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-01212-SCY 1
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 TO SHOW CAUSE OR AMEND
AND ORDER GRANTING MOTION TO FILE ELECTRONICALLY
THIS MATTER comes before the Court on pro se Plaintiff’s 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
1 The Clerk’s Office assigned the undersigned to this case for review pursuant to 28 U.S.C. §
1915 which allows the Court to authorize commencement of a case without prepayment of the
filing fee. See Doc. 3, filed December 5, 2025. Plaintiff has paid the filing fee. See Doc. 4, filed
December 5 2025. The undersigned has reviewed the Complaint pursuant to the Court’s inherent
power to manage its docket. See Sec. & Exch. Comm’n v. Mgmt. Solutions, Inc., 824 F. App’x
550, 553 (10th Cir. 2020) (“a district court has the inherent power ‘to manage [its] own affairs so
as to achieve the orderly and expeditious disposition of cases’” (quoting Dietz v. Bouldin, 136 S.
Ct. 1885, 1891-92 (2016)).
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December 5, 2025 (“Complaint”), and Plaintiff’s [Motion for] Permission by the Court to Use
the PACER System, Doc. 2, filed December 5, 2025 (“Motion to File Electronically”).
Order to Show Cause or Amend
This case arises from the court-ordered sale of Plaintiff’s property located at 8521 Central
Ave. NE Albuquerque NM 87108 on December 26, 2024. See Complaint at 3, ¶ 18; at 7, ¶¶ 39-
41. The Court recently dismissed another case Plaintiff filed against the Defendants in this case
asserting claims arising from the court-ordered sale of the property at 8521 Central Ave. NE
Albuquerque NM 87108 on December 26, 2024. See Amended Complaint at 9, ¶¶ 32, 38,
Doc. 18, filed August 25, 2025, in Gardner v. Coldwell Banker Legacy, LLC, No. 1:25-cv-
00684-WJ-SCY (“Gardner I”); Order Dismissing Claims Against State Defendants, Doc. 33,
filed November 26, 2025, in Gardner I (dismissing claims for lack of subject-matter jurisdiction
based on the State of New Mexico’s Eleventh Amendment sovereign immunity); Order of
Dismissal, Doc. 34, filed December 1, 2025, in Gardner I (dismissing claims against the Broker
Defendants for failure to state a claim).
As the party seeking to invoke the jurisdiction of this Court, Plaintiff bears the burden of
alleging facts that support jurisdiction. See Dutcher v.Matheson, 733 F.3d 980, 985 (10th Cir.
2013) (“Since federal courts are courts of limited jurisdiction, we presume no jurisdiction exists
absent an adequate showing by the party invoking federal jurisdiction”). The Court has identified
some deficiencies in the Complaint, described below, and orders Plaintiff to show cause why the
Court should not dismiss certain claims or to file an amended complaint that remedies those
deficiencies. See Lowrey v. Sandoval Cty, Children Youth & Families Dep’t, No. 23-2035, 2023
WL 4560223, at *2 (10th Cir. July 17, 2023) (“Given a referral for nondispositive pretrial
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matters, a magistrate judge may point out deficiencies in the complaint [and] order a litigant to
show cause” (citing 28 U.S.C. § 636(b)(1)(A) and Fed. R. Civ. P. 72(a))).
A. 	Immunity
It appears that the Court does not have jurisdiction over Plaintiff’s claims against the
State of New Mexico and David Giddens, Chris Gatton, and Jerome Johnson (the “receivership
Defendants”) in their official capacities. Plaintiff states he is filing claims “against the listed
State Defendants Giddens/Gatton/Johnson who are acting as Government officials by their
contested court appointed as the receivership and the forensic account for Fraud, Breach of
fiduciary duty, official capacity for deprivation of rights.” Complaint at 5, ¶ 25) (emphasis
added). It thus appears that Defendants Giddens, Gatton, and Johnson are state judicial officers
and therefore entitled to Eleventh Amendment immunity. Anderson v. Herbert, 745 F. App’x 63,
69 (10th Cir. 2018) (“As a general matter, state courts are considered arms of the state.”); Levy v.
