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holding that such information would be admissible at trial
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Civil Action No. 04-cv-01456-EWN-CBS.
February 2, 2007
ORDER AND MEMORANDUM OF DECISION
This is an employment discrimination case. Plaintiff Steve Murray asserts that his former employer, Defendant Cars Collision Center of Colorado, LLC, discriminated against him by maintaining a hostile work environment in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (2006), and 42 U.S.C. § 1981 (2006) ("section 1981"). This matter is before the court on various post-trial motions: (1) "Defendant's Motion to Extend Stay Under Rule 62(b)," filed May 5, 2006; (2) "Defendant's Motion for New Trial, or in the Alternative, Motion to Alter or Amend Judgment," filed May 5, 2006; (3) "Defendant's Renewed Motion for Judgment as a Matter of Law," filed May 5, 2006; (4) "Plaintiff's Motion to Amend Judgment to Include Prejudgment and Postjudgment Interest," filed May 10, 2006; (5) "Plaintiff's Application for Attorneys' Fees and Expenses," filed June 1, 2006; (6) "Defendant's Motion for Relief from Judgment," filed October 3, 2006; and (7) Plaintiff's "Unopposed Motion to Supplement Plaintiff's Response to Defendant's Motion for Relief from Judgment and Supplemental Brief," filed January 4, 2007. Jurisdiction is premised upon the existence of a federal question, pursuant to 28 U.S.C. § 1331 (2006).
FACTS
1. Factual Background
The facts of this case are set forth in detail in the court's February 23, 2006 Order and Memorandum of Decision granting Defendant's motion for partial summary judgment. (Order and Mem. of Decision [filed Feb. 23, 2006] [hereinafter "Order"].) Familiarity therewith is thus assumed.
2. Procedural History
On July 15, 2004, Plaintiff filed a complaint in this court, alleging three claims for relief: (1) racial discrimination under Title VII and section 1981 in the form of Defendant's maintenance of a hostile work environment, demotion of Plaintiff, complaints about Plaintiff's work performance, and termination of Plaintiff's employment; (2) retaliation under Title VII and section 1981 in the form of Defendant's demotion of Plaintiff, complaints about Plaintiff's work performance, and termination of Plaintiff's employment; and (3) breach of implied contract or promissory estoppel in the form of Defendant's termination of Plaintiff's employment. (Compl. [filed July 15, 2004].)
On March 15, 2005, Defendant moved for summary judgment on all of Plaintiff's claims except for the hostile work environment claim. (Def.'s Mot. for Partial Summ. J. [filed Mar. 15, 2005].) On April 8, 2005, Plaintiff filed a motion for sanctions for spoliation of evidence, in which he alleged Defendant improperly failed to preserve Plaintiff's time cards. (Mot. for Sanctions for Spoliation of Evid. [filed Apr. 8, 2005].) On November 21, 2005, this court granted Plaintiff's sanctions motion in part and ordered that Plaintiff receive: (1) a beneficial presumption concerning the time cards in connection with the motion for summary judgment and any subsequent trial; and (2) attorneys' fees and costs incurred in litigating the spoliation issue. (Order Accepting Magistrate Judge's Recommendation [filed Nov. 21, 2005].) On February 23, 2006, this court granted Defendant's motion for partial summary judgment. (Order.)
Plaintiff tried his hostile work environment claim to a jury. As this court has previously recognized, credibility was a central issue at trial because the parties presented contradictory stories regarding the events that took place. ( See Supplemental Br. in Supp. of Def.'s Mot. for Relief from J., Ex. 3 at 9 [Rep.'s Tr. 10/5/2006 Status Conference] [filed Oct. 20, 2006] [hereinafter "Def.'s 1st Supplement"].) Plaintiff prevailed. On April 20, 2006, following a four-day trial, the jury awarded him $250,000 in compensatory damages and $1,500,000 in punitive damages. (Final J. at 1-2 [filed Apr. 27, 2006].)
