Burgess et al v. Narconon: NN Int/ABLE Appeal Brief

8/12/2019 Burgess et al v. Narconon: NN Int/ABLE Appeal Brief

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Appeal No. 14-11214-FF

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BENJAMIN BURGESS, RHONDA BURGESS, HEIDI HOWARD, JOYCE

MARTIN, BETH KARAMPELAS, TERRI DACY, and MICHAEL DACY

Plaintiffs Appellants

v.

RELIGIOUS TECHNOLOGY CENTER, INC., ASSOCIATION FOR

BETTER LIVING AND EDUCATION INTERNATIONAL, NARCONONINTERNATIONAL, and NARCONON OF GEORGIA, INC.

Defendants Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA,

CASE NO. 1:13-CV-02217-SCJ

___________________________________

BRIEF OF APPELLEES ASSOCIATION FOR BETTER LIVING AND

EDUCATION INTERNATIONAL AND NARCONON INTERNATIONAL

___________________________________

Matthew S. Coles

Georgia Bar No. 178020

Thomas M. Barton


Aaron P.M. Tady

Georgia Bar No. 696273COLES BARTON LLP

150 South Perry Street, Suite 100

Lawrenceville, GA 30046

Telephone: (770) 995-5552

Cari K. Dawson


Daniel F. Diffley


David B. Carpenter

Georgia Bar No. 292101ALSTON & BIRD LLP

1201 W. Peachtree Street

Atlanta, GA 30309

Telephone: (404) 881-7000

Attorneys for Appellees Association for Better Living and Education

International and Narconon International

Case: 14-11214 Date Filed: 06/16/2014 Page: 1 of 49


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Appeal No. 14-11214-FF, Benjamin Burgess, et al. v. Religious Tech. Ctr., et al.

C-1 of 3

Certificate of Interested Persons and Corporate Disclosure Statement

In accordance with Federal Rule of Appellate Procedure 26.1 and Eleventh

Circuit Rule 26.1-1, counsel for Appellees Association for Better Living and

Education International and Narconon International hereby certifies that, to the

best of counsels knowledge, the following individuals, firms, governmental

entities, and corporations have an interest in the above-captioned appeal:

Alston & Bird LLP

Association for Better Living and Education International

Barton, Thomas M.

Burgess, Benjamin

Burgess, Rhonda

Carpenter, David B.

Chilivis, Cochran, Larkins & Bever LLP

Coles Barton LLP

Coles, Matthew S.

Dacy, Michael

Dacy, Terri

Dalbey, John D.

Dawson, Cari K.

Diffley, Daniel F.



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C-2 of 3

Fleming, John Howard

Franklin Law, LLC

Franklin, Rebecca C.

Godfrey, Yvonne

Goodman McGuffey Lindsey & Johnson, LLP

Hankins, James

Harris, Jeffrey R.

Harris Penn Lowry LLP

Howard, Heidi

Jones, The Honorable Steve C., Trial Judge

Karempelas, Beth

Larkins, John K.

Lindsey, Ed

Lowry, Stephen G.

Manton, Jed D.

Martin, Joyce

McNeill, W. Taylor

Mohr, Stacey McGavin

Narconon International

Narconon of Georgia, Inc.



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C-3 of 3

Penn, Darren W.

Religious Technology Center

Sanders, Valerie S.

Sutherland, Asbill & Brennan LLP

Tady, Aaron P. M.



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i

Statement Regarding Oral Argument

The dispositive issues in this appeal have been authoritatively decided.

Further, given the posture of the case at the time of the District Courts dismissal

and the limited number of issues raised on appeal, oral argument would not

significantly aid the Court in its decision.



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ii

Table of Contents

Table of Citations ................................................................................................. iv

Statement Regarding the Adoption of the Brief of Appellee Narconon of Georgia,

Inc............................................................................................................... ix

Statement of Issues Presented for Review.............................................................. 1

Statement of the Case............................................................................................. 2

Summary of the Argument..................................................................................... 7

Argument and Citations of Authority..................................................................... 8

A. The District Court Properly Dismissed Plaintiffs Claims for Breach

of Contract, Quasi-Contract, and Negligence Per Se. ................................... 8

1. Standard of Review............................................................................ 8

2. Plaintiffs Failed to Allege Even the Most Basic Elements of a

Breach of Contract Claim................................................................... 9

3. Plaintiffs Have No Claim for Unjust Enrichment Because

Plaintiffs did not Confer Any Benefit on ABLE or Narconon

International......................................................................................16

4. There is no Claim for Detrimental Reliance under Georgia Law,

and Plaintiffs Cannot Re-Plead that Claim in a Response Brief. .......17

5. Plaintiffs Fail to Even Mention Narconon International or

ABLE in their NegligencePer SeClaim. ..........................................18



