Gardner v. Coldwell Banker Legacy LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WILLIAM GARDNER and
JARDINERO INVESTMENTS LLC,
Plaintiff,
v. 	No. 1:25-cv-01212-SMD-SCY
COLDWELL BANKER LEGACY LLC,
JUMP INC.,
JOHN LOPEZ,
PLATINUM REAL ESTATE PARTNERS LLC,
NEW MEXICO LAND AND TITLE CO.,
CHAD HAMM,
STATE OF NEW MEXICO,
GATTON & ASSOCIATES, P.C.,
GIDDENS AND GATTON LAW FIRM P.C.,
DAVID GIDDENS, in his official and individual capacities,
CHRIS GATTON, in his official and individual capacities,
BURRAGE & JOHNSON, CPAs, LLC, ACCOUNTING, and
JEROME JOHNSON, in his official and individual capacities,
Defendants.
ORDER REGARDING PLAINTIFF JARDINERO INVESTMENTS LLC
AND ORDER GRANTING MOTION TO STAY IN PART
Plaintiff William Gardner, who is proceeding pro se, asserted claims arising from the court-
ordered sale of Plaintiff’s property located at 8521 Central Ave. NE Albuquerque NM 87108 on
December 26, 2024. 	See Verified Petition for a Prima Facia [sic] Claims of Fraud, Negligent
Misrepresentation, Breach of Contract & Fiduciary Duty, Unfair Trade Practices, Conversion,
Emotional Distress, Violations of NM Civil Righs [sic] Action and Section 1983 & 1985 Claims
and Injunctive Relief, Doc. 1, filed December 5, 2025 (“Complaint”).
Plaintiff William Gardner subsequently filed an Amended Complaint which, among other
things, adds Jardinero Investments LLC as a plaintiff. 	See Amended Verified Petition for
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Violations of Civil Rights Under 42 U.S.C. §§ 1983 and 1985, New Mexico Civil Rights Act,
Fraud, Negligent Misrepresentation, Breach of Contract and Fiduciary Duty, Unfair Trade
Practices, Conversion, Intentional Infliction of Emotional Distress, and Injunctive Relief, Doc. 8,
filed December 29, 2025 (“Amended Complaint”) (stating the property that is the subject of this
action is “owned by Jardinero Investments LLC, a limited liability company in which Plaintiff
holds a 35% ownership interest”).
Order Regarding Plaintiff Jardinero Investments LLC
Plaintiff Gardner, who is not an attorney authorized to practice before this Court, cannot
bring claims on behalf of Jardinero Investments LLC. See Fymbo v. State Farm Fire & Cas. Co.,
213 F.3d 1320, 1321 (10th Cir. 2000) ("A litigant may bring his own claims to federal court without
counsel, but not the claims of others"). Jardinero Investments LLC is not represented by counsel
as required by the Court’s Local Rules. See D.N.M.LR-Civ. 83.7 (“A corporation, partnership or
business entity other than a natural person must be represented by an attorney authorized to
practice before this Court”). United States Magistrate Judge Steven C. Yarbrough notified Plaintiff
Gardner, on December 8, 2025, of his responsibility to become familiar with and to comply with
the Federal and Local Rules of Civil Procedure. See Order to Show Cause at 10, Doc. 5.
The Court orders Jardinero Investments LLC to have an attorney authorized to practice
before this Court enter an appearance on behalf of Jardinero Investments LLC within 14 days of
entry of this Order. Failure to do so may result in dismissal of Jardinero Investments LLC’s claims
without prejudice.
Order Granting Motion to Stay In Part
The Broker Defendants filed a Motion to Dismiss the claims against them for failure to
state a claim and for lack of jurisdiction. See Broker Defendants’ Motion to Dismiss for Lack of
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Jur[is]diction and For Failure to State a Claim upon which Relief can be Granted, Doc. 10, filed
February 5, 2026.
Six days after the Broker Defendants filed their Motion to Dismiss, Plaintiffs filed an
Amended Motion to Stay Proceedings Pending Resolution of Appeal in the Tenth Circuit. 	See
Doc. 14, filed February 11, 2026 (“Motion to Stay”). Plaintiff William Gardner previously filed
another case which “directly concerns the same parties, the same claims, and the same underlying
acts at issue in the present case.” Motion to Stay at 1-2; see Gardner v. Coldwell Banker Legacy,
LLC, No. 1:25-cv-00684-WJ-SCY (“Gardner I”). Senior United States District Judge William P.
