Alexander Eugenio Moskovits v. Mercedes-Benz USA, LLC

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10664

Non-Argument Calendar

____________________

ALEXANDER EUGENIO MOSKOVITS,

Plaintiff-Appellant,

versus

MERCEDES-BENZ USA, LLC,

AUTONATION, INC., L.P.

EVANS MOTORS WPB, INC.,

d.b.a.

Mercedes-Benz of Miami,

JUDGE MAVEL RUIZ,

RICHARD IVERS,

REX RUSSO,

NANCY GREGOIRE,

U.S. DEPARTMENT OF STATE,

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2 Opinion of the Court 22-10664

(DOS),

UNKNOWN AGENTS,

(Does 1 through 10, inclusive),

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:21-cv-20122-JEM

____________________

Before LAGOA, BRASHER, and BLACK, Circuit Judges.

PER CURIAM:

Alexander Moskovits, proceeding pro se, appeals from the

district court’s order dismissing his amended complaint with prej-

udice. Moskovits asserts the district court erred in adopting the

magistrate judge’s report and recommendation (R&R) and dismiss-

ing his claims against all of the defendants. We address each of his

arguments in turn. After review, we affirm.

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22-10664 Opinion of the Court 3

I. DISCUSSION

A. Judge Mavel Ruiz

Moskovits asserts his claims against Judge Ruiz were not

barred by the Eleventh Amendment, the judicial immunity doc-

trine, and qualified immunity.

The district court did not err in finding Judge Ruiz was enti-

tled to Eleventh Amendment immunity, absolute judicial immun-

ity, and qualified immunity.1 Moskovits’s claims against Judge

Ruiz stem solely from her adjudications throughout the course of

the state proceedings. Moskovits states on appeal that he sued

Judge Ruiz only in her individual capacity. To the extent his claims

against Judge Ruiz can be construed as being against her in her in-

dividual capacity, the district court did not err in dismissing them

based on Eleventh Amendment immunity. The State of Florida

has not consented to this suit, and Congress has not abrogated

Eleventh Amendment immunity as to any of the claims. See Bd.

of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363-64 (2001) (ex-

plaining Eleventh Amendment immunity bars suits by private in-

dividuals against a state in federal court unless the state has

1 We review the grant of a motion to dismiss based on a state’s Eleventh

Amendment immunity, whether an official is entitled to absolute immunity,

and the dismissal of a complaint based on qualified immunity de novo. In re

Emp. Discrimination Litig. Against State of Ala., 198 F.3d 1305, 1310 (11th Cir.

1999) (Eleventh Amendment immunity); Stevens v. Osuna, 877 F.3d 1293,

1301 (11th Cir. 2017) (absolute immunity); Cottone v. Jenne, 326 F.3d 1352,

1357 (11th Cir. 2003) (qualified immunity).

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4 Opinion of the Court 22-10664

consented to be sued, has waived its immunity, or Congress has

abrogated the state’s immunity). Moreover, the fact Moskovits

filed a § 1983 claim does not circumvent Eleventh Amendment im-

munity. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

120 (1984) (stating § 1983 does not override states’ Eleventh

Amendment immunity, meaning “if a § 1983 action alleging a con-

stitutional claim is brought directly against a State, the Eleventh

Amendment bars a federal court from granting any relief on that

claim”).

As to Moskovits’s claims against Judge Ruiz in her individual

capacity, the district court did not err in concluding absolute judi-

cial immunity applies because the allegations stemmed from her

conduct in her judicial capacity, and she did not act in the clear ab-

sence of jurisdiction. See Sibley v. Lando, 437 F.3d 1067, 1070 (11th

Cir. 2005) (explaining judges enjoy absolute judicial immunity

when they act in their judicial capacity as long as they do not act

“in the clear absence of all jurisdiction” (quotation marks omitted)).

This Court’s precedent is that absolute immunity extends to state

court judges. Stevens v. Osuna, 877 F.3d 1293, 1302 (11th Cir.

2017). Judge Ruiz’s actions can be presumed to be reasonable be-

cause her adjudications were per curiam affirmed at the state ap-

pellate level. See id. (stating one of the factors to consider in decid-

ing whether to apply absolute immunity is the correctability of er-

ror on appeal); Moskovits v. L. P. Evans Motors WPB, Inc., 303 So.

3d 543 (Fla. 3d DCA 2020).

