[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 17, 2009
No. 08-14413 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-02073-CV-T-24-TBM
ANDRZEJ MADURA,
Plaintiff,
ANNA DOLINSKA-MADURA,
Plaintiff-Appellant,
versus
COUNTRYWIDE HOME LOANS, INC.,
FULL SPECTRUM LENDING, INC.,
Defendants-Appellees.
________________________
No. 08-14793
Non-Argument Calendar
________________________
D. C. Docket No. 06-02073-CV-T-24TBM
ANDRZEJ MADURA,
Plaintiff-Appellant,
ANNA DOLINSKA-MADURA,
Plaintiff,
versus
COUNTRYWIDE HOME LOANS, INC.,
FULL SPECTRUM LENDING INC.,
Defendants-Appellees.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(August 17, 2009)
Before TJOFLAT, EDMONDSON and HULL, Circuit Judges.
PER CURIAM:
2
Andrzej Madura (“Mr. Madura”) and his wife, Anna Dolinska-Madura
(“Mrs. Madura”), filed a pro se complaint against Countrywide Home Loans, Inc.
(“Countrywide”) and Full Spectrum Lending, Inc. (“Full Spectrum”), alleging
violations of Florida law and federal statutes governing consumer credit protection.
This action arises out of a home loan the Maduras obtained from Full Spectrum
that Full Spectrum then sold to Countrywide. In a nutshell, the Maduras claim that
the defendants forged loan documents and fraudulently charged a prepayment
penalty. Mr. Madura appeals pro se the district court’s order dismissing his claims
based on an arbitration agreement in the loan documents. Mrs. Madura appeals pro
se the district court’s order granting summary judgment to the defendants on her
claims because, inter alia, she either already had or could have litigated them in an
earlier Florida state court action. After review, we affirm.
I. BACKGROUND FACTS
A. Federal Complaint
According to the Maduras’ complaint, in July 2000, Full Spectrum sent the
Maduras loan documents, which they signed and sent back. On July 26, 2000, the
Maduras and Full Spectrum closed the loan. Under the terms of the loan
agreement, the Maduras borrowed $87,750 at an adjustable interest rate of 14.375
3
percent, secured by their principal residence.1
On July 31, 2000, Countrywide purchased the loan from Full Spectrum. In
March 2001, the Maduras called Countrywide and requested to repay their loan in
full. Countrywide informed them that a prepayment penalty applied and later sent
them a payoff demand statement that included a $5,036.84 prepayment penalty.
The Maduras allege that the loan documents they signed did not include a
prepayment penalty. According to the Maduras, Full Spectrum and Countrywide
destroyed those documents, created fraudulent copies of certain documents,
including a Truth In Lending Act (“TILA”) disclosure statement and the adjustable
rate note, and forged their signatures on these fraudulent documents. According to
the Maduras, the forged documents contained conditions to which they never
agreed, including a prepayment penalty.
In subsequent communications, the defendants refused to provide the
Maduras with copies of the allegedly forged documents. The Maduras sent a
notice to Countrywide demanding an immediate rescission of the loan agreement.
The Maduras hired a forensic document examiner, who found that their signatures
on the TILA disclosure statement and Mr. Madura’s initials on the adjustable rate
1
Although the federal complaint alleges that both Mr. and Mrs. Madura were borrowers,
the defendants dispute this allegation. The defendants contend that only Mr. Madura signed the
loan documents and that Mrs. Madura’s signature appeared only on documents releasing her
marital and homestead interest in the property.
4
note were forged. The Maduras sent this report to Countrywide. In July 2001,
Countrywide refused to rescind the loan agreement, claiming that Mr. Madura’s
initials on the promissory note were not forged and that all disclosures had been
provided. Nonetheless, Countrywide agreed to waive the prepayment penalty.
