USCA11 Case: 21-12455 Date Filed: 07/08/2022 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12455
Non-Argument Calendar
____________________
IRINA CHEVALDINA,
Plaintiff-Appellant,
versus
RAANAN KATZ,
DANIEL KATZ,
TODD LEVINE,
R.K. FL MANAGEMENT, INC.,
R.K. ASSOCIATES, VII, INC., et al.,
Defendants-Appellees.
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2 Opinion of the Court 21-12455
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cv-21363-CMA
____________________
Before, NEWSOM, BRANCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Irina Chevaldina appeals the sua sponte dismissal
without prejudice of her pro se amended complaint for failure to
comply with a court order requiring, among other things, that
Chevaldina file her amended complaint by a specified deadline and
provide a particularized basis for her domicile to establish diversity
jurisdiction. Chevaldina also appeals the district court’s order dis-
missing, on absolute immunity grounds, her claims that an injunc-
tion issued by Judge Kathleen Williams violated her First Amend-
ment rights. Chevaldina argues that the district court lacked au-
thority to require particularized documentation for her domicile
and that the amended complaint was timely because she post-
marked it before the deadline, but it arrived late due to mailing de-
lays outside of her control. She also argues that the district court
lacked authority to dismiss her complaint against Judge Williams
because the defendants had not yet been served, and she was not
proceeding in forma pauperis. She claims that the district court ef-
fectively issued a summary judgment decision without giving her
notice and an opportunity to respond. After reviewing the record
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21-12455 Opinion of the Court 3
and reading Chevaldina’s brief, we affirm the district court’s order
of dismissal. 1
I.
We review for abuse of discretion a district court’s decision
to dismiss a case for failure to comply with a court order. Foudy v.
Indian River Cty. Sheriff’s Office,
845 F.3d 1117, 1122 (11th Cir.
2017). “Whether an official is entitled to absolute immunity is a
question of law that we review de novo.” Stevens v. Osuna,
877
F.3d 1293, 1301 (11th Cir. 2017).
While we liberally construe the pleadings of pro se litigants,
we still require conformity with procedural rules. See Campbell v.
Air Jamaica, Ltd.,
760 F.3d 1165, 1168 (11th Cir. 2014) (quotation
marks omitted). Liberal construction of pro se pleadings “does not
give a court license to serve as de facto counsel for a party, or to
rewrite an otherwise deficient pleading in order to sustain an ac-
tion.”
Id. at 1168-69 (quotation marks omitted).
II.
Under the Federal Rules of Civil Procedure, a paper not filed
electronically is filed by delivery to the clerk or a judge. Fed. R.
Civ. P. 5(d)(2). We have held that district courts have the discre-
tion to accept a notice of appeal filed after the deadline if the party
has shown that the delay in filing resulted from “excusable ne-
glect.” Zipperer by and Through Zipperer v. Sch. Bd. of Seminole
1 The Appellees did not file appellate briefs.
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4 Opinion of the Court 21-12455
Cty., Fla.,
111 F.3d 847, 849 (11th Cir. 1997). Whether a party has
shown excusable neglect is a “flexible analysis” based on the totality
of the circumstances, including “the danger of prejudice to the non-
movant, the length of the delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it was
within the reasonable control of the movant, and whether the mo-
vant acted in good faith.”
Id. at 849-50 (quotation marks and brack-
ets omitted). We have upheld a district court’s ruling that an ap-
pellant established excusable neglect for filing a late notice of ap-
peal where they mailed the notice six days before the required date
of filing, several days before the three days required for normal
mail delivery, and where the notice arrived only a day late.
Id. at
850.
A court generally may not sua sponte dismiss an action with-
out providing the plaintiff with notice of its intent to dismiss or an
opportunity to respond. Tazoe v. Airbus S.A.S.,
631 F.3d 1321,
1336 (11th Cir. 2011). Courts may, however, dismiss a complaint
that is patently frivolous or if reversal would be futile.
