Daly, D.O. v. Markel Service Incorporated

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-cv-62056-ALTMAN/Strauss

ROSEMARY DALY, D.O.,

Plaintiff,

v.

MARKEL SERVICE INCORPORATED,

Defendant.

_____________________________________/

ORDER ON MOTION TO DISMISS

The Plaintiff, Dr. Rosemary Daly, has filed her Second Amended Complaint (“SAC”) [ECF

No. 59], asserting five causes of action: two for declaratory judgment (Counts 1 and 2), see id. at 10–

12; two for defamation per se (Counts 3 and 4), see id. at 13–15; and a fifth for breach of fiduciary duty

(Count 5), see id. at 16–17. Our Defendant, Markel Service Incorporated (“MSI”), responded with its

Motion to Dismiss Plaintiff’s Second Amended Complaint (“Motion” or “MTD”) [ECF No. 88]—

asking us to dismiss Daly’s case in full, see id. at 21 (“For all of the foregoing reasons and others

appearing on the record, MSI respectfully requests that the Court dismiss the SAC in its entirety with

prejudice.”).1

We referred the MTD to U.S. Magistrate Judge Jared M. Strauss, see Order of Referral [ECF

No. 115] at 1, who concluded that, while Dr. Daly “ha[d] sufficiently alleged defamation per se claims

based on MSI’s reports filed in the NPDB,” Report and Recommendation (the “R&R”) [ECF No.

120] at 16, she “ha[d] not sufficiently alleged a cause of action for breach of fiduciary duty,” id. at 19.

1 The Motion to Dismiss is fully briefed. See Plaintiff’s Opposition Memorandum to Defendant’s

Motion to Dismiss (“MTD Response”) [ECF No. 104]; Defendant’s Reply Memorandum in Support

of its Motion to Dismiss (“MTD Reply”) [ECF No. 111].

Judge Strauss thus recommended that the MTD be denied in part (as to Counts 3 and 4) and granted

in part (as to Count 5). Id. at 19. Magistrate Judge Strauss also recommended that the declaratory

judgment counts (Counts 1 and 2) be dismissed because Dr. Daly “‘consent[ed] to the dismissal of

[those counts] without prejudice.’” Id. at 6 n.6 (citing Plaintiff’s Response to Declaratory Judgment

Counts [ECF No. 119] at 1). Finally, Magistrate Judge Strauss cautioned the parties as follows:

The parties will have fourteen (14) days from the date of being served with a copy of

this Report and Recommendation within which to file written objections, if any, with

the Honorable Roy K. Altman, United States District Judge. Failure to timely file

objections shall bar the parties from a de novo determination by the District Judge of

an issue covered in the Report and shall bar the parties from attacking on appeal

unobjected-to factual and legal conclusions contained in this Report except for plain

error if necessary in the interests of justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn,

474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th

Cir. R. 3-1.

Id. at 19.

Both parties timely objected to the R&R. See Defendant’s Objections to the Magistrate’s

Report and Recommendation (“MSI Objections”) [ECF No. 121]; Plaintiff’s Objection to Magistrate’s

Report and Recommendation (“Daly Objections”) [ECF No. 122]. The parties then responded to

each other’s Objections. See Defendant’s Memorandum of Law in Opposition to Plaintiff’s Objection

to Magistrate’s Report and Recommendation (“Response to Daly Objections”) [ECF No. 125];

Plaintiff’s Response to the Objections by Defendant Markel Service Incorporated to the Magistrate’s

Report and Recommendation (“Response to MSI Objections”) [ECF No. 126]. After careful review,

we OVERRULE both Objections and ADOPT Magistrate Judge Strauss’s R&R in full.

THE FACTS

I. Daly’s Factual Allegations

Daly “is board certified in anesthesiology as well as pain management and interventional pain

management” and works as “an independent contractor at several clinics” in South Florida—including

at a clinic in Coral Gables and a clinic in Weston. SAC ¶¶ 5, 7. At all relevant times, Evanston

Insurance Company (“Evanston”) provided insurance coverage to Daly for her practice at the Weston

Clinic. See id. ¶ 8. Our Defendant (MSI) and Evanston are both “wholly owned by MSI Insurance

Company,” and MSI “manages the claims and all parts of the claims process for Evanston Insurance.”

Id. ¶¶ 9–10. Daly also had an insurance policy with Landmark America Insurance, which covered her

practice at the Coral Gables clinic. See id. ¶ 11.

This dispute arises from a medical procedure gone wrong. On May 30, 2018, “a patient of the

Coral Gables Clinic underwent a form regenerative therapy.” Id. ¶ 12. Daly “was not at the Coral

Gables Clinic” that day, “did not provide any services to this Patient,” did not “supervise those who

were the treatment providers,” and did not consult the Patient or the treatment providers about “how

to treat the Patient.” Id. ¶¶ 12–13. Unfortunately, the regenerative therapy caused the Patient to

“suffer[ ] serious injuries requiring a long hospitalization followed by long term rehabilitative therapy.”

Id. ¶ 14. Because of this botched procedure, the Patient named Daly—among others—in a Notice of

Intent to Initiate Litigation for Medical Negligence and Personal Injury (“Notice of Intent” or “NOI”)

pursuant to FLA. STAT. §§ 766.106(2), 768.208(6)(a). See id. ¶ 15.2 After she was named in the Notice

of Intent, Daly “ran into counsel retained by MSI while at the Weston Clinic” and told him that “I

was not there that day. I was not supervising.” Id. ¶ 27. MSI’s counsel allegedly responded: “I know,

I know. I get it.” Ibid.

Two months after sending the Notice, the Patient’s attorney “served a written monetary

demand seeking multi-millions in damages and enclosed a Complaint he intended to file unless the

matter was resolved through mediation[.]” Id. ¶ 19. We’ll refer to this document as “the Draft

Complaint.” The Draft Complaint “made no allegations against Dr. Daly and did not seek any

2 Daly “does not believe she was ever served with the Notice of Intent” but admits that “she received

a copy of the Notice from either one of her former colleagues or from insurance coverage counsel.”

SAC ¶ 16.

damages against Dr. Daly. In fact, Dr. Daly’s name is not mentioned once in the 60 pages.” Id. ¶ 21.

Daly subsequently received a letter from coverage counsel for Landmark, who advised her “to

participate in the mediation and [added] that[,] if the limits of the applicable policies were insufficient,

Daly, among others, could face personal exposure.” Id. ¶ 22. Unlike Daly, the “healthcare providers

who were alleged in the Complaint to have been involved in the care and treatment of the Patient”

regularly “met with defense counsel hired by MSI” and received “reservation of rights letters[.]” Id. ¶¶

25, 30. Nevertheless, Daly attended mediation and ultimately “executed [a] settlement agreement and

was given a release in or about May 2019. There was no admission of wrongdoing on her part.” Id. ¶

37.

