[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-11951

____________________

BETTY M. SMITH, 

as personal representative of the 

estate of Shirley T. Cox,

JUDITH A. BALLEW, 

Attorney-in-Fact of John E. Ballew,

MARK F. LAPP, 

as personal representative of the 

estate of Roger J. Lapp,

Plaintiffs-Appellants,

versus

MARCUS & MILLICHAP, INCORPORATED, 

Defendant,

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2 Opinion of the Court 22-11951

MICHAEL BOKOR, 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:18-cv-00381-WFJ-AAS

____________________

Before BRANCH, LUCK, and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

This appeal arises from a putative class action filed on behalf 

of Florida skilled nursing facility residents and their estates seeking 

to recover nearly a billion dollars of payments.1 The Residents alleged that these facilities were improperly licensed under Florida 

law and therefore any services they rendered were “unbillable.” 

Rather than suing the facilities, the facilities’ owners, or the facilities’ license-holders, the Residents sued Michael Bokor—the purported owner of the nursing facilities’ management company—and 

1 For brevity we refer to putative class action members as “the Residents.” 

The named plaintiff-appellants are: (1) Betty M. Smith, as personal representative of the Estate of Shirley T. Cox; (2) Judith A. Ballew, attorney-in-fact of 

John E. Ballew; and (3) Mark F. Lapp, as personal representative of the Estate 

of Roger J. Lapp. Shirley T. Cox, John E. Ballew, and Roger J. Lapp were all

short-term residents of the nursing homes.

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Marcus & Millichap, Inc.2 (MMI)—a marketing company—both of 

whom the Residents claim played a role in fraudulently obtaining 

the licenses.

After adopting the Magistrate Judge’s Report and Recommendation (R&R), the District Court dismissed the Residents’ first 

amended complaint with prejudice. It also rejected the Residents’ 

objection to the Magistrate Judge’s order denying their motion for 

leave to file a second amended complaint. The Residents argue 

that the District Court erred. As to the dismissal of their first 

amended complaint, the Residents argue that the District Court 

misunderstood Bokor’s role and misinterpreted case law and statutory authority applicable to the case. As to their motion to 

amend, the Residents argue that the District Court abused its discretion because their proposed amendments were not futile.

After careful review, and with the benefit of oral argument, 

we conclude that the Residents waived several objections to the 

Magistrate Judge’s R&R, which the District Court adopted when 

granting Bokor’s motion to dismiss. Particularly, the Residents 

failed to object to the Magistrate Judge’s recommendation that the 

circumstances warranted abstention under the Colorado River doctrine. Likewise, the Residents waived the right to challenge the 

denial of their motion to amend because their objection to the 

Magistrate Judge’s order was untimely. We therefore vacate the 

judgment of the District Court and remand with instructions to

2 The Residents voluntarily dismissed their claims against MMI with prejudice 

during this appeal.

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stay the Residents’ claims under the Colorado River abstention doctrine.

I. Background

The Residents were clients at twenty-two short-term skilled 

nursing facilities in Florida. According to the first amended complaint,3 operational control of these facilities was dispersed among 

three entities. The first owned the land and buildings, the second 

held the operating licenses, and the third managed the facilities. 

The Residents allege that these facilities improperly obtained licenses from the Agency for Health Care Administration (AHCA) 

by omitting from their license applications that the facilities were 

operated by two management companies—first Southern SNF 

Management, Inc. and then Reliant Health Care Services, Inc. 

Such information is required under Florida law. See Fla. Stat. 

§ 408.806(1)(e) (2023).

Bokor owns SNF and Reliant. The Residents asserted that 

Bokor submitted the license applications for the facilities. And 

MMI was the commercial broker that marketed and sold the facilities to several non-party landlords, despite knowing that the facilities were improperly licensed.

The Residents alleged that all services provided by these facilities were performed by improperly licensed or unlicensed entities. Because of this, the Residents believe that the facilities had no 

right to collect payments from residents or reimbursement from 

3 The first amended complaint is the operative complaint.

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Medicaid and Medicare. And, “as a result of the [licensing] 

schemes,” the Residents “were injured by being deceived into suffering substandard levels of care.”