The Maduras also alleged that they had filed a complaint in the Manatee
County Circuit Court in Florida (“the state court action”) against Full Spectrum
and Countrywide seeking rescission of the loan agreement. The Maduras attached
to their federal complaint copies of: (1) their state court complaint, which raised
state law claims of forgery, uttering a forged instrument, usury, conspiracy and
racketeering; (2) an amended state court complaint, filed by Mrs. Madura, which
alleged state law claims of fraud and fraud in the inducement and federal TILA
claims; and (3) the forensic document examiner’s report. According to the
Maduras’ federal complaint, the state court compelled Mr. Madura to arbitrate his
claims.
The Maduras’ federal complaint contained nineteen counts based on
essentially the same facts as the state court action. In eleven counts, the Maduras
sought rescission of the loan agreement and statutory damages for alleged TILA
violations. In eight counts, the Maduras sought rescission and damages for state
law claims of failure to contract, forgery, fraud, fraud in the inducement, usury,
5
uttering forged bills and violating the Florida Communications Fraud Act
(“FCFA”).
B. Motion to Dismiss and/or Compel Arbitration
Countrywide and Full Spectrum moved to dismiss the federal complaint for
lack of subject matter jurisdiction under the Rooker-Feldman doctrine.
Alternatively, the defendants argued that the district court should order Mr.
Madura to arbitrate his claims pursuant to the arbitration agreement in the loan
documents.
Mr. Madura opposed arbitration, arguing that he was not bound by the
arbitration agreement. Mr. Madura’s argument hinged on the theory that there
were two contracts. The “first contract” consisted of the loan documents he signed
prior to and during the closing, and the “second contract” consisted of the
documents with the prepayment penalty allegedly forged after the closing.
Although somewhat difficult to follow, it appears Mr. Madura argued that the
arbitration agreement he admittedly signed related to only the “first contract” and
not the “second contract.” Thus, according to Mr. Madura, he could not be forced
to arbitrate his claims relating to this “second contract.”
As to their Rooker-Feldman argument, the defendants submitted documents
from the state court action indicating that the state court: (1) found that Mr.
6
Madura’s claims were subject to the arbitration agreement; and (2) granted
summary judgment to Countrywide and Full Spectrum on Mrs. Madura’s claims.
The state court found that: (1) Mrs. Madura’s TILA claims were barred by the one-
year statute of limitations in 15 U.S.C. § 1640(e); (2) Mrs. Madura was not a
“borrower” under the loan agreement and, thus, did not have standing to bring a
usury claim; and (3) Mrs. Madura could not show damages for her fraud claims
because it was undisputed that the defendants had waived the prepayment penalty.2
In this federal action, a magistrate judge issued a report (“R&R”)
recommending that the district court deny the defendants’ motion to dismiss for
lack of subject matter jurisdiction, but grant the defendants’ motion to compel Mr.
Madura to arbitrate his claims. The R&R concluded that Mr. Madura was bound
by the arbitration agreement, which he did not dispute he had signed, and that the
arbitration agreement covered all of his claims. Over Mr. Madura’s objections, the
district court adopted the R&R, compelled Mr. Madura to arbitrate his claims, and
dismissed his claims in favor of arbitration. In doing so, the district court rejected
Mr. Madura’s two-contract theory and found that all of Mr. Madura’s claims arose
out of the single loan transaction and were encompassed by the arbitration
2
The Florida Second District Court of Appeal affirmed the arbitration and summary
judgment rulings. The United States Supreme Court denied Mr. Madura’s subsequent petition
for a writ of certiorari.
7
agreement.
C. Motion for Leave to File Amended Complaints
After the arbitration ruling, the Maduras moved for leave to amend their
federal complaint to add claims relating to the “second contract,” i.e., the allegedly
forged documents, with Countrywide and Full Spectrum. As to Mr. Madura, the
district court denied the motion as moot because he had been ordered to arbitrate
his claims. As to Mrs. Madura, the district court denied the motion as futile. The
district court reiterated that all of the Maduras’ claims arose out of the same loan
transaction and that their attempt to distinguish between a first and second contract
was unpersuasive.
