Gardner v. Coldwell Banker Legacy LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WILLIAM GARDNER,
Plaintiff,
v. 	No. 1:25-cv-00684-WJ-SCY
STATE OF NEW MEXICO,
JANE LEVY,
COLDWELL BANKER LEGACY LLC,
JOHN LOPEZ,
JUMP INC.,
PLATINUM REAL ESTATE PARTNERS LLC,
NEW MEXICO LAND AND TITLE CO.,
CHAD HAMM,
GATTON & ASSOCIATES, P.C.,
GIDDENS AND GATTON LAW FIRM P.C.,
DAVID GIDDENS,
CHRIS GATTON,
BURRAGE & JOHNSON, CPAs LLC, and
JEROME JOHNSON,
Defendants.
MEMORANDUM OPINION AND ORDER OVERRULING OBJECTIONS
AND IMPOSING FILING RESTRICTIONS
Plaintiff, who is proceeding pro se, asserted claims against 14 Defendants. 	See Amended
Verified Petition for a Prima Facia Claims of Fraud, Negligent Misrepresentation, Breach of
Contract & Fiduciary Duty, Unfair Trade Practices, Conversion, Emotional Distress, Violations of
NM Civil Rights Action [sic] and Section 1983 & 1985 Claims and Injunctive Relief, Doc. 1, filed
August 25, 2025 (“Amended Complaint”).
The Court dismissed Plaintiff’s claims against 10 Defendants without prejudice. See Order
Dismissing Claims, Doc. 29, filed October 30, 2025 (dismissing claims based on Plaintiff’s failure
to timely serve certain Defendants and his failure to comply with Judge Yarbrough’s Order to Show
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Cause); Order Dismissing Claims Against State Defendants, Doc. 33, filed November 26, 2025
(dismissing claims against Defendants State of New Mexico and state-court Judge Jane Levy for
lack of subject matter jurisdiction pursuant to the State’s Eleventh Amendment sovereign
immunity).
The Defendants then remaining in this case were Jump, Inc., d/b/a Coldwell Banker
Legacy, 	Platinum 	Real 	Estate 	Partners, 	LLC 	and 	John 	Lopez 	(collectively 	the 	“Broker
Defendants”). Plaintiff’s claims arose from an ongoing divorce case in state court in which the
state-court judge entered an order authorizing the receiver to sell property. See Broker Defendants’
Motion to Dismiss for Failure to State a Claim Upon Which Relief can be Granted at 2, Doc. 22,
filed September 8, 2025 (“Motion to Dismiss”). Plaintiff alleges the Broker Defendants
“represented the sale of property.” Amended Complaint at 5.
The Court granted the Broker Defendants’ Motion to Dismiss, dismissed the claims against
the Broker Defendants for failure to state a claim, dismissed this case and ordered Plaintiff to show
cause why the Court should not impose filing restrictions. 	See Dismissal Order, Doc. 34, filed
December 1, 2025.
Plaintiff has filed Objections, now before the Court, to the Court’s Dismissal Order and to
the Proposed Filing Restrictions. See Objections, Doc. 36, filed December 11, 2025.
Order Overruling Objections to Dismissal Order
Plaintiff filed his original Complaint in this case in the United States District Court for the
Southern District of California. 	See Doc. 1, filed July 7, 2025, in No.3:25-cv-1724-CAB-DEB
(S.D. Cal.). The Southern District of California transferred this case to the District of New Mexico
on July 22, 2025. 	See Doc. 7. 	Plaintiff “asserts from the onset of this case he was highly
prejudiced, as the CA federal court remanded this case back to NM Fed as the court found venue
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was not proper, but had jurisdiction of the subject matter.” 	Objections at 2. 	Plaintiff has not
explained why the transfer of this case to the District of New Mexico was improper. 	See
28 U.S.C. § 1391(b) (stating venue is proper in any judicial district in which a defendant resides
or where a substantial part of the events or omissions giving rise to the claims occurred);
28 U.S.C. § 1406(a) (“The district court of a district in which is filed a case laying venue in the
wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to
any district or division in which it could have been brought”) (emphasis added).