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iii

B. The District Court Properly Dismissed Plaintiffs Claims Sounding in

Common Law Fraud and Under Georgias RICO Statute............................19

1. Fraudulent Misrepresentation............................................................20

2. Plaintiffs Georgia RICO Claims Suffer the Same Defects as

the Fraudulent Misrepresentation Claims. .........................................23

a. Theft by Deception and Mail and Wire Fraud. ........................24

b. Credit Card Fraud and Identity Fraud......................................25

c. False Statements to a Government Agency. ............................26

C. The District Court Properly Acted Within Its Discretion When It

Denied Plaintiffs Unsupported Request for Leave to Amend Their

Complaint. ..................................................................................................28

Conclusion............................................................................................................33



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iv

Table of Citations

CASES PAGES

Ambrosia Coal & Constr. Co. v. Pages Morales,

482 F.3d 1309 (11th Cir. 2007)..................................................................19, 24

American Casual Dining, L.P. v. Moe's Southwest Grill, L.L.C.,

426 F. Supp. 2d 1356 (N.D. Ga. 2006).............................................................11

American Teleconferencing Servs., Ltd. v. Network Billing Sys., LLC,

293 Ga. App. 772, 668 S.E.2d 259 (2008)........................................................16

Ameris Bank v. Alliance Inv. & Mgmt. Co.,

321 Ga. App. 228, 739 S.E.2d 481 (2013)........................................................15

Anderson v. Deutsche Bank Natl Trust Co.,

No. 1:11-CV-4091-TWT-ECS, 2012 WL 3756512 (N.D. Ga. Aug. 6,

2012) ...............................................................................................................10

Anza v. Ideal Steel Supply Corp.,

547 U.S. 451 (2006).........................................................................................28

Ashcroft v. Iqbal,

556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ....................... 6, 7, 9, 10

Bank v. Pitt,

928 F.2d 1108 (11th Cir. 1991)........................................................................32



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v

Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ....................... 6, 7, 8, 10