On May 5, 2006, Defendant cut its first swath of post-trial filings. On that date, Defendant filed a motion for a new trial or, alternatively, to alter or amend judgment, in which it argued that: (1) a new trial was warranted because the jury's verdict was a result of "passion, prejudice, or bias," and "the entire trial was poisoned by improper evidence" concerning acts allegedly committed by Plaintiff's supervisor; or, alternatively, (2) an amended judgment reducing the damages award was warranted because the amount awarded was excessive and not supported by the evidence in the case. (Def.'s Mot. for New Trial, or in the Alternative, Mot. to Alter or Amend J. [filed May 5, 2006].) On May 25, 2006, Plaintiff responded to Defendant's motion. (Pl.'s Resp. to Def.'s Mot. for New Trial, or in the Alternative, Mot. to Alter or Amend J. [filed May 25, 2006].) On June 12, 2006, Defendant filed a reply in support of its motion. (Reply in Supp. of Def.'s Mot. for New Trial, or in the Alternative, Mot. to Alter or Amend J. [filed June 12, 2006].)
Additionally, on May 5, 2006, Defendant filed a renewed motion for judgment as a matter of law, arguing that Plaintiff presented insufficient and impermissibly contradictory evidence at trial to support of his claims. (Def.'s Renewed Mot. for J. as a Matter of Law [filed May 5, 2006].) On June 7, 2006, Plaintiff responded to the motion. (Pl.'s Resp. to Def.'s Renewed Mot. for J. as a Matter of Law [filed June 7, 2006].) On June 22, 2006, Defendant filed a reply brief in support of its motion. (Reply in Supp. of Renewed Mot. for J. as a Matter of Law [filed June 22, 2006].)
Finally, on May 5, 2006, Defendant filed a motion to extend the automatic stay of execution of judgment while its above-described post-trial motions lay pending before this court. (Def.'s Mot. to Extend Stay under Rule 62[b] [filed May 5, 2006].) Plaintiff did not respond to the motion.
On May 10, 2006, Plaintiff moved the court to alter the judgment in order to include prejudgment interest at a rate of nine percent per annum and postjudgment interest at a rate of four and nine-tenths percent. (Pl.'s Mot. to Amend J. to Include Prejudgment and Postjudgment Interest [filed May 10, 2006].) On May 30, 2006, Defendant responded to the motion. (Resp. to Pl.'s Mot. to Amend J. to Include Prejudgment and Postjudgment Interest [filed May 30, 2006].) Plaintiff did not file a supportive reply.
On June 1, 2006, Plaintiff filed a motion for attorneys' fees and expenses, in which he asserts he is the prevailing party and requests that this court award him $148,165.50 in attorneys' fees and expenses. (Pl.'s Application for Att'y's Fees and Expenses [filed June 1, 2006].) On June 26, 2006, Defendant responded to Plaintiff's motion. (Def.'s Resp. to Pl.'s Application for Att'y's Fees and Expenses [filed June 26, 2006].) On July 11, 2006, Plaintiff filed a reply brief in support of his motion. (Reply in Supp. of Pl.'s Application for Att'y's Fees and Expenses [filed July 11, 2006].)
On September 12, 2006, Plaintiff disclosed to the court that some of his deposition testimony was "factually inaccurate." (Pl.'s Disclosure at 2 [filed Sept. 12, 2006] [hereinafter "Disclosure"].) Although Plaintiff testified he had only been convicted of driving with a suspended license in 2000, in actuality, he been convicted of at least seven crimes in Oklahoma: (1) illegal distribution and unlawful delivery of controlled substances in 1990; (2) driving with a suspended license in or around 1992; (3) driving without a license in or around 1994; (4) resisting arrest and speeding in 1998; (5) fishing without landowner consent in 1999; (6) driving under the influence and driving with a suspended license in 2001; and (7) obtaining merchandise by means of a bogus check in 2001. ( Id.; Def.'s Mot. for Relief from J., Ex. 3 at 32-34 [Murray Dep.] [filed Oct. 3, 2006] [hereinafter "Def.'s Br."].)