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22-10664 Opinion of the Court 5

Moskovits’s argument that judicial immunity does not apply

fails. The only basis for his argument stems from Judge Ruiz’s in-

quiry into his criminal history at the hearing on the motion to com-

pel arbitration in the state court proceedings. However, that ex-

change did not constitute a usurpation of power; rather, it was a

minor, reasonable question that was resolved almost immediately.

The district court also did not err in concluding in the alter-

native that Judge Ruiz was entitled to qualified immunity as to

Moskovits’s claims against her in her individual capacity because

he did not allege facts showing she violated any of his clearly estab-

lished rights. See Lee v. Ferraro, 284 F.3d 1188, 1193-94 (11th Cir.

2002) (stating qualified immunity offers complete protection for

government officials sued in their individual capacities as long as

their conduct violated no clearly established statutory or constitu-

tional rights of which a reasonable person would have known).

Moskovits contends Judge Ruiz forfeited her claim to qualified im-

munity because he pleaded that she violated international law and

committed fraud on the court, but those allegations are conclusory

and vague. Judge Ruiz satisfied her burden on proving she acted

within her discretionary authority, and Moskovits failed to meet

his burden that qualified immunity is not appropriate. See id. at

1294 (providing once the defendant establishes he was acting

within his discretionary authority, the burden shifts to show quali-

fied immunity is not appropriate).

In summary, the district court did not err in determining

that Judge Ruiz was entitled to immunity, regardless of whether

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6 Opinion of the Court 22-10664

the claims were brought against her in her official or individual ca-

pacity. Accordingly, we affirm the district court as to the dismissal

of the claims against Judge Ruiz.

B. The State Department

Moskovits concedes the State Department has sovereign im-

munity, but citing Ex parte Young, suggests dismissal is appropriate

only if it identifies “the names of the known and unknown agents.”

Moskovits’s reliance on Ex parte Young is misplaced. The portion

he cites does not stand for the proposition that an agency must be

compelled to identify which of its agents may have committed al-

leged acts. Ex parte Young, 209 U.S. 123, 160 (1908) (“The state has

no power to impart to him any immunity from responsibility to

the supreme authority of the United States”). Rather, the cited ma-

terial involves the question whether an already identified official’s

actions constitute official or individual conduct. See id. Regardless,

the Ex parte Young exception is narrow and applies only to pro-

spective relief, which Moskovits does not request. Puerto Rico Aq-

ueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146

(1993) (“[T]he [Ex Parte Young] exception is narrow: It applies only

to prospective relief, does not permit judgments against state offic-

ers declaring that they violated federal law in the past, and has no

application in suits against the States and their agencies, which are

barred regardless of the relief sought.” (citation omitted)). Since

Congress has not waived the State Department’s immunity as to

any of the claims asserted against it, and Moskovits’s only

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22-10664 Opinion of the Court 7

argument relies on misinterpreted precedent, we affirm the dismis-

sal with prejudice of all claims against the State Department.

C. Unknown Agent Defendants

Moskovits asserts the district court erred in dismissing the

claims against the Agent Defendants because he sufficiently

pleaded his claims against the known and unknown Agent Defend-

ants when he “conceded that the injurious conduct [wa]s not the

conduct of the sovereign, but the actions of its officers.”

The district court did not err in dismissing the claims against

the Agent Defendants because Moskovits’s amended complaint did

not meet the minimum pleading requirements under Rule 8. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he pleading standard

Rule 8 announces does not require detailed factual allegations, but

it demands more than an unadorned, the-defendant-unlaw-

fully-harmed-me accusation.” (quotation marks omitted)). Mos-

kovits largely made disjointed accusations about the various ways

in which the Agent Defendants deprived him of his federal rights.

See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although

pro se litigants are held to a less stringent standard, they are still

required to comply with procedural rules, and Moskovits did not

do so. See Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).

Moreover, Moskovits did not attempt to identify the Agent De-

fendants by any unique titles that would satisfy the narrow excep-

tion to the general prohibition against fictitious-party pleading in

federal court. See Richardson v. Johnson, 598 F.3d 734, 738 (11th

Cir. 2010) (stating fictitious-party pleading is generally prohibited

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8 Opinion of the Court 22-10664

in federal court, but there is a narrow exception “when the plain-

tiff’s description of the defendant is so specific as to be at the very

worst, surplusage” (quotation marks omitted)). Moskovits’s argu-

ment he pleaded as much information as he had in hopes to identify

the agents later in discovery fails because he cannot circumvent the

fact his amended complaint falls short of the Rule 8 requirements.

See Iqbal, 556 U.S. at 678. Accordingly, we affirm the district court

as to the dismissal of the claims against the unknown agent defend-

ants.