Thereafter, the Maduras moved again for leave to amend their federal
complaint. They re-alleged portions of their original complaint and included these
additional claims: (1) spoliation of evidence; (2) rescission of the arbitration
agreement based on fraud in the inducement; (3) TILA violations regarding a
courier charge; (4) a state RICO claim; (5) a violation of the FCFA; and (6) a claim
that the defendants ruined their credit. As to Mr. Madura, the district court denied
the motion because he was required to arbitrate his claims and had delayed in
asserting his fraud claim.3 As to Mrs. Madura, the district court denied the motion
3
The district court noted that Mr. Madura was seeking to add this claim over seven years
after he signed the arbitration agreement and after the scheduling order had been entered,
8
because, inter alia: (1) res judicata barred her claims based on the loan transaction;
(2) her ruined credit and FCFA claims were futile; (3) applicable statutes of
limitations barred her rescission and TILA claims; and (4) she unduly delayed in
asserting her state RICO, uttering and punitive damages claims.
D. Motion for Summary Judgment
After Mr. Madura was compelled to arbitrate, Countrywide and Full
Spectrum moved for summary judgment on all of Mrs. Madura’s claims, arguing,
inter alia, that she was relitigating the issues around the July 2000 loan transaction
and that her claims were barred by issue and claim preclusion based on the state
court action. The defendants alternatively argued that Mrs. Madura’s claims were
time-barred and moot and that she lacked standing.
The magistrate judge’s R&R recommended granting the defendants’
summary judgment motion. The R&R concluded that: (1) Mrs. Madura’s claims
were barred by issue and claim preclusion based on the state court’s final judgment
against her; and (2) alternatively, her TILA, fraud and usury claims were time-
barred by applicable statutes of limitations and Florida’s criminal-uttering statute
did not provide a private right of action. The district court adopted the R&R over
discovery concluded, and the district court had ruled that Mr. Madura’s claims had to be
arbitrated pursuant to the arbitration agreement. The district court stated that it appeared Mr.
Madura was “attempting to get around this Court’s ruling by amending his complaint.”
9
Mrs. Madura’s objections and entered summary judgment in favor of the
defendants. The Maduras filed this consolidated appeal.
II. DISCUSSION
A. Motion to Compel Arbitration of Mr. Madura’s Claims
Under the Federal Arbitration Act (“FAA”), if one party to an arbitration
agreement refuses to arbitrate, the aggrieved party may petition the district court to
compel arbitration. 9 U.S.C. § 4. The district court will grant the petition “upon
being satisfied that the making of the agreement for arbitration or the failure to
comply therewith is not in issue.” Id. However, the FAA prohibits enforcement of
the arbitration agreement if it is invalid “upon such grounds as exist at law or in
equity for the revocation of any contract.” Id. § 2.4
Attached to the defendants’ motion to compel arbitration was a copy of the
arbitration agreement Mr. Madura signed on July 11, 2000, along with other loan
documents.5 The arbitration agreement provided that claims relating to the credit
transaction (i.e., the home loan) would be resolved in arbitration with the National
Arbitration Forum (“NAF”).
The parties do not dispute that the July 2000 loan transaction is a transaction
4
We review de novo a district court’s decision to compel arbitration. Caley v. Gulfstream
Aerospace Corp., 428 F.3d 1359, 1368 n.6 (11th Cir. 2005).
5
The defendants also attached a second copy of the arbitration agreement Mr. Madura
signed on July 26, 2000, the date of the closing.
10
involving commerce under the FAA, the arbitration agreement is governed by the
FAA and Mr. Madura’s claims relating to the July 2000 loan transaction fall within
the scope of the arbitration agreement.6 Instead, the parties dispute whether,
pursuant to § 2 of the FAA, the district court should have declined to enforce the
arbitration agreement because it is invalid. Mr. Madura offers two grounds for
finding the arbitration agreement unenforceable under § 2 of the FAA: (1) he was
fraudulently induced to enter into the loan transaction; and (2) arbitration would be
prohibitively expensive.
