          Case: 17-15751   Date Filed: 04/08/2019   Page: 1 of 10


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-15751
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:16-cv-24307-KMW



ANDRZEJ MADURA,
ANNA DOLINSKA-MADURA,

                                                         Plaintiffs-Appellants,

                                 versus

BANK OF AMERICA, N.A.,
AKERMAN LLP,
WILLIAM P. HELLER,
BRENDAN HERBERT,

                                                        Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (April 8, 2019)
               Case: 17-15751        Date Filed: 04/08/2019      Page: 2 of 10


Before WILSON, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

       Andrzej Madura and Anna Dolinska-Madura appeal the dismissal of their

pro se complaint. The Maduras sued Bank of America, N.A. for declaratory relief

from a judgment of foreclosure, and Akerman LLP and two of its attorneys for

fraud. On appeal, the Maduras argue the district court erred by: (1) failing to

convert the motion to dismiss into a motion for summary judgment, (2) improperly

dismissing the claims related to the foreclosure based on collateral estoppel, (3)

improperly dismissing the fraud claims based on collateral estoppel and Florida’s

litigation privilege, and (4) failing to allow the Maduras to amend their complaint

before dismissing it with prejudice. We disagree and affirm.

                                               I.

        The Maduras first argue that the district court improperly granted the

defendants’ motion to dismiss by considering orders from the Maduras’ extensive

prior litigation over rescission of their home loan.1 We review a district court’s

decision not to convert a motion to dismiss into a motion for summary judgment de

novo. See SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1336–37

(11th Cir. 2010).



1
 See Madura v. Bac Home Loans Servicing, LP, 593 F. App’x 834, 837–40 (11th Cir. 2014)
(Madura V) (discussing the Maduras’ five prior lawsuits over the rescission of their home loan).
                                                2
              Case: 17-15751      Date Filed: 04/08/2019    Page: 3 of 10


      Consideration of a Rule 12(b)(6) motion is generally limited to the face of

the complaint, and consideration of matters outside the pleadings converts the

motion to dismiss to a motion for summary judgment. Fed. R. Civ. P. 12(d); Day

v. Taylor, 400 F.3d 1272, 1275–76 (11th Cir. 2005). But the district court may

consider exhibits attached to the complaint. Fed. R. Civ. P. 10(c); see Thaeter v.

Palm Beach Cty. Sheriff’s Office, 449 F.3d 1342, 1352 n.7 (11th Cir. 2006). A

district court may also consider documents referenced in the complaint, even if

they are not physically attached, if the documents are (1) central to the complaint

and (2) no party questions their authenticity. Day, 400 F.3d at 1276. A document

is central to a complaint when it is a “necessary part of [the plaintiff’s] effort to

make out a claim.” Id. Under those circumstances, the district court may consider

the documents without converting the motion to dismiss into a motion for

summary judgment. See id. at 1275–76.

      The Maduras’ complaint outlined their prior lawsuits against Bank of

America and the Akerman defendants. The claims were based almost entirely on

the defendants’ conduct during those prior lawsuits, including that the defendants

falsified loan documents and misled the district court. The Maduras also attached

to their complaint several record excerpts from those prior cases. The Maduras do

not challenge the authenticity of the court orders, and their prior litigation history




                                            3
                Case: 17-15751        Date Filed: 04/08/2019        Page: 4 of 10


was central to their complaint.2 The Maduras cannot use their litigation history as

both the basis for their instant claims and the reason the district court cannot

review those claims. The district court thus did not err in considering prior orders

without converting the motion to dismiss into a motion for summary judgment.

                                                 II.

