KELLY v. AYLSTOCK et al

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
RICKY DEAN KELLY,
Plaintiff,
vs. 	Case No.: 3:25cv1947/TKW/ZCB
BRYAN F. AYLSTOCK, et al.,
Defendants.
___________________________________/
REPORT AND RECOMMENDATION
Plaintiff filed this pro se case in state court. (Doc. 1-1). Defendants
removed it, and they now seek dismissal. (Docs. 1, 11). Plaintiff opposes
dismissal. 	(Doc. 17). 	For the reasons below, Defendants’ motion to
dismiss should be granted.
I. 	Background
This 	case 	arises 	from 	the 	massive 	3M 	earplug 	multidistrict
litigation case (3M MDL) that was handled by Judge M. Casey Rodgers.
(See 	Case 	No. 	3:19md2885 	(N.D. 	Fla.)).1 	Plaintiff 	was 	one 	of
1 The Court takes judicial notice of the record in the 3M MDL case. 	See
Fed. R. Evid. 201(b)-(c); see also United States v. Rey, 811 F.2d 1453, 1457
n.5 (11th Cir. 1987) (“A court may take judicial notice of its own records
and the records of inferior courts.”); Cash Inn of Dade, Inc. v. Metro. Dade
Cnty., 938 F.2d 1239, 1243 (11th Cir. 1991) (stating that a district court
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approximately 250,000 claimants in the 3M MDL. 	Plaintiff retained
Defendant Bryan F. Aylstock and the Defendant law firm of Aylstock,
Witkin, Kreis & Overholtz (AWKO) to represent him in the 3M MDL.2
Defendants 	Aylstock 	and 	AWKO 	were 	also 	part 	of 	the 	plaintiffs’
leadership team in the 3M MDL.
On August 29, 2023, 3M and the plaintiffs’ leadership team entered
into a master settlement agreement. 	The total settlement exceeded $6
billion. Judge Rodgers subsequently issued an order that has come to be
known as “CMO 57.” (No. 3:19md2885, Doc. No. 3811). CMO 57 set forth
the process that individual plaintiffs had to go through if they chose to
opt out of the master settlement agreement. 	Plaintiff initially chose to
opt out of the master settlement agreement, against Defendants’ advice.
On January 25, 2024, Defendants moved to withdraw as Plaintiff’s
counsel 	because 	of 	a 	“fundamental 	disagreement” 	with 	Plaintiff
regarding whether he should opt out of the master settlement agreement.
(No. 7:20cv36595, Doc. 6 at 2). 	Plaintiff opposed Defendants’ motion to
“may take judicial notice of public records within its files relating to the
particular case before it or other related cases”).
2 Plaintiff’s case was docketed as Case No. 7:20cv36595.
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withdraw, 	and 	Judge 	Rodgers 	held 	a 	hearing 	on 	the 	issue. 	(No.
7:20cv36595, Doc. 12).
Judge 	Rodgers 	subsequently 	granted 	Defendants’ 	motion 	to
withdraw as Plaintiff’s counsel on March 22, 2024. 	(No. 7:20cv36595,
Doc. 18).3 	Plaintiff then proceeded to represent himself in the 3M MDL.
While representing himself, Plaintiff decided to opt into the 3M MDL
master settlement agreement. 	(Docs. 24, 31; No. 7:20cv36595, Doc. 20).
As a result of opting into the settlement agreement, Plaintiff’s case
against 3M was dismissed with prejudice. (No. 7:20cv36595, Doc. 25).
Plaintiff now regrets opting into the settlement agreement. And he
places the blame for his decision to opt into the settlement agreement at
Defendants’ feet. 	More specifically, Plaintiff claims that during their
representation of him in the 3M MDL proceedings Defendants committed
(1) a breach of fiduciary duty; (2) legal malpractice; and (3) fraud. 	In
terms of relief, Plaintiff seeks a declaratory judgment, an injunction, and
monetary damages against Defendants.
3 Defendants remained as counsel for a short time under Judge Rodgers’s
order in a limited capacity to complete the CMO 57 requirements. 	(No.
7:20cv36595, Doc. 18 at 5).
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II. 	Discussion
Defendants have moved to dismiss Plaintiff’s complaint. They first
argue that Plaintiff’s legal malpractice claim is barred by the statute of
limitations. Next, they argue that Plaintiff has failed to state a plausible
claim for legal malpractice or breach of fiduciary duty. 	And they argue
that Plaintiff’s fraud claim has not been alleged with particularity.
