[ DO NOT PUBLISH] 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 USCA11 Case: 20-12862 Date Filed: 12/06/2021 Page: 1 of 142 Opinion of the Court 20

- 12862
DETECTIVE MICHAEL LINVILLE, Individually, DETECTIVE JOEL VALDES, Individually, BR OWARD 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 W ILSON , J ILL P RYOR , and L UCK , 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) (collectively, Plaintiffs ) appeal th e district court’s dismissal of their Firs t Amended Complaint (FAC) with prejudice and subsequent denial USCA11 Case: 20-12862 Date Filed: 12/06/2021 Page: 2 of 1420

- 12862 Opinion of the Court 3 to reopen their case and grant leave to file a second amended complaint

. In denying Plaintiffs’ post

- dismissal motions to reopen their case and for leave to file a second amended complaint, t h e district court reasoned that it lacked jurisdiction because Plaintiffs filed the motion s after the ir N otice of A ppeal. Plaintiffs also argue that theaffidavits attached to their complaint were not a “written instrument” for the purposes of Federal Rule of Civil Procedure 10(c) and that the district court improperly accepted facts from those affidavits 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 B roward County Sheriff ’s O ffice (BSO)
, 1 and Bridgefield Employers Insurance Company (collectively, Defendants) and fil ed their FAC on April 17, 2019

. In the FAC, the i ndividual plaintiffs alleged 42U.S.C. § 1983 claims against Detectives Linville and Valdes for violating 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 imprisonment 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 allegations against Sheriff Tony. USCA11 Case: 20-12862 Date Filed: 12/06/2021 Page: 3 of 144 Opinion of the Court 20

- 12862 claims against BSO. The crux of Plaintiffs’ FAC is that th e affidavits by Detectives Linville and Valdes
, which were used to o btain arrest, search, and seizure warrants
, lack ed 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 dis miss Plaintiffs’ FAC. Relevant for this appeal
, Defendants argued that Detectives Linville and Valdes are entitled to qualified immunity because Plaintiffs cannot show that Detective s Linville and Valdes violated Plaintiffs’ Fourth Amendment right s or that the Fourth Amendment right was clearly established at the time. Notably, Defendants argue d thatthe affidavits of Detectives Linville and Valdes demonstrate probabl e cause and Plaintiffs’ FAC fails to negate that probable cause. Defendants further argued that qualified immunity shields Detectives Linville and Valdes from the state law claims. Plaintiffs opposed Defendants’ motion to dismiss and requested leave to amend their complaint “to correct any technical deficiencies ” that the district court may have found. On June 30, 2020, t he district court granted with prejudice Defendants’ motion to dismiss

. In its order, the district court followed this court’s decision in Gill as Next Friend of K.C.R. v. Judd
, 941 F.3d 504 (11th Cir. 2019), that prov ide d guidance on how to address when allegations in the complaint conflict with exhibits,

2 Ultimately, the Miami

- Dade State Attorney’s O ffice dismissed all charges. USCA11 Case: 20-12862 Date Filed: 12/06/2021 Page: 4 of 1420

- 12862 Opinion of the Court 5

such as affidavits . Specifically, the district court noted that if thecomplaint contains conclusory and general allegations that are contradicted by an exhibit, the n the exhibit govern s . However, if the complaint contains specific well

- pleaded allegations that are contradicted 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 th e affidavits and that Detectives Linville and Valdes did not violate Plaintiffs’ constitutional rights

. Thus, the district court found Detectiv es 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 th e face of dismissal on the merits.” On July 29, 2020, Plaintiffs filed a N otice of A ppeal 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
, o n November 9, 2020, Plaintiffs moved the district court to reopen the original case under Federal Rules of Civil Procedure 59 and 60 and for leave to file a second amended complaint 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 claim s , the district court declined to ex ercise supplemental jurisdiction over the remaining state law claims. USCA11 Case: 20-12862 Date Filed: 12/06/2021 Page: 5 of 146 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’ motion s 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 Plaint iffs did not meet the standard under Federal Rule of Civil Procedure 60(b)

. Plaintiffs argu ed 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 Plaintiff s acknowledged the dismissal order was a final judgment
, which ended the litigation on the merits, when Plaintiffs filed their N otice of A ppeal

. Plaintiffs filed an amended notice of appeal to include the district court’s order denying the motion s 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 motion s for leave to file an amend ed 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 a nd in permitting Defendants to use them to defeat Plaintiffs’ well

- pleaded allegations in their FAC

. We will address each issue in turn. USCA11 Case: 20-12862 Date Filed: 12/06/2021 Page: 6 of 1420

- 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. o f Regents of Uni v

. Sys. of Ga. , 477 F.3d 1282, 1291 (11th Cir. 2007) (internal citation omitted)