On April 21, 2020, MSI “submitted a written report” to the National Practitioners Data Bank

(“NPDB”) about Daly. Id. ¶ 42. MSI’s report stated that “the Patient fell gravely ill” and “suffered a

‘permanent injury’” because of Daly’s “negligence” and “improper performance.” Id. ¶¶ 43–44.

Specifically, the report’s description of the “Principal Injury Giving Rise To The Claim” read as

follows:

AS A RESULT OF THE INSUREDS’ NEGLIGENCE, PATIENT SUFFERED

FAT EMBOLISM SYNDROME, CYTOKINE RELEASE SYNDROME, A

GLOBAL HYPOXIC ISCHEMIC INJURY, AND ASSOCIATED BRAIN

DAMAGE. THE PATIENT UNDERWENT MONTHS OF

HOSPITALIZATION AND REHABILITATION REQUIRING EXTENSIVE

CARE FOR HER PERMANENT AND SEVERE SYMPTOMS.

Id. ¶ 58; see also Apr. 21, 2020, NPDB Report [ECF No. 38-2] at 4. The NPDB forwarded this report

to the Florida Office of Insurance Regulation, Sheridan Healthcorp, Florida’s Division of Medical

Quality Assurance, and Memorial Healthcare System. See id. ¶¶ 45–46. Because of the report, Daly

“was rejected for coverage by two professional liability insurers.” Id. ¶ 47.

Daly submitted a counterstatement to the NPDB, “outlining her complete lack of involvement

in the care and treatment of the Patient either as a direct provider or a supervisor of those who were

providers.” Id. ¶ 48. Daly also contacted MSI “to have them correct the April 21, 2020 Report given

the fact that the Demand Letter and Complaint failed to even mention Daly and that the NPDB report

constituted an attack on her reputation.” Id. ¶ 49. When MSI “refused to change its position,” id. ¶ 50,

Daly initiated a dispute resolution process with the NPDB on September 6, 2020, id. ¶ 51. In that

process, Daly specifically disputed “that 1) she was one of the Patient’s treating physicians, 2) she was

negligent, and 3) she caused the Patient to suffer a permanent injury.” Id. ¶ 52. At the suggestion of

the NPDB, “MSI correct[ed] some of its factual statements but [did] nothing as to the charge of

Negligence and Improper Conduct.” Id. ¶ 53; see generally Mar. 24, 2021, NPDB Report [ECF No. 38-

3]. Both the April 21, 2020, NPDB Report and the March 24, 2021, NPDB Report, Daly says, “are

demonstrably false as to Dr. Daly and will stigmatize her in her profession for the remainder of her

career, potentially interfering with prospective employment, licensing, and insurance coverage.” SAC

¶ 57.

II. Procedural History

Daly’s operative Second Amended Complaint asserts five causes of action against MSI: (1)

declaratory judgment “that Defendant MSI did not act in accordance with the NPDB Guidelines when

it submitted its written report on April 21, 2020, and thereafter, its corrected report on March 24,

2021,” id. ¶ 65; (2) declaratory judgment “that MSI should have attempted an allocation of liability

based on the absence of any allegations of wrongdoing in the only document that contained a specific

monetary demand and the information contained in its files that there were no claims against Dr.

Daly,” id. ¶ 72; (3) defamation per se for the publication of the April 21, 2020, NPDB Report, see id. ¶

76; (4) defamation per se for the publication of the March 24, 2021, NPDB Report, see id. ¶ 87; and

(5) breach of fiduciary duty for failing “to conduct a good faith investigation into the claims and into

Dr. Daly’s role (or lack thereof) in the underlying incident,” id. ¶ 96.

MSI moved to dismiss all five counts of the SAC. See generally MTD. First, MSI asked us to

dismiss the declaratory-judgment counts (Counts 1 and 2) because “there is no actual controversy

between the parties, nor does this Court have subject matter jurisdiction to make the requested

declaration.” Id. at 12. Second, MSI said that Daly failed to state a valid defamation per se claim for four

reasons: (1) “the statements that Plaintiff contends are defamatory are merely recitations of the

‘allegations’ of the injured party” and were therefore “truthful regardless of whether the Patient’s

allegations had merit,” id. at 16; (2) Daly’s allegations “d[id] not satisfy the requirements for pleading

defamation per se” under Florida law, id. at 17; (3) the NPDB Reports are “subject to a qualified

privilege” under Florida law, id. at 18; and (4) the NPDB Reports are also protected because 42 U.S.C.

§ 11137(c) “confers immunity on any person or entity who makes a report to the NPDB,” id. at 19.

Third, MSI claimed that Count 5 “fails for multiple reasons,” including (as relevant here) that “[t]here

is no allegation in the SAC to support the existence of a fiduciary duty[.]” Id. at 21.

We referred the MTD to Magistrate Judge Strauss for a Report and Recommendation. See

Order of Referral [ECF No. 115]. After holding a hearing on the MTD, see Jan. 5, 2024, Paperless

Minute Entry [ECF No. 118], Magistrate Judge Strauss recommended that we grant in part and deny

in part the MTD, see R&R at 19. As to Counts 1 and 2, Magistrate Judge Strauss suggested that we

dismiss those counts without prejudice because Daly “does [not] oppose MSI’s request for dismissal for

the declaratory judgment counts—and has instead indicated she does not wish to prosecute those

counts[.]” Id. at 6 n.6. As to Counts 3 and 4, Magistrate Judge Strauss rejected all of MSI’s arguments

and recommended that we deny the MTD. See id. at 16 (“[W]hen construing all reasonable inferences

in Daly’s favor, Daly has sufficiently alleged defamation per se claims based on MSI’s reports filed in

the NPDB[.]”). Finally, as to Count 5, Magistrate Judge Strauss asked us to dismiss Daly’s breach-of-

fiduciary-duty claim because she “failed to sufficiently allege facts that would establish MSI had a

fiduciary relationship with her.” Id. at 19.

Both parties objected to the R&R. MSI contends that Magistrate Judge Strauss erred when he

recommended “that MSI’s Motion should be denied with respect to Counts [3 and 4].” MSI

Objections at 6. And Daly says that Magistrate Judge Strauss improperly recommended dismissing

Count 5 with prejudice because “the Court did not consider Count [5] as amended.” Daly Objections

at 2. The matter is now ripe for our review.