1. Fraud in the Inducement
In interpreting § 2 of FAA, courts have drawn a distinction between “claims
that challenge the contract generally and claims that challenge the arbitration
provision itself.” Jenkins v. First Am. Cash Advance of Ga., LLC, 400 F.3d 868,
876 (11th Cir. 2005) (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388
U.S. 395, 403, 87 S. Ct. 1801, 1806 (1967)). Thus, while the district court may
decide allegations of fraud in the inducement that pertain specifically to the
arbitration agreement, claims of fraud in the inducement as to the contract as a
whole must be resolved in arbitration. Id. at 876-77.
6
We reject Mr. Madura’s argument that he asserted claims of uttering based on the
defendants’ submission of the allegedly forged loan documents in the Florida state courts and the
U.S. Supreme Court that fall outside the arbitration agreement. As the district court concluded,
these claims are not in the Maduras’ complaint.
11
Mr. Madura does not dispute that he signed the arbitration agreement.
Although Mr. Madura claims that Full Spectrum forged his signature on the
adjustable rate note and TILA disclosure statement, he does not contend that Full
Spectrum forged his signature on the arbitration agreement. Cf. Chastain v.
Robinson-Humphrey Co., Inc., 957 F.2d 851, 854 (11th Cir. 1992) (explaining
that, when a party contends he did not sign or assent to an arbitration agreement,
and thus challenges the very existence of such an agreement, the district court,
before sending the claims to arbitration, “must first decide whether or not the non-
signing party can nonetheless be bound by the contractual language”).7
Instead, Mr. Madura raises a defense of fraudulent inducement. He claims
that Full Spectrum tricked him into signing the loan documents, including the
arbitration agreement, by providing him with loan documents that did not contain
the prepayment penalty and, after closing, destroying those loan documents and
replacing them with forged documents that contained the prepayment penalty.8
7
Even if Mr. Madura had argued in response to the motion to compel arbitration that his
signature on the arbitration agreement was forged, he could not prevail because he failed to
provide any evidence to support such a claim. See Chastain, 957 F.2d at 854-55 (stating that “[a]
party cannot place the making of the arbitration agreement in issue simply by opining that no
agreement exists’ and that in addition to “an unequivocal denial that the agreement had been
made . . . some evidence should [be] produced to substantiate the denial” (quotation marks
omitted)).
8
Mr. Madura’s appeal brief states that a Full Spectrum representative assured Mr. Madura
over the phone and at the closing that the arbitration agreement pertained to the loan documents
Mr. Madura signed. In support, the appeal brief cites to Mr. Madura’s affidavit filed in the
district court. However, Mr. Madura’s affidavit does not contain this factual allegation.
12
Mr. Madura contends that because the defendants forged his signature on the
adjustable rate note and TILA disclosure statement, the entire loan agreement,
including the arbitration agreement, is void ab initio.
Mr. Madura’s argument is a challenge “to the validity of the contract as a
whole,” and not specifically to the arbitration agreement. See Buckeye Check
Cashing, Inc. v. Cardegna, 546 U.S. 440, 448-49, 126 S. Ct. 1204, 1210 (2006)
(concluding that a claim that the entire contract is illegal and void ab initio under
state law must be arbitrated); Prima Paint, 388 U.S. at 403-04, 87 S. Ct. at 1806
(concluding that a claim of fraud in the inducement of the entire contract must be
arbitrated); Jenkins, 400 F.3d at 876-77 (concluding that a claim that the entire
contract is an adhesion contract must be arbitrated). Thus, the district court did not
err in ordering Mr. Madura to arbitrate his claims.