Kan. Dep’t of Social & Rehab. Services, 789 F.3d 1164, 1169 (10th Cir. 2015) (“Generally, states
and their agencies are protected from suit by sovereign immunity, as guaranteed by the Eleventh
Amendment.”). However, there are three exceptions to the Eleventh Amendment’s guarantee of
sovereign immunity to states:
First, a state may consent to suit in federal court. Second, Congress may abrogate
a state’s sovereign immunity by appropriate legislation when it acts under Section
5 of the Fourteenth Amendment. Finally, under Ex parte Young, 209 U.S. 123
(1908), a plaintiff may bring suit against individual state officers acting in their
official capacities if the complaint alleges an ongoing violation of federal law and
the plaintiff seeks prospective relief.
Levy, 789 F.3d at 1169 (quotation marks omitted).
Plaintiff has not shown that the State of New Mexico has consented to suit in this Court.
Plaintiff alleges that the New Mexico Civil Rights Act provides that “[t]he state shall not have
sovereign immunity for itself” and “the public body or person acting on behalf of, under color of
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or within the course and scope of authority of the public body provided pursuant to the [New
Mexico Civil Rights Act] shall not assert sovereign immunity as a defense or bar to an action.”
Complaint at 1-2. The New Mexico Civil Rights Act waives sovereign immunity for claims for
deprivations of rights pursuant to the New Mexico Constitution brought in state court; it does not
waive sovereign immunity for claims for deprivations of rights brought in this United States Court.
See N.M.S.A. §§ 41-4A-3(B)2 and 41-4A-9.3
Plaintiff has not shown that the United States Congress abrogated the State’s sovereign
immunity. Plaintiff alleges he “has claims against the Defendants-Giddens and Gatton as an arm
of Government for violation of” 42 U.S.C. §§1983 and 1985. See Complaint at 1. “[S]tates may
not be sued in federal court . . . unless Congress, pursuant to a valid exercise of power,
unequivocally expresses its intent to abrogate [Eleventh Amendment] immunity.” 	Collins v.
Daniels, 916 F.3d 1302, 1315 (10th Cir. 2019) (emphasis added). Sections 1983 and 1985 do not
unequivocally express Congress’ intent to abrogate States’ Eleventh Amendment sovereign
immunity. “[T]he United States Supreme Court has previously held that Congress did not abrogate
states' Eleventh Amendment immunity when it enacted 42 U.S.C. § 1983.” 	Ruiz v. McDonnell,
299 F.3d 1173, 1181 (10th Cir. 2002) (citing Quern v. Jordan, 440 U.S. 332, 345 (1979)).
2 “A person who claims to have suffered a deprivation of any rights, privileges or immunities
pursuant to the bill of rights of the constitution of New Mexico due to acts or omissions of a public
body or person acting on behalf of, under color of or within the course and scope of the authority
of a public body may maintain an action to establish liability and recover actual damages and
equitable or injunctive relief in any New Mexico district court.” N.M.S.A. § 41-4A-3(B) (emphasis
added).
3 “The state shall not have sovereign immunity for itself or any public body within the state for
claims brought pursuant to the New Mexico Civil Rights Act, and the public body or person acting
on behalf of, under color of or within the course and scope of the authority of the public body
provided pursuant to the New Mexico Civil Rights Act shall not assert sovereign immunity as a
defense or bar to an action.” N.M.S.A. § 41-4A-9 (emphasis added).
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Plaintiff alleges the Ex parte Young exception to sovereign immunity applies in this case
because Plaintiff “is suing the Defendants who are NM state officers acting in their official
capacities and as individuals as the complaint alleges an ongoing violation of federal law.”
Complaint at 20, ¶ 119. 	Plaintiff alleges Defendants deprived Plaintiff of due process when they
sold the property on December 26, 2024. 	See Complaint at 10, ¶ 59. 	There are, however, no
factual allegations showing that there is an ongoing violation of federal law. Furthermore, the Ex
parte Young exception does not apply to the State of New Mexico. See Clark v. Haaland, 2024
WL 4763759 *4 (10th Cir.) (“[F]or the Ex parte Young exception to apply, plaintiffs must show
that they are: (1) suing state officials rather than the state itself . . .”).