Before the Court addresses those arguments, it must discuss whether
Plaintiff 	has 	standing 	to 	advance 	his 	claims 	for 	declaratory 	and
injunctive relief. 	See AT&T Mobility, LLC v. Nat’l Assoc. for Stock Car
Auto Racing, Inc., 494 F.3d 1356, 1359-60 (11th Cir. 2007) (explaining
that standing “is a threshold jurisdictional question which must be
addressed” before considering the merits and stating that courts “are
obliged to consider standing sua sponte even if the parties have not raised
the issue”).
A. 	Plaintiff lacks standing to seek declaratory and injunctive
relief.
In addition to damages, Plaintiff seeks a declaration “of the rights,
duties, and obligations of the parties[.]” 	(Doc. 1-1 at 14). 	He also seeks
an injunction that prevents Defendants from “engaging in any further
aggregate settlements without the informed consent of all represented
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clients . . . .” (Id.). For the reasons below, Plaintiff lacks standing to seek
such relief.
Article III of the U.S. Constitution limits the jurisdiction of federal
courts to adjudicating cases or controversies. 	U.S. Const. art. III, § 2.
“Justiciability is the term of art employed to give expression” to the
jurisdictional 	limitation 	imposed 	on 	federal 	courts 	by 	the 	case 	or
controversy requirement. 	United States v. Rivera, 613 F.3d 1046, 1049
(11th Cir. 2010). 	The doctrine of standing falls under the umbrella of
justiciability. 	DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006).
To have standing, a plaintiff must have “(1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable judicial decision.”
Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). 	A plaintiff “must
demonstrate standing for each claim . . . and for each form of relief that
is sought.” 	Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008)
(emphasis added) (cleaned up). 	In other words, the standing inquiry
proceeds 	on 	a 	claim-by-claim 	and 	relief-by-relief 	basis. 	It 	“is 	not
dispensed in gross.” 	Mack v. USAA Cas. Ins. Co., 994 F.3d 1353, 1356
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(11th Cir. 2021). This means a plaintiff may have standing for one claim
or form of relief yet lack standing for another claim or form of relief. 	Id.
If 	a 	plaintiff 	seeks 	prospective 	relief, 	such 	as 	a 	declaratory
judgment or an injunction, then he “must allege facts from which it
appears there is a substantial likelihood that he will suffer injury in the
future.” 	Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1346
(11th Cir. 1999). This is because declaratory judgments and injunctions
are aimed at preventing future wrongdoing, as opposed to remedying
past wrongs. Strickland v. Alexander, 772 F.3d 876, 883 (11th Cir. 2014).
As a result, a plaintiff seeking declaratory or injunctive relief must allege
“a 	real 	and 	immediate—as 	opposed 	to 	a 	merely 	hypothetical 	or
conjectural—threat of future injury.” 	Id. (cleaned up). 	Failure to do so
will result in dismissal of the claim for declaratory and/or injunctive relief
for lack of standing. 	See Sweet v. Chief Just. of Fla. Sup. Ct., No. 23-
13025, 2025 WL 915740, at *4 (11th Cir. Mar. 26, 2025) (dismissing
plaintiffs’ requests for injunctive, declaratory, and mandamus relief
because their complaint failed to allege a credible threat of future injury).
Here, Plaintiff alleges he was injured by past conduct. 	He has not
alleged that Defendants have continued to engage in harmful conduct
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against him or that they are likely to do so in the future. 	Indeed, the
allegations in the complaint provide the Court with no basis to conclude
that Plaintiff is likely to be represented by Defendants in any capacity in
the future. 	See Emory v. Peeler, 756 F.2d 1547, 1552 (11th Cir. 1985)
(affirming dismissal of declaratory judgment claim because the plaintiff
“makes no factual allegation . . . that such conduct has continued or will
be repeated in the future” by the defendant). Accordingly, Plaintiff does
not have standing to seek declaratory and injunctive relief.
B. 	The statute of limitations does not bar Plaintiff’s legal
malpractice claim against Defendants.
Defendants argue that Plaintiff’s legal malpractice claim should be
dismissed because it is barred by the statute of limitations. 	Plaintiff
disagrees, arguing that the claim was timely filed. For the reasons below,
the Court rejects Defendants’ statute of limitations argument.