THE LAW

District courts must review de novo any part of a magistrate judge’s disposition that has been

properly objected to. See FED. R. CIV. P. 72(b)(3). Although Rule 72 itself is silent on the standard of

review, the Supreme Court has acknowledged that Congress’s intent was to require a de novo review

only where objections have been properly filed—and not when neither party objects. See Thomas v.

Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court

review of a magistrate [judge]’s factual or legal conclusions, under a de novo or any other standard, when

neither party objects to those findings.”). “If no objection or only [a] partial objection is made to the

magistrate judge’s report, the district judge reviews those unobjected portions for clear error.” Macort

v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006) (quoting Johnson v. Zema Sys. Corp., 170 F.3d 734,

739 (7th Cir. 1999) (cleaned up)).

When a party timely objects to a magistrate judge’s report and recommendation, the district

judge must make a de novo determination “of those portions of the report or specified proposed

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Leonard v.

Polk Cnty. Sheriff’s Dep’t, 2019 WL 11641375, at *1 (M.D. Fla. Apr. 16, 2019) (Jung, J.). “Parties filing

objections to a magistrate’s report and recommendation must specifically identify those findings

objected to. Frivolous, conclusive, or general objections need not be considered by the district court.”

United States v. Tardon, 493 F. Supp. 3d 1188, 1209 (S.D. Fla. 2020) (Lenard, J.) (quoting Marsden v.

Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)). The “[f]ailure to object to the magistrate [judge]’s factual

findings after notice precludes a later attack on these findings.” Lewis v. Smith, 855 F.2d 736, 738 (11th

Cir. 1988) (citation omitted).

To survive a motion to dismiss 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this

“plausibility standard,” a plaintiff must “plead[ ] factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ibid. (citing Twombly, 550

U.S. at 556). The standard “does not require ‘detailed factual allegations,’ but it demands more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ibid. (quoting Twombly, 550 U.S. at

555). “[T]he standard ‘simply calls for enough fact to raise a reasonable expectation that discovery will

reveal evidence’ of the required element.” Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309–10

(11th Cir. 2008) (quoting Twombly, 550 U.S. at 545). “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Iqbal, 556 U.S. at 678. On a motion to dismiss, “the court must accept all factual

allegations in a complaint as true and take them in the light most favorable to plaintiff.” Dusek v.

JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016).

ANALYSIS

Before we get into the parties’ objections, we’ll quickly review the relevant, unobjected-to part

of the R&R—Judge Strauss’s recommendation that we dismiss Counts 1 and 2 of the SAC—which

we evaluate only for clear error. See Burgos v. Walmart Stores, Inc., 2023 WL 7521634, at *1 (S.D. Fla.

Nov. 14, 2023) (Altman, J.) (“Those portions of a magistrate judge’s report and recommendation to

which no objection has been made are reviewed for clear error.” (quoting Tardon, 493 F. Supp. 3d at

1209)).

Towards the end of the MTD hearing, Daly’s counsel indicated that she was willing “to

withdraw those two particular counts [Counts 1 and 2].” MTD Hearing Tr. [ECF No. 134] at 60:3–4.

Counsel then filed a “Response to the Declaratory Judgment Counts,” in which she expressly

“consent[ed] to the dismissal of those counts without prejudice, because it is not yet known whether

the NPDB can grant the relief requested or if it is deemed beyond the scope of the NPDB’s authority.”

Plaintiff’s Response to Declaratory Judgment Counts [ECF No. 119] at 1. Since “Daly does oppose

MSI’s request for dismissal of the declaratory judgment counts,” R&R at 6 n.6, we ADOPT Magistrate

Judge Strauss’s recommendation to dismiss Counts 1 and 2 of the SAC without prejudice.

That leaves us with Counts 3, 4, and 5. MSI wants us to adopt the R&R as to Count 5 and

reject it as to Counts 3 and 4. See MSI Objections at 17. Daly wants us to do the opposite—adopt the

R&R as to Counts 3 and 4 but reject it as to Count 5. See Daly Objections at 5. We decline both

invitations and OVERRULE both parties’ Objections.

I. MSI’s Objections on Counts 3 and 4

Counts 3 and 4 of the SAC allege that MSI defamed Daly per se by sending two separate reports

to the NPDB. These reports alleged (falsely, according to Daly) that Daly “was ‘negligent’ and had

engaged in ‘improper performance’ which resulted in a ‘major permanent injury’ to the Patient[.]” SAC

¶¶ 74, 85. MSI moved to dismiss these counts for four reasons: (1) that the Reports didn’t include

false statements and “were merely recitations of the ‘allegations’ of the injured party (i.e., the Patient),”

MTD at 15; (2) that the reports were protected by a statutory privilege in the Health Care Quality

Improvement Act of 1986 (“HCQIA”), 42 U.S.C. § 11137(c), id. at 18; (3) that the “SAC d[id] not

satisfy the requirements for pleading defamation per se,” ibid.; and (4) that the Reports “satisf[ied] the

essential elements of a qualified privilege,” id. at 17.

On each of these four points, as we’ve said, Magistrate Judge Strauss disagreed with MSI. After

considering MSI’s position that the NPDB Reports merely recited the Patient’s allegations in

accordance with the HCQIA—which requires insurers to report “a description of the acts or

omissions and injuries or illnesses upon which the action or claim was based,” R&R at 11–12 (quoting

42 U.S.C. § 11131(b))—Magistrate Judge Strauss found that, according to Daly’s allegations, MSI knew

the “statements that there were allegations of negligence and improper performance against her were

false.” Id. at 12. Daly, after all, alleged that the Patient’s Draft Complaint “made no mention of Dr.

Daly while describing the negligence of two other medical providers.” SAC ¶ 21. Magistrate Judge

Strauss also noted Daly’s allegation that, during an informal encounter, she had told MSI’s counsel

that she “was not there that day” and “was not supervising.” R&R at 13 (quoting SAC ¶ 27). Taking

these allegations as true—and construing all reasonable inferences in Daly’s favor—Magistrate Judge

Strauss found that “these allegations are sufficient to infer that, before it filed its report in the NPDB,

MSI knew the injured patient was not pursuing claims of negligence against Daly.” Ibid.

For the same reason, Magistrate Judge Strauss rejected MSI’s statutory-immunity argument

under the HQCIA. Statutory immunity, Magistrate Judge Strauss explained, only “applies to

statements made ‘without knowledge of the falsity of the information contained in the report.’” Id. at

14 (quoting 42 U.S.C. § 11137(c)). Because of Daly’s allegations that MSI knew the Patient wasn’t

pursuing claims against her, Magistrate Judge Strauss “[could not] at this stage conclude that MSI’s

statements were ‘without knowledge of falsity.’” Ibid.