On January 5, 2018, the named Residents filed a class action 

in the Florida Circuit Court for the Thirteenth Judicial Circuit seeking damages. Shortly after, Bokor removed the case to federal 

court and moved to dismiss. The Residents then moved to remand 

to state court. They argued that the case fell within the local controversy exception to the Class Action Fairness Act (CAFA), 

28 U.S.C. § 1332(d)(4). After the District Court granted the Residents’ motion, Bokor sought discretionary review and a direct appeal to our Court. We denied Bokor’s application for discretionary 

review under 28 U.S.C. § 1453(c)(1), but we permitted his direct 

appeal under 28 U.S.C. § 1291 to proceed.

On direct appeal, we reversed the District Court’s remand 

order. We held that the Residents failed to satisfy CAFA’s local 

controversy or discretionary exceptions. Smith v. Marcus & Millichap, Inc. (Smith I), 991 F.3d 1145, 1161–63 (11th Cir. 2021). Following Smith I, the Residents moved to amend the complaint for 

the first time. And the District Court granted the Residents’ motion. Beyond swapping Florida Racketeer Influenced and Corrupt 

Organizations (RICO) Act claims for federal RICO claims, the first 

amended complaint largely mirrored the original complaint. Relevant here, the first amended complaint raised two counts against 

Bokor:

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• Count II alleged that the facilities and management companies owed a fiduciary duty to residents and breached those 

duties by operating unlawfully without properly obtained 

and valid licenses. It also alleged that Bokor aided and abetted the breach of fiduciary duties by preparing and submitting materially false license applications.

• Count IV alleged that Bokor agreed to engage in a pattern 

of criminal activity in violation the RICO Act, 18 U.S.C. 

§ 1962(d), by submitting the false license applications.

Bokor moved to dismiss the first amended complaint arguing, among other things, that the District Court should abstain 

from hearing the case under the Colorado River abstention doctrine. 

The Residents requested three extensions to respond to Bokor’s 

motion, all of which the District Court granted. Rather than respond, the Residents moved for leave to file a second amended 

complaint. Bokor opposed the motion.

On September 16, 2021, the Magistrate Judge agreed with 

Bokor and denied the Residents’ motion to amend. The Magistrate 

Judge found that the proposed second amended complaint was futile and did not address any issues raised in Bokor’s motion to dismiss. The Magistrate Judge also noted that the only substantive 

change in the proposed second amended complaint was a new conspiracy count against Bokor, similar to the count already asserted 

against MMI.

The Magistrate Judge further reasoned that the Residents’ 

motion was untimely. Not only was the motion filed at the last 

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minute that their response to Bokor’s motion was due, the Residents also provided no explanation why the conspiracy claim 

against Bokor could not have been added to the first amended complaint. Last, the Magistrate Judge concluded that allowing the 

amendment would prejudice Bokor. Allowing the amendment

would require Bokor to move for dismissal a third time when the 

Residents had “only re-organized and re-numbered paragraphs” in 

the complaint. The Residents did not object to the Magistrate 

Judge’s order within fourteen days under Federal Rule of Civil Procedure 72(a) and 28 U.S.C. § 636(b)(1).

In her order denying the Residents’ motion to amend, the 

Magistrate Judge also ordered the Residents to respond to Bokor’s 

motion to dismiss. Once briefing was complete, the Magistrate 

Judge held a two-hour hearing and allowed post-argument submissions. Finally, on January 24, 2022, the Magistrate Judge issued an 

R&R recommending that the District Court grant Bokor’s motion 

to dismiss. The Magistrate Judge based her recommendation on 

five independent bases: (1) lack of standing, (2) failure to state a 

claim, (3) the primary administrative jurisdiction doctrine,4 (4) res 

4 The primary administrative jurisdiction doctrine is “a doctrine specifically 

applicable to claims properly cognizable in court that contain some issue 

within the special competence of an administrative agency. It requires the 

court to enable a ‘referral’ to the agency, staying further proceedings so as to 

give the parties reasonable opportunity to seek an administrative ruling.” 