On October 3, 2006, Defendant filed a motion for relief from judgment based on Plaintiff's failure to divulge his criminal history. (Def.'s Br.) Defendant notes that Plaintiff claimed to have only one criminal conviction both in his deposition testimony and on his employment application. ( Id. at 1-3.) Defendant notes further that Plaintiff testified about the employment application at length during trial in connection with his work performance and abilities. ( Id.) Emphasizing the undisputed importance of witness credibility in this case, Defendant asserts that Plaintiff's misrepresentation of his criminal history irreparably tainted proceedings. ( Id.) Defendant argues that given Plaintiff's misrepresentations and omissions, this court should vacate the judgment and impose sanctions on Plaintiff under Federal Rule of Civil Procedure 60(b). ( Id. at 7-26.) Specifically, Defendant requests that the court: (1) vacate the judgment; (2) either dismiss Plaintiff's claim with prejudice or set a new trial for the case; and (3) award Defendant attorneys' fees and costs it incurred in connection with the trial and post-trial motions. ( Id. at 7-8.) Alternatively, Defendant argues that the same relief is appropriate pursuant to either the court's inherent powers or Federal Rules of Civil Procedure 11, 26, 30, and 41(b). ( Id. at 8.)
Additionally, Defendant notes that Plaintiff was incarcerated from 1990 to 1993, but testified in his deposition and at trial that he was working for those years. (Def.'s Br. at 2.) It has since been clarified that Plaintiff was incarcerated for approximately four months in 1990, and then released on supervised parole, during which he was ostensibly able to work. (Pl.'s Resp.to Def.'s Mot. for Relief from J. and Supplemental Br., Ex. B [Rabon Aff.] [filed Nov. 6, 2006] [hereinafter "Pl.'s Resp."].) Further discussion of this evidence is not necessary, for this matter can be resolved by analyzing only the evidence of Plaintiff's criminal convictions.
On October 5, 2006, the court held a status conference to discuss Plaintiff's disclosure and set a briefing schedule for Defendant's motion for relief from judgment. (Status Conf. Mins. [filed Oct. 5, 2006].) On October 20, 2006, Defendant filed a supplemental brief in support of its motion, arguing that Plaintiff's entire criminal record is admissible evidence. (Def.'s 1st Supplement.) On October 30, 2006, Defendant filed a second supplemental brief in support of its motion, consisting of an updated report of Plaintiff's criminal history. (Mot. to Supplement Def.'s Mot. for Relief from J. [filed Oct. 30, 2006] [hereinafter "Def.'s 2d Supplement"].) On November 6, 2006, Plaintiff responded to Defendant's motion. (Pl.'s Resp.) On January 4, 2007, Plaintiff concurrently: (1) filed an unopposed motion to supplement his response to Defendant's motion for relief from judgment; and (2) tendered his proposed supplemental brief. (Unopposed Mot. to Supplement Pl.'s Resp. to Def.'s Mot. for Relief from J. and Supplemental Br. [filed Jan. 4, 2007]; Supplement to Pl.'s Resp. to Def.'s Mot. for Relief from J. and Supplemental Br. [tendered Jan. 4, 2007] [hereinafter "Pl.'s Supplement"].) In his tendered brief, Plaintiff notes that on January 3, 2007, the 2001 driving under the influence charge against him was dismissed with prejudice and expunged from his record. (Pl.'s Supplement.)
ANALYSIS
1. Standard of Review
Given the tenor of the instant case, the court need only address in detail Defendant's October 3, 2006 motion for relief from judgment. Further, Defendant's arguments under Federal Rule of Civil Procedure 60(b) are sufficient to resolve this matter. Rule 60(b) provides that:
[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial . . .; (3) fraud . . ., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged . . .; (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment . . . was entered or taken.
