Israel Otero, et al v. NewRez, LLC, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10622
Non-Argument Calendar
____________________
ISRAEL OTERO,
PURA RODRIGUEZ,
Plaintiffs-Appellants,
versus
NEWREZ, LLC,
d.b.a. Shellpoint Mortgage Servicing,
BANK OF NEW YORK MELLON,
TROMBERG MORRIS & POULIN PLLC,
ANDREA R. TROMBERG,
Individually,
BOB LEBLANC,
Florida Ninth Judicial Circuit Court Judge, et al.,
USCA11 Case: 23-10622 Document: 40-1 Date Filed: 01/29/2024 Page: 1 of 11

-- 1 of 11 --

2 Opinion of the Court 23-10622
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cv-00118-PGB-DCI
____________________
Before R OSENBAUM , GRANT, and B LACK , Circuit Judges.
PER CURIAM:
Following our decision in Otero I,1 Israel Otero and Pura Ro-
driguez appeal pro se the dismissal with prejudice of their amended
complaint brought under Florida law, 42 U.S.C. § 1983, and the
Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq.
Otero and Rodriguez bring several issues on appeal, which we ad-
dress in turn. After review, we affirm the district court.
I.
First, Otero and Rodriguez assert the district court erred be-
cause its order was silent about exhibits attached to their com-
plaint. “[C]ourts must consider the complaint in its entirety, as well
as other sources courts ordinarily examine when ruling on Rule
12(b)(6) motions to dismiss, in particular, documents incorporated
into the complaint by reference, and matters of which a court may
1 Otero, et al. v. NewRez, LLC, et al., No. 21-12990 (11th Cir. Aug. 8, 2022).
USCA11 Case: 23-10622 Document: 40-1 Date Filed: 01/29/2024 Page: 2 of 11

-- 2 of 11 --

23-10622 Opinion of the Court 3
take judicial notice.” Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551
U.S. 308, 322 (2007).
The district court did not err in dismissing Otero and Rodri-
guez’s amended complaint by failing to discuss in its order the ex-
hibits attached to it. See Berman v. Blount Parrish & Co., 525 F.3d
1057, 1058 (11th Cir. 2008) (reviewing de novo a dismissal under
Federal Rule of Civil Procedure 12(b)(6)). A careful review of the
court’s order reveals that it considered each of their claims in rela-
tion to the underlying factual allegations they relied on in support
of those claims. Although the district court’s order did not include
an explicit discussion of the exhibits to the amended complaint, the
court appropriately based its reason for dismissal on facts that were
readily apparent on the face of the complaint. Moreover, the court
recognized that exhibits to the complaint could be utilized in con-
sidering a motion to dismiss under Federal Rule of Civil Procedure
10(c), which suggests that, even though the court may not have
explicitly discussed the exhibits to the amended complaint, it knew
it could consider, and did consider, the exhibits in reaching its deci-
sion. See Tellabs, Inc., 551 U.S. at 322. Accordingly, we affirm as to
this issue.
II.
Second, Otero and Rodriguez argue the district court erred
because it concluded their fraud claim was time-barred. “Under
the law of the case doctrine, the findings of fact and conclusions of
law by an appellate court are generally binding in all subsequent
proceedings in the same case in the trial court or on a later appeal.”
USCA11 Case: 23-10622 Document: 40-1 Date Filed: 01/29/2024 Page: 3 of 11