Reiter v. Cooper, 507 U.S. 258, 268 (1993).

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judicata (as to Lapp), and (5) Colorado River abstention.5

On March 7, 2022, following several extensions, the Residents objected to the R&R. The Residents’ objections focused on 

the R&R’s rejection of their void ab initio license theory. They also 

objected to the R&R’s conclusion that the Residents lacked standing to recover allegedly improper claims submitted to Medicare 

and Medicaid and the R&R’s conclusion that the Residents failed 

to allege proximate causation for their RICO claims. Last, the Residents objected to the Magistrate Judge’s earlier denial of their motion to amend. The Residents did not object to the R&R’s other 

findings, including the recommendation of Colorado River abstention.

After another hearing, the District Court accepted and 

adopted the R&R in full. The Residents timely appealed.

II. Legal Standards

Generally, “[w]e review a district court’s ruling on a motion 

to dismiss for lack of subject matter jurisdiction under Federal Rule 

of Civil Procedure 12(b)(1) de novo.” Myrick v. Fulton County, 

69 F.4th 1277, 1294 (11th Cir. 2023). “Likewise, we [generally] review a district court’s grant of a motion to dismiss for failure to 

5 “Colorado River abstention allows a federal court to stay a case only ‘when 

federal and state proceedings involve substantially the same parties and substantially the same issues.’” Taveras v. Bank of Am., N.A., 89 F.4th 1279, 1286 

(11th Cir. 2024) (quoting Ambrosia Coal & Constr. Co. v. Pagés Morales, 

368 F.3d 1320, 1330 (11th Cir. 2004)). See generally Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).

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state a claim under Federal Rule of Civil Procedure 12(b)(6) de 

novo.” Id. “We accept the factual allegations in the complaint as 

true and construe them in the light most favorable to the plaintiff.” 

Id.

That said, a party who fails to object to a magistrate judge’s 

findings or recommendations in an R&R “waives the right to challenge on appeal the district court’s order based on unobjected-to 

factual and legal conclusions if the party was informed of the time 

period for objecting and the consequences on appeal for failing to 

object.” 11th Cir. R. 3-1. If necessary, we can review the unobjected-to findings and conclusions of the magistrate judge for “plain 

error or manifest injustice.” Resol. Tr. Corp. v. Hallmark Builders, 

Inc., 996 F.2d 1144, 1149 (11th Cir. 1993) (per curiam).

“Although we ordinarily review district court orders denying leave to amend a complaint for abuse of discretion, we review 

such decisions de novo when ‘the denial is based on a legal determination that amendment would be futile.’” Taveras v. Bank of Am., 

N.A., 89 F.4th 1279, 1285 (11th Cir. 2024) (first citing Andrx Pharms., 

Inc. v. Elan Corp., 421 F.3d 1227, 1236 (11th Cir. 2005); and then 

quoting Gonzalez v. City of Deerfield Beach, 549 F.3d 1331, 1332–33 

(11th Cir. 2008)). But “where a party fails to timely challenge a 

magistrate[ judge’s] nondispositive order before the district court, 

the party waive[s] his right to appeal those orders in this Court.” 

Smith v. Sch. Bd. Of Orange Cnty., 487 F.3d 1361, 1365 (11th Cir. 

2007) (per curiam).

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III. Discussion

The Residents challenge both the District Court’s dismissal 

of their first amended complaint and the District Court’s denial of 

their motion to amend. We first address the District Court’s order

on Bokor’s motion to dismiss and explain why the Residents 

waived any objection to the District Court’s conclusion on Colorado 

River abstention. We then explain why the Residents waived their 

challenge to the District Court’s denial of their motion to amend.