Fed.R.Civ.P. 60(b) (2006). Relief under Rule 60 is, in general, "`extraordinary and may only be granted in exceptional circumstances.'" Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999) (quoting Cashner v. Freedom Stores, 98 F.3d 572, 576 [10th Cir. 1996].) Still, "to prevent [a] judgment from becoming a vehicle of injustice," Rule 60(b) "is to be construed liberally to do substantial justice." Rosebud Sioux Tribe v. A P Steel, Inc., 733 F.2d 509, 515 (8th Cir. 1984) (citations and internal quotation marks omitted).
2. Evaluation of Claims a. Preliminary Matter: Admissibility
Before turning to the substantive analysis of Defendant's arguments under Rule 60(b), the court addresses the preliminary matter of admissibility of the evidence in question. The parties spill much ink over whether the evidence of Plaintiff's criminal convictions is admissible. (Def.'s 1st Supplement at 3-13; Pl.'s Resp. at 3-15.) Defendant argues that Plaintiff's entire criminal history is admissible. (Def.'s 1st Supplement at 4-13.) Plaintiff counters that all but one of his convictions is inadmissible. (Pl.'s Resp. at 8-15.)
At the outset, the court notes it is undisputed that evidence concerning Plaintiff's August 20, 2001 misdemeanor conviction for "willfully, knowingly, wrongfully, and with intent to cheat and defraud" obtaining merchandise by means of a bogus check is admissible under Federal Rule of Evidence 609. (Def.'s 1st Supplement at 10-13; Def.'s 2d Supplement, Ex. 5 at 2, 7-13 [Okla. Records]; Pl.'s Resp. at 8.) As might be expected, the parties' only quibble involves the effect of the evidence. Defendant argues the evidence is extremely significant because of the importance of credibility in the trial, while Plaintiff downplays the evidence and posits that if the subject would have been broached at trial, he could have explained the circumstances so as to avoid any taint on his credibility. (Def.'s 1st Supplement at 3-4; Pl.'s Resp. at 8-9.)
Rule 609 provides that evidence that a witness has been convicted of a crime is admissible to impeach the witness if the crime "involved dishonesty or a false statement." Fed.R.Evid. 609(a)(2) (2006).
As to the remaining convictions, Defendant argues they are all relevant and admissible to impeach Plaintiff and to demonstrate Plaintiff's employment application contained prior inconsistent statements. (Def.'s 1st Supplement at 4-6.) Plaintiff counters that the veracity of his statements on the employment application is a collateral matter, about which extrinsic evidence is inadmissible. (Pl.'s Resp. at 14-15.) Plaintiff argues further that the evidence is generally inadmissible as impeachment evidence under Federal Rule of Evidence 609 because: (1) his felony convictions — which, Plaintiff argues, do not include a 2001 deferred judgment for driving under the influence — are more than ten years old; and (2) the other convictions are for misdemeanor crimes. ( Id.) Plaintiff argues that, because it is inadmissible, his failure to disclose the evidence of his convictions (other than the bogus check conviction) is essentially irrelevant. ( Id.) Neither party's argument is fully convincing.