Under Florida law, “a legal malpractice action must be brought
within two years from the time the cause of action is discovered or should
have been discovered with the exercise of due diligence.” 	Larson &
Larson, P.A. v. TSE Indus., Inc., 22 So. 3d 36, 39 (Fla. 2009) (cleaned up).
It is “well-settled” in Florida that “redressable harm or injury is not
established” for a legal malpractice claim “until the underlying legal
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proceeding giving rise to the malpractice claim has been finalized or
completed by appellate review.” Clemente v. Freshman, 760 So. 2d 1059,
1061 (Fla. 3d DCA 2000). 	This rule recognizes that until a case is
finalized, “the outcome of the case and the occurrence of harm to the
client remains uncertain . . . .” 	Larson & Larson, P.A., 22 So. 3d at 42.
Defendants argue that the statute of limitations began to run on
August 29, 2023, which was when the 3M MDL master settlement
agreement was executed. The current case was filed on October 14, 2025.
Thus, Defendants argue that Plaintiff’s legal malpractice claim is time-
barred. 	The problem with that argument, however, is that the date the
master settlement agreement was executed was not the date on which
“the underlying legal proceeding giving rise to the malpractice claim” was
“finalized” as to Plaintiff. 	Clemente, 	760 So. 2d at 1061. 	Initially,
Plaintiff opted out of the master settlement agreement and chose to
proceed with the litigation against 3M. It was not until a later date (April
19, 	2024) 	that 	Plaintiff 	chose 	to 	opt 	into 	the 	master 	settlement
agreement. 	(Doc. 31 at 9). 	And it was not until an even later date
(December 20, 2024) that Judge Rodgers dismissed Plaintiff’s case with
prejudice based on the settlement. (No. 7:20cv36595, Doc. 25).
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Applying the Florida legal standard set forth above, the Court
concludes that the two-year clock for Plaintiff’s legal malpractice claim
began running when the 3M MDL became final as to him, which was
December 20, 2024—the date when his case was dismissed based on his
entry into the settlement agreement. See Zakak v. Broida & Napier, P.A.,
545 So. 2d 380, 381 (Fla. 2d DCA 1989) (holding that legal malpractice
claim accrued on date when the court entered final judgment in the case
and not on the earlier date that settlement agreement was accepted). As
a result, when Plaintiff filed this action on October 14, 2025, his legal
malpractice claim was not barred by the statute of limitations.
C. 	Plaintiff’s legal malpractice and breach of fiduciary duty
claims should be dismissed for failure to state a claim.
Next, the Court will consider Defendants’ argument that dismissal
is warranted under Rule 12(b)(6) because Plaintiff has failed to state a
plausible claim. 	To survive dismissal under Rule 12(b)(6), “a complaint
must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (cleaned up). The plausibility standard is met only where the facts
alleged enable “the court to draw the reasonable inference that the
defendant 	is 	liable 	for 	the 	misconduct 	alleged.” 	Id. 	“While 	legal
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conclusions can provide the framework of a complaint, they must be
supported by factual allegations.” 	Id. at 679.
Here, 	Defendants 	argue 	that 	dismissal 	of 	Plaintiff’s 	legal
malpractice and breach of fiduciary duty claims is warranted because the
complaint fails to plausibly allege proximate cause. 	To state a legal
malpractice claim, a plaintiff must allege “(1) the attorney’s employment;
(2) the attorney’s neglect of a reasonable duty; and (3) the attorney’s
negligence resulted in and was the proximate cause of loss to the client.”
Tarleton v. Arnstein & Lehr, 719 So. 2d 325, 328 (Fla. 4th DCA 1998).
With respect to the proximate cause element, what is required to prevail
is “an amount of damages which the client would have recovered but for
the 	attorney’s 	negligence.” 	Id. 	To 	satisfy 	the 	proximate 	cause
requirement, there “must be more than mere speculation.” Jones v. Law
Firm of Hill & Ponton, 223 F. Supp. 2d 1284, 1291 (M.D. Fla. 2002).