Magistrate Judge Strauss next found that Daly had sufficiently pled a claim of defamation per

se under Florida law. Although Magistrate Judge Strauss agreed that Daly hadn’t shown “that the

alleged defamatory statements [charged] Daly with having committed an infamous crime, [or

subjected] her to ‘hatred, distrust, ridicule, contempt, or disgrace,’” he nevertheless concluded that

“Daly adequately allege[d] MSI’s statements within the [NPDB Reports] injured her in her

profession.” Ibid. That’s because: (1) the statements, “considered as the ‘common mind would

naturally understand’ them, . . . would plausibly injure Daly in her profession as a doctor”; and (2) two

professional liability insurers, in fact, “rejected Daly from coverage.” Id. at 15 (quoting Richard v. Gray,

62 So. 2d 597, 598 (Fla. 1953)).

Finally, Magistrate Judge Strauss couldn’t “decide, at this stage, whether the doctrine of

qualified privilege shields MSI from Daly’s suit.” Id. at 16. As with MSI’s first and second arguments,

Magistrate Judge Strauss reiterated that “Daly contends that the patient did not make (or, at least,

maintain) allegations of negligence and improper performance against Daly (and that MSI knew this),

while MSI argues the opposite.” Ibid. Given the “dispute between the parties regarding the essential

facts and circumstances of this case,” Magistrate Judge Strauss said, MSI cannot demonstrate—at this

stage of the case—that it had a “duty to speak” and that it acted in “good faith.” Ibid. “[W]hen

construing all reasonable inferences in Daly’s favor,” Judge Strauss concluded, “Daly has sufficiently

alleged defamation per se claims based on MSI’s reports filed in the NPDB, and the third and fourth

causes of action should not be dismissed.” Ibid.

MSI advances four objections to Magistrate Judge Strauss’s reasoning. First, MSI says that the

inferences Magistrate Judge Strauss drew from the SAC were unreasonable. See MSI Objections at 6

(“It is therefore respectfully submitted that the inferences relied upon in reaching these conclusions

were not ‘reasonable,’ and are contradicted by the documents themselves.”). According to MSI, the

only reasonable inference one can draw from the SAC is that Daly, at all relevant times, remained a

potential defendant in the Patient’s proposed lawsuit. See id. at 11 (“Here, the factual allegations and

inferences suggesting the claimant somehow decided that Daly was no longer the subject of the

claimant’s contemplated lawsuit simply because she was not named in the Unfiled Complaint is belied

by counsel for the claimant’s statements in the Demand Letter[.]”). Second, and relatedly, MSI contends

that Magistrate Judge Strauss improperly relied on the same unreasonable inferences in deciding not

to apply statutory immunity (and/or the qualified privilege). See id. at 14 (“As stated above, Daly’s

inference that MSI knew that she did not do anything wrong since she was not named in the Unfiled

Complaint is unreasonable and contradicted by the documents and case law cited herein.”). Third, MSI

castigates Magistrate Judge Strauss for failing to consider whether “MSI was acting with malice or that

it intended to injure Daly in her trade or profession.” Id. at 15. Fourth, MSI argues that Magistrate

Judge Strauss shouldn’t have “accept[ed] as true certain allegations in the SAC with respect to

purported conversations between MSI and defense counsel” because Daly failed to provide any factual

support that “a conversation [actually] took place between defense counsel and MSI[.]” Id. at 15–16.

We’ll consider—and reject—each of these objections in turn.

A. MSI’s First and Second Objections: Drawing Unreasonable Inferences

In his R&R, Magistrate Judge Strauss concluded that, when “construing all reasonable

inferences in Daly’s favor,” the allegations in the SAC were “sufficient to infer that, before it filed its

report in the NPDB, MSI knew the injured patient was not pursuing claims of negligence against

Daly.” R&R at 13. In Judge Strauss’s view, then, the SAC sufficiently alleged that “MSI (through

insurance defense counsel) had reason to know that the patient had dropped her allegations against

Daly, based on insurance defense counsel’s discussion with the patient’s counsel and the fact that the

draft complaint did not mention Daly (and similarly did not mention another doctor named in the

notice who was conclusively not involved in the patient’s care).” Id. at 13–14. Indeed, according to

the R&R, Daly herself “had given insurance defense counsel reason to believe that she was not involved

in the patient’s care, and insurance defense counsel’s actions were consistent with an understanding

that Daly was not involved in the case (considering that insurance defense counsel did not meet with

Daly).” Id. at 14. Daly thus “plausibly alleged that MSI’s statements in the reports to NPDB were false

(and that MSI knew they were false)[.]” Ibid.

Critically, Magistrate Judge Strauss agreed with MSI that the Patient’s demand letter “evinced

an intention to pursue claims against Daly,” but he reiterated his conclusion that this “potentially

reasonable inference” wasn’t dispositive because “it is not the only reasonable inference[.]” Id. at 13.

Having found that, according to the SAC’s well-pled allegations, MSI knew (or should have known)

that the Patient was no longer pursuing litigation against Daly, Magistrate Judge Strauss easily rejected

MSI’s statutory-immunity and qualified-privilege contentions. See id. at 14 (“By the same token, MSI

cannot compel dismissal based on HCQIA’s statutory immunity. . . . [G]iven Daly’s allegations, the

Court cannot at this stage conclude that MSI’s statements were ‘without knowledge of falsity.’”); id. at

16 (“These are disputes that bear on whether MSI can demonstrate both a duty to speak and good

faith. Therefore, the Court may not decide, at this stage, whether the doctrine of qualified privilege

shields MSI from Daly’s suit.”).

MSI objects to this conclusion. It insists that “Daly never actually had the temerity to state in

writing that the underlying claimant had lost interest in pursuing a claim against her,” and that, if any

opposite conclusion could be inferred from the SAC, this finding would necessarily be based on

“purely conclusory contention[s]” that are “belied by the documents” Daly attached to the SAC. MSI

Objections at 6–7. It specifically attacks Magistrate Judge Strauss’s reliance on the Draft Complaint—

which didn’t “allege[ ] medical malpractice against any doctor, much less Daly”—because the Draft

Complaint “was limited to products liability claims.” Id. at 8–9. MSI also points out that “Daly

executed the settlement agreement and was given a release,” which (the Defendant says) undermines

any inference that “MSI ‘knew’ the published statements were not true[.]” Id. at 11. Lastly, MSI argues

that Magistrate Judge Strauss should have considered the settlement agreement and a decision from the

U.S. Department of Health and Human Services (the “HHS Decision”) because they “are not merely

‘central’ to Daly’s claim—they are indispensable.” Id. at 12.