Brooks v. Blue Cross & Blue Shield of Fla., Inc.,

116 F.3d 1364 (11th Cir. 1997)............................................................ 20, 21, 24

Brown v. Cooper,

237 Ga. App. 348, 514 S.E.2d 857 (1999)........................................................16

Bryant v. Dupree,

252 F.3d 1161 (11th Cir. 2001)..................................................................32, 33

Castro v. Secretary of Homeland Security,

472 F.3d 1334 (11th Cir. 2006)..........................................................................8

Corsello v. Lincare, Inc.,

428 F.3d 1008 (11th Cir. 2005)........................................................................33

DaimlerChrysler Motors v. Clemente,

294 Ga. App. 38, 668 S.E.2d 737 (2008) .........................................................21

Davis v. Coca-Cola Bottling Co.,

516 F.3d 955 (11th Cir. 2008)..........................................................................21

Detris v. Coats,

523 Fed. Appx 612 (11th Cir. 2013) ...............................................................30

Fisher v. Toombs County Nursing Home,

223 Ga. App. 842, 479 S.E.2d 180 (1996).............................................12,13, 14



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vi

Foman v. Davis,

371 U.S. 178 (1962).........................................................................................33

G & G TIC, LLC v. Ala. Controls, Inc. ,

No. 4:07-CV-162, 2008 WL 4457876 (M.D. Ga. Sept. 29, 2008)affd

324 F. Appx 795 (11th Cir. 2009)...................................................................28

Horsley v. Feldt,

304 F.3d 1125 (11th Cir. 2002)........................................................................10

Johnson v. University Health Servs., Inc.,

161 F.3d 1334 (11th Cir. 1998)........................................................................18

Kaesemeyer v. Angiogenix, Inc.,

278 Ga. App. 434, 629 S.E.2d 22 (2006) ...........................................................9

Liquidation Commn of Banco Intercontinental, S.A. v. Renta,

530 F.3d 1339 (11th Cir. 2008)........................................................................26

Long v. Satz,

181 F.3d 1275 (11th Cir. 1999)....................................................................6, 29

Maddox v. Southern Engineering Co.,

231 Ga. App. 802, 500 S.E.2d 591 (1998)........................................................23

Martin v. Pierce,

140 Ga. App. 897, 232 S.E.2d 170 (1977)..........................................................9



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Mills v. Foremost Ins. Co.,

511 F.3d 1300, 1303 (11th Cir. 2008). ...............................................................6

Morrell v. Wellstar Health Sys., Inc.,

280 Ga. App. 1, 633 S.E.2d 68 (2006) .......................................................15, 16

Parrish v. Jackson W. Jones, P.C.,

278 Ga. App. 645, 629 S.E.2d 468 (2006)........................................................11

Plaza Props., Ltd. v. Prime Bus. Invs., Inc.,

240 Ga. App. 639, 524 S.E.2d 306 (1999)..........................................................9

PradoSteiman ex rel. Prado v. Bush,

221 F.3d 1266 (11th Cir. 2000)........................................................................30

Regional Pacesetters, Inc. v. Eckerd Drugs of Georgia, Inc.,

183 Ga. App. 196, 358 S.E.2d 481 (1987)............................................. 12, 13 14

Reindel v. Mobile Content Network Co.,

652 F. Supp. 2d 1278 (N.D. Ga. 2009).............................................................18

Schlotzskys, Inc. v. Hyde,

245 Ga. App. 888, 538 S.E.2d 561 (2000)........................................................21

Stires v. Carnival Corp.,

243 F. Supp. 2d 1313 (M.D. Fla. 2002)............................................................23

U.S. ex rel. Atkins v. McInteer,

470 F.3d 1350 (11th Cir. 2006)..................................................................29, 32



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viii

U.S. v. Ward,

486 F.3d 1212 (11th Cir. 2007)........................................................................25

United States ex rel. Yannacopolous v. General Dynamics,

315 F. Supp. 2d 939 (N.D. Ill. 2004)................................................................22

Vicom, Inc. v. Harbridge Merchant Servs., Inc.,

20 F.3d 771 (7th Cir. 1994)..............................................................................20

Wagner v. Daewoo Heavy Indus. Am. Corp.,

314 F.3d 541 (11th Cir. 2002) (en banc) ....................................................30, 32

Watts v. Florida Intl Univ.,

495 F.3d 1289 (11th Cir. 2007)......................................................................8, 9

RULES

Fed. R. App. P. 28............................................................................................ix, 18

FED. R. CIV. P. 12 .......................................................................................... 6, 8, 31

FED. R. CIV. P. 9.............................................................................................passim

FED. R. CIV. P. 15..................................................................................................31



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ix

Statement Regarding the Adoption of the Brief of

Appellee Narconon of Georgia, Inc.

In accordance with Fed. R. App. P. 28(i) and 11th Cir. R. 28-1(f), Appellees

Association for Better Living and Education International and Narconon

International adopt by reference Section IV of Appellee Narconon of Georgia,

Inc.s Brief addressing Plaintiffs negligence per seclaim.



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Statement of Issues Presented for Review

A. Whether the District Court properly held that Plaintiffs failed to adequately

plead their claims against Appellees for breach of contract, unjust enrichment,

detrimental reliance or promissory estoppel, and negligence per se.

B. Whether the District Court properly held that Plaintiffs failed to plead with

requisite particularity their claims against Appellees sounding in fraud under the

common law and under Georgias RICO statute.

C. Plaintiffs Issue C is applicable only to Appellee Religious Technology

Center, Inc. and has no relevance to the alleged claims against Appellees Narconon

International and Association for Better Living and Education International.

D. Whether the District Court abused its discretion in dismissing Plaintiffs

Complaint with prejudice when Plaintiffs neither requested leave to amend their

Complaint via a properly-supported motion nor articulated the allegations they

would include in an amended pleading.



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Statement of the Case

Plaintiffs1

filed an action purporting to assert various contract and fraud

claims against Association for Better Living and Education International

(ABLE), Narconon International, Appellee Narconon of Georgia, Inc.

(NNGA), and Appellee Religious Technology Center, Inc. (RTC). But the

claims manifestly failed to satisfy the pleading requirements contained in the

Federal Rules of Civil Procedure and applicable case law. Accordingly, all of the

Defendants, including ABLE and Narconon International filed motions to dismiss.

(App. Vol. 1, Doc. Nos. 4, 5). The District Court granted each of those Motions,

(App. Vol. 2, Doc. No. 40), and Plaintiffs filed this appeal. (App. Vol. 2, Doc. No.

42).

Plaintiffs allege that they paid NNGA for drug and alcohol rehabilitation

services, either for themselves or for a family member. (App. Vol. 1, Doc. No. 1,

Compl. 2, 6, 10, 14, 17). Plaintiffs allege that NNGA -- and only NNGA -- was

paid for those services. (Id. 4, 8, 12, 15, 19). Plaintiffs do not allege that they

paid either Narconon International or ABLE for any services.

Tellingly absent from Plaintiffs Complaint is any specific allegation that

either Narconon International or ABLE directly interacted in any way with

1Appellants/Plaintiffs designate themselves in their briefing as Class

Representatives. Although their complaint was filed as a putative class action,

Plaintiffs were never certified as representatives of any class, nor could they have

been given the predominance of highly-individualized issues in this case.



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Plaintiffs or their family members. The simple reason for that omission is that it

did not occur. Neither Narconon International nor ABLE had any direct

involvement with Plaintiffs or their family members. ABLE merely licenses to

Narconon International the Narconon name and trademarks, and Narconon

International, in turn, merely grants a similar license to NNGA. (App. Vol. 1, Doc.

