USCA11 Case: 20-12862 Date Filed: 12/06/2021 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12862
Non-Argument Calendar
____________________
JUAN LLAURO,
CARLOS LLAURO,
JORGE LLAURO,
MARIA MARTINEZ,
Individually,
SAMUEL ABAD,
JOEL BRITO,
SANDRA LLAURO,
IRENE TOVAR,
ESTATE OF NIDIA LLAURO,
CAPRI CONSTRUCTION CORP.,
Plaintiffs-Appellants,
versus
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2 Opinion of the Court 20-12862
DETECTIVE MICHAEL LINVILLE,
Individually,
DETECTIVE JOEL VALDES,
Individually,
BROWARD COUNTY, FLORIDA,
BRIDGEFIELD EMPLOYERS INSURANCE COMPANY,
GREGORY TONY,
in his official capacity as
Sheriff of Broward County Sheriff’s Office, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-20638-DPG
____________________
Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.
PER CURIAM:
Juan Llauro, Carlos Llauro, Jorge Llauro, Maria Martinez,
Samuel Abad, Joel Brito, Sandra Llauro, Irene Tovar, Estate of
Nidia Llauro, and Capri Construction Corporation (Capri) (collec-
tively, Plaintiffs) appeal the district court’s dismissal of their First
Amended Complaint (FAC) with prejudice and subsequent denial
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20-12862 Opinion of the Court 3
to reopen their case and grant leave to file a second amended com-
plaint. In denying Plaintiffs’ post-dismissal motions to reopen their
case and for leave to file a second amended complaint, the district
court reasoned that it lacked jurisdiction because Plaintiffs filed the
motions after their Notice of Appeal. Plaintiffs also argue that the
affidavits attached to their complaint were not a “written instru-
ment” for the purposes of Federal Rule of Civil Procedure 10(c) and
that the district court improperly accepted facts from those affida-
vits as true despite Plaintiffs alleging that the affidavits were false.
After careful review, we affirm.
I.
On February 19, 2019, Plaintiffs initiated their civil action
against Detectives Michael Linville and Joel Valdes, the Broward
County Sheriff’s Office (BSO), 1 and Bridgefield Employers Insur-
ance Company (collectively, Defendants) and filed their FAC on
April 17, 2019. In the FAC, the individual plaintiffs alleged
42
U.S.C. § 1983 claims against Detectives Linville and Valdes for vio-
lating their Fourth Amendment right to be free from arrest, search,
and seizure warrants that lack probable cause. Also, the individual
plaintiffs alleged state law claims for false arrest and false imprison-
ment against Detectives Linville and Valdes, and vicarious liability
1 The FAC named Gregory Tony, Broward County’s Sheriff, as a defendant in
his official capacity. Because Plaintiffs sued Sheriff Tony in his official capacity,
Plaintiffs sued Broward County Sheriff’s Office. See Kentucky v. Graham,
473
U.S. 159, 165–66 (1986). Thus, we will use BSO when referring to any allega-
tions against Sheriff Tony.
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4 Opinion of the Court 20-12862
claims against BSO. The crux of Plaintiffs’ FAC is that the affidavits
by Detectives Linville and Valdes, which were used to obtain ar-
rest, search, and seizure warrants, lacked probable cause. Juan
Llauro, Jorge Llauro, Abad, Martinez, and Brito were arrested and
charged with various crimes relating to workers’ compensation
fraud and money laundering. 2
Defendants moved to dismiss Plaintiffs’ FAC. Relevant for
this appeal, Defendants argued that Detectives Linville and Valdes
are entitled to qualified immunity because Plaintiffs cannot show
that Detectives Linville and Valdes violated Plaintiffs’ Fourth
Amendment rights or that the Fourth Amendment right was
clearly established at the time. Notably, Defendants argued that
the affidavits of Detectives Linville and Valdes demonstrate proba-
ble cause and Plaintiffs’ FAC fails to negate that probable cause.
Defendants further argued that qualified immunity shields Detec-
tives Linville and Valdes from the state law claims. Plaintiffs op-
posed Defendants’ motion to dismiss and requested leave to amend
their complaint “to correct any technical deficiencies” that the dis-
trict court may have found.
On June 30, 2020, the district court granted with prejudice
Defendants’ motion to dismiss. In its order, the district court fol-
lowed this court’s decision in Gill as Next Friend of K.C.R. v. Judd,
941 F.3d 504 (11th Cir. 2019), that provided guidance on how to
address when allegations in the complaint conflict with exhibits,
2 Ultimately, the Miami-Dade State Attorney’s Office dismissed all charges.
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20-12862 Opinion of the Court 5
such as affidavits. Specifically, the district court noted that if the
complaint contains conclusory and general allegations that are con-
tradicted by an exhibit, then the exhibit governs. However, if the
complaint contains specific well-pleaded allegations that are con-
tradicted by conclusory allegations in an exhibit, the allegations in
the complaint govern. Using the framework from Gill, the district
court ultimately found that the arrests were objectively reasonable
based on probable cause from the affidavits and that Detectives
Linville and Valdes did not violate Plaintiffs’ constitutional rights.
