MSJ. See Doc. 27. The Plaintiffs argue that there is no genuine dispute as to any material fact related to fraud on the Court and that the undisputed evidence shows that the Plaintiffs are entitled to the vacation of the 05-1155 Final Judgment. See MSJ at 1. The MSJ is based only on Count III — Fraud on the Court — and the Plaintiffs assert that, if the Court grants the MSJ, Counts I and II would become redundant and moot. See MSJ at 5. The Plaintiffs argue that, although it is undisputed that the County of Santa Fe was never served with process in Mitchell v. City of Santa Fe, No. CIV 05-1155, there is a genuine dispute whether O’Brien was, or was not, served with a summons and the Mitchell Complaint. See MSJ at 20. The Plaintiffs contend that the issue of service of process and the Court’s personal jurisdiction over O’Brien is irrelevant to the alleged fraud on the Court which the MSJ raises. See MSJ at 20. They assert that a default judgment does not entitle a party to obtain a verdict through the knowing, deliberate presentation of perjured testimony. See MSJ at 20.

The Plaintiffs argue that this action is based “upon a long-established doctrine that predates the Federal Rules of Civil Procedure but is expressly recognized therein, called an independent action in equity to obtain relief from a judgment.” MSJ at 20 (citing Fed.R.Civ.P. 60(d)(1); United States v. Beggerly, 524 U.S. 38, 45-47, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2868, at 396 (3d ed.2012)). They assert that an independent action is equitable in nature, is directed to the Court’s sound discretion, and is not limited by any specific time deadline for its filing, other than laches. See MSJ at 21 (citing Robinson v. Volkswagenwerk AG, 56 F.3d 1268, 1273-75 (10th Cir.1995); Winfield Assocs., Inc. v. Stonecipher, 429 F.2d 1087, 1090-91 (10th Cir.1970); Crosby v. Mills, 413 F.2d 1273, 1276 (10th Cir. 1969)). They contend that a party should resort to an independent action only in “unusual and exceptional circumstances” to “prevent a grave miscarriage of justice.” MSJ at 21 (quoting United States v. Beggerly, 524 U.S. at 47,118 S.Ct. 1862; Crosby v. Mills, 413 F.2d at 1276). They argued that fraud is a cognizable, and the most common, ground for relief through an independent action. See MSJ at 21 (citing 11 Wright & Miller, supra § 2868, at 399). They assert that courts have an inherent power to vacate a judgment that has been obtained through a fraud on the court. See MSJ at 21 (citing Universal Oil Prods. Co. v. Root Refining Co., 328 U.S. 575, 580, 66 S.Ct. 1176, 90 L.Ed. 1447 (1946); Chavez v. City of Albuquerque, 402 F.3d 1039, 1043-44 (10th Cir.2005)). The Plaintiffs contend that there is no time limit to set aside a judgment obtained through a fraud on the court and that neither laches nor unclean hands can bar a court’s consideration of the matter. See MSJ at 21 (11 Wright & Miller, supra § 2870, at 409).

The Plaintiffs argue that “[ajlmost all of the principles that govern a claim of fraud on the court are derived from the Hazel-Atlas case.” MSJ at 22 (citing 11 Wright & Miller, supra, § 2870, at 411). They assert that, in Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944), the Supreme Court of the United States “faced a case in which the Circuit Court of Appeals had affirmed the validity of a patent based in part on an article published in a trade journal, ostensibly by a disinterested expert.” MSJ at 22. They contend that, when subsequent evidence revealed that one of the patent-holder’s attorneys wrote the article, the Supreme Court ordered the judgment set aside and held:

[Tjampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be must and helpless victims of deception and fraud.

MSJ at 22-23 (quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. at 246, 64 S.Ct. 997). They emphasize that the Tenth Circuit has recognized that a federal court has an “inherent power” to “set aside fraudulently begotten judgments,” and note that the perjury at issue in Chavez v. City of Albuquerque was by one of Mr. Montoya’s clients. MSJ at 23 (quoting Chavez v. City of Albuquerque, 402 F.3d at 1043-44). The Plaintiffs assert that the perjury in that case was uncovered during cross-examination of the plaintiff and that “here, of course, there was no adverse party to expose Mitchell’s lies.” MSJ at 23.