This court finds that it is certainly possible, and in fact seems rather probable, that the subject of Plaintiff's criminal history might arise in trial. But whether evidence of Plaintiff's convictions — other than the bogus check conviction — would be admissible depends entirely upon the situation in which the discussion thereabout arises and the direction in which such discussion goes. It is simply not a determination that can be made in a vacuum. As a matter of course, the evidence could be admitted if this court were to determine that the probative value outweighed its prejudicial effect. See Fed.R.Evid. 609 (2006). Further, pursuant to Rule 404, evidence of Plaintiff's convictions could be admissible to impeach Plaintiff if he were to testify that he did not commit them. See United States v. Lara, 956 F.2d 994, 997 (10th Cir. 1992) (holding that evidence of prosecution for other crimes used for impeachment purposes was permissible because "Rule 404[b] shields a defendant from unfair prejudice but it is not a license to give misleading or false testimony"). Regardless, whether the evidence concerning Plaintiff's other convictions is admissible is of questionable importance, as there is no dispute that evidence of Plaintiff's bogus check conviction is admissible. (Def.'s 1st Supplement at 3-4; Pl.'s Resp. at 8-9.) Accordingly, although the court recognizes that evidence of the other convictions is potentially admissible, the court considers only the bogus check conviction in analyzing Defendant's motion. b. Rule 60(b)(2)
First, Defendant argues that it is entitled to relief from judgment under Rule 60(b)(2) because Plaintiff's criminal history constitutes newly discovered evidence. (Def.'s Br. at 9-15.) To satisfy Rule 60(b)(2), Defendant must show that: (1) the evidence was newly discovered since the trial; (2) Defendant was diligent in discovering the evidence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) admitting the evidence would probably produce a different result in a new trial. Zurich N. Am. v. Matrix Serv., 426 F.3d 1281, 1290 (10th Cir. 2005). There is no dispute that the first factor is satisfied. (Pl.'s Resp. at 16-19.) The court analyzes the remaining factors seriatim.
Pursuant to the second factor listed above, if the purported newly discovered evidence "was available or by the use of reasonable diligence could have been available at trial to the party seeking a new trial, that evidence cannot support an order for a new trial." Ope Shipping v. Underwriters at Lloyds, 100 F.R.D. 428, 432 (S.D.N.Y. 1983) (citation omitted). Plaintiff asserts that Defendant failed "to exercise any diligence whatsoever" to discover his criminal background. (Pl.'s Resp. at 17.) Plaintiff's argument is disingenuous. As Defendant notes, it obtained discovery in the form of Plaintiff's employment application, in which Plaintiff: (1) represented that he had been convicted of one crime; and (2) executed an affirmation "certify[ing] that all information [] provided . . . is true, complete, and correct." (Def.'s Br. at 11, Ex. 2 at 2 [Employment Application].) Further, Defendant specifically questioned Plaintiff about the employment application and his criminal history in his deposition:
Significantly, even where proper diligence would have led the moving party to discover the purported "newly discovered evidence," a new trial may be ordered "to prevent a grave miscarriage," but only where the evidence "is practically conclusive." Ope Shipping, 100 F.R.D. at 432 (citations omitted). For reasons that are altogether apparent, the parties do not explore this narrow exception. (Def.'s Br.; Pl.'s Resp.)
Q: You have only been convicted of one crime, and that crime is driving under a suspended license; is that right?
A: Yeah.
( Id. at 11, Ex. 3 at 33 [Murray Dep.].) Obtaining two identical sworn statements from Plaintiff as to his criminal history simply cannot be characterized as a failure to act with reasonable diligence. While Defendant would have been wise to perform a criminal background check, Defendant was not obligated by law or circumstance to do so. Indeed, given Plaintiff's sworn statements, Defendant's failure to run a background check seems imprudent, but not entirely unreasonable. Accordingly, this court does not find a lack of diligence in Defendant's attempts to obtain the information concerning Plaintiff's criminal history.
The third factor weighs less in Defendant's favor. Defendant asserts that evidence of Plaintiff's criminal history is not merely cumulative or impeachment evidence because the "jury's credibility determinations were the central component to the outcome of the trial." (Def.'s Br. at 11-12.) In support of its contention, Defendant cites Rosebud Sioux Tribe v. A P Steel, Inc., 733 F.2d 509, 515 (8th Cir. 1984) and Berry v. Department of Corrections, No. 93 Civ. 6448 BSJ, 2004 WL 287666 (S.D.N.Y. Feb. 11, 2004). ( Id. at 12-14.) Neither is apposite or convincing in the instant case.