No. 4, at 6).

Plaintiffs claim that they relied on certain representations when they agreed

to purchase drug and alcohol rehabilitation services from NNGA. (App. Vol. 1,

Doc. No. 1, Compl. 3, 7, 11, 14, 18). Plaintiffs vaguely allege that these

representations were made by NNGA and/or Narconon International. But they

fail to allege which individual representatives of NNGA or Narconon International

made the supposed representations, when they were made, or how they were

communicated to Plaintiffs. (Id. 3, 7, 11, 14, 18). Later in their Complaint,

Plaintiffs allege an expanded list of misrepresentations, but likewise fail to allege

which individual representatives of which of the several Defendants made the

purported misrepresentations, much less how or when those alleged

misrepresentations were communicated to Plaintiffs. (Id. 111).

In support of their claim for breach of contract, Plaintiffs allege in similarly

vague fashion that each of them entered into a written contract with allof the

Defendants. (Id. 115). Plaintiffs then claim that all of the Defendants breached



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that purported written contract merely by making the same vaguely-described

misrepresentations that Plaintiffs listed in their claim for fraud. (Id. 117).

Plaintiffs do not refer to or quote from a single written provision in the alleged

written contract. (Id.).

In support of their motions to dismiss, ABLE and Narconon International

attached written contracts to which Plaintiffs referred in their Complaint. (App.

Vol. 1, Doc. Nos. 4 & 5, Ex. A). Plaintiffs, as the persons financially

responsible for payment to NNGA for the services provided, executed a Financial

Policy and Agreement and related documents that identified and described the

program services that NNGA was to provide. Notably, neither Narconon

International nor ABLE executed or is otherwise a party to any of those

documents. (App. Vol. 1, Doc. Nos. 4 & 5, Ex. A).

Plaintiffs further fail to explain how the list of alleged misrepresentations

resulted in a breach of any of the express terms of the contract between them and

NNGA. In response to the Defendants motions below, Plaintiffs insisted that the

contract contained implied terms that were breached by the alleged

misrepresentations, but Plaintiffs did not dispute that the documents attached to

Appellees District Court briefs were in fact written contracts referenced in the

Complaint. (App. Vol. 1, Doc. No. 14, at 10-12; App. Vol. 2, Doc. No. 15, at 10-

12).



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Narconon International and ABLE moved to dismiss the claims against them

because Plaintiffs allegations failed to state a claim upon which relief could be

granted. Plaintiffs responded by insisting that the allegations in their Complaint

were sufficient. In the concluding paragraph of their response brief in the District

Court, Plaintiffs casually, and without elaboration, requested an opportunity to

amend their claims should the District Court find their allegations to be

insufficient. (App. Vol. 1, Doc. No. 14, at 24-25; App. Vol. 2, Doc. No. 15, at 25).

But Appellees failed to attach to their response brief or describe in any way the

proposed amendment, and they did not describe how it would cure the defects in

their pleadings. Plaintiffs never filed a motion requesting leave to amend with the

proposed amendment attached. Even now the substance and nature of the

proposed amendment remains a mystery.

In a well-reasoned opinion, the District Court granted Appellees motion to

dismiss, holding that Plaintiffs had not pleaded the existence of a contract with

Narconon International and ABLE and failed to identify any specific contract

provisions that Appellees had breached. (App. Vol. 2, Doc. No. 40, at 19-21). The

District Court also held that Plaintiffs had failed to plead their fraud-based claims

with sufficient particularity given, among other reasons, that they had merely

lumped together all of their fraud allegations against all of the Defendants. (Id. at

13-18). The District Court then dismissed the Plaintiffs case with prejudice



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Summary of the Argument

The District Court properly determined that Plaintiffs Complaint failed to

state a claim upon which relief could be granted and did not satisfy the pleading

standards set forth in the Federal Rules of Civil Procedure, and as set forth by the

Supreme Court in Iqbaland Twombly. In a classic shotgun complaint, Plaintiffs

simply lumped all of the Defendants together, failing to specify how Narconon

International and ABLE breached any agreements with these Plaintiffs and even

failing to identify the agreements they contend exist. Further, Plaintiffs made no

effort whatsoever to identify the basics of their fraud-based claims, never

identifying a single misrepresentation by either of these Appellees or to whom and

when such misrepresentations were made. The District Court, in a well-reasoned,

thorough order, properly dismissed all counts in the Complaint.

The District Court also properly denied Plaintiffs request for leave to amend

their Complaint. Rather than filing an amended complaint following the

Defendants motions to dismiss, Plaintiffs chose to respond to the motions. And

in responding, Plaintiffs casually sought leave to amend their Complaint in the

closing pages of their response brief, without anything more, contrary to the

precedent of this Court.

For these reasons, the Court should affirm the decision of the District Court.