-- 3 of 11 --

4 Opinion of the Court 23-10622
This That & the Other Gift & Tobacco, Inc. v. Cobb Cnty., 439 F.3d
1275, 1283 (11th Cir. 2006) (quotation marks omitted). The
law-of-the-case doctrine generally prohibits a lower court from
considering on remand an issue that a higher court has decided in
the same case. Cambridge Univ. Press v. Albert, 906 F.3d 1290, 1299
(11th Cir. 2018). Furthermore, the law-of-the-case doctrine bars re-
litigation of issues decided either explicitly or by necessary implica-
tion in a prior appeal. This That & the Other Gift & Tobacco, Inc.,
439 F.3d at 1283. The mandate rule, a specific application of the
law-of-the-case doctrine, binds a lower court to execute the man-
date of the higher court without examination or variance. Albert,
906 F.3d at 1299. A court “may not alter, amend, or examine the
mandate, or give any further relief or review, but must enter an
order in strict compliance with the mandate.” Piambino v. Bailey,
757 F.2d 1112, 1119 (11th Cir. 1985). The law-of-the-case doctrine
and the mandate rule do not extend to issues the appellate court
did not address. Id. at 1120.
The law-of-the-case doctrine bars relitigation of Otero and
Rodriguez’s fraud claim. See Mega Life & Health Ins. Co. v. Pieniozek,
585 F.3d 1399, 1405 (11th Cir. 2009) (stating we review de novo ap-
plication of the law-of-the-case doctrine). In Otero I, Otero and Ro-
driguez argued the fraud they complained of was fraud on the
court, which they seek to relitigate here. However, this Court, in
Otero I, held their fraud claim was time-barred, and this Court di-
rected the district court to dismiss the fraud claims with prejudice,
which it did. To reach its decision, this Court would have had to
consider Otero and Rodriguez’s claim of fraud on the court. See
USCA11 Case: 23-10622 Document: 40-1 Date Filed: 01/29/2024 Page: 4 of 11

-- 4 of 11 --

23-10622 Opinion of the Court 5
This That & the Other Gift & Tobacco, Inc., 439 F.3d at 1283. Accord-
ingly, Otero and Rodriguez are precluded from relitigating that is-
sue again, because this Court has already decided it. See id. To the
extent the district court followed this Court’s instruction and dis-
missed the fraud claim as time-barred, it did not err. See Piambino,
757 F.2d at 1119. Accordingly, we affirm as to this issue.
III.
Third, Otero and Rodriguez contend the district court erred
because it concluded their FDCPA claim was time-barred. A dis-
trict court may dismiss a complaint under Rule 12(b)(6) as time-
barred only if it is apparent from the face of the complaint that the
applicable statute of limitations bars the claim. United States v.
Henco Holding Corp., 985 F.3d 1290, 1296 (11th Cir. 2021). The com-
plaint’s factual allegations are accepted as true and construed in the
light most favorable to the plaintiff. Id.
Under the FDCPA, “[a] debt collector may not use any false,
deceptive, or misleading representation or means in connection
with the collection of any debt.” 15 U.S.C. § 1692e. A false repre-
sentation on “the character, amount, or legal status of any debt”
violates the FDCPA. Id. § 1692e(2)(A). An action to enforce the
FDCPA must be brought “within one year from the date on which
the violation occurs.” Id. § 1692k(d).
The district court did not err in dismissing the amended
complaint because Otero and Rodriguez’s FDCPA claim is
time-barred. See Berman, 525 F.3d at 1058 (stating we review de novo
the district court’s application of a statute of limitations). In
USCA11 Case: 23-10622 Document: 40-1 Date Filed: 01/29/2024 Page: 5 of 11

-- 5 of 11 --

6 Opinion of the Court 23-10622
support of their FDCPA claim, they rely on paragraphs 24 through
33 of their amended complaint. A careful review of these para-
graphs reveals the latest date on which an alleged FDCPA violation
occurred was January 21, 2016, when Otero and Rodriguez re-
ceived notification their mortgage was in default. Because a one-
year statute of limitations applies to claims that allege a violation
of FDCPA, Otero and Rodriguez would have had to pursue their
claims in 2017. See 15 U.S.C. § 1692k(d). However, they did not
commence this action until 2021. Because it was apparent from the
face of the complaint that Otero and Rodriguez’s FDCPA claim
was time-barred, the district court did not err in dismissing the
complaint as to this claim. Henco Holding Corp., 985 F.3d at 1296.
Accordingly, we affirm as to this issue.2
IV.
Fourth, Otero and Rodriguez assert the district court erred
because the seven Florida judges named as defendants were not
entitled to judicial immunity.3 Judges enjoy absolute judicial
2 To the extent Otero and Rodriguez argue on appeal that violations of the
FDCPA are ongoing, they do not allege so in their amended complaint. Also,
because this argument is raised for the first time on appeal, we do not consider
it. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331-32 (11th Cir. 2004)
(stating generally, we will not consider issues not raised in the district court
and raised for the first time on appeal absent extraordinary circumstances).
3 Otero and Rodriguez do not challenge the district court’s finding that the
claims against the seven Florida judges were also barred because they had
qualified immunity. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680
(11th Cir. 2014) (“When an appellant fails to challenge properly on appeal one
of the grounds on which the district court based its judgment, he is deemed to
USCA11 Case: 23-10622 Document: 40-1 Date Filed: 01/29/2024 Page: 6 of 11