D. Legal Malpractice

Moskovits asserts the district court erred in dismissing his

claims against Rex Russo for legal malpractice. The district court

did not err in dismissing Moskovits’s legal malpractice claim

against Russo. His issues with his counsel in his prior state court

proceedings did not provide a sufficient basis for a legal malpractice

claim under Florida law and Moskovits failed to allege facts explain-

ing how his former counsel neglected a duty of reasonable care or

how he suffered harm as a consequence. See Steele v. Kehoe, 747

So. 2d 931, 933 (Fla. 1999) (providing a legal malpractice claim un-

der Florida law has three elements: (1) the attorney’s employment;

(2) the attorney’s neglect of reasonable care; and (3) the attorney’s

negligence resulted in and was the proximate cause of, loss to the

client). Additionally, Moskovits’s argument Russo should have

cited a narrow case dealing with arbitration agreements in the con-

text of a claim brought under a Florida antitrust statute has no

merit. See Sabates v. Int’l Med. Ctrs., 450 So. 2d 514 (3d DCA

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22-10664 Opinion of the Court 9

1984). The district court did not err in concluding that Russo did

not neglect a duty of reasonable care in failing to cite a seemingly

irrelevant, non-binding case in the state proceedings. Steele, 747

So. 2d at 933. Additionally, Russo did not fail to object to Judge

Ruiz’s line of inquiry into his criminal history because there was

nothing he could have objected to. Accordingly, we affirm the dis-

trict court’s dismissal of the legal malpractice claims.

E. Sections 1983, 1985 & Alien’s Action for Tort Claims

Moskovits contends he sufficiently pleaded his 28 U.S.C.

§ 1983 and § 1985 claims, and his action for tort under the Alien

Tort Claims Act, 28 U.S.C. § 1350.

Moskovits’s § 1983 claim fails because his amended com-

plaint does not sufficiently allege the defendants were actors acting

under color of law. Rather, he recites conclusory statements that

do not explain why the private defendants should be treated as

state actors for purposes of § 1983. See Rayburn v. Hogue, 241 F.3d

1341, 1347 (11th Cir. 2001) (stating in order to prevail in a § 1983

suit, a plaintiff must show the defendant is a state actor and a pri-

vate party may only be considered a state actor in rare circum-

stances).

Moskovits’s § 1985 claim fails for at least three reasons:

(1) his allegations as to the existence of a conspiracy are vague and

conclusory; (2) he is not a member of a protected class; and (3) he

fails to allege how his status as a felon resulted in a deprivation of

constitutionally protected rights. See Childree v. UAP/GA AG

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10 Opinion of the Court 22-10664

Chem, Inc., 92 F.3d 1140, 1146-47 (11th Cir. 1996) (“The elements

of a cause of action under § 1985(3) are: (1) a conspiracy, (2) for the

purpose of depriving, either directly or indirectly, any person or

class of persons of the equal protection of the laws, or of equal priv-

ileges and immunities under the laws; and (3) an act in furtherance

of the conspiracy, (4) whereby a person is either injured in his per-

son or property or deprived of any right or privilege of a citizen of

the United States”); Park v. City of Atlanta, 120 F.3d 1157, 1161

(11th Cir. 1997) (stating a claim under § 1985 requires a showing

that a racial or class-based animus motivated the conspirators’ ac-

tions).

Finally, his Alien Tort Claims Act claim fails because he does

not allege any tangible violations of international law that would

entitle him to bring a cause of action. See Sosa v. Alvarez-Machain,

542 U.S. 692, 724 (2004) (explaining while the Alien Tort Claims

Act is only a jurisdictional statute and does not create new causes

of action, it provides a cause of action for a small number of inter-

national law violations with the potential for personal liability). Ra-

ther, he cites his status as a Brazilian native and scattered Articles

of the United National Universal Declaration of Human Rights in

an attempt to justify his claim. Moskovits has not alleged a specific

violation of international law sufficient to sustain a claim under 28

U.S.C. § 1350. Moreover, this Court should not rewrite his defi-

cient pleading to allege such a claim. See Albra, 490 F.3d at 829.

In summary, the district court did not err in dismissing Mos-

kovits’s § 1983, § 1985, and Alien Tort Claims Act claims for failure

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22-10664 Opinion of the Court 11

to state a claim. The amended complaint is replete with conclusory

allegations that do not satisfy the requirements of Rule 8, even tak-

ing Moskovits’s pro se status into consideration. See Iqbal, 556 U.S.

at 678. Accordingly, we affirm these dismissals.