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Argument and Citations of Authority

A. The District Court Properly Dismissed Plaintiffs Claims for Breach of

Contract, Quasi-Contract, and NegligencePer Se.

The District Court properly dismissed Plaintiffs claims because the

Complaint failed to allege the necessary elements of those claims. Plaintiffs failed

to identify a contract with Narconon International or ABLE, let alone a specific

provision that was breached. Accordingly, Plaintiffs have no claim for breach of

an express or implied contractual provision and the District Court properly

dismissed their claim.

1. Standard of Review.

This Court conducts a de novo review of a District Courts decision on a

motion to dismiss under Rule 12(b)(6), affirming the District Courts decision

when the District Court has properly dismissed the plaintiffs claims. See Castro v.

Secretary of Homeland Security, 472 F.3d 1334, 1336 (11th Cir. 2006). While the

pleadings are construed broadly in the context of a Rule 12(b)(6) motion to

dismiss, a formulaic recitation of the elements of a cause of action will not do

and the [f]actual allegations must be enough to raise a right to relief above the

speculative level. Watts v. Florida Intl Univ., 495 F.3d 1289, 1295 (11th Cir.

2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955,

1965, 167 L.Ed.2d 929 (2007)). Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice. Ashcroft v.



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Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). To plead a

cause of action that will survive a motion to dismiss, the plaintiff must allege its

case with enough factual matter (taken as true) to suggest the required element

and identify facts that are suggestive enough to render the element plausible.

Watts, 495 F.3d at 1295-96 (internal citations and quotation marks omitted).

2. Plaintiffs Failed to Allege Even the Most Basic Elements of a

Breach of Contract Claim.

As an initial matter, Plaintiffs failed to allege the existence of an agreement

with Narconon International or ABLE. It is axiomatic that a person who is not a

party to a contract is not bound by its terms. Kaesemeyer v. Angiogenix, Inc., 278

Ga. App. 434, 437, 629 S.E.2d 22, 25 (2006); accord Plaza Props., Ltd. v. Prime

Bus. Invs., Inc., 240 Ga. App. 639, 642, 524 S.E.2d 306, 309 (1999) (It is also

fundamental that [a] person who is not a party to a contract (i.e., is not named in

the contract and has not executed it) is not bound by its terms.) (quoting Martin

v. Pierce, 140 Ga. App. 897, 899, 232 S.E.2d 170, 172 (1977)). A defendant that

is not named as a party to the contract should be dismissed from a breach of

contract claim. Martin, 140 Ga. App. at 899, 232 S.E.2d at 172.

Plaintiffs neither attached any contracts to the Complaint nor quoted from or

cited to any specific contract provision. (See generally App. Vol. 1, Doc. No. 1,

Compl. 115-18). But in support of their Motions to Dismiss, Appellees attached



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written contracts between Plaintiffs (or their family members) and NNGA.2

(App.

Vol. 1, Doc. No. 4, Ex. A; App. Vol. 1, Doc. No. 5, Ex. A). Neither Narconon

International nor ABLE are identified as parties to any of those contracts.

Plaintiffs have failed to identify any contract with either Narconon International or

ABLE and have therefore failed to state a breach of contract claim.

Although not entirely clear in their Brief, Plaintiffs appear to suggest that the

bare allegation in their Complaint that they had a contract satisfies their pleading

burden under Iqbaland Twombly. A motion to dismiss should be granted if the

plaintiff does not plead enough facts to state a claim to relief that is plausible on

its face. Twombly, 550 U.S. at 570. But much more than that is required to put

these Appellees on sufficient notice of the claims against them and allege a proper

breach of contract claim. [A] plaintiff asserting a breach of contract claim must

allege a particular contract provision that the defendants violated to survive a

motion to dismiss. Anderson v. Deutsche Bank Natl Trust Co., No. 1:11-CV-

4091-TWT-ECS, 2012 WL 3756512, at *5 (N.D. Ga. Aug. 6, 2012); accord

2A document attached to a motion to dismiss may be considered by the court

without converting the motion into one for summary judgment if the attached

document is central to the plaintiffs claim and undisputed; that is, that the

authenticity of the document is not challenged. Horsley v. Feldt, 304 F.3d 1125,1134 (11th Cir. 2002). In their responses to the motions to dismiss in the District

Court, Plaintiffs did not dispute the documents attached to Appellees briefs.

Indeed, Plaintiffs relied upon and quoted from those documents in their response.

(App. Vol. 1, Doc No. 14, at 10-12; App. Vol. 2, Doc. No. 15, at 10-12).

Accordingly, there is no dispute regarding the authenticity of those documents and

the District Court properly relied upon them in dismissing the Complaint.