Plaintiff asserts he “was denied access to CA PACER system as the court ordered the case
to be moved to NM.” Objections at 2. This Court granted Plaintiff’s motion for permission to file
electronically in the District of New Mexico on August 13, 2025. See Doc. 15. Plaintiff asserts
that not receiving permission to file electronically until August 13, 2025, “is significant as an order
to show cause to amend the complaint was never received by the Plaintiff on the date it was entered
in the record July 29th, 2025 (15 days prior) to his permission to be on PACER.” Objections at 3.
Judge Yarbrough granted Plaintiff’s motion for a 30-day extension of time to respond to the Order
to Show Cause on August 14, 2025. See Order, Doc. 17, filed August 14, 2025 (resetting deadline
for response to Order to Show Cause to September 18, 2025).
After the case was transferred to this Court from the Southern District of California on
July 22, 2025, the Clerk’s Office assigned a District of New Mexico case number to the case.
Plaintiff asserts “as the case number was the CA case number, as the summons and initial complaint
would be dead on arrival as the case numbers would be change[d] and new summons would have
to 	be 	issued.” 	Objections 	at 	3. 	Rule 	4 	permits 	a 	summons 	to 	be 	amended. 	See
Fed. R. Civ. P. 4(a)(2). 	Over two months after this case was transferred to this Court from the
Southern District of California, United States Magistrate Judge Steven C. Yarbrough notified
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Plaintiff of his responsibility to have the summonses and complaint served on Defendants, that
Plaintiff had not timely served some of the Defendants, and that “if the plaintiff shows good cause
for the failure, the court must extend the time for service for an appropriate period.” 	Order to
Show Cause at1-2, Doc. 26, filed October 7, 2027 (ordering Plaintiff to show cause why the Court
should not dismiss the claims against certain Defendants for Plaintiff’s failure to timely serve
them). Plaintiff states he “was blindsided” by Judge Yarbrough’s Order to Show Cause, Doc. 26,
filed October 7, 2025, because “he barely received summons[es] 12 days prior for the new case
number and had no time to properly serve the new Defendants, as well as new claims against the
Defendants.” Objections at 4. Plaintiff did not file a response to Judge Yarbrough’s Order to Show
Cause. The Court dismissed claims against some Defendants based on Plaintiff’s failure to timely
serve them and his failure to comply with Judge Yarbrough’s Order to Show Cause. 	See Order
Dismissing Claims, Doc. 29, filed October 30, 2025.
Plaintiff states he timely filed a response to an order to show cause in a different case. See
Objections at 3. Plaintiff did not timely response a response to Judge Yarbrough’s Order to Show
Cause in this case. 	Plaintiff also states “all Petition/Summons issued, have been served to
Defendants timely” in this case. Objections at 3. Rule 4 states:
Unless service is waived, proof of service must be made to the court. Except for
service by a United States marshal or deputy marshal, proof must be by the server’s
affidavit.
Fed. R. Civ. P. 4(l)(1). 	There is no indication in the docket that all Defendants either waived
service or that a server’s affidavit was filed by the September 18, 2025, deadline for those
Defendants that did not waive service.
Plaintiff “asserts on August 4th, 2025, the court filed an error on (DOC. 11), this document
cannot be viewed and may be the assertion, supra.” Objections at 3. The Clerk’s Office marked
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Doc. 11 as “Filed In Error” because it was a document for another case that was inadvertently filed
in this case.