F. State Fraud Claims

Moskovits contends he sufficiently pleaded his “fraud on the

court” claim and the district court misapplied the Rooker-Feldman

doctrine2 in dismissing his state fraud claims.

The district court did not err in determining the Rooker-

Feldman doctrine deprived it of subject-matter jurisdiction over

Moskovits’s fraud claims. See Doe v. Fla. Bar, 630 F.3d 1336, 1340

(11th Cir. 2011) (reviewing de novo “a district court’s decision that

the Rooker-Feldman doctrine deprives it of subject matter jurisdic-

tion”). The application of Rooker-Feldman is narrow. Behr v.

Campbell, 8 F.4th 1206, 1212 (11th Cir. 2021). “It bars only cases

brought by state-court losers complaining of injuries caused by

state-court judgments rendered before the district court proceed-

ings commenced and inviting district court review and rejection of

those judgments.” Id. Moskovits’s fraud claims are barred by

Rooker-Feldman because Moskovits was requesting the entry of a

judgment vacating the state order compelling arbitration, reopen-

ing the state case, and setting a hearing in the district court on the

2 The Rooker-Feldman doctrine derives from Rooker v. Fid. Tr. Co., 263 U.S.

413 (1923), and D.C. Ct. of Appeals v. Feldman, 460 U.S. 462 (1983).

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12 Opinion of the Court 22-10664

causes of action asserted in the state complaint. See id. at 1213

(stating when assessing whether a complaint is barred by Rooker-

Feldman, “[t]he question isn’t whether the whole complaint seems

to challenge a previous state court judgment, but whether resolu-

tion of each individual claim requires review and rejection of a state

court judgment”). Although district courts do not lose subject mat-

ter jurisdiction over a claim simply because a party attempts to lit-

igate in federal court a matter previously litigated in state court, the

only conceivable relief for the fraud claim would be to vacate or

modify the state court judgment. Id. at 1210. Accordingly, we af-

firm the dismissal of the state fraud claims.

G. Dismissal with Prejudice

The district court did not err in dismissing Moskovits’s

amended complaint with prejudice without first granting him leave

to amend because amendment would have been futile. At this

point, Moskovits had an opportunity to provide more sufficient al-

legations on numerous occasions, but instead repeated the same

general language in his state court complaint, in his original federal

complaint, in his amended complaint, in his responses to the mo-

tions to dismiss, and on appeal. As a pro se litigant, Moskovits was

given an “extra dose of grace” several times, but it is clear that any

future amendment at this point would be futile. See Silberman v.

Miami Dade Transit, 927 F.3d 1123, 1132-33 (11th Cir. 2019) (not-

ing that in some situations, further leniency—or “an extra dose of

grace”—may be warranted “in recognition of the difficulty in pro-

ceeding pro se”); Woldeab v. Dekalb Cty. Bd. of Educ., 885 F.3d

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22-10664 Opinion of the Court 13

1289, 1291-92 (11th Cir. 2018) (stating generally, a plaintiff proceed-

ing pro se must receive at least one opportunity to amend the com-

plaint if he or she might be able to state a claim by doing so). An-

other amendment would not change the fact the bases for Mos-

kovits’s claims hinge on conclusory, vague allegations that would

still fail for various reasons at the motion-to-dismiss stage. See L.S.

ex rel. Hernandez v. Peterson, 982 F.3d 1323, 1332 (11th Cir. 2020)

(stating leave to amend would be futile “if an amended complaint

would still fail at the motion-to-dismiss or summary-judgment

stage”). Additionally, Moskovits did not argue he should have been

given an opportunity to amend his complaint again in his objec-

tions to the magistrate judge’s R&R. Accordingly, the dismissal of

Moskovits’s amended complaint with prejudice without first grant-

ing leave to amend was not error.

II. CONCLUSION

Accordingly, we affirm the district court’s order dismissing

Moskovits’s amended complaint with prejudice in its entirety. 3

AFFIRMED.

3 Moskovits asserts the district court erred in denying his motion to supple-

ment his omnibus response and his motion to disqualify Russo and Richard

Ivers as counsel. The district court did not err in denying each of Moskovits’s

motions. The information Moskovits wanted to supplement to his omnibus

response was irrelevant and would not have made a difference in the outcome

of the case. Additionally, the motion to disqualify was moot because the dis-

trict court dismissed the case on the pleadings and thus Russo and Ivers would

not be called as witnesses.