Johnson granted the Broker Defendants’ motion to dismiss Plaintiff’s claims against them for
failure to state a claim, dismissed those claims with prejudice, and dismissed Gardner I on
December 1, 2025. See Doc. 34, filed in Gardner I. Plaintiff appealed the dismissal of Gardner I
on December 16, 2025. See Doc. 40. The appeal remains pending.
Plaintiffs ask the Court to stay proceedings in this case pending the resolution of the appeal
in Gardner I stating:
The Tenth Circuit's resolution of that appeal will be fully dispositive: if the appellate
court reverses the dismissal, the original case is reinstated against all Defendants,
rendering the present re-filed action duplicative and unnecessary. Proceeding with
parallel litigation while that appeal is pending would waste this Court's resources,
risk inconsistent rulings, and impose unwarranted burden on all parties.
Motion to Stay at 2.
The factors to be considered by a court in determining whether to grant a stay
pending appeal are well established. They are (1) the likelihood that the party
seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the
moving party will suffer irreparable injury unless the stay is granted; (3) whether
granting the stay will result in substantial harm to the other parties to the appeal;
and (4) the effect of granting the stay upon the public interest.
In re Lang, 414 F.3d 1191, 1201 (10th Cir. 2005).
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Plaintiff argues that he is likely to prevail on the merits of his appeal because Judge Johnson
dismissed the claims against the Broker Defendants with prejudice without giving Plaintiff leave
to amend. See Motion to Stay at 5 (quoting Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219
(10th Cir. 2006) ("A dismissal with prejudice is appropriate where a complaint fails to state a claim
under Rule 12(b)(6) and granting leave to amend would be futile.") and Foman v. Davis, 371
U.S. 178, 182 (1962) (leave to amend "shall be freely given when justice so requires")). Plaintiff
has not shown that he is likely to prevail on the merits of his appeal. Although he did not expressly
notify Plaintiff Gardner that his Complaint failed to state claims against the Broker Defendants,
United States Magistrate Judge Steven C. Yarbrough ordered Plaintiff to file an amended complaint
and stated:
The amended complaint must identify each Defendant Plaintiff is asserting claims
against and clearly state what each Defendant did to Plaintiff. See Nasious v. Two
Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163
(10th Cir. 2007) (“[T]o state a claim in federal court, a complaint must explain what
each defendant did to him or her; when [each] defendant did it; how [each]
defendant’s action harmed him or her; and, what specific legal right the plaintiff
believes [each] defendant violated.”).
Order to Amend and Show Cause at 6, Doc. 10, filed July 29, 2025. 	Judge Johnson dismissed
Plaintiff’s claims against the Broker Defendants because “[t]he Amended Complaint does not
clearly explain what each of the Broker Defendants did to Plaintiff.” Order of Dismissal at 4, filed
December 1, 2025) (quoting Judge Yarbrough’s Order). Plaintiff Gardner had an opportunity to
amend his Complaint to state a claim against the Broker Defendants but failed to do so.
Plaintiffs argue that they will suffer irreparable harm absent a stay because:
if this Court proceeds to adjudicate the present action — including ruling on the
sufficiency of claims against Defendants dismissed with prejudice in the original
action — it risks issuing rulings that are inconsistent with, or mooted by, the Tenth
Circuit's forthcoming decision in Case No. 25-2156.
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Moreover, 	forcing 	Plaintiffs 	to 	simultaneously 	litigate 	in 	this 	Court 	while
prosecuting a live appeal in the Tenth Circuit imposes a concrete and irreparable
burden on a pro se litigant. Courts have recognized that duplicative, parallel
proceedings themselves constitute a form of irreparable injury. Delphi Fin. Grp.,
Inc. v. Young, No. CIV. 98-0289, 1998 WL 1820750, at *3 (D.N.M. July 15, 1998)
(stay warranted where parallel litigation would impose substantial burdens and risk
inconsistent adjudication).