Thus, the district court found Detectives Linville and Valdes were
entitled to qualified immunity on the Section 1983 claims. 3 The
district court also denied Plaintiffs’ request for leave to amend their
complaint because Plaintiffs did not provide “a compelling reason
to allow amendment in the face of dismissal on the merits.”
On July 29, 2020, Plaintiffs filed a Notice of Appeal in the
district court. On July 30, 2020, a Notice of Appeal was docketed
in this court. After receiving additional time to file their opening
brief in this court, on November 9, 2020, Plaintiffs moved the dis-
trict court to reopen the original case under Federal Rules of Civil
Procedure 59 and 60 and for leave to file a second amended com-
plaint under Federal Rule of Civil Procedure 15. Subsequently,
Plaintiffs moved to stay their appeal until the district court ruled on
3 Because the district court dismissed the federal claims, the district court de-
clined to exercise supplemental jurisdiction over the remaining state law
claims.
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6 Opinion of the Court 20-12862
its pending motion. This court granted Plaintiffs’ request and
stayed this appeal. See Fed. R. App. P. 4(a)(4).
The district court denied Plaintiffs’ motions to reopen the
case and for leave to file a second amended complaint. Specifically,
the district court stated that Plaintiffs’ motion under Federal Rule
of Civil Procedure 15(a) and 59(b) was untimely and found that
Plaintiffs did not meet the standard under Federal Rule of Civil Pro-
cedure 60(b). Plaintiffs argued that no final judgment was entered
and thus the time to appeal had not run under Federal Rule of Civil
Procedure 58. But the district court found that Plaintiffs acknowl-
edged the dismissal order was a final judgment, which ended the
litigation on the merits, when Plaintiffs filed their Notice of Appeal.
Plaintiffs filed an amended notice of appeal to include the district
court’s order denying the motions to reopen the case and for leave
to file a second amended complaint. This appeal followed.
II.
Plaintiffs raise two issues. First, Plaintiffs argue the district
court erred as a matter of law in denying their post-dismissal mo-
tions for leave to file an amended complaint and to reopen their
case under Federal Rules of Civil Procedure 15(a), 59(e), and 60(b).
Second, Plaintiffs argue the district court erred as a matter of law
in making the affidavits of Detectives Linville and Valdes a part of
the FAC and in permitting Defendants to use them to defeat Plain-
tiffs’ well-pleaded allegations in their FAC. We will address each
issue in turn.
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20-12862 Opinion of the Court 7
A.
“We generally review the denial of a motion to amend a
complaint for an abuse of discretion, but we review questions of
law de novo.” Williams v. Bd. of Regents of Univ. Sys. of Ga.,
477
F.3d 1282, 1291 (11th Cir. 2007) (internal citation omitted). We re-
view questions of jurisdiction de novo. Williams v. Chatman,
510
F.3d 1290, 1293 (11th Cir. 2007) (per curiam).
Plaintiffs argue that the district court erred in finding their
motion to reopen the case and motion for leave to file a second
amended complaint untimely because the district court lacked ju-
risdiction to consider it. To support their argument that their mo-
tions were timely, Plaintiffs rely on the separate document require-
ment in Federal Rule of Civil Procedure 58. Under Rule 58(a),
“every judgment . . . must be set out in a separate document” with
certain exceptions. Rule 58(c) also provides that if the clerk does
not enter a separate judgment, final judgment is deemed entered if
“150 days have run from the entry in the civil docket.” Plaintiffs
assert that Rule 58(c) governs because the district court did not en-
ter a separate judgment, and the final judgment date is not until
150 days from the entry of the district court’s dismissal order—No-
vember 27, 2020. Plaintiffs then argue that they timely filed their
motion because they filed their motion on November 9, 2020,
which was before November 27, 2020.
First, we must determine what is the date of final judgment.
Plaintiffs argue that under Rule 58 the date of final judgment is
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8 Opinion of the Court 20-12862
November 27, 2020, 150 days after the district court’s order dismiss-
ing the case with prejudice.