-- 6 of 11 --

23-10622 Opinion of the Court 7
immunity when they act in their judicial capacity as long as they
do not act “in the clear absence of all jurisdiction.” Sibley v. Lando,
437 F.3d 1067, 1070 (11th Cir. 2005) (quotation marks omitted).
Absolute judicial immunity “applies even when the judge’s acts are
in error, malicious, or were in excess of his or her jurisdiction.”
Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000). Absolute im-
munity also applies to claims made in an individual capacity. See
Stevens v. Osuna, 877 F.3d 1293, 1300-01, 1304-08 (11th Cir. 2017)
(stating the plaintiff’s claims were against the judge in his individual
capacity and applying absolute immunity). Absolute immunity is
not reserved only for Article III judges and is not based on rank or
title, but flows from the “nature of the responsibilities of the indi-
vidual official.” Id. at 1301-02 (quotation marks omitted). Accord-
ingly, absolute immunity extends to state court judges. Id. at 1302.
Whether a judge’s actions were made while acting in his or
her judicial capacity depends on whether: “(1) the act complained
of constituted a normal judicial function; (2) the events occurred in
the judge’s chambers or in open court; (3) the controversy involved
a case pending before the judge; and (4) the confrontation arose
immediately out of a visit to the judge in his judicial capacity.” Si-
bley, 437 F.3d at 1070.
The district court did not err in dismissing the amended
complaint as to the seven Florida judges because each of them have
judicial immunity. See Stevens, 877 F.3d at 1301 (stating we review
have abandoned any challenge of that ground, and it follows that the judg-
ment is due to be affirmed.”).
USCA11 Case: 23-10622 Document: 40-1 Date Filed: 01/29/2024 Page: 7 of 11

-- 7 of 11 --

8 Opinion of the Court 23-10622
de novo whether an official is entitled to absolute immunity). To
the extent Otero and Rodriguez argue their claims are against the
Judicial Defendants in their individual capacities, judicial immunity
still applies. See id. at 1304-08. To the extent they also assert the
Judicial Defendants acted in excess of their jurisdiction because
there was no proper plaintiff in the Foreclosure Action, judicial im-
munity still applies. See Bolin, 225 F.3d at 1239. In all instances,
these judges were performing acts constituting normal judicial
functions, ruling on matters pending before them, in response to
motions or appeals, in either a hearing, written order, or opinion.
See Sibley, 437 F.3d at 1070. Therefore, they are entitled to absolute
judicial immunity. See id. Accordingly, we affirm as to this issue.4
V.
Fifth, Otero and Rodriguez contend the district court erred
because their intentional infliction of emotional distress (IIED)
claim was not time-barred. An action for IIED must be brought
within four years under Florida law. Fla. Stat. § 95.11(3)(o). Flor-
ida applies the discovery principle, under which “the statute of lim-
itations begins to run when a person has been put on notice of his
right to a cause of action.” Jones v. Childers, 18 F.3d 899, 906 (11th
Cir. 1994). The clock on the statute of limitations for an IIED claim
begins to run “from the time the cause of action accrues.” Fla. Stat.
4 Because we affirm that the seven Florida judges enjoy judicial immunity, we
do not reach Otero and Rodriguez’s argument regarding whether they also
enjoyed sovereign immunity.
USCA11 Case: 23-10622 Document: 40-1 Date Filed: 01/29/2024 Page: 8 of 11