Because of the proximate cause requirement, legal malpractice
actions are often referred to as a “trial within a trial” because “the client
has to prove that she would have prevailed on the underlying action but
for the attorney’s negligence.” 	Tarleton, 719 So. 2d at 328. 	Thus, to
survive dismissal there must be “facts alleged that support a causal
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connection between the alleged acts that the attorneys committed and
the alleged damages suffered . . . .” 	Bankers Trust Realty, Inc. v. Kluger,
672 So. 2d 897, 898 (Fla. 3d DCA 1996). 	In other words, “the claimant
must set forth facts suggesting how he or she would have been successful
absent the attorney’s misconduct.” Litigation Lawyers, P.A. v. Harbison,
797 F. Supp. 3d 977, 989 (E.D. Mo. 2025) (cleaned up).
Here, Plaintiff’s complaint fails to plausibly allege that Defendants’
conduct was the proximate cause of any damages he allegedly suffered.
When Plaintiff opted into the 3M MDL master settlement agreement, he
was 	not 	represented 	by 	Defendants. 	Rather, 	he 	was 	representing
himself. 	Judge 	Rodgers 	had 	previously 	permitted 	Defendants 	to
withdraw 	as 	Plaintiff’s 	counsel. 	Indeed, 	at 	the 	time 	Defendants
withdrew, Plaintiff had stated his desire to opt out of the settlement and
to continue litigating against 3M. It was only later that Plaintiff changed
his mind (while proceeding pro se) and opted into the 3M MDL master
settlement agreement. 	Put simply, Plaintiff’s complaint fails to connect
the alleged conduct of Defendants to any damages that he suffered. Thus,
he has not stated a plausible legal malpractice claim.
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Moreover, 	Plaintiff’s 	complaint 	fails 	to 	provide 	sufficient
allegations (beyond mere speculation) that he would have achieved a
better result—either a more favorable settlement or a victory at trial
absent 	Defendants’ 	alleged 	conduct. 	As 	Judge 	Rodgers 	(who 	was
intimately familiar with the issues and pitfalls that Plaintiff would face
in continuing to prosecute his claims against 3M) explained to Plaintiff
in great detail at a hearing, he faced significant litigation risks if his case
proceeded to trial. 	(No. 7:20cv36595, Doc. 22). 	Because Plaintiff has
failed to plausibly allege that “but for th[e] misconduct” of Defendants he
“would have gotten a better result than the settlement that [he] agreed
to accept[,]” he has failed to state a legal malpractice claim against
Defendants. 	Waithe v. Arrowhead Clinic, Inc., 491 F. App’x 32, 40-41
(11th Cir. 2012); see also Litigation Lawyers, 797 F. Supp. 3d at 990
(stating that the plaintiffs cannot “assert a legal malpractice claim based
on alleged failure to settle a case on specific terms without alleging what
those terms would have been or that the failure to obtain the settlement
on those alleged terms was caused by [the lawyer]”).
Support for the Court’s conclusion that Plaintiff has failed to state
a claim can be found in Jones v. Law Firm of Hill & Ponton, 223 F. Supp.
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2d 1284 (M.D. Fla. 2002). 	In Jones, the plaintiff retained the defendant
to represent him in a personal injury action against a hotel. 	Id. at 1289.
The defendant later withdrew, and the plaintiff proceeded pro se. Id. The
plaintiff settled with the hotel, after which he sued the defendant for
legal malpractice. 	Id. 	In the legal malpractice action, the plaintiff
claimed the defendant improperly withdrew and that the settlement
would 	have 	been 	larger 	had 	the 	defendant 	provided 	better
representation. 	Id. at 1290.
The Jones court granted the defendant’s motion for judgment on the
pleadings, finding that the plaintiff failed to state a legal malpractice
claim. 	Id. at 1286. In reaching that conclusion, the court explained that
the “facts alleged” were insufficient to show that an “alleged breach of
duty 	of 	care” 	by 	the 	defendant 	“was 	the 	proximate 	cause 	of 	any
redressable harm.” 	Id. at 1290. 	According to the Jones 	court, the
plaintiff’s assertion that he would have received a larger settlement had
the defendant “pursued his claim properly” was “too speculative” to show
“a redressable harm proximately caused” by the defendant’s actions. 	Id.
at 1291 (cleaned up).
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Another case in the same vein as Jones is Chipman v. Chonin, 597
So. 2d 363 (Fla. 3d DCA 1992). 	There, the plaintiff was represented by
the defendant in an employment discrimination case. 	Id. at 364. 	The
defendant withdrew as counsel, and the plaintiff later settled the case.