The Plaintiffs contend that the three-million dollar 05-1155 Final Judgment rests upon fraud, perjury, and a deliberate scheme to manipulate the judicial process. See MSJ at 23-24. They argue that the undisputed evidence demonstrates that W. Mitchell and Mr. Montoya were aware that W. Mitchell had been indicted, tried, and convicted of attacking O’Brien. See MSJ at 24. They assert that W. Mitchell and Mr. Montoya has actual knowledge of the State Findings of Fact, which “made undisputably clear, among other things, that O’Brien was a Santa Fe County Sheriffs Deputy ... and that Mitchell had attacked O’Brien three times with a sword, charging while O’Brien backed up in retreated.” MSJ at 24. They further assert that “[n]o honest person (party or attorney) could read the state court’s Findings of Fact and Conclusions of Law and be confused, to any extent whatsoever, as to the true facts.” MSJ at 24. The Plaintiffs contend that W. Mitchell acknowledged the “true facts” during his state criminal sentencing, when he told Judge Pfeffer that “there is no doubt in my mind that I started the ball rolling that morning” and that “attacking four armed police officers with a sword” was “sheer madness.” MSJ at 24. They also emphasize that W. Mitchell apologized to O’Brien for putting him “through the trauma.” MSJ at 24-25. They argue that, notwithstanding W. Mitchell’s and Mr. Montoya’s knowledge of the true facts, W. Mitchell engaged in a scheme to defraud the Court and pervert the justice system. See MSJ at 25. The Plaintiffs note that the W. Mitchell Complaint was filed against the City of Santa Fe, rather than the Board of County Commissioners, and against O’Brien as a Santa Fe Police Department Officer, rather than a Santa Fe County Deputy Sheriff. See MSJ at 25. They argue that the W. Mitchell Complaint is a “bundle of lies” alleging that O’Brien shot W. Mitchell in the back at a time when W. Mitchell posed no threat. MSJ at 25. The Plaintiffs assert that “[w]e likely will never know the full details of the’ service’ of the original complaint: the summons violated rule 4(a)(1)(A) as to form, and on its face does not clearly name Dennis O’Brian [sic] as a defendant.” MSJ at 25. They note that O’Brien has stated, under oath, that he was never served and that he would not have ignored such a pleading. See MSJ at 25-26 (citing O’Brien Aff. ¶¶ 5-6, at 2). They argue that the Signed Return of Service is ambiguous at best and that the Sheriff Department’s internal paperwork suggests that the service was of a complaint involving a different, pro se plaintiff. See MSJ at 26. They point out that the officially issued summons filed with the Signed Return of Service had been altered with white out. See MSJ at 26.

The Plaintiffs argue that, once W. Mitchell had obtained a default judgment, W. Mitchell and Mr. Montoya “went to town.” MSJ at 26. They note that, many months after the entry of default, W. Mitchell filed an amended complaint with corrections and substituting the Board of County Commissioners for the City of Santa Fe. See MSJ at 26. They emphasize that, “[n]ot surprisingly, Montoya did not serve the amended complaint on either defendant.” MSJ at 27 (citing Clerk’s Minutes at 1). They note that Mr. Montoya convinced the Court that notice of the upcoming trial on damages need not be give to O’Brien or the Board of County Commissioners, and argue that such notice “undoubtedly would have exposed the fraud, very quickly.” MSJ at 27 (citing Mitchell v. City of Santa Fe, No. CIV 05-1155, Memorandum Opinion and Order, filed May 9, 2007 (Doe. 18)). The Plaintiffs argue that, without an adverse party to oppose them, Mr. Montoya and W. Mitchell knowingly presented perjured testimony to convince the jury to award large damages. See MSJ at 27. They contend that, after hearing W. Mitchell’s testimony — in which he testified that O’Brien stealthily snuck up behind W. Mitchell and shot him in the back — the jury awarded him three-million dollars. See MSJ at 28. The Plaintiffs argue that the “Final Judgment (Doc. No. 45) rests upon a rotten structure of perjury and intentional abuse of the system and cannot stand.” MSJ at 28.

