Smith et al v. Marcus & Millichap, Incorporated et al

Filing 158

ORDER adopting 137 Report and Recommendations. The Clerk is directed to enter judgment accordingly and close the case. Signed by Judge William F. Jung on 5/9/2022. (JMT)

Case 8:18-cv-00381-WFJ-AAS Document 158 Filed 05/09/22 Page 1 of 5 PageID 4418

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
THE ESTATE OF SHIRLEY T. COX,
by and through BETTY M. SMITH,
Personal Representative; JOHN E. BALLEW,
by and through JUDITH A. BALLEW,
Attorney-in-Fact; and THE ESTATE OF
ROGER J. LAPP, by and through MARK F.
LAPP, Personal Representative,
Plaintiffs,
v.

Case No: 8:18-cv-381-T-02AAS

MARCUS & MILLICHAP,
INCORPORATED, and MICHAEL
BOKOR,
Defendants.
__________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter comes before the Court on Defendants’ motions to dismiss,
Dkts. 89 & 92, Plaintiffs’ Amended Complaint, Dkt. 82. Defendant Marcus &
Millichap, Incorporated (“MMI”) also filed a motion to stay pending
administrative review, Dkt. 90, while Defendant Michael Bokor filed a motion to
strike certain exhibits attached to the Amended Complaint, Dkt. 93. United States
Magistrate Judge Amanda Arnold Sansone issued a report recommending
Defendants’ motions to dismiss be granted and Defendants’ respective motions to

Case 8:18-cv-00381-WFJ-AAS Document 158 Filed 05/09/22 Page 2 of 5 PageID 4419

stay and strike be denied as moot. Dkt. 137. Plaintiffs timely filed objections, Dkt.
146, to which Defendants separately responded, Dkts. 153 & 154. In addition to
considering these filings, the Court heard from the parties at a hearing held on
April 20, 2022. Dkt. 155. MMI filed an invited supplemental brief after the
hearing, Dkt. 156, and Plaintiffs filed a response, Dkt. 157. Upon careful
consideration, the Court adopts the report and recommendation.
A district court may accept, reject, or modify “in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3). If objections are filed, as here, a de
novo determination is required “of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. §
636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3). Legal conclusions are reviewed de
novo, even in the absence of an objection. LeCroy v. McNeil, 397 F. App’x 554,
556 (11th Cir. 2010); Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir.
1994).
Here, Plaintiffs raise five objections to the report and recommendation,
which the Court addresses in turn. Plaintiffs first contend that the report and
recommendation fails to “take into account the licensure and oversight framework”
that permits Plaintiffs to seek judicial redress for alleged wrongs concerning the
licensing of Florida nursing homes. Dkt. 146 at 10. In making this argument,
2

Case 8:18-cv-00381-WFJ-AAS Document 158 Filed 05/09/22 Page 3 of 5 PageID 4420

Plaintiffs cite several cases analyzing claims brought by automobile insurers
against healthcare providers or facilities for disgorgement pursuant to Florida’s
Motor Vehicle No-Fault Law, Fla. Stat. §§ 627.730−627.7405, and the Florida
Health Care Clinic Act, Fla. Stat. §§ 400.990 et seq. See Dkt. 146 at 4−13. Those
cases have no bearing here, as Plaintiffs are individuals bringing claims of nursing
home licensing violations 1 against real estate broker Mr. Bokor and marketing
company MMI. Dkt. 82. The Court agrees with Magistrate Judge Sansone’s
conclusion that Plaintiffs lack standing to bring these claims, as they have failed to
allege an injury-in-fact. Dkt. 137 at 10. The Court further agrees that alleged
violations of Florida’s nursing home licensing statutes should be addressed by the
state agency charged with administering, interpreting, and enforcing those laws—
the Agency for Health Care Administration. Id. at 19−20.
Plaintiffs’ second objection is a generalized assertion that the report and
recommendation does not fully consider Plaintiffs’ well-pleaded factual
allegations. Dkt. 146 at 13. After holding a hearing on the subject motions to
dismiss, Dkt. 131, Magistrate Judge Sansone issued the twenty-seven-page report
and recommendation that thoroughly analyzes Plaintiffs’ Amended Complaint.
There is no indication that she failed to consider any of Plaintiffs’ allegations.
Plaintiffs’ third objection largely repeats their first objection by asserting

1

Nursing home licensure is governed by Chapters 400 and 408 of the Florida Statutes.

3

Case 8:18-cv-00381-WFJ-AAS Document 158 Filed 05/09/22 Page 4 of 5 PageID 4421

that case law supports the allegations within their Amended Complaint. Dkt. 146 at
17. As explained above, the cases upon which Plaintiffs rely have no application
here. Plaintiffs have not cited—nor has this Court found—a single case finding that
Florida’s nursing home licensing statutes permit nursing home residents to sue
non-providers for alleged licensing issues.
Turning to their fourth objection, Plaintiffs contend that the report and
recommendation discounts Plaintiffs’ standing to bring this action. Id. at 19. It does
not. As expressed above, the Court agrees with Magistrate Judge Sansone’s finding
that Plaintiffs have not demonstrated an injury-in-fact necessary for Article III
standing. Dkt. 137 at 10. Even if one of the speculative harms alleged by Plaintiffs
amounted to an injury-in-fact, Plaintiffs have not demonstrated how any alleged
injury would be traceable to Mr. Bokor or MMI as Defendants in this action.
Lastly, Plaintiffs’ fifth objection concerns the denial of their August 2021
motion for leave to file a second amended complaint. Dkt. 146 at 29. This
objection is untimely under Federal Rule of Civil Procedure 72(a), as Magistrate
Judge Sansone denied that motion roughly six months before Plaintiffs lodged this
objection. Dkt. 118. In any event, as Magistrate Judge Sansone explained,
Plaintiffs’ proposed amendments were both futile and untimely, and granting leave
to amend again would have prejudiced Defendants. See id. at 6−7.
Following this de novo review, the Court finds Plaintiffs’ objections
4

Case 8:18-cv-00381-WFJ-AAS Document 158 Filed 05/09/22 Page 5 of 5 PageID 4422

unavailing and agrees with the findings and conclusions set forth in the report and
recommendation. Magistrate Judge Sansone’s report and recommendation is
hereby ADOPTED. Accordingly, Defendants’ motions to dismiss, Dkts. 89 & 92,
are GRANTED. Defendants’ respective motions to stay and strike, Dkts. 90 & 93,
are DENIED AS MOOT. The Clerk is directed to enter judgment accordingly and
close the case.
DONE AND ORDERED at Tampa, Florida, on May 9, 2022.
/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record

5