-- 8 of 11 --

23-10622 Opinion of the Court 9
§ 95.031. “A cause of action accrues when the last element consti-
tuting the cause of action occurs.” Id. § 95.031(1).
“The continuing violation doctrine permits a plaintiff to sue
on an otherwise time-barred claim when additional violations of
the law occur within the statutory period.” McGroarty v.
Swearingen, 977 F.3d 1302, 1307 (11th Cir. 2020) (quotation marks
omitted). We “distinguish[] between the present consequence of a
one time violation, which does not extend the limitations period,
and the continuation of that violation into the present, which
does.” Id. (quotation marks omitted). In McGroarty, we rejected
an appellant’s argument that the dissemination of his personal in-
formation on a public website constituted a continuous injury such
that it fell within the continuing violation doctrine. Id. at 1306-08.
We reasoned “[t]he initial publication of McGroarty’s information
online was a one time act, even though McGroarty [was] experi-
encing present consequences of that action.” Id. at 1308 (quotation
marks omitted). We also concluded it was “certain” McGroarty
was aware of his alleged injury in 2012, but he did not sue until
2018, outside the applicable four-year statute of limitations under
Florida law. Id. at 1307-08. Thus, this Court also refused to apply
the exception because McGroarty could have avoided the problem
by filing within the statute of limitations. Id. at 1308.
The district court did not err in dismissing the amended
complaint because Otero and Rodriguez’s IIED claim is
time-barred. The Final Foreclosure Judgment was entered on Sep-
tember 10, 2014. Every subsequent motion and appeal following
USCA11 Case: 23-10622 Document: 40-1 Date Filed: 01/29/2024 Page: 9 of 11

-- 9 of 11 --

10 Opinion of the Court 23-10622
the Final Foreclosure Judgment was initiated by Otero and Rodri-
guez, and based on the contention that Andrea Tromberg and
Tromberg Morris & Poulin PLLC, and NewRez LLC d/b/a Shell-
point Mortgage Servicing and Bank of New York Mellon fraudu-
lently obtained a foreclosure judgment. Thus, the statute of limi-
tations began when the cause of action accrued on September 10,
2014.5 Fla. Stat. §§ 95.031, 95.031(1), Accordingly, because an ac-
tion on an IIED claim must be commenced within four years of
when the cause of action accrued under Florida law, by the time
Otero and Rodriguez filed this case in 2021, their IIED claim was
time-barred.
To the extent Otero and Rodriguez raise a continuing viola-
tion argument in their reply brief, they have abandoned this argu-
ment for failure to raise it in their initial brief. See United States v.
Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc), cert. denied,
143 S. Ct. 95 (2022) (stating, generally, issues not raised in an initial
brief are considered abandoned and will not be addressed absent
extraordinary circumstances). Even construing their initial brief
liberally, their IIED claim still fails because the continuing violation
doctrine is inapplicable. Obtaining a fraudulent judgment was a
one-time act, even though they contend they are still experiencing
present consequences. See McGroarty, 977 F.3d at 1307. As a result,
5 To the extent the district court’s order recognized a delayed discovery excep-
tion, that doctrine is inapplicable to IIED claims. See Davis v. Monahan, 832 So.
2d 708, 709-10 (Fla. 2002) (explaining Florida’s delayed discovery doctrine ap-
plies only to cases involving fraud, products liability, professional malpractice,
medical malpractice, or intentional torts based on abuse).
USCA11 Case: 23-10622 Document: 40-1 Date Filed: 01/29/2024 Page: 10 of 11

-- 10 of 11 --

23-10622 Opinion of the Court 11
the continuing violation doctrine is inapplicable. See id. at 1306-08.
Further, because all of Otero and Rodriguez’s claims are barred,
we do not reach whether Florida’s litigation privilege shields attor-
ney Andrea Tromberg and her firm, Tromberg, Morris & Poulin,
PLLC with absolute immunity. Accordingly, we affirm.
AFFIRMED.
USCA11 Case: 23-10622 Document: 40-1 Date Filed: 01/29/2024 Page: 11 of 11

-- 11 of 11 --