Id. 	The plaintiff then filed a legal malpractice action against the
defendant, claiming that he would have received more money but for the
defendant’s conduct. 	Id. 	In rejecting the plaintiff’s claim, the Chipman
court explained that the plaintiff failed to show that the defendant’s
conduct caused him to receive less money. 	Id. 	According to the court,
“[a]ny loss of these damages must be attributable to [the plaintiff]
himself, 	since 	he 	chose to 	voluntarily accept 	his former employer’s
settlement offer.” 	Id.
Here, as in Jones and Chipman, Plaintiff has failed to connect
Defendants’ alleged conduct to the incursion of any damages. 	Like the
plaintiffs 	in 	both 	of 	those 	cases, 	Plaintiff 	was 	not 	represented 	by
Defendants when he chose to settle his case. 	And Plaintiff’s claim that
he would have received a better settlement or proceeded to trial and
obtained a jury verdict larger than his settlement amount is based on
pure 	speculation. 	See 	Waithe, 	491 	F. 	App’x 	at 	41 	(rejecting 	legal
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malpractice claim where the plaintiffs failed to show that “another
lawyer would have obtained a better settlement” than the one the
plaintiffs accepted); see also Sevey v. Friedlander, 83 A.D.3d 1226, 1227
(N.Y. App. Div. 2011) (affirming dismissal of legal malpractice action
because the plaintiff’s contention that “he would have received a more
favorable result if he had gone to trial” instead of entering a settlement
was “entirely speculative”). 	Because Plaintiff has failed to plausibly
allege proximate cause, his legal malpractice claim should be dismissed.4
4 Plaintiff argues that Defendants “bound Plaintiff into an aggregate
settlement without his knowledge or consent” on August 29, 2023. (Doc.
17 	at 	2). 	Further, 	Plaintiff 	has 	claimed 	that 	he 	“discovered 	the
settlement of his case after the fact . . . .” 	(Doc. 1-1 at 5). 	These
statements are inconsistent with the record in the 3M MDL. The record
shows that Plaintiff did not become “bound” by the settlement agreement
on August 29, 2023, when he was represented by Defendants. 	Instead,
the record shows that Plaintiff initially opted out of the settlement
agreement. Because of that, Plaintiff had a hearing with Judge Rodgers
where 	she 	discussed 	Plaintiff’s 	desire 	to 	opt 	out 	of 	the 	settlement
agreement. (No. 7:20cv36595, Doc. 22). At that hearing, Judge Rodgers
and others involved in the 3M MDL had an extensive discussion with
Plaintiff regarding the settlement agreement and Plaintiff’s desire to opt
out of it. 	Plaintiff later—after Defendants withdrew from representing
him—chose to opt into the settlement agreement. 	Based on the release
of liability signed by Plaintiff as part of his entry into the settlement
agreement, Plaintiff opted into the settlement on April 19, 2024. 	(Doc.
31 at 9). 	It is clear from the record that at that time, Plaintiff was
proceeding pro se. (No. 7:20cv36595, Doc. 23) (affidavit of Plaintiff dated
April 5, 2024, stating that he was representing himself). 	There are
several other statements that Plaintiff has made that are inconsistent
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The same is true with respect to Plaintiff’s breach of fiduciary duty claim
because a fiduciary duty claim in this context has the same proximate
cause 	requirement,5 	and 	courts 	typically 	“analyz[e] 	both 	claims 	for
breach 	of 	fiduciary 	duty 	and 	malpractice 	under 	the 	rubric 	of 	a
malpractice claim . . . .” 	Brenner v. Miller, No. 09-60235-CIV, 2009 WL
1393420, at *2 (S.D. Fla. May 18, 2009).
D. Plaintiff has failed to plead his fraud claim with particularity.
In addition to his legal malpractice and breach of fiduciary duty
claims, 	Plaintiff 	has 	brought 	a 	fraud 	claim 	against 	Defendants.
Defendants argue that dismissal is warranted because the complaint
fails to plead fraud with the required level of particularity. 	The Court
agrees.
with the record in the 3M MDL. 	For example, Plaintiff claims that
Defendants 	“failed 	to 	obtain” 	his 	“informed 	consent 	regarding
[Defendants’] representation involving multiple clients.” (Doc. 1-1 at 12).
It appears from the record, however, that Plaintiff was informed by
Defendants at the outset of the representation that they represented
multiple claimants in the 3M MDL, and Plaintiff agreed to waive any
conflict posed by such joint representation. (No. 7:20cv36595, Doc. 21 at
19-20).