Motion to Stay at 5-6. 	Plaintiffs have not cited any legal authority showing that addressing
inconsistent or mooted rulings constitutes irreparable harm. Furthermore, the case Plaintiffs cited,
Delphi Fin. Grp., Inc. v. Young, No. CIV. 98-0289, 1998 WL 1820750, at *3 (D.N.M. July 15,
1998), appears to be a District Court case which is not binding on the undersigned. See United
States v. Rhodes, 834 Fed.Appx. 457, 462 (10th Cir. 2020) (“district courts in this circuit are bound
by our decisions and those of the United States Supreme Court—they are not bound by decisions
of other district courts, much less district courts in other circuits”) (citing Camreta v. Greene,
563 U.S. 692, 709 n.7, (2011) (“A decision of a federal district court judge is not binding precedent
in either a different judicial district, the same judicial district, or even upon the same judge in a
different case”)).
Moreover, it is not clear the cited case exists. District of New Mexico case No. 98cv0289
is styled Curley v. Jenkins and does not have an order entered on July 15, 1998. The Court’s review
of Court records did not find a District of New Mexico case styled Delphi Fin. Grp., Inc. v. Young.
A search on WestLaw for 1998WL1820750 returned several cases but none styled Delphi Fin.
Grp., Inc. v. Young. The Court orders Plaintiff Gardner to file a copy of Delphi Fin. Grp., Inc. v.
Young, No. CIV. 98-0289, 1998 WL 1820750 (D.N.M. July 15, 1998). 	Plaintiff Gardner must
mark the copy to show the portions of the case that purportedly support Plaintiff’s statements that
“Courts have recognized that duplicative, parallel proceedings themselves constitute a form of
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irreparable injury” and “stay warranted where parallel litigation would impose substantial burdens
and risk inconsistent adjudication.”
Plaintiffs also assert that a stay will not substantially injure the other parties and that “a
stay benefits Defendant by sparing them the burden and expense of litigating in this forum while
the identical claims are already under appellate review.” Motion to Stay at 6. Plaintiffs did not
file their Motion to Stay until after the Broker Defendants filed their Motion to Dismiss.
Consequently, a stay will not spare the Broker Defendants the burden and expense of preparing
their Motion to Dismiss. 	As for their burden and expense of preparing a reply, the Broker
Defendants ask the Court to either deny the Motion to Stay or decide their Motion to Dismiss
before deciding the Motion to Stay. See Response at 4, Doc. 15, filed February 25, 2026. Finally,
the Broker Defendants assert that the Court does not have jurisdiction over this case. See Motion
to Dismiss at 10-12. “If the court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).
The Court grants Plaintiffs’ Motion to Stay except as to the Broker Defendants. The Court
orders Plaintiff William Gardner to file a response to the Broker Defendants’ Motion to Dismiss
within 14 days of entry of this Order.
IT IS ORDERED that:
(i) 	Jardinero Investments LLC shall, within 14 days of entry of this Order, have an
attorney authorized to practice before this Court enter an appearance on behalf of
Jardinero Investments LLC. 	Failure to timely do so will result in dismissal of
Jardinero Investments LLC’s claims without prejudice.
(ii) 	Plaintiffs[’] Amended Motion to Stay Proceedings Pending Resolution of Appeal
in the Tenth Circuit, Doc. 14, filed February 11, 2026, is GRANTED in part as
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follows. The Court stays all proceedings in this case except for the proceedings
involving the Broker Defendants.
(iii) 	Plaintiff William Gardner’s response to the Broker Defendants’ Motion to Dismiss,
Doc. 10, filed February 5, 2026, is due within 14 days of entry of this Order.
(iv) 	Plaintiff William Gardner shall, within 14 days of entry of this Order, file a copy of
Delphi Fin. Grp., Inc. v. Young, No. CIV. 98-0289, 1998 WL 1820750 (D.N.M.
July 15, 1998). Failure to timely file the copy may result in sanctions.
(v) 	Plaintiff William Gardner shall, within 14 days of entry of the mandate by the
United States Court of Appeals for the Tenth Circuit in Gardner I, file a notice in
this case of the entry of the mandate.
_________________________________
UNITED STATES DISTRICT JUDGE
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