Brockbank et al v. Wolfe

Filing 26

MEMORANDUM DECISION AND ORDER denying 22 Motion to Vacate 20 Clerk's Judgment of Dismissal. Signed by Judge David Nuffer on 9/12/14 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
DONNAMAY BROCKBANK, DENNIS L.
MOSES,
Plaintiffs,

MEMORANDUM DECISION
AND ORDER DENYING
PLAINTIFFS’ [22] MOTION TO
VACATE

v.
BRIAN WOLFE, and DOES 1 THROUGH 50,
Case No. 2-13-CV-00938-DN
Defendant.
District Judge David Nuffer

Pro se Plaintiffs Donnamay Brockbank and Dennis L. Moses move to vacate the Court’s
Memorandum Decision and Order Granting Brian Wolfe’s Motion to Dismiss and Combined
Memorandum in Support 1 (“Dismissal Order”). The Dismissal Order granted Brian Wolfe’s
(“Wolfe”) motion to dismiss and disposed of the case because the court lacked personal
jurisdiction over Wolfe.
Plaintiffs filed, on July 18, 2014, their motion 2 to vacate (“Motion”) and a separate
untitled document 3 specifying that their requested relief from judgment is pursuant to coram
nobis, coram vobis, and 60(b)(3) of the Federal Rules of Civil Procedure. Wolfe opposes
Plaintiffs’ Motion, arguing that “Rule 60 expressly abolishes coram nobis/vobis as a basis for
setting aside an order,” and further, Plaintiffs “provide no bases for this Court to even consider

1

Docket no. 19, filed June 12, 2014.

2

Motion to Vacate Recent Dismissal of this Case No. 2:13-cv-0938, docket no. 22, filed July 18, 2014.

3

Docket no. 23, filed July 18, 2014.

setting aside the Dismissal Order.” 4 Plaintiffs, on August 14, 2014, emailed a letter 5 to the court
which, if construed liberally, appears to be their response to Wolf’s memorandum in opposition.
Plaintiffs, however, do not address the arguments set forth in Wolfe’s memorandum in
opposition. Instead, Plaintiffs inform the court that Plaintiff Dennis Moses has health issues, and
request a stay on a judgment in their case until they find out what is happening with Mr. Moses’s
health issues.
Rule 60(e) specifically abolishes writs of coram nobis and coram vobis. 6 As for
Plaintiffs’ Rule 60(b)(3) motion, in order to prevail, Plaintiffs must demonstrate by clear and
convincing evidence that the Dismissal Order was the result of a fraud on the Court. 7 “Generally
speaking, only the most egregious misconduct, such as bribery of a judge . . . will constitute a
fraud on the court.” 8 Therefore, to prevail under this provision, Plaintiffs must show that the
“impartial functions of the court have been directly corrupted.” 9 Plaintiffs provide no such
evidence.
Plaintiff’s motion for Rule 60(b)(3) relief is merely another attempt to reargue their
previous allegations. Their motion is not based on any revelations of misconduct or fraud.
Indeed, Plaintiffs have failed to provide any evidence whatsoever regarding the alleged fraud
committed by Wolfe, merely making the conclusory allegations that Wolfe committed fraud by

4

Memorandum in Opposition to Motion to Vacate at 2, docket no. 24, filed July 31, 2014.

5

August 14, 2014 Email, docket no. 40, filed August 14, 2014.

6

See Fed. R. Civ. P. 60(e).

7

Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999).

8

United States v. Buck, 281 F.3d 1336, 1342 (10th Cir. 2002) (quoting Rozier v. Ford Motor Company, 573 F.2d
1332, 1338 (5th Cir. 1978)).

9

Bulloch v. United States, 763 F.2d 1115, 1118 (10th Cir. 1985).

2

illegally foreclosing on their property and ignoring the automatic stay in Plaintiff’s bankruptcy
case. This is clearly not enough to justify vacating the Dismissal Order and reopening this case.
ORDER
IT IS HEREBY ORDERED that the motion 10 to vacate is DENIED.

Signed September 12, 2014.
BY THE COURT

________________________________________
District Judge David Nuffer

10

Motion to Vacate Recent Dismissal of this Case No. 2:13-cv-0938, docket no. 22, filed July 18, 2014.

3