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American Casual Dining, L.P. v. Moe's Southwest Grill, L.L.C., 426 F. Supp. 2d

1356, 1369 (N.D. Ga. 2006) (Because [the plaintiff] cannot point to any

contractual provision that [the defendant] breached by failing to act in the manner

set forth above, [the plaintiff] cannot state a claim for breach of contract based on

these allegations.).

In their Complaint, Plaintiffs do not deny that they (or their family members)

in fact received services from NNGA for which they paid NNGA. They loosely

claim, however, that all of the Defendants/Appellees made allegedly-false

representations to them about the program. But the contract documents do not

contain any of the alleged false representations identified in Plaintiffs Complaint,

and Plaintiffs failed to point to any other documents containing the alleged

representations. (App. Vol. 2, Doc. No. 40, at 22). Accordingly, the District Court

properly held that Plaintiffs breach of contract claim failed on its face. Parrish v.

Jackson W. Jones, P.C., 278 Ga. App. 645, 647, 629 S.E.2d 468, 471 (2006)

(affirming summary judgment to the defendant on the plaintiffs breach of contract

claim because the documents that the plaintiff claimed formed the parties

agreement did not contain terms the plaintiff sought to enforce in his breach of

contract claim, and because parol evidence could not be used to vary the terms of

those written documents).



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The only specific provision that Plaintiffs discuss in their Brief is a Rule of

Conduct that required the students who were receiving services from NNGA to

refrain from bringing drugs or alcohol to the facility and from consuming drugs or

alcohol during the program. (SeeApp. Vol. 1, Doc. No. 4, Ex. A, at 7). Without

articulating how, Plaintiffs insist that this provision contractually required

Narconon International and ABLE, who were not even parties to the agreement, to

provide a drug free environment. Plaintiffs fail to identify any allegation in their

Complaint articulating this particular theory, which they only raised in their

response brief opposing the motions to dismiss filed below. (App. Vol. 1, Doc.

No. 14, at 10-12; App. Vol. 2, Doc. No. 15, at 11-12). On its face, the provision

does not guarantee that NNGA will ensure a drug-free environment but instead

places an obligation solely on the student. Plaintiffs expressly agreed in the

Financial Policy and Agreement Form that there [was] no warranty express or

implied with regard to the housing arrangement that the students were responsible

for making. (See App. Vol. 1, Doc. No. 4, Ex. A, at 3). Thus, theonly specific

provision that Plaintiffs have identified fails to support their breach of contract

claim.

Plaintiffs misconstrue the Georgia Court of Appeals decisions in Fisher v.

Toombs County Nursing Home, 223 Ga. App. 842, 479 S.E.2d 180 (1996), and

Regional Pacesetters, Inc. v. Eckerd Drugs of Georgia, Inc., 183 Ga. App. 196,



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358 S.E.2d 481 (1987) in insisting that they are not obligated to allege the breach

of an actual contractual provision so long as they have alleged that Appellees

breached the spirit of the parties agreement. In both of those cases, however,

there was a written contract between the parties. Moreover, in both cases, the

courts held that, in order for a court to imply a term not actually contained in the

parties written agreement, the implied term must be absolutely necessary . . . to

effectuate the intention of the parties. Fisher, 223 Ga. App. at 845, 479 S.E.2d at

184;accord Regional Pacesetters, 183 Ga. App. at 197, 358 S.E.2d at 483. Courts

should be generally reluctant to imply terms into a written contract. 223 Ga.

App. at 845, 479 S.E.2d at 184.

In Regional Pacesetters, the Georgia Court of Appeals refused to imply a

term to allow the plaintiffs contract claim to survive dismissal because the parties

written contract did not require the term to discern the parties intent. Id. at 197-

98, 358 S.E.2d at 483. Although the parties agreement generally discussed the

contractual rights and obligations at issue, there was nothing in the agreement

specifically indicating that an extension of those rights and obligations was

necessary. Ignoring the fact that neither Narconon International nor ABLE was a

party to the contracts at issue, Plaintiffs have failed to articulate how their

agreements with NNGA requiredall of the Defendants to guaranty a completely

drug and alcohol free environment, particularly when the only provision in the



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documents relating to drug use places the obligation squarely on the student.

Under the rule ofRegional Pacesetters, the District Courts dismissal of Plaintiffs

breach of contract claim was appropriate.

Although theFisherCourt overcame its general[] reluctan[ce] and allowed

the plaintiff to recover on a term that was implied into the parties agreement, the

holding is easily distinguished from the case at bar. 223 Ga. App. at 845, 479

S.E.2d at 184. In Fisher, the plaintiff contractually agreed to be financially

responsible for payment to a nursing home that was caring for her husband. After

the nursing home discharged the plaintiffs husband to the husbands son from a

prior marriage without providing any notice to the plaintiff, the plaintiff sued for

breach of contract. The nursing home contended on summary judgment that there

was no express provision in the parties agreement requiring the nursing home to

give the plaintiff notice. The court held that, because the plaintiff was paying for

the care of her husband, she should have been notified when her husband was

discharged since she would no longer be responsible for paying for his care. In

other words, an implied notice provision was reasonable and necessary to effect

the full purpose of the contract and [was] so clearly within the contemplation of the

parties that they deemed it unnecessary to state the implied term expressly in their

contract. Id.at 845, 479 S.E.2d at 184.