Similarly, it appears that Plaintiff’s claims against the receivership Defendants in their
personal capacities are barred by judicial immunity. “[S]tate court judges are absolutely immune
from monetary damages claims for actions taken in their judicial capacity, unless the actions are
taken in the complete absence of all jurisdiction.” Sawyer v. Gorman, 317 F. App’x 725, 727
(10th Cir. 2008) (quoting Mireles v. Waco, 502 U.S. 9, 11-12 (1991)). “[I]mmunity which derives
from judicial immunity may extend to persons other than a judge where performance of judicial
acts or activity as an official aid of the judge is involved. Absolute judicial immunity has thus
been extended to non-judicial officers, like clerks of court, where their duties had an integral
relationship with the judicial process.” Sawyer v. Gorman, 317 F. App’x 725, 728 (10th Cir.
2008). “[A] court-appointed receiver has absolute quasi-judicial immunity if he is faithfully
carrying out the appointing judge’s orders, because enforcing a court order is intrinsically
associated with a judicial proceeding.” Teton Millwork Sales v. Schlossberg, 311 F. App’x 145,
150 (10th Cir. 2009) (cleaned up). Here, Plaintiff’s Complaint does not state a claim that these
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Defendants exceeded the appointing judge’s orders. Plaintiff makes the conclusory allegation
that Defendants “were outside the scope of the receiver’s authority acting without court orders or
exceeding the powers granted in the appointment order,” but does not set forth specific facts
supporting that allegation. Complaint at 15, ¶ 86; see Brooks v. Mentor Worldwide LLC, 985
F.3d 1272, 1281 (10th Cir. 2021) (“Conclusory allegations are “not entitled to the assumption of
truth . . . we disregard conclusory statements and look to the remaining factual allegations to see
whether Plaintiffs have stated a plausible claim”). Indeed, Plaintiff attaches as Exhibit 3 the
state-court order appointing the receivers and authorizing the receivers to sell property. See
Complaint at 47-53.
B. 	Diversity Jurisdiction
Plaintiff invokes the Court’s diversity jurisdiction but does not muster sufficient
allegations to support diversity jurisdiction. See Complaint at 2-3. Under 28 U.S.C. § 1332(a),
federal courts have “original jurisdiction in all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and costs and is between citizens of
different States . . . .” “A federal court’s jurisdiction must clearly appear from the face of a
complaint . . . .” Whitelock v. Leatherman, 460 F.2d 507, 514 (10th Cir. 1972).
A corporation is deemed to be a citizen of the state in which it is incorporated and in
which it maintains its principal place of business. See 28 U.S.C. § 1332(c). For Defendants Jump
Inc. and New Mexico Land and Title Co., Plaintiff must allege their state of incorporation and
principal place of business. And Plaintiff must do the same for the professional corporation
defendants, Gatton & Associates, P.C. and Giddens and Gatton Law Firm P.C. See Struck v.
Jason Duprat CRNA, P.C., No. 20cv1026, 2020 WL 7385729, at *2 (D.N.M. Dec. 16, 2020)
(collecting cases for the proposition that under New Mexico law professional corporations are
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treated as corporations, and their citizenship is therefore determined by state of incorporation and
principal place of business).
Defendants Coldwell Banker Legacy LLC, Platinum Real Estate Partners LLC and
Burrage & Johnson, CPAs LLC by name appear to be limited liability companies. A limited
liability company is a citizen of each and every state in which any member is a citizen. See
Siloam Springs Hotel, LLC v. Century Sur. Co., 781 F.3d 1233, 1237-38 (10th Cir. 2015)
(“Supreme Court precedent makes clear that in determining the citizenship of an unincorporated
association for purposes of diversity, federal courts must include all the entities’ members”)
(citing Carden v. Arkoma Ass’n, 494 U.S. 185, 195-96 (1990)).