2. Accessibility of Arbitral Forum
Mr. Madura argues that the arbitration agreement is unenforceable because
he cannot afford to pay the arbitration fees and thus cannot vindicate his rights in
arbitration. A party who seeks to invalidate an arbitration agreement on the basis
that arbitration would be prohibitively expensive “bears the burden of showing the
likelihood of incurring such costs.” Green Tree Fin. Corp.-Alabama v. Randolph,
531 U.S. 79, 90-92, 121 S. Ct. 513, 522-23 (2000); see also Anders v. Hometown
13
Mortgage Servs., Inc., 346 F.3d 1024, 1028 (11th Cir. 2003).
In Green Tree, the arbitration agreement was silent on the arbitrator’s
identity or costs. 531 U.S. at 90, 121 S. Ct. at 522. The party opposing arbitration
submitted informational material from the American Arbitration Association that
did not discuss fees and an article “contain[ing] a stray statement” that the average
cost of arbitration was $700 per day. Id. at 90 n.6, 121 S. Ct. at 522 n.6. The
Supreme Court concluded that this evidence was insufficient to show that the
arbitration costs would preclude the litigant from effectively vindicating rights in
arbitration. Id. at 90-91, 121 S. Ct. at 521-23. The Supreme Court explained that
the mere risk of prohibitive costs “is too speculative to justify the invalidation of
an arbitration agreement.” Id. at 91, 121 S. Ct. at 522.
In Anders, this Court subsequently concluded that a plaintiff’s affidavit
outlining his financial condition was insufficient to meet his burden. 346 F.3d at
1028-29. This Court reasoned that the applicable rules of arbitration provided for
deferred or reduced fees in cases of extreme hardship and the defendant’s counsel
stipulated that the defendant would bear the plaintiff’s administrative costs of
instituting arbitration. Id.
Here, the arbitration agreement contains a provision dividing costs in this
manner: (1) “The party making demand upon the Administrator for arbitration
14
shall pay $125.00 to the Administrator when the demand is made”; (2) Full
Spectrum “will pay the Administrator all other costs for the arbitration proceeding
up to a maximum of one day (six hour) of hearings”; (3) “All costs of the
arbitration proceeding that exceed one day of hearings will be paid by the non-
prevailing party”; and (4) “Each party shall pay his/her own attorney, expert, and
witness fees and expenses. However, the arbitrator may, in his or her discretion,
permit the prevailing party to recover fees and costs to the extent permitted by
applicable law.”
In addition, the arbitration agreement designates the NAF as the
administrator of the arbitration and provides that the arbitration will be conducted
in accordance with the NAF’s Code of Procedure. Under Rule 44 of the NAF’s
Code of Procedure, unless the parties agreed otherwise, all filing fees must be paid
at the time a request or objection is filed and all hearing fees must be paid when the
hearing is selected. However, under Rule 446, a consumer “who asserts that
arbitration fees prevent [him] from effectively vindicating [his] case in arbitration
may, at the time of filing of [his] Initial Claim or [his] Response to a Large Claim
and prior to paying any filing fee, file a Request that another Party or Parties pay
all or part of the arbitration fees or that the arbitration provision be declared
unenforceable, permitting [him] to litigate the case instead of arbitrating the case.”
15
In addition, Rule 45 contains a fee waiver provision that allows a consumer to
request a full or partial waiver of a particular fee if he submits an affidavit of
poverty that shows he is unable to pay the fee.
Mr. Madura opposed arbitration, in part, because it would cost $3,100 to
initiate arbitration and additional fees for each request or objection he filed. Mr.