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15

In the instant case, Plaintiffs have not alleged a contract with Narconon

International or ABLE. Thus, there is no contract into which the Court could even

imply terms. Additionally, Plaintiffs have not explained how the terms that they

allege should be implied into the non-existent contract are absolutely necessary . .

. to effectuate the intention of the parties. Id., 479 S.E.2d at 184. In fact,

Plaintiffs have not even articulated with any clarity what precise terms should be

implied. They have only listed representations that they allege all of the

Defendants/Appellees made. (App. Vol. 1, Doc. No. 1, Compl. 3, 7, 11, 14, 18,

111). To imply those non-existent representations into the agreement would run

directly counter to Plaintiffs express agreement that there [was] no warranty

express or implied with regard to the housing arrangement that the students were

responsible for making. (SeeApp. Vol. 1, Doc. No. 4, Ex. A, at 3).

In a final desperate attempt to save their deficient breach of contract claim,

Plaintiffs insist that ABLE and Narconon International breached an implied

covenant of good faith. Under Georgia law, there is no independent cause of

action for violation of the [implied covenant of good faith] apart from breach of an

express term of the contract. Morrell v. Wellstar Health Sys., Inc., 280 Ga. App.

1, 5-6, 633 S.E.2d 68, 72 (2006); accord Ameris Bank v. Alliance Inv. & Mgmt.

Co., 321 Ga. App. 228, 233, 739 S.E.2d 481, 486 (2013) (The implied covenant

modifies and becomes a part of the provisions of the contract, but the covenant



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16

cannot be breached apart from the contract provisions it modifies and therefore

cannot provide an independent basis for liability.). Given the lack of a breach of

contract, the District Court properly rejected that claim as well.

3. Plaintiffs Have No Claim for Unjust Enrichment Because

Plaintiffs did not Confer Any Benefit on ABLE or Narconon

International.

The District Court properly dismissed Plaintiffs claim for unjust

enrichment. Unjust enrichment is an equitable concept and applies when as a

matter of fact there is no legal contract. Morrell, 280 Ga. App. at 6-7, 633 S.E.2d

at 73;accord American Teleconferencing Servs., Ltd. v. Network Billing Sys., LLC,

293 Ga. App. 772, 777-78, 668 S.E.2d 259, 263 (2008) ([A]n unjust enrichment

theory does not lie where there is an express contract.). Additionally, an unjust

enrichment claim can only be brought by a plaintiff who directly conferred a

benefit on the defendant for which the plaintiff has not been compensated. See

Brown v. Cooper, 237 Ga. App. 348, 350-51, 514 S.E.2d 857, 860 (1999).

Plaintiffs have not alleged that they conferred a benefit directly upon either

ABLE or Narconon International, nor could they. Instead, Plaintiffs allege only

that they paid NNGA for services they received. The absence of any allegation

that any benefit was conferred directly upon ABLE or Narconon International is

fatal. (App. Vol. 1, Doc. No. 1, Compl. 4, 8, 12, 15, 19). Thus, for that

additional reason Plaintiffs unjust enrichment claim was properly dismissed.



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4. There is no Claim for Detrimental Reliance under Georgia Law,

and Plaintiffs Cannot Re-Plead that Claim in a Response Brief.

Count Four of the Complaint contained a claim for Detrimental Reliance.

(Id.at 122-25). In response to the motion to dismiss, Plaintiffs conceded that no

such claim exists and then purported to re-characterize the claim as one for

promissory estoppel. (App. Vol. 1, Doc. No. 14, at 15-16; App. Vol. 2, Doc. No.

15, at 15-16). In that response brief, Plaintiffs asked the District Court to grant

them an opportunity to amend their Complaint to re-plead that count without filing

a motion for leave to do so and without even explaining what allegations they

would add in an amended pleading to address the admitted flaws in the claim.

(Id.). As explained in Section C of this Brief, below, the District Court properly

denied Plaintiffs unsupported request for leave to amend.

Plaintiffs re-characterized claim also fails for the same reasons that its

breach of contract claim fails: Plaintiffs have failed to identify any specific

promise allegedly made by Narconon International or ABLE upon which they

relied to their detriment. The requisite elements of a claim for promissory estoppel

under Georgia law are:

(1) the defendant made a certain promise or promises; (2) thedefendant should have reasonably expected the plaintiff to rely on

such promise or promises; (3) plaintiff did, in fact, rely on such

promise or promises to his detriment; and (4) an injustice can be

avoided only by the enforcement of the promise, because the plaintiff

surrendered, forgoes, or rendered a valuable right.