On May 3, 2012, D. Mitchell filed his Response. See Doc. 32. D. Mitchell asserts: (i) that O’Brien “failed to seek relief from the default and Default Judgment entered against him within a reasonable time under Fed.R.Civ.P. 55(c) and 60(b)”; (ii) that O’Brien “has not shown ‘good cause’ to set aside the default and the Default Judgment entered herein under Fed.R.Civ.P. 55(c)”; (iii) that O’Brien’s “failure to establish that the entry of the Default Judgment was the result of ‘mistake, inadvertence, surprise or excusable neglect’ is fatal to his Motion”; and (iv) that the Court should deny the MSJ based on O’Brien’s “failure to sufficiently present to the Court the requisite meritorious defense.” Response at 2-3. D. Mitchell argues that, if treated as a rule 60(b) motion, the MSJ is untimely, because it was filed more than one year after entry of the judgment. See Response at 18. He asserts that O’Brien relies on rule 60(b), but does not specify a subsection thereof. See Response at 18. He notes that, under rule 60(c), a motion under rules 60(b)(1), (b)(2), and (b)(3) must be made no later than one year after the entry of judgment, and that “O’Brien’s motion was filed March 23, 2010 more than two years after the entry of the judgment.” Response at 19. D. Mitchell further asserts that “O’Brien’s motion is not proper under subsection (6)” because fraud is specifically enumerated in rule 60(b)(3). Response at 19. He contends that, because the underlying basis of O’Brien’s MSJ is fraud, it is untimely, and the Court should deny the motion. See Response at 19 (citing Zurich N. Am. v. Matrix Serv., 426 F.3d 1281, 1289 (10th Cir.2005)).

D. Mitchell argues that O’Brien did not act within a reasonable time in requesting that the Court set aside the default judgment entered against him. See Response at 20. He emphasizes that the Court and the litigants have a vested interest in finality, and that the reasons for the delay are implausible, because: (i) O’Brien was personally served with process; and (ii) the Default Judgment was mailed to O’Brien’s home. See Response at 20. He contends that “O’Brien had full practical ability to know immediately upon receipt of the judgment of the grounds on which he now seeks relief from said judgment, yet he failed to urge them for at least two more years.” Response at 20. He notes that, in the interim, W. Mitchell died, “undermining the Estate of Walter Mitchell’s ability to. reconstruct its case at this late date.” Response at 20. D. Mitchell argues that, if this case is reopened, “the result will be catastrophic [sic] in this Circuit civil rights claims do not survive the death of the litigant.” Response at 20. He asserts that O’Brien fails to demonstrate good cause why the default judgment should be overturned under rule 55(c) or offer a meritorious defense. See Response at 21. He further asserts that whether a rule 60(b) motion is filed within a reasonable time depends upon “the interest in finality, the reason for the delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and the prejudice to other parties.” Response at 22-23 (citing United States v. All Monies from Account No. PO-204,675.0, 162 F.3d 1174, 1998 WL 769811 (10th Cir.l998)(unpublished table decision)). D. Mitchell argues that the Court and W. Mitchell’s estate have an interest in finality. See Response at 23. He contends that O’Brien’s “self-serving claim that all of the paperwork showing that he was properly served, which paperwork was generated by his own agency ..., is wrong and he simply was not served” is “untenable.” Response at 24. He asserts that, given O’Brien’s awareness of the suit, “there is no reasonable basis for concluding that O’Brien and Santa Fe County had no practical ability to learn earlier of the grounds upon which they now rely in seeking relief from judgment.” Response at 25. He emphasizes the prejudice he will face, because W. Mitchell is now deceased. See Response at 26.