A. Motion to Dismiss

The Residents challenge the District Court’s order granting 

Bokor’s motion to dismiss mainly on standing and merits-based 

grounds. Bokor argues that we should affirm the District Court’s 

order because the Residents waived their right to challenge most 

of the District Court’s reasons for dismissal. That includes the District Court’s dismissal of Lapp’s claims on res judicata grounds and 

other class members’ claims under Colorado River abstention and 

the primary administrative jurisdiction doctrine. We agree with 

Bokor. And we do not find it necessary or appropriate to reach the 

legal issues the Residents raise because they waived arguments 

against the other reasons in the R&R that the District Court 

adopted.

To begin, because Bokor raises both standing and abstention 

concerns, and because we have an independent obligation to ensure standing exists, we must determine whether we may decide 

this appeal on Colorado River abstention grounds without confirming the existence of constitutional standing. See FW/PBS, Inc. v. 

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City of Dallas, 493 U.S. 215, 231 (1990). As the Supreme Court has 

explained, “a federal court has leeway ‘to choose among threshold 

grounds for denying audience to a case on the merits.’” Sinochem 

Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007)

(quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999)). 

Of course, that leeway “is not unbounded.” Fla. Wildlife Fed’n Inc. 

v. U.S. Army Corps of Eng’rs, 859 F.3d 1306, 1324 (11th Cir. 2017) 

(Tjoflat, J., specially concurring). Deciding between threshold nonmerits grounds requires inquiry into a “non-exhaustive and 

case-specific set of considerations,” including “convenience, fairness, the interests served by structural principles such as federalism 

and comity, and judicial economy and efficiency.” Id.; see also Sinochem, 549 U.S. at 432. Here, these considerations favor deciding 

this appeal on Colorado River abstention grounds.6 This is so 

6 The Residents also failed to object to the Magistrate Judge’s res judicata analysis. Whether res judicata is truly a “non-merits ground for dismissal” and 

thus a threshold issue is debatable. Compare Finneman v. Laidlaw, 57 F.4th 605, 

608 & n.2 (8th Cir. 2023) (declining to address res judicata because the plaintiffs 

lacked standing), with Env’t Conservation Org. v. City of Dallas, 529 F.3d 519, 525 

(5th Cir. 2008) (recognizing that a federal court may have leeway to dismiss 

on res judicata grounds before determining standing, but concluding that the 

court had no such leeway because “the res judicata analysis [was] no less burdensome than the standing inquiry”). We need not resolve that debate here 

because, as discussed above, the Residents waived any argument against Colorado River abstention.

Additionally, the Residents failed to object to the Magistrate Judge’s primary administrative jurisdiction doctrine analysis. And their initial appellate 

brief contains no argument on the primary administrative jurisdiction doctrine 

issue. We could just as easily affirm on this basis instead. But—given the 

Magistrate Judge’s finding that the Residents’ counsel has already “brought 

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because, as described below, the Residents waived this issue both 

before the District Court and on appeal.

Under Eleventh Circuit Rule 3-1, 

[a] party failing to object to a magistrate judge’s findings or recommendations contained in a report and 

recommendation in accordance with the provisions 

of 28 U.S.C. § 636(b)(1) waives the right to challenge 

on appeal the district court’s order based on unobjected-to factual and legal conclusions if the party was 

informed of the time period for objecting and the consequences on appeal for failing to object.

That’s what happened here.

Nowhere in the Residents’ objection to the R&R did they 

adequately challenge the Magistrate Judge’s Colorado River analysis—despite being warned “of all of the consequences that would 

attach to [their] failure to object.” Harrigan v. Metro Dade Police 

Dep’t Station #4, 977 F.3d 1185, 1191 (11th Cir. 2020). At best, they 

make a vague argument that the R&R “mischaracteriz[ed] . . . 

other lawsuits which [the Residents] may have filed in state courts 

in Florida.” That objection failed to “clearly advise the [D]istrict 

[C]ourt and pinpoint specific findings that the [Residents] disagree[d] with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 

2009) (per curiam). Because the Residents did “not lodg[e] specific

objections to the [M]agistrate [J]udge’s reasoning in h[er] R&R 

nearly thirty [substantially similar] cases in seven counties throughout Florida” against Bokor—we conclude that the above considerations caution 

against burdening AHCA in addition to the Florida state courts.