“[W]here an LLC has, as one of its members, another LLC, the citizenship of
unincorporated associations must be traced through however many layers of partners or members
there may be to determine the citizenship of the LLC.” Gerson v. Logan River Acad., 20 F.4th
1263, 1269 n.2 (10th Cir. 2021) (internal quotation marks omitted). Therefore, “[t]o properly
allege the citizenship of one of these types of business entities [LLCs], the party seeking federal
court jurisdiction must start by identifying each and every partner or member of the entity, and if
any of those partners or members are themselves entities, their constituent persons or entities
must also be identified, and so on as far down as necessary to unravel fully the citizenship of the
entity before the court.” DCP Operating Co., LP v. Travelers Indem. Co., No. 24cv628
SMD/KRS, 2025 WL 404906, at *2 (D.N.M. Feb. 5, 2025) (internal quotation marks omitted);
see also MidCap Media Fin., LLC v. Pathway Data, Inc., 929 F.3d 310, 314 (5th Cir. 2019) (to
establish diversity jurisdiction with LLCs, “the pleadings needed to identify [the LLC’s]
members and allege their citizenship”); Carter v. Healthport Technologies, LLC, 822 F.3d 47, 60
(2d Cir. 2016) (“the Complaint is deficient because it contains no allegation as to the identity or
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citizenship of [the LLC’s] members”); West v. Louisville Gas & Elec. Co., 951 F.3d 827, 830 (7th
Cir. 2020) (for partnerships and LLCs, “only the partners’ or members’ citizenships matter” and
“their identities and citizenships must be revealed. We do not blithely accept assurances along
the lines of ‘no one on our side is a citizen of the opposing litigant’s state.’” (citation omitted)).
Plaintiff has not alleged the names and citizenships of all members of these LLCs.
C. 	Claim Preclusion
It appears Plaintiff’s claims are barred by claim preclusion based on the entry of final
judgment in Gardner I.
Claim preclusion, also known as res judicata, prevents a party from “litigating a
legal claim that was or could have been the subject of a previously issued final
judgment.” Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221,
1239 (10th Cir. 2017) (emphasis added) (quoting MACTEC, Inc. v. Gorelick, 427
F.3d 821, 831 (10th Cir. 2005)). Three elements must be established for claim
preclusion to attach: (1) a final judgment on the merits in a prior action; (2) the
identity (i.e., sameness) of parties or their privies in the prior and instant suits; and
(3) the “identity of the cause of action in both suits.” Id. (quoting King v. Union
Oil Co. of Cal., 117 F.3d 443, 445 (10th Cir. 1997)); see Hatch v. Boulder Town
Council, 471 F.3d 1142, 1149 (10th Cir. 2006). The Tenth Circuit defines “cause
of action” according to the “transactional approach” articulated in the Restatement
(Second) of Judgments, under which “a cause of action includes all claims or
legal theories of recovery that arise from the same transaction, event, or
occurrence.” Nwosun v. Gen. Mills Rests., Inc., 124 F.3d 1255, 1257 (10th Cir.
1997); see Petromanagement Corp. v. Acme–Thomas Joint Venture, 835 F.2d
1329, 1335–36 (10th Cir. 1988). Under our transactional approach, a party cannot
avoid preclusion by repackaging precluded claims “under the rubric of slightly
different legal theories” where the “new” and precluded claims stem from the
same transaction or occurrence. Plotner v. AT & T Corp., 224 F.3d 1161, 1170
(10th Cir. 2000); see Clark v. Haas Grp., Inc., 953 F.2d 1235, 1238–39 (10th Cir.
1992) (collecting cases).
Even where the foregoing elements are satisfied, claim preclusion will not attach
if the party resisting preclusion “did not have a full and fair opportunity to litigate
the claim in the prior suit.” Lenox MacLaren Surgical Corp., 847 F.3d at 1243
(quoting MACTEC, Inc., 427 F.3d at 831). “This narrow exception [3] applies
only where the requirements of due process were not afforded,” that is, “where a
party shows ‘a deficiency that would undermine the fundamental fairness of the
original proceedings.’ ” Id. (quoting Nwosun, 124 F.3d at 1257). We evaluate the
fairness of the prior proceeding “by examining any procedural limitations, the
party's incentive to fully litigate the claim, and whether effective litigation was
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limited by the nature or relationship of the parties.” Id. (quoting Nwosun, 124 F.3d
at 1257–58). Thus, claim preclusion prevents “parties or their privies from
relitigating issues that were or could have been raised in the prior action.” Wilkes,
314 F.3d at 503–04 (quoting Satsky v. Paramount Commc'ns, Inc., 7 F.3d 1464,
1467 (10th Cir. 1993)).
Watkins v. Genesh, Inc., 135 F.4th 1224, 1229-30 (10th Cir. 2025) (footnotes omitted).
The Defendants in this case were defendants in Gardner I. This case and Gardner I arise
from court-ordered sale of the property at 8521 Central Ave. NE Albuquerque NM 87108 on
December 26, 2024. The Court entered a final judgment in Gardner I on December 1, 2025. See
Doc. 25, in Gardner I; Judgment, Black’s Law Dictionary (12th ed. 2024) (defining “final
judgment” as “A court's last action that settles the rights of the parties and disposes of all issues
in controversy, except for the award of costs (and, sometimes, attorney's fees) and enforcement
of the judgment. — Also termed final appealable judgment”).