With respect to rule 60(b), D. Mitchell argues that the only applicable subsection is rule 60(b)(1), relating to mistake, inadvertence, or excusable neglect. See Response at 26-27. He reiterates that O’Brien “makes no adequate explanation as to why he was taken by surprise at being asked about the judgment ... given that he was provided a copy of the judgment rendered against him by Walter Mitchell.” Response at 27. He argues that, “[b]y failing to respond to the Complaint ..., O’Brien has deprived Walter Mitchell of the ability to conduct discovery, preserve evidence, obtain documentation, indeed even of bringing this action at all.” Response at 28. He asserts that O’Brien offers no credible reason for his neglect. See Response at 29. He notes that, “even when judgment was rendered and a copy provided to him, O’Brien did nothing for more than two years.” Response at 29. He also points out that O’Brien has offered no meritorious defense. See Response at 30. D. Mitchell argues that the State Findings of Fact “does not effectively address the most damning accusation against [O’Brien], the claim that Walter Mitchell was shot in the back.” Response at 30-31. He asserts that O’Brien’s attempted meritorious defense “essentially consists of nothing more than restating that Walter Mitchell was convicted of aggravated battery and reciting findings made by the criminal trial court.” ■ Response at 31. He emphasizes that the excessive-force jurisprudence does not require W. Mitchell to prove that he did not commit a crime “as a prerequisite to showing that the police officer O’Brien used excessive force.” Response at 31.

Turning to O’Brien’s independent action in equity, D. Mitchell asserts that rule 60(d)(1) “is not an affirmative grant of power but merely allows continuation of whatever power the court would have had to entertain an independent action if the rule had not been adopted.” Response at 33. He argues that an independent action in equity is a “narrow avenue” for eases of injustice, which demand a departure from a rigid adherence to the doctrine of res judicata. Response at 33-34 (citing Sindar v. Garden, 284 Fed.Appx. 591, 596-97 (10th Cir.2008) (unpublished)). He contends that the United States Court of Appeals for the Eighth Circuit has established:

The indispensable elements of such a cause of action are (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of the defendant; and (5) the absence of any adequate remedy at law.

Response at 34 (citing Nat’l Sur. Co. v. State Bank of Humboldt, Neb., 120 F. 593 (8th Cir.1903)). He asserts that the differences between a relief from a default judgment under the Federal Rules of Civil Procedure and relief under an independent action in equity “are for the most part cosmetic.” Response at 34. D. Mitchell argues that O’Brien has only himself to blame for his situation and that the Court should deny the MSJ. See Response at 36.

On May 16, 2012, the Plaintiffs filed their Reply in Support of Motion for Summary Judgment. See Doc. 33 (“Reply”). The Plaintiffs argue that the Response “rests upon the erroneous premise that Plaintiffs have moved to set aside a default judgment pursuant to Fed.R.Civ.P. 55(c) and 60(b).” Reply at 1. They assert that D. Mitchell “utterly and completely fails to address a single one of the Rule 60(d)(3) ‘fraud on the court’ cases cited, discussed, and relied on by Plaintiffs.” Reply at 2. They contend that W. Mitchell’s criminal behavior and conviction are relevant, because the Supreme Court has made clear that excessive force is “judged by the ‘objective reasonableness standard,’ ” in which the behavior of the suspect is key. Reply at 5 (citing Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The Plaintiffs also argue that Mr. Montoya’s conduct is relevant, because “the law regarding fraud on the court suggests that the attorney’s involvement in the allegedly fraudulent conduct is highly relevant, and perhaps essential to obtaining relief.” Reply at 6 (citing 11 Wright & Miller, supra § 2870, at 420).

The Plaintiffs assert that the “gist” of D. Mitchell’s defense is to shift the focus from W. Mitchell and Mr. Montoya, to O’Brien. Reply at 7. They note that D. Mitchell “repeatedly argues that Dennis O’Brien was served” and that he ignored the suit, such that relief is precluded. Reply at 8. The Plaintiffs argue, however, that whether O’Brien was served is irrelevant to a motion claiming fraud on the court. See Reply at 8. They emphasize that default “is not a license to defraud.” Reply at 8 (citing 11 Wright & Miller, supra § 2870, at 412). They admit that the service issue is disputed. See Reply at 8. They contend that, regardless of service of process, the undisputed evidence establishes that the 05-1155 Final Judgment was based on false and misleading statements, and omissions of material facts. See Reply at 10.