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about” Colorado River abstention, they have waived any argument 

against it. See Club Madonna Inc. v. City of Miami Beach, 

42 F.4th 1231, 1259 (11th Cir. 2022).

True, we can review waived objections “for plain error if 

necessary in the interests of justice.” 11th Cir. R. 3-1. But review 

for plain error “rarely applies in civil cases.” Ledford v. Peeples, 

657 F.3d 1222, 1258 (11th Cir. 2011). “Even when it does, we require a greater showing of error than in criminal appeals.” Evans v. 

Ga. Reg’l Hosp., 850 F.3d 1248, 1257 (11th Cir. 2017), abrogated on 

other grounds by Bostock v. Clayton County, 590 U.S. 644 (2020). That 

“rare exception doesn’t apply here because [the Residents] didn’t

argue in [their] initial brief that reviewing [their] waived objections 

was necessary and in the interests of justice.” Smith v. Dewberry, 

No. 21-10607, 2022 WL 1948947, at *2 (11th Cir. June 6, 2022) 

(Luck, J., concurring in part and dissenting in part).

What’s more, the Residents’ initial appellate brief contains 

no discussion about Colorado River abstention. At oral argument, 

the Residents’ counsel all but admitted this and tried to explain that 

this argument was “subsumed” in the initial brief. But we require 

parties to raise arguments plainly and prominently. See Sapuppo v. 

Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). And 

the Residents’ attempt to resurrect any argument against Colorado 

River abstention in their reply brief comes too late. See id. at 683.

In sum, there is no sign that the interests of justice would be 

served by conducting a plain-error review of the dismissal. We 

therefore decline to review the District Court’s decision to dismiss 

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the Residents’ first amended complaint on Colorado River abstention grounds.

B. Motion to Amend

The Residents also argue that the District Court’s adoption 

of the Magistrate Judge’s order denying their motion to amend was 

“highly prejudicial and was improper as a matter of law.” They 

contend that the second amended complaint was the first pleading 

designed for federal court requirements because the case was originally filed in state court. In response, Bokor explains that the Residents’ objection was untimely and that the proposed second 

amended complaint was futile as it made only inconsequential 

changes. We agree with Bokor that the Residents’ objection came 

too late.

Under Federal Rule of Civil Procedure 72(a), “[a] party may 

serve and file objections to the order within 14 days after being 

served with a copy. A party may not assign as error a defect in the 

order not timely objected to.” We have read Rule 72 to mean that

“where a party fails to timely challenge a magistrate’s nondispositive order before the district court, the party waived his right to 

appeal those orders in this Court.” Smith, 487 F.3d at 1365.

The Magistrate Judge’s September 16, 2021, order denying

the Residents’ motion to amend was a nondispositive pretrial ruling. Under Rule 72(a), the Residents had to object by September 

30, 2021. But—as the Residents’ counsel conceded at oral argument—they did not. Instead, they waited 173 days and objected at 

the tail-end of their objection to the Magistrate Judge’s R&R on 

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Bokor’s motion to dismiss. Because the Residents did not timely 

object to the Magistrate Judge’s order, they have waived this issue.

IV. Conclusion

As to the District Court’s adoption of the R&R and dismissal 

of the Residents’ complaint, we hold that the Residents waived any 

objections to the Magistrate Judge’s reasoning in her R&R about 

Colorado River abstention. We therefore VACATE the judgment 

of the District Court and REMAND with instructions to stay the 

Residents’ claims under the Colorado River abstention doctrine.

As to the District Court’s denial of the Residents’ motion to 

amend, we hold that the Residents failed to timely object to the 

Magistrate Judge’s order. We therefore AFFIRM on that basis.

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