Plaintiffs’ reliance on Rule 58 is misplaced. 4 Plaintiffs com-
pletely overlook their own Notice of Appeal filed in the district
court on July 29, 2020. By filing their Notice of Appeal, Plaintiffs
construed the dismissal as an order that “end[ed] the litigation on
the merits” and thus was immediately appealable. See Plaintiff A
v. Schair,
744 F.3d 1247, 1252 (11th Cir. 2014); see also
28 U.S.C. §
2107(a). And as Defendants correctly point out, in Bankers Trust
Co. v. Mallis,
435 U.S. 381 (1978) (per curiam), the Supreme Court
held that under certain circumstances a party can waive the sepa-
rate document requirement under Rule 58.
Mallis involved appellate jurisdiction invoked under
28
U.S.C. § 1291, which provides the “courts of appeals shall have ju-
risdiction of appeals from all final decisions of the district courts of
the United States.” As the Supreme Court noted, Mallis posed the
issue of “whether a decision of a district court can be a ‘final deci-
sion’ for purposes of § 1291 if not set forth on a document separate
from the opinion.”
435 U.S. at 383. The Supreme Court then con-
cluded that the separate-document requirement of Rule 58 was not
meant to “be such a categorical imperative that the parties are not
4 The Federal Rules of Appellate Procedure take into consideration the sepa-
rate document requirement under Rule 58 but also notes that “[a] failure to
set forth a judgment or order on a separate document . . . does not affect the
validity of an appeal from that judgment or order.” Fed. R. App. P. 4(a)(7)(b).
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20-12862 Opinion of the Court 9
free to waive it.”
Id. at 384. In explaining why Rule 58 included
the separate-document requirement, the Supreme Court noted
that it was “intended to avoid the inequities that were inherent
when a party appealed from a document . . . that appeared to be a
final judgment” only to then have the appellate court find that it
lacked jurisdiction because an earlier document was the judgment,
and the appeal was untimely.
Id. at 385. The Supreme Court de-
termined that when the district court’s order is a final decision in
the case, the losing party then appeals that decision, and the other
party does not “object to the taking of the appeal in the absence of
a separate judgment,” the parties are “deemed to have waived the
separate-judgment requirement” under Rule 58 and giving the ap-
pellate court jurisdiction under § 1291. Id. at 387–88.
Like in Mallis, the doctrine of waiver is applicable here.5
Plaintiffs chose to appeal the June 30th dismissal order to this court
and filed two requests for extensions of time to file their initial brief.
Plaintiffs treated the June 30th dismissal order as a final appealable
order and only when the 150 days deadline came close to expiring
did Plaintiffs then return to the district court in an attempt to get
another bite at the district court apple rather than assert its
5Plaintiffs argue that the doctrine of waiver from Mallis does not apply be-
cause Rule 58 was amended in 2002, after the Supreme Court decided Mallis
and added the time frame of 150 days. However, the 2002 Amendments did
not change Rule 58 to the point that any case law interpreting it no longer
applicable, but rather sought to provide clear guidance on when the time to
appeal ended and as not to cut-off a party’s time to appeal.
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10 Opinion of the Court 20-12862
arguments in this court. Thus, we use June 30th as the date of final
judgment.
Having resolved what the final judgment date is, we will de-
termine if the district court erred in denying the Plaintiffs’ motions
for leave to file a second amended complaint and to reopen the
case.
First, we turn to Plaintiffs’ argument concerning their mo-
tion for leave to file a second amended complaint under Rule 15(a).
“Rule 15(a), by its plain language, governs amendment of pleadings
before judgment is entered” and “has no application after judgment
is entered.” Jacobs v. Tempur-Pedic, Int’l, Inc.,
626 F.3d 1327, 1344
(11th Cir. 2010). Plaintiffs filed their Rule 15(a) motion on Novem-
ber 9, 2020, over 132 days after the June 30th final judgment. Thus,
the district court properly determined that Plaintiffs’ motion was
untimely because Plaintiffs filed their motion after final judgment.
Next, we turn to whether the district court correctly denied
Plaintiffs’ motion to reopen the case under Rule 59(e). “A motion
to alter or amend a judgment must be filed no later than 28 days
after the entry of the judgment.” Fed. R. Civ. P. 59(e). Plaintiffs
filed their motion to reopen their case over 132 days after the June
30th final judgment. Because the motion was filed well past the 28-
day deadline identified in Rule 59, the district court correctly found
that Plaintiffs’ motion was untimely.