Madura submitted the NAF’s fee schedule to the district court, which indicated
that, for a claim involving $75,500 to $125,000, the filing fee was $300, the
commencement fee was $300, the administrative fee was $1,000 and the
participatory hearing session fee was $1,500. The fee schedule also listed fees per
request or objection ranging from $75 to $750.9 Based on the 87 motions and
objections he said he had filed to date in the district court, Mr. Madura estimated
that it would cost him approximately $20,000 to arbitrate his claims.10
Under the total circumstances of this case, we conclude that Mr. Madura did
not meet his burden to show that he likely would incur prohibitively large
9
For example, the fee for a request for a subpoena is $75, for a request for a non-
dispositive order is $250 and for a request for a dispositive or discovery order is $500. And, the
fee for an objection to each of these requests is $100, $250 and $500, respectively.
10
On appeal, Mr. Madura stresses that he was given in forma pauperis (“IFP”) status in
the district court when he originally filed his complaint. However, we note that the district court
denied Mr. Madura’s request to proceed IFP on appeal on the ground that he was no longer a
pauper. And, after comparing Mr. Madura’s assets and liabilities, this Court denied Mr.
Madura’s renewed request for IFP status on appeal, finding his allegations of poverty were
untrue.
16
arbitration costs. First, pursuant to the arbitration agreement, Mr. Madura will
have to pay only $125.00 to initiate the arbitration and then Full Spectrum will pay
all costs up to the equivalent of six hours of hearings. Thus, under the arbitration
agreement, Mr. Madura may not be responsible for all, or perhaps any, of his filing
and hearing fees. Second, although the NAF’s rules generally require the parties to
pay as they go, they also provide for cost-shifting in cases of extreme hardship and
for the full or partial waiver of fees if a consumer is unable to pay them. Mr.
Madura has not shown that he would be denied either of these forms of relief.
Third, Mr. Madura’s estimated arbitration costs of $20,000 is purely speculative.
Although Mr. Madura filed numerous motions and objections during the district
court proceedings, many of them were unnecessary. In fact, the court cautioned
him at least once about filing unnecessary motions.11 Accordingly, Mr. Madura’s
arguments that the arbitration agreement is unenforceable are without merit, and
the district court properly concluded that he should arbitrate his claims.
B. Motion for Summary Judgment as to Mrs. Madura
Mrs. Madura argues that the district court erred in granting summary
judgment to the defendants based on issue and claim preclusion as a result of her
11
In a May 24, 2007 status conference, the magistrate judge expressed disapproval of Mr.
Madura’s “tit-for-tat motion practice” and advised him that not every motion filed by the
defendants required him to respond with his own motion.
17
prior state court action.12
In considering whether to give preclusive effect to a state court judgment
under claim preclusion (or res judicata) or issue preclusion (or collateral estoppel),
we apply the law of the state whose court rendered the judgment. Agripost, Inc. v.
Miami-Dade County, ex rel. Manager, 195 F.3d 1225, 1229 n.7 (11th Cir. 1999).
Under Florida’s doctrine of res judicata, “[a] judgment on the merits rendered in a
former suit between the same parties or their privies, upon the same cause of
action, by a court of competent jurisdiction, is conclusive not only as to every
matter which was offered and received to sustain and defeat the claim, but as to
every other matter which might with propriety have been litigated and determined
in that action.” Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001)
(quotation marks and emphasis omitted). Claims are considered the “same cause
of action” if the facts essential to the maintenance of both actions are the same, that
is, if the evidence in both cases is in essence the same. See Gordon v. Gordon, 59
So. 2d 40, 44 (Fla. 1952); see also Citibank, N.A. v. Data Lease Fin. Corp., 904
F.2d 1498, 1503 (11th Cir. 1990) (“[I]f a case arises out of the same nucleus of
12
We review “de novo a district court’s grant of summary judgment, applying the same
legal standards as the district court.” Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir.
2000). A district court shall grant summary judgment when the evidence before it shows “that
there is no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). We review de novo a district court’s determination of res
judicata. Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999).
18
operative fact, or is based upon the same factual predicate, as a former action, the
two cases are really the same ‘claim’ or ‘cause of action’ for purposes of res
judicata.” (quotation marks omitted)).
