RICKY DEAN KELLY v. BRYAN AYLSTOCK (2026)

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 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 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.

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 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 (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 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 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).

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 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 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.

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. 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).

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 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 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.

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 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 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.

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.

FOOTNOTES

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 “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.

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).

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 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”).

Zachary C. Bolitho United States Magistrate Judge