Magistrate Judge Strauss correctly found that, if you “draw all reasonable inferences in favor

of the nonmovant,” the SAC states a plausible defamation per se claim. R&R at 13 n.11 (quoting Newton

v. Duke Energy Fla., LLC, 895 F.3d 1270, 1275 (11th Cir. 2018)). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Iqbal, 556 U.S. at 678; see also Baker v. Mount, 2013 WL 12430756, at *2 (M.D.

Fla. June 7, 2013) (Scriven, J.) (“A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” (citing Twombly, 550 U.S. at 556)). Several of the SAC’s allegations, when viewed in the light

most favorable to Daly, indicate that MSI knew (or should have known) that Daly had nothing to do

with the botched May 30, 2018, regenerative therapy.

For one, Daly herself told MSI’s counsel that she “was not there that day” and that she “was

not supervising” when the procedure took place. SAC ¶ 27. For another, the Patient’s Draft Complaint

(unlike the Notice of Intent) “set forth detailed factual allegations regarding the medical negligence,”

but “made no allegations” against Daly or a different “physician who had left the Clinic before the

alleged incident but who was nevertheless named in the Notice of Intent.” Id. ¶ 21. Finally, MSI and

its counsel treated Daly differently from the other healthcare providers who were named in the Notice

of Intent and the Draft Complaint—suggesting that MSI knew Daly “was not considered a putative

defendant by the Patient/Claimant[.]” Response to MSI Objections at 8; see also, e.g., SAC ¶ 25 (“[Daly]

never met with defense counsel at any time either before or after the issuance of the Notice of Intent

other than at the mediation. By contrast, those healthcare providers who were alleged in the Complaint

to have been involved in the care and treatment of the Patient, met with defense counsel hired by

MSI.”); id. ¶ 30 (“Defendant issued reservation of rights letters to the healthcare provider(s) alleged

to have been involved in the incident. MSI never sent Dr. Daly a reservation of rights letter.”). When

we view all these allegations in the light most favorable to Daly, we agree that they “are sufficient to

infer that, before it filed its report in the NPDB, MSI knew the injured patient was not pursuing claims

of negligence against Daly.” R&R at 13.

MSI calls into question the accuracy of many of these allegations. “[H]ow is it ‘reasonable,’”

MSI asks, “to infer from the demand letter that the Claimant does not intend to pursue medical

malpractice litigation against the doctors named in the NOI, when the Demand Letter states in no

uncertain terms that the claimant intends to do precisely that?” MSI Objections at 9. And how, MSI

continues, “is it reasonable to infer that Daly was not involved in the patient’s care simply because she

was not named in the [Draft] Complaint attached to the Demand Letter?” Ibid. Plus, MSI reminds us,

“Daly executed the settlement agreement and was given a release”—thus undermining any inference

that MSI knew the allegations against Daly were false. Id. at 11.

These sound like great arguments for MSI to make at summary judgment (or at trial), but

they’re simply premature at the motion-to-dismiss stage. MSI is right that “no one—not even Daly—

contends that she was involved in the marketing and sale of the stem cell ‘products,’ or the operation

of the stem cell ‘business.’ Hence, there would be no need for her to be named in the [Draft]

Complaint, which was limited to products liability claims.” Id. at 9. But the Draft Complaint’s factual

allegations also laid out the Patient’s medical-malpractice allegations, just as the Notice of Intent did—

with one crucial difference: Unlike the Notice of Intent, the Draft Complaint never “identif[ies] Dr.

Daly or the other physician who had left prior to the alleged medical malpractice incident.” Response

to MSI Objections at 8; compare Draft Complaint [ECF No. 38-1] ¶¶ 49–76 (describing the botched

May 30, 2018, procedure), with Notice of Intent [ECF No. 90] at 3 (same).3 As Magistrate Judge Strauss

3 MSI relies on two cases—Martin-Casariego v. Linale, 350 So. 3d 166 (Fla. 3d DCA 2022), and Roberts

v. Davol, Inc., 2010 WL 9593054 (S.D. Fla. June 1, 2010) (Jordan, J.)—for the proposition that “there

would be no basis to name a person as a defendant in a products liability complaint where that

individual had no participation in the product development, marketing and the like and, vice versa,

there would be no basis to name a person that did not render medical care or services in a medical

malpractice complaint.” MSI Objections at 9. MSI takes these cases to mean that it was unreasonable

for Magistrate Judge Strauss to find that “Daly was no longer the subject of the claimant’s

contemplated lawsuit simply because she was not named in the [Draft] Complaint[.]” Id. at 11. But

both of MSI’s cases involved a separate issue: whether the plaintiffs there had complied with Florida’s

pre-suit notice requirements before asserting their medical-malpractice claims. See, e.g., Martin-Casariego,

350 So. 3d at 167 (“Because respondents’ claim is a medical negligence action, they were required to

comply with the presuit notice requirements of chapter 766. Since they did not do so, the trial court

should have dismissed the amended complaint.”); Roberts, 2010 WL 9593054, at *2 (“When a plaintiff

files a complaint sounding in medical negligence without complying with the presuit investigation and

notification procedures, the complaint must be dismissed.”). Since the Draft Complaint and the

Notice of Intent outlined the very same medical-malpractice allegations—and given the Draft

Complaint’s conspicuous exclusion of Daly from these allegations—MSI’s cases do nothing to

undermine Magistrate Judge Strauss’s natural inference “that the absence of any reference to Dr. Daly

correctly observed, the fact that MSI can “make[ ] a potentially reasonable inference” from these

documents is irrelevant because Daly’s alternative inference is likewise reasonable. R&R at 13 n.11.

Even if we agreed with MSI that the Draft Complaint contradicts some of the SAC’s allegations,

Daly adequately supports her defamation claims with different allegations. As Daly explains in her

Response to MSI’s Objections:

The Magistrate Judge also referred to other facts in the SAC giving rise to the inference

that Plaintiff was not considered a putative defendant by the Patient/Claimant,

including the following:

• Insured defense counsel retained by MSI reported to MSI that he

spoke with the Patient/Claimant’s counsel about which healthcare

providers would be named if a lawsuit was filed and Plaintiff was not

one of them. R&R pg. 13 (citing SAC ¶ 32).

• Plaintiff spoke to MSI’s retained insurance defense counsel and

informed him that she was not present on the date of the incident and

did not supervise those healthcare providers who treated the

Patient/Claimant. Id. (citing SAC ¶ 27).

• MSI’s retained insurance defense counsel never met with Plaintiff but

met repeatedly with those healthcare providers who were involved

with the care and treatment of the Patient/Claimant. Id. (citing SAC ¶¶

25, 27 and 29).