In the unpublished, non-binding Berry, the department of corrections prevailed over a pro se prisoner who claimed he had been beaten excessively because "there was no credible evidence that any officer used excessive force." 2004 WL 287666, at *4 (citation and internal quotation marks omitted). The newly discovered evidence in that case included just such evidence in the form of eye-witness accounts, one officer's "use of force" reports, and another officer's sworn statement that violence against inmates was ingrained in the department's culture. Id., at *4-5. Rosebud is similarly unavailing. In that case, which concerned conspiracy and fraud, the newly discovered evidence in question consisted of a principal witness's grand jury testimony that "flatly contradict[ed]" the witness's prior testimony in trial. 733 F.2d at 516. More specifically, after testifying at trial that he had not taken part in any conspiracy or fraud, the witness testified before a grand jury that he had "accepted payoffs" and had been asked to lie during his deposition. Id. at 514, 516. What renders these cases distinguishable from the one at bar is that the newly discovered evidence directly spoke to the subject matter of the complaints themselves, and in doing so "shed[] an entirely different light on the [other] evidence and len[t] greater weight to the [plaintiffs'] allegations." Id. In the instant case, the evidence in question simply does not play such a role. Here, the evidence does not speak to the gravamen of Plaintiff's allegations of harassment, but to their believability. Indeed, by its own admission, Defendant "would have used the evidence at trial to prove that Plaintiff lied on his [employment] [a]pplication . . . and to attack his credibility." (Def.'s Br. at 11-12.) Consequently, this court finds that the evidence in question is insufficient to satisfy the third factor.
Concerning the fourth factor, "material" evidence is "[o]f such a nature that knowledge [thereof] would affect a person's decision-making process." BLACK'S LAW DICTIONARY 991 (7th ed. 1999). This court finds Defendant's argument that the evidence would have been "material to the jury's credibility assessment of Plaintiff" convincing. (Def.'s Br. at 14.) Plaintiff argues that the evidence "would have been unlikely to cause the jury to disbelieve [Plaintiff]" simply ignores the nature of materiality. (Pl.'s Resp. at 18.) It is unthinkable that evidence of a witness's prior dishonesty would not affect one's decision concerning the witness's testimony and claims. Stated more simply, a witness's credibility is always material. The evidence at issue is clearly material and satisfies the fourth Rule 60(b)(2) factor.
As to the final factor, Defendant argues that "because credibility determinations were so unusually central to the outcome of the trial," evidence of Plaintiff's untruthfulness probably would have produced a different outcome. (Def.'s Br. at 14.) Plaintiff counters with a bald assertion that, in light of all the evidence in the case, evidence of Plaintiff's untruthfulness would not have affected the outcome. (Pl.'s Resp. at 18.) This court is not so convinced. In analyzing the fifth factor courts look to "probability" over "certainty." Graham v. Wyeth Labs., 906 F.2d 1399, 1418 (10th Cir. 1990). Given that the evidence tends to undercut Plaintiff's credibility, which was a pivotal issue in the case, this court finds there is a reasonable probability that the outcome of the case would be different. Here, although most of the Rule 60(b)(2) factors weigh in favor of Defendant, this court cannot ignore the one that does not. Given the facts of this case, granting Defendant's Rule 60(b)(2) motion would be an abuse of this court's discretion. As the court will discuss in further detail below, a new trial is appropriate in this circumstance, but not pursuant to Rule 60(b)(2). c. Rule 60(b)(3)
Defendant also argues that relief from judgment in this case is proper under Rule 60(b)(3). (Def.'s Br. at 15-24.) Rule 60(b)(3) provides for relief from a final judgment based on fraud, misrepresentation, or other misconduct by an adverse party and "`is aimed at judgments which were unfairly obtained, not at those which are factually incorrect.'" Zurich, 426 F.3d at 1290 (quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 [5th Cir. 1978]). To satisfy Rule 60(b)(3), Defendant must first provide clear and convincing evidence to substantiate the claim of Plaintiff's fraud, misconduct, or misrepresentation. Fed.R.Civ.P. 60(b)(3) (2006); Yapp, 186 F.3d at 1231. In the Tenth Circuit, the first prong requires Defendant to establish that Plaintiff acted with "`an intent to deceive or defraud the court,'" by means of a "`deliberately planned and carefully executed scheme.'" Yapp, 186 F.3d at 1231 (quoting Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1267 [10th Cir. 1995]). Further, Defendant must demonstrate that Plaintiff's actions substantially interfered with Defendant's ability to prepare for and proceed at trial fully and fairly. Woodworker's Supply Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999).