. We review questions of jurisdiction de novo. W illiams 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 jurisdiction to co nsider it

. To support their argument that their motion s w ere timely, Plaintiffs rely on the separate document requirement 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 di d not enter a separate judgment
, and the final judgment date is not until 150 days from the entry of the district court’s dismissal order

— November 27, 2020. Plaintiffs then argue that they timely filed their motion because they filed their motion on Novem ber 9, 2020, which was befor e 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 USCA11 Case: 20-12862 Date Filed: 12/06/2021 Page: 7 of 148 Opinion of the Court 20

- 12862
November 27, 2020, 150 days after the district court’s order dismissing the case with prejudice

. Plaintiffs’ reliance on Rule 58 is misplaced

. 4 Plaintiffs completely overlook their own N otice of A ppeal filed in the district court on July 29, 2020. By filing their Notice of Appeal, Plaintiffs construed the dismis sal as a n 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 u nder c ertain circumstances a party can waive the separate document requirement under Rule 58.
Mallis involved appellate jurisdiction invoked under 28 U.S.C. § 12 9 1, which provides the “courts of appeals shall have jurisdiction 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 decision’ for pu rposes of § 1291 if not set forth o n a document separate from the opinion. ” 435 U.S. at 383. The Supreme Court then concluded 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 separate 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)

. USCA11 Case: 20-12862 Date Filed: 12/06/2021 Page: 8 of 1420

- 12862 Opinion of the Court 9

fr ee 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 determined that when the district court’s order is a final de cision in the case, the losing party the n appeals that decision, and the other party does not “object to the takin g of the appeal in the absence of a separate judgment,” the p arties are “deemed to have waived the separate

- judgment requirement ” under Rule 5 8 and giving the appellate 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

5 Plaintiffs argue that the doctrine of waiver from Mallis does not apply because Rule 58 was amended in 2002, after the Supreme C ourt decided Mallis and added the time frame of 150 days. However, t he 2002 Amendments did not change Rule 58 to the point that any case law interpreting it no longer appli c able, 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. USCA11 Case: 20-12862 Date Filed: 12/06/2021 Page: 9 of 1410 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 determine if the district court erred in denying the Plaintiffs’ motion s for leave to file a second amended complaint and to reopen the

case

. First, we turn to Plaintiffs’ argument concerning their motion for leave to file a second amended compla int 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 November 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 the ir 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). Plain tiffs 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.
L ast , we turn to whether the district court correctly denied Plaintiffs’ motion to reopen the case under Rule 60 (b)

. Because USCA11 Case: 20-12862 Date Filed: 12/06/2021 Page: 10 of 1420

- 12862 Opinion of the Court 11

Plaintiffs did not specify which subsection under Rule 60(b) supported their request
, the district court construed Plaintiffs’ moti on 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 st andard 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’ motion for leave to amend under Rule 15 (a) as untimely ; Plaintiffs’ motion to r eopen the case under Rule 59 (e) as untimely; and Plaintiffs’ 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 incorporate the contents of the affidavits into the FAC, Plaintiffs noted

6 Relief unde r Rule 60(b)(6) “is an extraordinary remedy which may be invoked only upon a showing of exceptional circumstanc es” such as extreme and unexpected hardships. Griffin v. Swim

- Tech Corp. , 722 F.2d 677, 680 (11th Cir. 1984). USCA11 Case: 20-12862 Date Filed: 12/06/2021 Page: 11 of 1412 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. S w. 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 quotation mark omitted)

. Althou gh we will sometimes address waivedarguments if a refusal to consider them would result in a miscarriage 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 ordeny the defense of qualified immunity on a motion to dismiss, accepting the factual al legations 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 affidavit is attached to t he 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 thateither do not appear in the attached exhibit or that contradict conclusory statements in the exhibit, we credit the allegations in the USCA11 Case: 20-12862 Date Filed: 12/06/2021 Page: 12 of 1420

- 12862 Opinion of the Court 13 complaint.” Id. However, conclusory allegations in the com plaint 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 an d properly disposed of their allegations that were too vague and provide no help in determ in ing wh at statements in the affidavit were material misstatements or what information was

o mitted . 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 misstatement s and alleged omissions to determine if removing those misstatements and considering those omissions would negate 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 misstateme nts and omissions and found that th ose allegations did not negate the probable cause. 7

7 Plaintiffs 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 USCA11 Case: 20-12862 Date Filed: 12/06/2021 Page: 13 of 1414 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 amend ed 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 attached to their com plaint

. 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.”). USCA11 Case: 20-12862 Date Filed: 12/06/2021 Page: 14 of 14