Id.
Federal courts must inquire into their own subject-matter
jurisdiction sua sponte whenever it may be lacking. Greater Bir-
mingham Ministries v. Sec’y of State for State of Ala.,
992 F.3d
1299, 1316 (11th Cir. 2021). Challenges to subject-matter jurisdic-
tion under Federal Rule of Civil Procedure 12 (b)(1) may be “facial
attacks” or “factual attacks.” Lawrence v. Dunbar,
919 F.2d 1525,
1528-29 (1990). When a complaint is attacked facially, the court
merely asks whether the plaintiff sufficiently alleged a basis for
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21-12455 Opinion of the Court 5
subject-matter jurisdiction on the face of the complaint itself, tak-
ing all allegations in the complaint as true.
Id. at 1529. When a
complaint is attacked factually, however, “matters outside the
pleadings, such as testimony and affidavits, are considered.”
Id.
(quotation marks omitted). We need not reach jurisdictional issues
where we could affirm the district court’s decision on procedural
grounds. See In re Engle Cases,
767 F.3d 1082, 1108 n.30 (11th Cir.
2014).
Federal judges have absolute immunity from liability for
damages stemming from judicial acts. Stevens, 877 F.3d at 1301.
This immunity even applies to conduct that “was in error, was
done maliciously, or was in excess of his authority.” Id. (quotation
marks omitted). An act is “judicial” for purposes of immunity
when it is typically performed by judges and the complaining party
interacted with the judge in his judicial capacity. Id. at 1304.
Whether an act is typically performed by judges is based on the
nature and function of the act, not the factual circumstances of the
particular action at issue. Id. at 1305.
III.
The record demonstrates that the district court was within
its discretion to dismiss without prejudice Chevaldina’s amended
complaint because she failed to comply with the court-ordered
deadline to file it and failed to provide the court-ordered proof of
her domicile necessary to establish diversity jurisdiction. The dis-
trict court’s April 2021 order required Chevaldina to file an
amended complaint by May 6, 2021, containing specific
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6 Opinion of the Court 21-12455
information such as the basis for her alleged domicile in Indiana, an
explanation why her case was not barred by res judicata and
whether she intended to pursue a Driver’s Privacy Protection
claim. The district court’s June 2021 order extended the deadline
for Chevaldina to file her amended complaint to June 18 and fur-
ther ordered her to submit a clear copy of her Indiana’s driver’s
license. Chevaldina’s amended complaint was filed three days after
the deadline set by the district court in its June order. Although
Chevaldina presented documentation that she made reasonable ef-
forts to deliver the amended complaint on time, given that she had
already missed a previous filing deadline, the district court did not
abuse its discretion in dismissing it. Because the district court dis-
missed it without prejudice, Chevaldina is free to re-file her com-
plaint in compliance with any future court orders.
The record also demonstrates that the district court did not
abuse its discretion in determining that Chevaldina’s amended
complaint failed to comply with the court order in other respects.
Although Chevaldina explained why res judicata did not bar her
claims, why the state court did not retain jurisdiction to enforce the
settlement agreement at the center of her case and clarified that she
was not pursuing a claim under the Driver’s Privacy Protection
Act, she did not provide a clear copy of her Indiana driver’s license
or other documentation supporting her basis for residency in Indi-
ana. This information was pertinent for the district court to deter-
mine its jurisdiction.
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21-12455 Opinion of the Court 7
Moreover, the district court properly sua sponte dismissed
the claims against Judge Williams because the judge was entitled
to absolute immunity from being sued for judicial acts like issuing
an injunction. In doing so, contrary to Chevaldina’s assertions, the
district court properly considered only the facts that were present
on the face of Chevaldina’s complaint.
Accordingly, for the aforementioned reasons, we conclude
that the district court did not abuse its discretion in dismissing
Chevaldina’s amended complaint and sua sponte dismissing the
claims against Judge Williams.
AFFIRMED.