Other circuits have applied a lesser standard to prove misconduct under Rule 60(b)(3). Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988) (holding "misconduct" under Rule 60[b][3] does not require proof of intent to deceive). Regardless, this court is bound by Tenth Circuit precedent unless and until it is overruled by the Tenth Circuit en banc or superseded by a contrary Supreme Court decision. See United States v. Spedalieri, 910 F.2d 707, 709 n. 2 (10th Cir. 1990).
Evidently recognizing the higher standard the Tenth Circuit imposes, Defendant asserts that Plaintiff's statement he had only been convicted of one crime and concealment of his criminal record sufficiently evince his intent to "deceive or defraud both [Defendant] and the [c]ourt by means of a deliberately planned and carefully executed scheme." (Def.'s Br. at 23.) Defendant's conclusory statements are insufficient to support its claim. Zurich, 426 F.3d at 1292-93. Accordingly, Defendant is not entitled to the relief he seeks under Rule 60(b)(3).
d. Rule 60(b)(6)
Finally, Defendant moves this court to vacate judgment under Rule 60(b)(6), the catch-all provision. (Def.'s Br. at 24-26.) Plaintiff counters that such relief is inappropriate because Defendant has merely rehashed its Rule 60(b)(2) and 60(b)(3) arguments under the aegis of Rule 60(b)(6). (Pl.'s Resp. at 21-22.) Plaintiff is correct in part. It is true that the categories for relied under Rule 60(b) are "mutually exclusive." Zurich, 426 F.3d at 1293. "The clear import of the language of clause (b)(6) is that the clause is restricted to reasons other than those enumerated in the previous five clauses." Id. (citation and internal quotation marks omitted). Indeed, "[p]arties moving for relief under Rule 60(b) cannot simply throw in subsection (6) without any new arguments and expect to obtain a new trial." Id. Although Plaintiff accurately describes the law, he mischaracterizes Defendant's argument. Defendant argues that the court should grant it relief under Rule 60(b)(6) because: (1) Plaintiff "unfairly" obtained a favorable judgment by "intentionally withholding material evidence;" and (2) it is not in the interests of justice to allow the judgment to stand. (Def.'s Br. at 24-25.)
This court finds Defendant's arguments convincing. Rule 60(b)(6) has been described as a "grand reservoir of equitable power to do justice in a particular case." Cashner, 98 F.3d at 579 (citing Pierce v. Cook Co., 518 F.2d 720, 722 [10th Cir. 1975]). Further, relief under Rule 60(b)(6) is available "`when it offends justice to deny such relief.'" Yapp, 186 F.3d at 1232 (quoting Cashner, 98 F.3d at 580). Given the importance of credibility in this case, there can be no question that objective evidence speaking directly to Plaintiff's honesty should have been before the jury. This court fully accepts Defendant's argument that evidence of Plaintiff's crimes concerning dishonesty would have changed the tenor and procedure of trial. (Def.'s Br. at 7, 19.) In short, Plaintiff's omission unfairly hindered Defendant from being able to develop and mount its defense. To allow the judgment to stand offends justice and strikes this court as unequivocally inequitable. In this case, application of the maxim lex respicit aequitatem is wholly appropriate. Consequently, Defendant's motion to vacate the judgment pursuant to Rule 60(b)(6) is granted.
