KELLY v. AYLSTOCK et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
RICKY DEAN KELLY,
Plaintiff,
v. Case No. 3:25-cv-1947-TKW-ZCB
BRYAN F. AYLSTOCK and
AYLSTOCK, WITKIN, KREISS &
OVERHOLTZ,
Defendants.
/
ORDER
This case is before the Court based on the magistrate judge’s Report and
Recommendation (Doc. 34), Plaintiff’s objection (Doc. 35), and Defendants’
response to the objection (Doc. 37). Upon de novo review of the issues raised in the
objection, the Court agrees with the magistrate judge’s determination that the
complaint fails to state a plausible claim for relief. The Court also agrees with
Defendants that leave to amend should be denied on grounds of futility because, as
persuasively explained in the Defendants’ response to the objection, the additional
facts set forth in Plaintiff’s objection do cure the main problem with his legal
malpractice and breach of fiduciary duty claims—a lack of proximate causation—
or cure the pleading deficiencies in fraud claim.
Accordingly, it is ORDERED that:
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1. The magistrate judge’s Report and Recommendation is adopted and
incorporated by reference in this Order.
2. Defendants’ motion to dismiss (Doc. 11) is GRANTED, and the
complaint is DISMISSED with prejudice for failure to state a claim upon which
relief can be granted.
3. The Clerk shall enter judgment in accordance with this Order and close
the case file.
DONE AND ORDERED this 14th day of September, 2026.
__________________________________
T. KENT WETHERELL, II
UNITED STATES DISTRICT JUDGE
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