Response to MSI Objections at 7–8 (citing R&R at 13). In other words, Magistrate Judge Strauss didn’t

just rely on the differences between the Draft Complaint and the Notice of Intent to draw his inference

that MSI should have known that Daly wasn’t involved in the Patient’s care. The SAC included many

other factual allegations to support this inference—even if some of the exhibits contradicted other parts

of the SAC. That’s plainly good enough for now, and Magistrate Judge Strauss didn’t err in holding

otherwise. See Iqbal, 556 U.S. at 678 (“A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

in the [Draft] Complaint . . . indicated that the Patient/Claimant no longer intended to pursue a claim

against Dr. Daly.” Response to MSI Objections at 9.

misconduct alleged.”); Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282 (11th Cir. 2007)

(“Stated differently, the factual allegations in a complaint must possess enough heft to set forth a

plausible entitlement to relief[.]” (cleaned up)).

Still resisting, MSI says that Magistrate Judge Strauss misapplied the “incorporation-by-

reference” doctrine when he decided not to consider the settlement agreement and the HHS

Decision.4 Under that doctrine, a district court “may properly consider a document not referred to or

attached to a complaint . . . if the document is (1) central to the plaintiff’s claims; and (2) undisputed,

meaning that its authenticity is not challenged.” Johnson v. City of Atlanta, 107 F.4th 1292, 1300 (11th

Cir. 2024). Magistrate Judge Strauss considered the Notice of Intent because “Daly represented that

she does not oppose the Court reading the Notice for background information,” R&R at 9, but he did

not consider the settlement agreement or the HHS Decision because neither was “central” to Daly’s

claims, see ibid. (“[Daly] does not allege their contents nor rely on their contents to make her claim.

Nor are the contents of these documents necessary to her claims. Therefore, these exhibits are not

central to her claim, and this Court may not derive facts from these attachments.”).

MSI now says that both the settlement agreement and the HHS Decision are “central” and

“indispensable” to Daly’s defamation claims because, without these documents, “there [could be] no

report to the NPDB.” MSI Objections at 12. We disagree. The settlement agreement and the HHS

Decision are certainly relevant to Daly’s defamation claims—and they may be relevant to MSI’s

defenses—but “relevant” and “central” are two different things. See, e.g., Adamson v. Poorter, 2007 WL

2900576, at *3 (11th Cir. Oct. 4, 2007) (“A document is not ‘central’ merely because it is directly

4 The parties agree that Magistrate Judge Strauss correctly considered the Draft Complaint and the

NPDB Reports—each of which were attached to the SAC—since “[a] copy of a written instrument

that is an exhibit to a pleading is a part of the pleading for all purposes.” FED. R. CIV. P. 10(c); see also

F.T.C. v. AbbVie Prod. LLC, 713 F.3d 54, 63 (11th Cir. 2013) (“At the motion-to-dismiss stage, we

consider the facts derived from a complaint’s exhibits as part of the plaintiff’s basic factual

averments.”).

responsive to a factual allegation.”); Orthopaedic Care Specialists, P.L. v. United Healthcare Servs., Inc., 2021

WL 8154530, at *3 (S.D. Fla. Nov. 15, 2021) (Middlebrooks, J.) (“While the terms of the patients’

plans may be central to Defendants’ defenses, . . . that does not render the documents central to Plaintiff's

claims.”). And those documents are certainly not central to Daly’s claims. After all, Daly didn’t need

either of these documents to allege that MSI knowingly made false statements to the NPDB and

“knew or should have known that the NPDB would forward this false report to the Florida

Department of Health and the Florida Office of Insurance Regulation.” SAC ¶ 76. At best, the

settlement agreement and HHS Decision explain how and why the NPDB Reports were promulgated,

see ibid. (“Without the settlement agreement, there is no settlement payment. Without the settlement

payment, there is no report to the NPDB.”), but Daly didn’t need either of these documents to allege

that the NPDB Reports defamed her, cf. Roberts v. Gordy, 2015 WL 11202323, at *3 (S.D. Fla. Feb. 6,

2015) (Williams, J.) (“Accordingly, if the document is ‘so central to the claim that it served as a basis

for the complaint,’ then the incorporation by reference doctrine will apply.” (quoting Bryant v. Avado

Brands, Inc., 187 F.3d 1271, 1280 n.16 (11th Cir. 1999))). Since neither the settlement agreement nor

the HHS Decision are “a necessary part of [Daly’s] effort to make out [defamation] claim[s],” Day v.

Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005); see also, e.g., Roberts v. Carnival Corp., 824 F. App’x 825, 826

(11th Cir. 2020) (“The ticket contract is not central to [the plaintiff’s] claims because it is not a

necessary or essential part of Roberts’s effort to show that she was injured due to Carnival’s

negligence.”), Magistrate Judge Strauss correctly refused to consider them. For all these reasons, we

OVERRULE MSI’s first objection.

And, for similar reasons, we overrule MSI’s second objection. Here, MSI complains that

Magistrate Judge Strauss rejected its statutory-immunity and qualified-privilege defenses because of

“unreasonable inferences” that were “contradicted by the documents and the case law cited [in MSI’s

Objections].” MSI Objections at 14. As we’ve said, however, we don’t think Magistrate Judge Strauss

drew any unreasonable inferences from the SAC. We thus OVERRULE MSI’s second objection.

B. MSI’s Third Objection: Express Malice

In its third objection, MSI says that Magistrate Judge Strauss “failed to address” express malice

in the R&R. MSI Objections at 14. According to MSI, Daly must “demonstrate by a preponderance

of the evidence that MSI acted with express malice ‘where the primary motive for the statement is

shown to be an intention to injure the Plaintiff.’” Ibid. (quoting Bush v. Raytheon Co., 2009 WL

10669904, at *9 (M.D. Fla. Sept. 8, 2009) (Bucklew, J.), aff’d, 373 F. App’x 936 (11th Cir. 2010)). Since

Daly “fail[s] to allege that MSI was motivated by express malice or intended to injure Daly in

submitting the report,” MSI says, Magistrate Judge Strauss should have recommended dismissal. Id. at

15.