Plaintiff “asserts further confusion was created as the order[] to show cause had multiple
exceptions including Jane Levy, who was had been [sic] removed from the filing by the Plaintiff”
and the Order [dismissing claims against certain Defendants based on Plaintiff’s failure to timely
serve them and his failure to respond to Judge Yarbrough’s Order to Show Cause] “itself uses the
caption to include Jane Levy; as the Amended complaint does not include Jane Levy, which
cause[s] even more confusion.” Objections at 5. Jane Levy was an exception in the Order to Show
Cause regarding Plaintiff’s failure to serve certain Defendants named in the original Complaint
because Jane Levy was not named as a Defendant in the original Complaint. See Doc. 26. Because
Jane Levy was listed as a Defendant in the caption of the Amended Complaint, the deadline for
Plaintiff to have Jane Levy served had not yet passed. See Doc. 18 at 1, filed August 25, 2025.
Plaintiff asserts that “equal protection under the law as the court sua sponte dismissal of
my case against the State Defendants based on Federal Rule 4, but overlook[s] equity in the
[Broker] defendant[s’] violation of Federal rule 5-E” because Plaintiff “did not give written
permission for the Broker Defendants to serve him an answer via electronic means” and the Broker
Defendants served their Motion to Dismiss “electronically via PACER without obtaining the
Plaintiff’s written consent as required by FRCP Rule 5(b)(2)(E).” Objections at 6, 10. The Broker
Defendants did not file an answer, they filed a Motion to Dismiss. See Doc. 22, filed September 8,
2025. The Broker Defendants properly served Plaintiff with their Motion to Dismiss. Rule 4 of
the Federal Rules of Civil Procedure does not govern service of motions. Rule 5 of the Federal
Rules of Civil Procedure provides that a paper may be served by “sending it to a registered user
by filing it with the court’s electronic-filing system.” 	Fed. R. Civ. P. 5(b)(2)(E). 	Court records
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show that counsel for the Broker Defendants filed the Motion to Dismiss using the Court’s
CM/ECF system and Plaintiff is a registered user of the Court’s CM/ECF system. See Order, Doc.
15, filed August 13, 2025 (granting Plaintiff’s motion for permission to file electronically via
CM/ECF).
The Court overrules Plaintiff’s Objections to the Dismissal Order.
Order Overruling Objections to Proposed Filing Restrictions
Plaintiff has repeatedly filed complaints that failed to state a claim or failed to show the
Court had jurisdiction over his claims. Plaintiff has repeated legal arguments regarding jurisdiction
pursuant to Ex parte Young and the New Mexico Civil Rights Act after the Court notified him of
the deficiencies in those arguments. Plaintiff has also failed to comply with Court Orders and has
failed to properly serve defendants. The Court found that filing restrictions are appropriate so that
the Court does not expend valuable resources addressing future such filings and ordered Plaintiff
to show cause why the Court should not impose filing restrictions.
Plaintiff “asserts he should not be solely held accountable for all of these procedural errors”
and that he “at no time intentionally violated any court orders.” Objections at 7-8. As discussed
above, Plaintiff has not shown that his failure to timely comply with Court Orders and to timely
served some Defendants resulted from Court errors. Plaintiff does not address why he continues
to repeat legal arguments which the Court has previously notified him are deficient.
Plaintiff suggests that the undersigned proposed filing restrictions because the undersigned
is prejudiced against Plaintiff:
Plaintiff asserts in respectful way, that there may be animosity sparked by a
conversation with Judge Johnson in scheduling of a mediation on the phone with
all counsel present. In this conversation, the Plaintiff had a cold and a cough. The
Plaintiff coughed during the phone conversation and it was perceived by the
Hon. Johnson as a “Laugh,” and he was severely reprimanded and got the wrong
impression as the Plaintiff tried to explain he had simply coughed, but the damage
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was done in the eyes of the H. Johnson; from that day forward he feels that there
may be a lingering prejudice, because of that interaction and if this is the case I
would apologize for any offense taken by your Honor.
Objections at 7. The undersigned proposed filing restrictions based on Plaintiff’s repeated failures
to comply with Court Orders and repeatedly asserting legal arguments that the Court has previously
determined to be deficient. See Dismissal Order at 5-6 (identifying nine cases and summarizing
Plaintiff’s conduct in each case).