D. 	Order to Show Cause or Amend
The Court therefore orders Plaintiff to show cause why it should not dismiss claims for
the reasons stated above. Alternatively, Plaintiff may file an amended complaint that remedies
the deficiencies described above. 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.”) (emphasis in
original). The amended complaint must comply with the Federal and Local Rules of Civil
Procedure. See, e.g., Fed. R. Civ. P. 10(b) (“A party must state its claims or defenses in numbered
paragraphs.”).
Order Granting Motion to File Electronically
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The Court grants Plaintiff permission to file electronically in this case only. See Guide
for Pro Se Litigants at 13, District of New Mexico (October 2022) (“approval to electronically
file documents within a case must be granted by the presiding judge for each case in which the
pro se litigant wishes to file using their CM/ECF account”). The Court will revoke permission to
file electronically if Plaintiff abuses his electronic filing privilege or fails to comply with the
rules and procedures in the District of New Mexico’s Guide for Pro Se Litigants and the District
of New Mexico’s CM/ECF Administrative Procedures Manual. Account registration forms,
procedure manuals, and other information can be obtained at the Court’s website at
http://www.nmd.uscourts.gov/filing-information. This Order only grants Plaintiff permission to
participate in CM/ECF; Plaintiff is responsible for registering to become a participant. See
CM/ECF Administrative Procedures Manual, District of New Mexico (Revised June 2024).
Case Management
Generally, pro se litigants are held to the same standards of professional
responsibility as trained attorneys. It is a pro se litigant’s responsibility to become
familiar with and to comply with the Federal Rules of Civil Procedure and the
Local Rules of the United States District Court for the District of New Mexico (the
“Local Rules”).
Guide for Pro Se Litigants at 4, United States District Court, District of New Mexico (October
2022). The Local Rules, the Guide for Pro Se Litigants and a link to the Federal Rules of Civil
Procedure are available on the Court’s website: http://www.nmd.uscourts.gov.
Failure to comply with Court Orders and the Federal and Local Rules of Civil Procedure
interferes with the judicial process and may result in monetary and non-monetary sanctions
including filing restrictions and dismissal of this case. See Fed. R. Civ. P. 41(b) (“If the plaintiff
fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss
the action”); Gustafson v. Luke, 696 Fed.Appx. 352, 354 (10th Cir. 2017) (“Although the
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language of Rule 41(b) requires that the defendant file a motion to dismiss, the Rule has long
been interpreted to permit courts to dismiss actions sua sponte for a plaintiff's failure to prosecute
or comply with the rules of civil procedure or court's orders.”) (quoting Olsen v. Mapes, 333 F.3d
1199, 1204 n.3 (10th Cir. 2003)).
Compliance with Rule 11
The Court reminds Plaintiff of his obligations pursuant to Rule 11 of the Federal Rules of
Civil Procedure. See Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir. 2008) (“Pro se status
does not excuse the obligation of any litigant to comply with the fundamental requirements of
the Federal Rules of Civil and Appellate Procedure.”). Rule 11(b) provides:
Representations to the Court. By presenting to the court a pleading, written
motion, or other paper--whether by signing, filing, submitting, or later advocating
it--an attorney or unrepresented party certifies that to the best of the person's
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law
or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity for
further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of information.
Fed. R. Civ. P. 11(b). Failure to comply with the requirements of Rule 11 may subject Plaintiff to
sanctions, including monetary penalties and nonmonetary directives. See Fed. R. Civ. P. 11(c).
IT IS ORDERED that:
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(i) 	Plaintiff shall, within 21 days of entry of this Order: (a) show cause why the Court
should not dismiss Plaintiff’s claims for the reasons stated above; or (b) file an
amended complaint that remedies the deficiencies described above. Failure to
timely show cause or file an amended complaint may result in dismissal of this
case.
(ii) 	Plaintiff’s [Motion for] Permission by the Court to Use the PACER System,
Doc. 2, filed December 5, 2025, is GRANTED.
_____________________________________
UNITED STATES MAGISTRATE JUDGE
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