       The Maduras next challenge the district court’s dismissal based on collateral

estoppel. They argue that they have not litigated the first four counts of their

complaint. The premise of those four claims was the Maduras’ assertion that Bank

of America’s foreclosure on their home was improper because the Maduras

rescinded the mortgage in 2001, meaning there was no valid mortgage upon which

Bank of America could foreclose. The Maduras argue that collateral estoppel does

not apply because they now seek a different remedy, using a different claim,

against different parties. 3




2
  Relatedly, it was not erroneous for the district court to consider the defendants’ res judicata and
collateral estoppel defense at the motion to dismiss stage. “A party may raise the defense of res
judicata in a Rule 12(b)(6) motion when the existence of the defense can be judged from the face
of the complaint.” Starship Enters. of Atl., Inc. v. Coweta Cty., 708 F.3d 1242, 1252 n.13 (11th
Cir. 2013). Given that the Maduras’ entire complaint was based on the defendants’ conduct
during prior proceedings—and the preclusive effect of those proceedings—the motion to dismiss
was a proper vehicle for raising res judicata and collateral estoppel.
3
  The Maduras also argue that the district court in Madura V lacked subject matter jurisdiction.
Like the Maduras’ other claims, we already considered and rejected that issue in Madura V. See
Madura V, 721 F. App’x at 842 (concluding that the Maduras’ argument on subject matter
jurisdiction was “not a jurisdictional argument” but an “attempt[] to disguise their recession
arguments as jurisdictional challenges”).
                                                  4
             Case: 17-15751      Date Filed: 04/08/2019    Page: 5 of 10


      We review a district court’s application of collateral estoppel de novo.

Lozman v. City of Riviera Beach, 713 F.3d 1066, 1069 (11th Cir. 2013). The

federal common law governs the preclusive effect of a judgment by a court

exercising federal question jurisdiction. Tampa Bay Water v. HDR Eng’g, Inc.,

731 F.3d 1171, 1179 (11th Cir. 2013), overruled on other grounds by CSX Transp.,

Inc. v. Gen. Mills, Inc., 846 F.3d 1333, 1340 (11th Cir. 2017).

      Collateral estoppel bars “the introduction or argumentation of certain facts

necessarily established in a prior proceeding.” Tampa Bay Water, 731 F.3d at

1180 (quotation marks omitted). The doctrine applies when:

             (1) [T]he issue at stake is identical to the one involved in
             the earlier proceeding; (2) the issue was actually litigated
             in the earlier proceeding; (3) the determination of the issue
             must have been a critical and necessary part of the earlier
             judgment; and (4) the party against whom collateral
             estoppel is asserted must have had a full and fair
             opportunity to litigate the issue.

Id. (quotation marks and ellipsis omitted). Only the party against whom collateral

estoppel is asserted must have been a party in the prior proceeding. See Hart v.

Yamaha-Parts Distribs., Inc., 787 F.2d 1468, 1473 (11th Cir. 1986).

      In the most recent iteration to reach this court, Madura V, we affirmed the

district court’s grant of summary judgment to Bank of America and rejected the

Maduras’ argument that they rescinded the loan. Madura v. Bac Home Loans

Servicing, LP, 593 F. App’x 834, 840 (11th Cir. 2014). In Madura V, we held that

                                          5
              Case: 17-15751     Date Filed: 04/08/2019    Page: 6 of 10


collateral estoppel barred relitigation of whether: (1) the Maduras rescinded their

mortgage loan; (2) the defendants forged or fraudulently altered the loan

documents; (3) the loan was usurious; and (4) any other issues arising from the

mortgage transaction. Id. at 843.

      The district court here properly concluded, as we did in Madura V, that

collateral estoppel barred relitigation of the Maduras’ first four claims. First, these

identical issues were raised and decided in Madura V. See id. Second, whether the

Maduras rescinded the loan was a necessary part of the judgment because, had the

Maduras rescinded the loan, Bank of America would have no mortgage to

foreclose upon. See Tampa Bay Water, 731 F.3d at 1180. Third, the Maduras had

a full and fair opportunity to litigate the claim in the district court—both in

response to Bank of America’s motion for summary judgment in Madura V and in

their own motion for partial summary judgment on Bank of America’s foreclosure

counterclaim. See id.; Madura V, 593 F. App’x at 840. The Maduras also litigated

whether they rescinded their loan in Madura II and Madura III. See id. at 843.

Finally, Bank of America need not have been a party to the prior action because

Bank of America is asserting collateral estoppel against the Maduras, who were

parties. See Hart, 787 F.2d at 1473.

      The Maduras attempt to save their claims from collateral estoppel by arguing

that we should retroactively apply the Supreme Court’s intervening decision in

                                           6
              Case: 17-15751     Date Filed: 04/08/2019    Page: 7 of 10


Jesinoksi v. Countrywide Home Loans, Inc., 135 S. Ct. 790 (2015). We decline to

do so. A change in law after entry of final judgment seldom prevents application

of collateral estoppel unless the intervening case involves “momentous changes in

important, fundamental constitutional rights.” See Precision Air Parts, Inc. v.

