[DO NOT PUBLISH]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: 1 of 10 
2

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).

Case: 17-15751 Date Filed: 04/08/2019 Page: 2 of 10 
3

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 

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

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”).

Case: 17-15751 Date Filed: 04/08/2019 Page: 4 of 10 
5

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 

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

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 

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

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 

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

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’ 

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

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 

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

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