e. Sanctions
In addition to vacating the judgment, Defendant argues that this court should: (1) dismiss Plaintiff's motion with prejudice; or (2) "at a minimum," grant a new trial. ( Id. at 28.) Defendant points the court to factors promulgated by the Tenth Circuit to consider in imposing sanctions for failure to provide or permit discovery. ( Id. at 29-36.) To wit:
(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction . . .; and (5) the efficacy of lesser sanctions.Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992) (citations and internal quotation marks omitted). First, the court notes that these factors are of questionable applicability, because they arise in the context of dismissing a complaint as a sanction under Federal Rule of Civil Procedure 37(b)(2)(C). See Ehrenhaus, 965 F.2d at 920; Fed.R.Civ.P. 37(b)(2)(C) (2006). Even so, "`[o]nly when the aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits is dismissal an appropriate sanction.'" Ehrenhaus, 965 F.2d at 920 (quoting Meade v. Grubbs, 841 F.2d 1512, 1521 n. 7 [10th Cir. 1988]). Here, Plaintiff's misrepresentations and omissions assuredly prejudiced Defendant and interfered with the judicial process to some degree, but a lesser sanction is effective to resolve the matter. A new trial of the case would provide Defendant the opportunity to utilize the evidence at issue while preserving Plaintiff's opportunity to have his case resolved on the merits.
Finally, Defendant argues that the court should award its attorneys' fees and costs incurred in connection with the trial and post-trial motions. (Def.'s Br. at 28.) In making this request, Defendant wholly ignores Colorado Local Civil Rule 54.3A, which requires that "[u]nless otherwise ordered by the court, a motion for attorney fees shall be supported by one or more affidavits." D.C. Colo. L. Civ. R. 54.3A (2006). Defendant has furnished no such support, and this court has not issued an order allowing for any such omission. Further, Defendant has requested an award of the "fees and costs it incurred in the first trial and post trial motions." (Def.'s Br. at 28.) This amorphous request is a direct violation of Local Rule 54.3B, which, in relevant part, requires submission of "a detailed description of the services rendered, the amount of time spent, the hourly rate, and the total amount claimed." D.C. Colo. L. Civ. R. 54.3B (2006). Beyond the rules, it is rather surprising that Defendant would move the court for relief without: (1) specifying the relief sought; or (2) presenting some means by which to adjudge the reasonableness of said relief. Accordingly, Defendant's request for fees and costs is denied. 3. Conclusion
Based on the foregoing it is therefore ORDERED that:
1. Defendant's motion for extension of the stay of execution of judgment (# 105) is GRANTED.
2. Defendant's motion for a new trial (# 106) is DENIED as moot.
3. Defendant's renewed motion for judgment as a matter of law (# 107) is DENIED as moot.
4. Plaintiff's Motion to include prejudgment and postjudgment interest in the judgment (# 110) is DENIED as premature.
5. Plaintiff's motion for attorney's fees and expenses (# 122) is DENIED as premature.
6. Defendant's motion for relief from judgment (# 141) is GRANTED in part and DENIED in part. The motion is GRANTED as it arises under Federal Rule of Civil Procedure 60(b)(6) and DENIED on all other grounds. The motion to grant a new trial of the claim is GRANTED. The motion to dismiss Plaintiff's claim with prejudice is DENIED. The motion for attorneys' fees and costs for trial and post-trial motions is DENIED, except to the extent provided below.
7. Plaintiff's unopposed motion to supplement her response to Defendant's motion for relief from judgment (# 148) is GRANTED.
8. Defendant may have its costs incurred in connection with the motion for relief from judgment (# 141) by filing a bill of costs within eleven days of the date of this order.
9. The parties shall appear before this court for a status conference on Friday, March 9, 2007, at 9:30 o'clock a.m