The Court held a hearing on May 18, 2012. The Plaintiffs began recounting the procedural history of the case. See Transcript of Hearing at 3:12-4:23 (May 18, 2012)(Dickman)(“May 18, 2012 Tr.”). The Court asked to what authority the Plaintiffs would cite to educate it regarding rules 60(d)(1) and (d)(3). See May 18, 2012 Tr. at 4:24-5:3 (Court). The Plaintiffs suggested that Federal Practice & Procedure by Professors Charles Wright and Arthur Miller is the best resource. See May 18, 2012 Tr. at 5:4-13 (Dickman). They emphasized that the MSJ is on only Count 3 of the Complaint to Set Aside Judgment based on fraud on the Court. See May 18, 2012 Tr. at 5:20-6:8 (Dickman). They asserted that Count 3 was the claim most susceptible to summary judgment. See May 18, 2012 Tr. at 6:15-7:4 (Dickman). They argued that the service issue is irrelevant to Count 3, that there is not dispute as to any material fact, and that the Court has great discretion, because it is an equity action. See May 18, 2012 Tr. at 7:5-17 (Dickman). The Court then asked whether the fraud had to contribute to the default judgment or whether any fraud was sufficient to set aside the 05-1155 Final Judgment. See May 18, 2012 Tr. at 7:18— 23 (Court). The Plaintiffs responded that the judgment must be the product of fraudulent conduct and argued that the fraud in this case was much more egregious than in the other cases they had found. See May 18, 2012 Tr. at 7:24-8:17 (Dickman). They asserted that, in United States v. Beggerly, the United States brought a quiet title action regarding land in Mississippi and that, during discovery the United States asserted that it had no documents regarding private ownership of the land, but later the landowners found a document in the National Archives demonstrating private ownership. See May 18, 2012 Tr. at 8:18-9:22 (Dickman). They stated that the landowners filed an action for fraud on the court, and the Supreme Court found, in a unanimous opinion, that the evidence demonstrated, at best, that the United States did not do a thorough search during discovery and that there was no fraud. See May 18, 2012 Tr. at 9:22-10:6 (Dickman). The Plaintiffs contrasted the United States v. Beggerly with Hazel-Atlas Glass Co. v. Hartford-Empire Co., in which the Supreme Court suggested that fraud on the court involved fraudulent conduct such as forgery or perjury. See May 18, 2012 Tr. at 10:6-8 (Dickman).

The Plaintiffs stated that, in Hazel-Atlas Glass Co. v. Hartford-Empire Co., the fraud occurred when a patent applicant’s lawyer wrote a scholarly article and pretended that it was written by an expert in the field when the company when to the patent office. See May 18, 2012 Tr. at 11:3— 15 (Dickman). They represented a lawsuit was instituted on the basis of the patent and, even though the article was one of several bases for the decision, the Supreme Court found that it was fraud on the court. See May 18, 2012 Tr. at 12:8-14:2 (Dickman). They argued that fraud on the court is a flexible concept and that due diligence is irrelevant, because the courts are investigating the machinery of justice. See May 18, 2012 Tr. at 14:3-12 (Dickman). They contended that the laches and unclean hands doctrines do not apply, because the court is the party that is objectively wronged. See May 18, 2012 Tr. at 14:16-15:1 (Dickman). They next discussed Chavez v. City of Albuquerque, which vacated a judgment based on perjury. See May 18, 2012 Tr. at 15:2-11 (Dickman). The Plaintiffs also emphasized that the Response does not discuss any cases involving fraud on the court and that, instead, it focuses on rule 60(b) cases. See May 18, 2012 Tr. at 15:16-16:4 (Dickman). They then recounted the facts of the state criminal trial and the filing of the Mitchell Complaint. See May 18, 2012 Tr. at 16:15— 20:23 (Dickman). They reiterated that the Mitchell Complaint does not mention W. Mitchell’s criminal trial or conviction. See May 18, 2012 Tr. at 20:24-21:2 (Dickman). The Plaintiffs discussed the service of process issue, but emphasized that it is irrelevant to the fraud-on-the-court claim. See May 18, 2012 Tr. at 21:3-6 (Dickman). The Plaintiffs suggested that the handwritten alterations to the Issued Summons constitute tampering with that document and noted that the Signed Return of Service does not say who was served or in what case. See May 18, 2012 Tr. at 22:7-25 (Dickman). They argued that O’Brien is one hundred percent certain that he did receive any summons, because he would not have ignored this case. See May 18, 2012 Tr. at 23:20-24:3 (Dickman). They noted that, after the default judgment was entered, the Court, at Mr. Montoya’s urging, determined that it did not need to give the Plaintiffs notice of the jury trial on damages and argued that the Court’s decision was wrong. See May 18, 2012 Tr. at 25:24-27:1 (Dickman).