Last, we turn to whether the district court correctly denied
Plaintiffs’ motion to reopen the case under Rule 60(b). Because
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20-12862 Opinion of the Court 11
Plaintiffs did not specify which subsection under Rule 60(b) sup-
ported their request, the district court construed Plaintiffs’ motion
to fall under the catch-all provision which provides for “any other
reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). In their brief,
Plaintiffs argue the district court erred in requiring them to show
exceptional circumstances under Rule 60(b)(6), because the district
court should have used the Rule 15(a) standard. As discussed
above, Plaintiffs filed their motion after the final judgment date, so
Rule 15(a) does not apply to this motion. Thus, the district court
used the correct standard under Rule 60(b) and properly found that
Plaintiffs failed to show exceptional circumstances of hardship.6
Thus, the district court did not err in denying Plaintiffs’ mo-
tion for leave to amend under Rule 15(a) as untimely; Plaintiffs’
motion to reopen the case under Rule 59(e) as untimely; and Plain-
tiffs’ motion to reopen under Rule 60(b) because Plaintiffs did not
show exceptional circumstances.
B.
Plaintiffs argue for the first time on appeal that an affidavit
is not a written instrument under Rule 10(c). Although Plaintiffs
assert that they argued to the district court that it could not incor-
porate the contents of the affidavits into the FAC, Plaintiffs noted
6 Relief under Rule 60(b)(6) “is an extraordinary remedy which may be in-
voked only upon a showing of exceptional circumstances” such as extreme
and unexpected hardships. Griffin v. Swim-Tech Corp.,
722 F.2d 677, 680
(11th Cir. 1984).
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12 Opinion of the Court 20-12862
that they did not present the argument of whether affidavits are
written instruments under Rule 10(c) to the district court. Because
Plaintiffs did not raise the argument in the district court, we need
not consider it on appeal. See Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1331 (11th Cir. 2004). We have “repeatedly held that
an issue not raised in the district court and raised for the first time
in an appeal will not be considered by this court.”
Id. (internal quo-
tation mark omitted). Although we will sometimes address waived
arguments if a refusal to consider them would result in a miscar-
riage of justice, this case is not one of them.
Plaintiffs further argue that even if an affidavit is a written
instrument, the district court misapplied this court’s guidance from
Gill and accepted the affidavits’ statements as true and part of the
complaint.
“We review de novo a district court’s decision to grant or
deny the defense of qualified immunity on a motion to dismiss, ac-
cepting the factual allegations in the complaint as true and drawing
all reasonable inferences in the plaintiff’s favor.” Dalrymple v.
Reno,
334 F.3d 991, 994 (11th Cir. 2003). However, when an affi-
davit is attached to the complaint and the complaint alleges that
affidavit is false, the district court must review the allegations and
counterpart in the affidavit to determine if the statements in the
affidavit should be considered. Gill, 941 F.3d at 514. Further,
“[w]hen a complaint contains specific, well-pleaded allegations that
either do not appear in the attached exhibit or that contradict con-
clusory statements in the exhibit, we credit the allegations in the
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20-12862 Opinion of the Court 13
complaint.” Id. However, conclusory allegations in the complaint
about the attached affidavit do not automatically require the court
to throw out the attached affidavit. Rather, we must “compare
each relevant allegation in the complaint with its counterpart in the
arrest affidavit and decide if [it] is specific enough to prevent that
statement in the affidavit from being considered.” Id. at 515.
First, the district court looked at the Plaintiffs’ FAC and the
affidavits and properly disposed of their allegations that were too
vague and provide no help in determining what statements in the
affidavit were material misstatements or what information was
omitted. Next, the district court looked at three specific allegations
that related to witnesses and their statements but found that those
statements were too broad, making it difficult to determine if those
allegations affected whether the detectives had probable cause.
Then, the district court had to look at the specific alleged
misstatements and alleged omissions to determine if removing
those misstatements and considering those omissions would ne-
gate probable cause for a warrant affidavit and constitute a Fourth
Amendment violation. See Paez v. Mulvey,
915 F.3d 1276, 1287
(11th Cir. 2019). Using Paez, the district court properly reviewed
the alleged misstatements and omissions and found that those alle-
gations did not negate the probable cause. 7
7Plaintiffs do not argue that the district court incorrectly found the detectives
were entitled to qualified immunity. Thus, we deem that argument waived
and do not address whether the district court made a proper qualified
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14 Opinion of the Court 20-12862
Thus, the district court did not err in its consideration of the
attached affidavits under this court’s binding precedent.
III.
After careful review, we find the district court did not err in
denying Plaintiffs’ post-dismissal motion to reopen the case and for
leave to file a second amended complaint. Additionally, we find
that Plaintiffs waived their argument on whether an affidavit is not
a written instrument under Rule 10(c). Further, we find that the
district court properly considered the affidavits that Plaintiffs at-
tached to their complaint.
AFFIRMED.
immunity determination. See Access Now,
385 F.3d at 1330 (“[A] legal claim
or argument that has not been briefed before the court is deemed abandoned
and its merits will not be addressed.”).