5 See Moscowitz v. Oldham, 48 So. 3d 136, 138 (Fla. 4th DCA 2010)
(discussing the requirements of a breach of fiduciary claim involving an
attorney and stating that one of the requirements is that the damages
claimed were “proximately caused by the breach”).
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The 	heightened 	pleading 	standards 	of 	Federal 	Rule 	of 	Civil
Procedure 9(b) apply to Plaintiff’s fraud claim. 	To satisfy Rule 9(b), a
plaintiff 	must 	allege 	“(1) 	the 	precise 	statements, 	documents, 	or
misrepresentations made; (2) the time, place, and person responsible for
the statement; (3) the content and manner in which these statements
misled the Plaintiffs; and (4) what the defendants gained by the alleged
fraud.” 	Otto Candies, LLC v. Citigroup, Inc., 137 F.4th 1158, 1178 (11th
Cir. 2025). 	The remedy for failure to plead fraud with particularity is
dismissal of the complaint. 	Infante v. Bank of Am. Corp., 680 F. Supp.
2d 1298, 1303 (S.D. Fla. 2009).
Here, Plaintiff has not identified the precise statements that were
allegedly false. 	He has instead stated in general and conclusory terms
that false statements were made. 	See Am. United Life Ins. Co. v.
Martinez, 480 F.3d 1043, 1064 (11th Cir. 2007) (affirming dismissal of
fraud 	claim 	because 	plaintiff 	“presented 	only 	general 	conclusory
allegations of fraud” and “[s]uch general conclusory allegations do not
conform to the heightened pleading requirements for fraud claims”).
Nor has Plaintiff alleged the time and place where the allegedly false
statements were made. 	Moreover, Plaintiff has failed to identify what
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Defendants gained by the alleged fraud. 	Accordingly, Plaintiff’s fraud
claim is subject to dismissal for failure to satisfy the heightened pleading
requirements found in Rule 9(b).
III. 	Conclusion
At the end of the day, although this case is packaged as one
involving legal malpractice and fraud, it is effectively an attempt to
collaterally 	attack 	the 	3M 	MDL 	settlement 	agreement 	and 	Judge
Rodgers’s orders in the 3M MDL case (in particular, the order permitting
Defendants to withdraw as counsel and CMO 57). 	If Plaintiff did not
believe the 3M MDL settlement agreement was fair and equitable, then
he should have opted out of it. If Plaintiff had an objection to the terms
of the settlement agreement or a problem with Judge Rodgers’s orders,
then he should have raised those issues in the 3M MDL case.
Instead, Plaintiff is trying to use this lawsuit as a forum for airing
his grievances with the 3M MDL settlement agreement and Judge
Rodgers’s orders. 	And Plaintiff is trying to do that despite voluntarily
settling the case with 3M (while representing himself). As another court
explained in a similar situation:
While it is understandable that a plaintiff with hopes for a
recovery 	of 	millions 	who 	settles 	for 	thousands 	would 	be
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disappointed, that does not mean that the appropriate target
for his disappointment must be the attorneys who handled the
case. 	As a matter of policy, cases once settled should not be
readily relitigated as to their merits in another forum, where
the original defendant has been released and the plaintiff’s
original attorneys have become the defendants.
Becker v. Julien, Blitz & Schlesinger, P.C., 95 Misc. 2d 64, 68 (N.Y. Sup.
Ct. 1977). This Court could not have said it better.
Accordingly, it is respectfully RECOMMENDED that Defendants’
motion to dismiss (Doc. 11) be GRANTED.
At Pensacola, Florida, this 13th day of August 2026.
/s/ Zachary C. Bolitho
Zachary C. Bolitho
United States Magistrate Judge
Notice to the Parties
Objections to these proposed findings and recommendations must
be 	filed 	within 	fourteen 	days 	of 	the 	date 	of 	the 	Report 	and
Recommendation. 	Any 	different 	deadline 	that 	may 	appear 	on 	the
electronic docket is for the Court’s internal use only and does not control.
An objecting party must serve a copy of the objections on all other parties.
A 	party 	who 	fails 	to 	object 	to 	the 	magistrate 	judge’s 	findings 	or
recommendations contained in a report and recommendation waives the
right 	to 	challenge 	on 	appeal 	the 	district 	court’s 	order 	based 	on
unobjected-to factual and legal conclusions. 	See 11th Cir. Rule 3-1; 28
U.S.C. § 636.
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