With respect to W. Mitchell’s testimony at the damages trial, the Plaintiffs asserted that W. Mitchell swore that he was contemplating the weather when O’Brien snuck up behind him and shot him three times in the back. See May 18, 2012 Tr. at 27:2-11 (Dickman). They argued that W. Mitchell’s testimony was a fraud on the court. See May 18, 2012 Tr. at 27:14-18 (Dickman). They contended that, in Chavez v. City of Albuquerque, the plaintiff also perjured himself on the stand and the Tenth Circuit held that a court has an inherent power to vacate a judgment based on fraud on the court, such as perjury. See May 18, 2012 Tr. at 29:4-21 (Dickman). They asserted that, in this case, the Court had no reason to be aware of the criminal trial and conviction, and that the judgment was based on a “rotten” structure. May 18, 2012 Tr. at 29:22-30:10 (Dickman). The Court asked whether the issue was about a fraud that procured the final judgment, which incorporated the three-million dollar award. See May 18, 2012 Tr. at 31:20-22 (Court). The Plaintiffs agreed, but clarified that they believed that there was also fraud which predated the default. See May 18, 2012 Tr. at 31:23-32:3 (Court, Dickman). The Court then asked where, in the state criminal proceeding, W. Mitchell admitted that he was shot from the front. See May 18, 2012 Tr. at 32:21-33:1 (Court). The Plaintiffs pointed the Court to the State Findings of Fact, which find, beyond a reasonable doubt, that W. Mitchell was advancing on O’Brien. See May 18, 2012 Tr. at 33:2-12 (Dickman). They also argued that W. Mitchell admitted that he started the ball rolling that morning. See May 18, 2012 Tr. at 33:13-23 (Dick-man). They Court then asked whether perjury was a question that the Court could decide on summary judgment. See May 18, 2012 Tr. at 34:2-7 (Court). The Plaintiffs asserted that the Court has the State Findings of Fact, made beyond a reasonable doubt, and his testimony was inconsistent with those findings. See May 18, 2012 Tr. at 34:7-25 (Court, Dickman). The Court then asked whether it had to accept the State Findings of Fact under the doctrine of collateral estoppel. See May 18, 2012 Tr. at 35:1-3 (Court). The Plaintiffs argued that it did. See May 18, 2012 Tr. at 35:4 (Dickman). The Court asked whether those findings were also binding on W. Mitchell. See May 18, 2012 Tr. at 35:7-9 (Court). The Plaintiffs contended that collateral estoppel is a huge part of this case and noted that W. Mitchell waived his right to appeal the State Findings of Fact. See May 18, 2012 Tr. at 36:2-37:5 (Dickman). They asserted that “there is no way in the world” to reconcile the testimony W. Mitchell provided in Mitchell v. City of Santa Fe, No. CTV 05-1155. May 18, 2012 Tr. at 37:6-24 (Dick-man). The Court asked whether the fraud was that, in the state criminal case, the State Findings of Fact conclude that W. Mitchell was advancing on O’Brien and, in the Court’s civil case, W. Mitchell testified, that he was shot from behind. See May 18, 2012 Tr. at 38:2-5 (Court). The Plaintiffs agreed, but also pointed to W. Mitchell’s statements at the sentencing hearing where he asserted that he got the ball rolling that morning and that it would be sheer madness to attack four officers with a sword. See May 18, 2012 Tr. at 38:6-23 (Dickman).