But Daly doesn’t need to plead express malice. To state a defamation per se claim under Florida

law, a plaintiff must allege that the publication, “when considered alone without innuendo[,] . . . tends

to subject one to hatred, distrust, ridicule, contempt or disgrace, or tends to injure one in his trade or

profession, or if it imputes to another conduct, characteristics, or a condition incompatible with the

proper exercise of his lawful business, trade, profession or office.” Barry College v. Hull, 353 So. 2d 575,

578 (Fla. 3d DCA 1977) (first citing Adams v. News-Journal Corp., 84 So. 2d 549, 551 (Fla. 1955); and

then citing Miami Herald Publ’g Co. v. Brautigam, 127 So. 2d 718, 722 (Fla. 3d DCA 1961)). Because a

per se defamatory statement is “‘so obviously defamatory’ and ‘damaging to one’s reputation,’ it

generally ‘gives rise to an absolute presumption both of malice and damage.’” Corsi v. Newsmax Media, Inc., 519

F. Supp. 3d 1110, 1119 (S.D. Fla. 2021) (Ruiz, J.) (emphasis added) (quoting Wolfson v. Kirk, 273 So.

2d 774, 776 (Fla. 4th DCA 1973)). In short, Daly doesn’t need to plead express malice, and Magistrate

Judge Strauss didn’t err in failing to consider that element. See Lawnwood Med. Ctr., Inc. v. Sadow, 43 So.

3d 710, 727 (Fla. 4th DCA 2010) (“Florida has thus singled out defamation per se for special rules in

civil tort litigation. In Montgomery v. Knox, 3 So. 211, 217 (1887), the court held that statements

defamatory per se are presumed harmful as a matter of law. In Abraham v. Baldwin, 42 So. 591, 592

(1906), the court held that with defamation per se ‘the law presumes malice in their utterance’ making

it unnecessary to prove express malice.”); Scott v. Busch, 907 So. 2d 662, 666 (Fla. 5th DCA 2005)

(“[T]he second amended complaint alleged Busch made the statement that Treworgy ‘illegally obtained

building permits,’ with malice, and that the statement was false. . . . However, we question whether

at this pleading stage [this was] necessary since defamation per se presumes malice[.]”).5 We therefore

OVERRULE MSI’s third objection.

C. MSI’s Fourth Objection: Reliance on Purported Conversations

MSI’s fourth (and final) objection concerns Magistrate Judge Strauss’s decision to “accept as

true certain allegations in the SAC with respect to purported conversations between MSI and defense

counsel.” MSI Objections at 15. Specifically, Magistrate Judge Strauss explicitly relied on the

conversation recounted in paragraph 32 of the SAC, which alleges that “[i]nsurance defense counsel

also relayed to MSI a discussion he had with Claimant’s counsel in which Claimant’s counsel indicated

that those healthcare providers not named as parties in the Complaint would be named if a lawsuit

was filed. Claimant’s counsel identified those healthcare providers to insurance defense counsel. Dr.

5 Two final points here. First, MSI’s reliance on Bush is misplaced. MSI cites this case for the

proposition that Daly “must demonstrate by a preponderance of the evidence that MSI acted with

express malice” even if a “qualified privilege did not apply[.]” MSI Objections at 14. But Bush says

precisely the opposite. See Bush, 2009 WL 10669904, at *9 (“Because the Court finds that a qualified privilege

protects Raytheon’s reviews and rankings, Bush must show by a preponderance of evidence that Raytheon

acted with express malice.” (emphasis added)). Second, we acknowledge that a plaintiff must still allege

express malice—even in a defamation per se action—if the defendant is either a “media defendant”

or a “public figure.” See Corsi, 519 F. Supp. 3d at 1119 (“[A] plaintiff suing a media defendant must

nevertheless plead malice and damages.”); Reed v. Chamblee, 2023 WL 6292578, at *9 (M.D. Fla. Sept.

27, 2023) (Corrigan, C.J.) (“All three types of defamation [under Florida law] also require a plaintiff to

plead and prove actual malice if he is a public figure.”). But MSI never alleges that Daly is a “media

defendant” or a “public figure,” see generally MTD; MSI Objections, and Daly specifically alleges that

she’s “a private figure.” SAC ¶¶ 81, 91. This limited exception thus doesn’t apply here.

Daly was not among the healthcare providers identified.” SAC ¶ 32. MSI says that Daly “has no direct

knowledge of [these] communications” and that Magistrate Judge Strauss wasn’t permitted to accept

allegations that “are based solely ‘upon information and belief[.]’” MSI Objections at 15 (quoting

Balesia Techs., Inc. v. Cuellar, 2023 WL 3491214, at *2 (S.D. Fla. May 17, 2023) (Ruiz, J.)).

But we agree with Daly that she “alleged the source of her information—MSI.” Response to

MSI Objections at 15. Although we “do not have to take as true allegations based mere ‘upon

information and belief,’” we should “accept such allegations as true when they are supported by non-

conclusory factual allegations.” Cuellar, 2023 WL 3491214, at *2 (quoting Smith v. City of Sumiton, 578

F. App’x 933, 936 n.4 (11th Cir. 2014)). And Daly alleged in her SAC that she “learned that insurance

defense counsel retained by MSI . . . regularly communicated with MSI” about the Patient’s putative

lawsuit “[d]uring the course of discovery.” SAC ¶ 28. In other words, Daly’s “upon information and

belief” allegations about the conversations between MSI and its insurance defense counsel are

supported by evidence she uncovered during discovery—evidence she’s described in her SAC. That’s

sufficient for now. See Belik v. Carlson Travel Grp., Inc., 864 F. Supp. 2d 1302, 1311 (S.D. Fla. 2011)

(Altonaga, J.) (“Pleading on information and belief is still permissible where, as here, the facts are

‘peculiarly within the possession and control of the defendant.’” (quoting Arista Records, LLC v. Doe 3,

604 F.3d 110, 120 (2d Cir. 2010))).

But here’s the thing: As we just explained in overruling MSI’s first and second objections, even

without this “information and belief” allegation, the SAC still includes enough factual allegations to

support Daly’s defamation per se claims. We therefore OVERRULE MSI’s fourth objection and fully

ADOPT Magistrate Judge Strauss’s R&R as to Counts 3 and 4.

II. Daly’s Objection as to Count 5

Count 5 of the SAC asserts a breach-of-fiduciary-duty claim against MSI. See SAC at 16. Here,

Daly’s theory of liability is somewhat attenuated. At the time of the May 30, 2018, procedure, Daly

“was covered by a policy issued by Evanston Insurance Company” for services she performed at the

Weston Clinic. Id. ¶ 8. Evanston “is wholly owned by MSI Insurance Company.” Id. ¶ 9. Our

Defendant, MSI, “is also wholly owned by MSI Insurance Company” and “manages the claims and

all parts of the claims process for Evanston Insurance.” Id. ¶ 10. Based on this web of corporate

relationships, Daly contends that MSI owed her a fiduciary duty to “conduct a good faith investigation

into the claims and into Dr. Daly’s role (or lack thereof) in the underlying incident.” Id. ¶ 96; see also

id. ¶ 95 (“Once Dr. Daly was added to the Evanston Policy as an insured, the insured relationship

became a fiduciary one; that is MSI, as the claims administrator for Evanston, became Dr. Daly’s

fiduciary.”).