Plaintiff characterizes the proposed filing restrictions as
"death penalty" sanctions—a permanent injunction prohibiting future filings
without prior court approval. The cases cited—Tripati v. Beaman and Cotner v.
Hopkins—establish that such sanctions require findings of frivolous and malicious
filings. Yet the Court has made no such findings here. Instead, the Court cites
procedural deficiencies, with a “good faith reliance, “in unrelated cases, at least five
of which were remanded or removed to federal court by State Defendants, not by
the Plaintiff (including Case No. 1:23-cv-00318-SCY which was successfully
resolved through mediation before this Court). The Plaintiff has never intentionally
violated a court order and respectfully requests an opportunity to brief or present
oral argument on each case cited before such severe sanctions are imposed.
Objections at 10. The imposition of filing restrictions does not require findings of frivolous and
malicious conduct. The Tenth Circuit has explained:
“[T]he right of access to the courts is neither absolute nor unconditional and there
is no constitutional right of access to the courts to prosecute an action that is
frivolous or malicious.” Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989) (per
curiam) (citation omitted). “There is strong precedent establishing the inherent
power of federal courts to regulate the activities of abusive litigants by imposing
carefully tailored restrictions under the appropriate circumstances.” Cotner v.
Hopkins, 795 F.2d 900, 902 (10th Cir. 1986). “Even onerous conditions may be
imposed upon a litigant as long as they are designed to assist the ... court in curbing
the particular 	abusive 	behavior 	involved,” except 	that 	they 	“cannot 	be so
burdensome ... as to deny a litigant meaningful access to the courts.” Id. (brackets
and internal quotation marks omitted).
Landrith v. Schmidt, 732 F.3d 1171, 1174 (10th Cir. 2013). 	Plaintiff’s conduct in this case has
been abusive because he has repeatedly failed to comply with Court Orders and the Federal and
Local Rules of Civil Procedure and continues to assert arguments regarding jurisdiction that the
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Court has previously addressed. 	See Black’s Law Dictionary (12th ed. 2024) (“abusive adj. 1.
Characterized by wrongful or improper use”).
Plaintiff “is requesting oral arguments to dispute each and every misconception cited” in
the Court’s Order to Show Cause why filing restrictions should not be imposed:
Plaintiff asserts this court claims to enjoin the Plaintiff based purely under
procedural deficiencies in lieu of claiming frivolous and malicious, as the Plaintiff
must clear the record on these allegations as he has not violated any court orders
and is requesting a complete briefing or oral arguments on each and every case
brought before this court as evidence, before this court asserts the death penalty
upon the Plaintiff without substantive and based solely on procedural due issues. In
short, as these listings of these cases have a different story behind each one of them,
including state Defendants moving the majority of these cases into Federal court.
Objections at 8 (emphasis added).
Plaintiff incorrectly states Defendants moved the majority of the cited cases to this Court.
The Court cited Plaintiff’s conduct in nine cases as the basis for finding that filing restrictions are
appropriate. 	See Dismissal Order at 5-6. 	None of those cases was removed from state court.
Furthermore, the Court’s finding that filing restrictions are appropriate was based on Plaintiff’s
conduct in those cases. Whether a case was removed or filed originally in this Court is not a factor
the Court considers when determining whether filing restrictions are appropriate. 	Plaintiff also
asserts that two of his cases, Gardner v. DEA, No. 1:25-cv-198-KWR-JFR and Gardner v. United
States, No. 1:25-cv-483-KG-GJF, were refiled in California and “the CA clerk entered a Default
judgment in favor of the Gardner/Plaintiff” and that Gardner v. City of Albuquerque, No. 1:23-cv-
318-GBW-SCY, which was removed to this Court and was not cited in the Dismissal Order in this
case, “was resolved in mediation in favor of the Plaintiff.” 	Objections at 8-9. The outcome of
other cases does not mitigate Plaintiff’s abusive conduct in the cases cited in the Dismissal Order.