The Court asked whether, if it agreed with the Plaintiffs, it would be setting aside only the final judgment or the default judgment as well. See May 18, 2012 Tr. at 41:1-2. The Plaintiffs asserted that they believe the Court can set aside both, because, setting aside the service issue, the default was based on a fraudulent document — the Mitchell Complaint. See May 18, 2012 Tr. at 41:2-11 (Dickman). They argued that the Mitchell Complaint was a “pack of lies” and that it relies on the same falsehood — that W. Mitchell was shot in the back. May 18, 2012 Tr. at 41:12-25 (Dickman). They contended that the Court would be well within its power to find that there is nothing left to litigate, because the State Findings of Fact are binding. See May 18, 2012 Tr. at 42:8-24 (Dickman).

D. Mitchell first addressed Hazel-Atlas Co. v. Hartford-Empire Co., in which the Supreme Court found that “every element of fraud here disclosed demands the exercise of the history power of equity” and argued that here the case for fraud is weaker because it rests on the possibility of perjury. May 18, 2012 Tr. at 46:1-14 (Juarez). He asserted that the defendant in that case deliberately planned to defraud the patent office and the United States Court of Appeals for the Third Circuit. See May 18, 2012 Tr. at 46:15-21 (Juarez). He argued that part of the standard presented in United, States v. Beggerly’s discussion of the equities is the absence of fault or negligence on the part of the Plaintiffs. See May 18, 2012 Tr. at 46:22-47:6 (Juarez). D. Mitchell contended that, if inconsistencies provided a basis to overturn a judgment, then the Court will kill the judicial system. See May 18, 2012 Tr. at 47:6-8 (Juarez). He asserted that W. Mitchell never testified at the criminal trial. See May 18, 2012 Tr. at 47:18-19 (Juarez). The Court asked, assuming that it must take the State Findings of Fact as true, whether those findings and W. Mitchell’s testimony during the damages trial were irreconcilable. See May 18, 2012 Tr. at 47:20-25 (Court). D. Mitchell pointed out that the state criminal trial was uncontested and that W. Mitchell was not the same as the plaintiff in Chavez v. City of Albuquerque who repeatedly lied. See May 18, 2012 Tr. at 48:1-6 (Juarez). The Court asked whether D. Mitchell could reconcile the finding that W. Mitchell was advancing on the deputies with W. Mitchell’s testimony that he was shot in the back. See May 18, 2012 Tr. at 48:18-23 (Juarez). D. Mitchell stated that he did not know whether W. Mitchell turned at some point or what medical evidence was presented during the state criminal trial. See May 18, 2012 Tr. at 48:24-49:7 (Juarez). He argued that W. Mitchell’s convictions do not bar an excessive-force action. See May 18, 2012 Tr. at 49:14-24 (Juarez). He contended that the only evidence before the Court is an uncontested finding from a state criminal trial, in which the attorney made a tactical decision not to put his client on the stand, and W. Mitchell’s testimony. See May 18, 2012 Tr. at 49:25-50:11 (Juarez). D. Mitchell asserted that the limited evidence before the Court is not enough to establish perjury or fraud on the court. See May 18, 2012 Tr. at 50:12-14 (Juarez).

D. Mitchell argued that United States v. Beggerly and Hazel-Atlas Glass Co. v. Hartford-Empire Co. were about gross injustices in unprecedented circumstances. See May 18, 2012 Tr. at 50:21-23 (Juarez). He pointed to United States v. Beggerly, in which the Supreme Court found that a failure to disclose evidence in discovery is not a gross injustice that demands a judgment be vacated. See May 18, 2012 Tr. at 51:3-5 (Juarez). He argued that such behavior is part of a regular lawsuit and is no different than the inconsistencies before the Court. See May 18, 2012 Tr. at 51:5-12 (Juarez). He also argued that here there are equities on both sides, because of the Plaintiffs’ negligence and the likelihood that W. Mitchell’s estate will be