Magistrate Judge Strauss rejected this unique theory of fiduciary duty. Although “[n]umerous

opinions within this District and throughout the state courts in Florida routinely conclude that a

fiduciary relationship could exist between insurer and insured,” Daly merely alleged that MSI was “a

third-party claims administrator for her insurer.” R&R at 17. Magistrate Judge Strauss recognized the

well-settled law that an “insurer owes the duty of good faith and fair dealing to its insured, [but] agents

of the insurer, even agents whose acts may have been material to a breach of the duty, do not normally

owe the insured a duty of good faith.” Ibid. (quoting 44 C.J.S. INSURANCE § 313 (2023)). And, he noted,

Daly “provide[d] no authority supporting her supposition that an insurer’s agent owes a fiduciary duty

to an insured (or can be sued directly for a breach of that fiduciary duty) whenever the insurer itself

owes a fiduciary duty.” Id. at 18; see also ibid. (“If ‘the only thing that has been alleged’ about the

relationship between Evanston and MSI is that they are owned by the same parent company, it is

entirely unclear then why Evanston’s fiduciary duty ipso facto inures to MSI. Indeed, if Daly is not

arguing that MSI owed a fiduciary duty by virtue of being Evanston’s agent, then it is even less clear

what the source of MSI’s alleged fiduciary duty was.” (quoting MTD Response at 20)).

Daly does not object to Magistrate Judge Strauss’s legal analysis—viz., that an insurer’s fiduciary

duty to its insured can’t be imputed to its agents. See generally Daly Objections.6 Instead, Daly says that

Magistrate Judge Strauss should have considered “the version of her Amended Complaint filed at

[ECF No. 73]” because “MSI never objected in writing to these corrections and the Court only denied

the motion to amend to the extent it added a new Count [6] for negligence.” Daly Objection at 2. MSI

responds “that the SAC is the operative pleading in this action,” and that Daly is simply trying to

relitigate our prior order denying her motion for leave to file a third amended complaint. Response to

Daly Objections at 4; see also R&R at 6 n.6 (“In addition to withdrawing her declaratory judgment

claims, Daly’s ‘supplement’ [DE 119] also requests the Court to review the version of her SAC

attached to her Motion for Leave to Serve and File an Amended Complaint [DE 73]. However, the

Court denied Daly’s Motion for Leave in its entirety. [DE 78]. Therefore, regardless of the explanation

in Daly’s ‘supplement,’ the SAC (as filed at [DE 59]) is clearly the operative complaint.”).

We agree with MSI and Magistrate Judge Strauss. Daly filed a motion for leave to file a third

amended complaint on September 7, 2022. See Motion for Leave [ECF No. 73]. We denied that

motion because Daly tried to add “a sixth count of negligence,” which “would both prejudice the

Defendant and significantly delay this case.” Sept. 21, 2022, Paperless Order [ECF No. 78]. Our order

never said (or implied) that we would allow the rest of the third amended complaint to stand. And

Daly’s suggestion that we permitted such an odd, piecemeal emendation of her claims is belied by the

plain language of our September 21, 2022, Paperless Order. Even if that order were ambiguous, our

September 28, 2022, Order reiterated, in no uncertain terms, that “[t]he Plaintiff’s Second Amended

Complaint [ECF No. 59] is currently the operative pleading.” [ECF No. 86] at 1 (emphasis added). Since

6 We therefore find that Magistrate Judge Strauss didn’t clearly err when he declined to impute to MSI

the fiduciary duty Evanston may have owed Daly. See Burgos, 2023 WL 7521634, at *1 (“Those portions

of a magistrate judge’s report and recommendation to which no objection has been made are reviewed

for clear error.”).

our rulings on this point were clear, Magistrate Judge Strauss correctly treated the SAC as the operative

complaint in the case.

Daly’s final argument is that Magistrate Judge Strauss incorrectly relied on “Eiber Radiology, Inc.

v. Toshiba Am. Med. Sys., Inc., 673 F. App’x 925 (11th Cir. 2016) for the proposition that Plaintiff should

not be granted more than one opportunity to amend” because Daly “did not have that opportunity”

as to Count 5. Daly Objections at 4. But Daly cites no law for the proposition that, under Rule 15, we

must sua sponte grant plaintiffs additional opportunities to amend specific counts. Cf. Wagner v. Daewoo

Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc) (“A district court is not required

to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by

counsel, never filed a motion to amend nor requested leave to amend before the district court.”). In

any event, Daly has been on notice since at least September 28, 2022, see Sept. 28, 2022, Paperless

Order [ECF No. 86], that her SAC was the operative complaint. Despite this understanding, she took

no additional action to amend or correct Count 5. See generally Docket. We therefore agree with

Magistrate Judge Strauss that dismissing Count 5 with prejudice is appropriate since holding otherwise

would reward Daly’s “undue delay” in seeking a proper amendment and “cause undue prejudice to

the opposing party[.]” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (citing Foman v. Davis, 371

U.S. 178, 182 (1962)); see also Eiber Radiology, 673 F. App’x at 930 (“We do not find that the district

court abused its discretion in declining to grant Plaintiff a second bite at this apple. Permitting another

round of amendments would have unduly protracted the proceeding below and promoted judicial

inefficiency.”).

In short, we OVERRULE Daly’s Objection and ADOPT Magistrate Judge Strauss’s R&R in

full as to Count 5.

CONCLUSION

After careful review, therefore, we hereby ORDER AND ADJUDGE as follows:

1. Magistrate Judge Strauss’s R&R [ECF No. 120] is ACCEPTED and ADOPTED in full.

Both MSI’s Objections [ECF No. 121] and Daly’s Objections [ECF No. 122] are

OVERRULED.

2. MSIs Motion to Dismiss [ECF No. 88] is GRANTED in part and DENIED in part.

Counts 1 and 2 of the SAC are DISMISSED without prejudice. Count 5 of the SAC ts

DISMISSED with prejudice.

3. By December 9, 2024, the parties shall prepare and file an amended joint scheduling report,

as required by Local Rule 16.1.

4. ‘The Clerk ts directed to REOPEN this case and LIFT the stay.

DONE AND ORDERED in the Southern 26, 2024.

ROYK.ALTMAN sit”

UNITED STATES DISTRICT JUDGE

ce: counsel of record

25