Avco Corp., 736 F.3d 1499, 1503–04 (11th Cir. 1984). Jesinoski clarified that the

Truth in Lending Act (TILA), 15 U.S.C. 1601 et seq., allows an obligor to rescind

by notifying the creditor within the statutory period of the obligor’s intent to

rescind but does not require the obligor to sue within that timeframe. See

Jesinoski, 135 S. Ct. at 792. The district court concluded in Madura V that the

Maduras’ letter, even construed broadly, did not provide the requisite notice under

TILA to effect rescission and that, even it if had, the Maduras ratified the loan by

continuing to make payments. See Madura V, 583 F. App’x at 840. Jesinoski

would not have changed the district court’s conclusion. Nor did Jesinoski change,

momentously or otherwise, an important constitutional right necessitating its

retroactive application.

      The district court properly concluded that collateral estoppel bars the

Maduras’ persistent attempt to relitigate these claims.

                                          III.

      The Maduras next argue that the district court erred in dismissing their fraud

claim based on Florida’s litigation privilege. In that count, the Maduras alleged

                                           7
              Case: 17-15751     Date Filed: 04/08/2019   Page: 8 of 10


that the Akerman defendants created a false loan history to manufacture standing.

The Maduras argue that the litigation privilege does not apply to fraud, and that the

district court can apply the privilege only at summary judgment.

      Florida’s litigation privilege grants legal immunity for actions in judicial

proceedings. Sun Life Assurance Co. of Can. v. Imperial Premium Fin., L.L.C.,

904 F.3d 1197, 1218 (11th Cir. 2018). The privilege confers “[a]bsolute

immunity . . . to any act occurring during the course of a judicial proceeding so

long as the act has some relation to the proceeding.” Id. Florida courts have

extended this immunity to counsel. Levin, Middlebrooks, Mabie, Thomas, Mayes

& Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994). Florida’s

litigation privilege also applies to claims of fraudulent conduct during a judicial

proceeding. See Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1275–77 (11th

Cir. 2004).

      The district court properly dismissed Count V of the Maduras’ complaint.

First, many of the Maduras’ fraud allegations are barred by collateral estoppel

because they were already litigated and decided in Madura V. See Tampa Bay

Water, 731 F.3d at 1180. The Maduras already litigated whether the Akerman

defendants forged or fraudulently altered the mortgage loan documents, whether

the Akerman defendants engaged in impermissible ex parte communication, and

whether Bank of America manufactured standing to foreclose on the Maduras’

                                          8
               Case: 17-15751    Date Filed: 04/08/2019    Page: 9 of 10


property. See Madura V, 593 F. App’x at 840, 843, 846. And like their other

claims, those claims are barred by collateral estoppel.

        Second, the Maduras’ remaining fraud claims—including that the Akerman

defendants made misrepresentations during prior proceedings—are barred by

Florida’s litigation privilege. The Akerman defendants’ alleged fraud occurred

during judicial proceedings in the Maduras’ first, third, and fifth lawsuits. See

Jackson., 372 F.3d at 1275–77. The district court properly concluded that

Florida’s litigation privilege warranted dismissal.

                                          IV.

        Finally, the Maduras argue that the district court erred in not allowing them

to amend their complaint before dismissal. We review a district court’s decision to

grant or deny leave to amend for abuse of discretion. Woldeab v. Dekalb Cty. Bd.

of Educ., 885 F.3d 1289, 1291 (11th Cir. 2018). But we review de novo the district

court’s conclusion that amendment would be futile. SFM Holdings, 600 F.3d at

1336.

        Federal Rule of Civil Procedure 15(a) generally requires courts to allow

plaintiffs to amend their complaints before dismissal with prejudice “[w]here a

more carefully drafted complaint might state a claim.” Woldeab, 885 F.3d at 1291

(quotation marks omitted). A pro se plaintiff is typically entitled to leave to

amend, even if he does not seek leave to amend until after final judgment. Id. But

                                           9
             Case: 17-15751    Date Filed: 04/08/2019   Page: 10 of 10


a district court need not grant leave to amend if amendment would be futile

because a more carefully drafted complaint could not state a claim. Id. at 1291–92.

Amendment is not futile when more specific allegations or allegations against the

proper defendant would save the complaint from dismissal. Id.

      The district court did not abuse its discretion in dismissing the Maduras’

complaint with prejudice without first allowing them to amend. Collateral estoppel

precluded the Maduras’ already litigated claims. And an opportunity for more

careful drafting would not have saved their complaint from dismissal. The district

court thus properly concluded that amendment was futile.

      The district court did not err in dismissing the Maduras’ complaint with

prejudice. We affirm.

      AFFIRMED.




                                         10