Florida’s doctrine of collateral estoppel bars “identical parties from
relitigating issues that have previously been decided between them.” Mobil Oil
Corp. v. Shevin, 354 So. 2d 372, 374 (Fla. 1977). “The essential elements of the
doctrine are that the parties and issues be identical, and that the particular matter be
fully litigated and determined in a contest which results in a final decision of a
court of competent jurisdiction.” Id. Collateral estoppel is distinct from res
judicata in that it applies when the two causes of action are different and estops the
parties from litigating in the second suit only the points and questions common to
both causes of action. Gordon, 59 So. 2d at 44.
Here, Mrs. Madura’s action in the state court: (1) resulted in a final
judgment on the merits; (2) by a court of competent jurisdiction: and (3) was
between the same parties as this federal action. Mrs. Madura’s federal action raises
essentially the same usury, fraud and TILA claims as her state court action. The
state court concluded that Mrs. Madura’s TILA claims were time-barred, that she
did not have standing to bring her usury claim because she was not a “borrower”
and that her fraud claims should be dismissed because she could not prove
19
damages given that the prepayment penalty had been waived.13 Thus, the state
court’s judgment precluded Mrs. Madura’s federal court claims of usury, fraud and
TILA violations.
To the extent Mrs. Madura raises slight variations of fraud, usury and TILA
violations, she could have, but did not, raise these issues in the state court
litigation. These claims involved the “same cause of action,” that is, the same
essential facts underpinning the state court claims, namely the fraud and forgery
during the July 2000 loan transaction. Thus, these claims are also barred by the
doctrine of res judicata.14 Because preclusion principles bar all of Mrs. Madura’s
claims, the district court did not err in granting the defendants’ summary judgment
motion.15
13
We reject Mrs. Madura’s claim that the state court’s dismissal of her usury claims for
lack of standing is not a judgment on the merits for res judicata purposes. See Wager v. City of
Green Cove Springs, 261 So. 2d 827, 829 (Fla. 1972) (concluding that dismissal for lack of
standing was res judicata in subsequent action on issue of standing).
14
Mrs. Madura’s federal complaint also asserted an FCFA claim, a claim she did not
assert in her state court complaint. However, the FCFA is a criminal statute, see Fla. Stat. §
817.034, and Mrs. Madura cites no authority indicating that the FCFA provides for a private
right of action. Nonetheless, we agree with the district court that, even if such a private right of
action exists, she is precluded from raising an FCFA claim in the federal action because it is
based on her allegations of fraud in executing the July 2000 loan transaction and should have
been raised in her state court action.
15
Because we affirm the district court’s conclusion that the doctrines of collateral
estoppel and res judicata barred Mrs. Madura’s claims, we do not address its alternative holding
that Mrs. Madura’s usury, fraud and TILA claims were time-barred and that Mrs. Madura did
not have a private right of action under Florida’s criminal-uttering statute.
20
C. Motions to Amend Complaint
The Maduras appeal the district court’s denial of their first and second
motions to amend the complaint.16 The district court found, and we agree, that the
Maduras’ arguments distinguishing between a “first” signed contract and “second”
forged contract are without merit. The claims the Maduras sought to add arose out
of the same July 2000 loan transaction. As such, Mr. Madura was required to
arbitrate those claims. And, Mrs. Madura was barred by preclusion principles from
bringing those claims in federal court.
III. CONCLUSION
In sum, the district court did not err in compelling Mr. Madura to arbitrate
his claims against the defendants. The district court also did not err in granting
summary judgment to the defendants on Mrs. Madura’s claims or in denying her
two motions to amend her complaint.
AFFIRMED.
16
Ordinarily, we review a district court’s denial of a motion to amend a complaint for
abuse of discretion. Freeman v. First Union Nat’l, 329 F.3d 1231, 1234 (11th Cir. 2003).
However, when the basis for the denial is futility, we review de novo because the district court
has concluded as a matter of law that the amendment would fail. Id.
21