The Court denies Plaintiff’s request for a hearing. The Court gave Plaintiff notice of the
conduct forming the basis for imposing filing restrictions and also gave Plaintiff an opportunity to
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file written objections. See Landrith v. Schmidt, 732 F.3d 1171, 1174 (10th Cir. 2013) (“In addition,
[the party] is entitled to notice and an opportunity to oppose the court's order before it is instituted.
A hearing is not required; a written opportunity to respond is sufficient”) (citations omitted).
The Court overrules Plaintiff’s Objections regarding the proposed filing restrictions.
Order Imposing Filing Restrictions
The 	Court, 	having 	overruled 	Plaintiff’s 	Objections 	regarding 	the 	proposed 	filing
restrictions, imposes the following filing restrictions on Plaintiff:
Plaintiff is enjoined from making further filings in this case except objections to this order,
a notice of appeal and a motion for leave to proceed on appeal in forma pauperis; and the Clerk is
directed to not file any additional submissions by Plaintiff in this case other than objections to this
order, a notice of appeal, or a motion for leave to proceed on appeal in forma pauperis, unless a
licensed attorney who is admitted to practice before this Court and has appeared in this action signs
the proposed filing.
Plaintiff is also enjoined from initiating future litigation in this Court and the Clerk is
directed to not file any initial pleading that Plaintiff submits, unless either a licensed attorney who
is admitted to practice before this Court signs the pleading or Plaintiff first obtains permission to
proceed pro se. See DePineda v. Hemphill, 34 F.3d 946, 948-49 (10th Cir. 1994).
To obtain permission to proceed pro se in this Court, Plaintiff must take the following steps:
1. File with the Clerk of Court a petition requesting leave to file a pro se initial pleading, a
notarized affidavit, the proposed initial pleading, and a copy of these filing restrictions;
2. The affidavit must be notarized, be in proper legal form and recite the claims that Plaintiff
seeks to present, including a short discussion of the legal bases for the claims, and the basis of the
Court’s jurisdiction of the subject matter and parties. The affidavit must certify that, to the best of
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Plaintiff’s knowledge, Plaintiff's claims are not frivolous or made in bad faith; that they are
warranted by existing law or a good faith argument for the extension, modification, or reversal of
existing law; that the new suit is not initiated for any improper purpose such as delay or needless
increase in the cost of litigation; and that Plaintiff will comply with all Federal Rules of Civil
Procedure and the District of New Mexico’s Local Rules of Civil Procedure. If Plaintiff’s claims
have previously been raised or Plaintiff has previously sued the defendants, the affidavit must
certify that the proposed new suit does not present the same claims that this or any other court has
decided and explain why the new suit would not be an abuse of the system;
3. The Clerk of the Court shall open a new civil case, file the petition, the affidavit, the
proposed pleading and the copy of these restrictions in the new civil case, and randomly assign a
Magistrate Judge to determine whether to grant Plaintiff’s petition to proceed pro se in the new
civil case. See Mem. Op. and Order, Doc. 21 at 6-9, filed in In re Billy L. Edwards, No. 15cv631
MCA/SMV (D.N.M. November 13, 2015) (adopting procedure, similar to that of the Tenth Circuit,
of opening a new case and filing the restricted filer’s petition to proceed pro se). If the Magistrate
Judge approves Plaintiff’s petition to proceed pro se, the Magistrate Judge shall enter an order
indicating that the matter shall proceed in accordance with the Federal Rules of Civil Procedure
and the District of New Mexico’s Local Rules of Civil Procedure. If the Magistrate Judge does
not approve Plaintiff’s petition to proceed pro se, the Magistrate Judge shall instruct the Clerk to
assign a District Judge to the new case.
IT IS SO ORDERED.
__/s/_____________________________________
WILLIAM P. JOHNSON
SENIOR UNITED STATES DISTRICT JUDGE
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