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Reindel v. Mobile Content Network Co., 652 F. Supp. 2d 1278, 1290 (N.D. Ga.

2009) (citations and quotation marks omitted). Additionally, under Georgia law, it

usually is unreasonable to rely on a substantial promise that has not been reduced

to writing. Id. at 1291 (quoting Johnson v. University Health Servs., Inc., 161

F.3d 1334, 1340 (11th Cir. 1998)).

Plaintiffs failed first in their Complaint, then in their District Court brief

opposing the motions to dismiss, and now in their Brief filed with this Court to

articulate the facts supporting the elements of their purported claim for promissory

estoppel. For that reason alone the Court should affirm the District Courts ruling.

Additionally, because Plaintiffs have failed to point to a specific contract provision

or any other writing containing the unspecified promises they claim were breached,

the District Court correctly held that this claim fails as a matter of law.

5. Plaintiffs Fail to Even Mention Narconon International or ABLE

in their NegligencePer SeClaim.

Count Five of the Complaint for negligence per se does not even mention

Narconon International or ABLE and was properly dismissed. Even now,

Plaintiffs Brief submitted to this Court fails to articulate how their negligence per

se claim even applies to Narconon International and ABLE. Given that Plaintiffs

have not alleged, in either the District Court or this Court, any basis for how this

claim applies to Narconon International and ABLE, the District Courts ruling

should be affirmed. In accordance with Fed. R. App. P. 28(i), Narconon



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International and ABLE adopt by reference Section IV of Appellee Narconon of

Georgia, Inc.s Brief addressing any remaining issues surrounding Plaintiffs

negligenceper seclaim.

B. The District Court Properly Dismissed Plaintiffs Claims Sounding in

Common Law Fraud and Under Georgias RICO Statute.

Plaintiffs have failed to allege who made which alleged representation, how

each alleged representation was made, when it was made, and how each of them

relied upon it. Plaintiffs reliance upon scattershot fraud allegations involving five

separate plaintiffs aimed at four separate Defendants plainly fails to meet the

particularity requirements of Rule 9(b), and the District Court properly dismissed

the fraud based claims.

In order to satisfy the particularity requirement of Federal Rule of Civil

Procedure 9(b), Plaintiffs concede they must identify: (1) the precise statements or

misrepresentations made, (2) the time, place, and person responsible for the

statement, (3) the content and manner in which the statements misled Plaintiffs,

and (4) what Appellees gained by the alleged fraud. (See Pls. Br. at 16 [citing

Ambrosia Coal & Constr. Co. v. Pages Morales, 482 F.3d 1309, 1316-17 (11th

Cir. 2007)]). Because Plaintiffs failed to plead their claims with sufficient detail to

satisfy that heightened pleading requirement, the District Court properly dismissed

the RICO claim.



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1. Fraudulent Misrepresentation.

Nowhere in their Complaint do Plaintiffs allege a single specific

misrepresentation made by either Narconon International or ABLE. Instead,

Plaintiffs simply assert that all of the Defendants made all of the alleged

misrepresentations and that all of the Plaintiffs relied upon all of those alleged

misrepresentations. (App. Vol. 1, Doc. No. 1, Compl. 3, 7, 11, 15, 18, 111).

This Court has consistently and repeatedly held that a plaintiff may not casually

lump together its fraud allegations against multiple defendants in such a manner.

E.g., Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1381 (11th

Cir. 1997) ([I]n a case involving multiple defendants . . . the complaint should

inform each defendant of the nature of his alleged participation in the fraud.)

(quotingVicom, Inc. v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 777-78 (7th

Cir. 1994)). Plaintiffs blanket allegations that Defendants regularly claim

success rates of over 70%, (App. Vol. 1, Doc. No. 1, Compl. 75), Defendants

fraudulent [sic] mislead patients and their families, (id. 89), and Defendants

knowingly and willfully made false representations of material facts to Plaintiffs,

(id. 111), all lack the requisite level of specificity required as to each Defendant.

Plaintiffs attempt to excuse their scattershot fraud allegations by contending

that RTC, ABLE, and Narconon International controlled the time, manner, and

method of NNGAs operations. (Pls. Br. at 17-18). But those allegations are not



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contained in Plaintiffs count for fraud, and these allegations are not sufficient to

allege a claim sounding in fraud.3

Appellees should not be required to respond to

shotgun allegations and be forced to guess which asserted facts attend which of

Plaintiffs numerous claims. See Davis v. Coca-Cola Bottling Co., 516 F.3d 955,

979-80, n.54 (11th Cir. 2008).

Pretermitting the issue of whether Plaintiffs have sufficiently alleged an

alter ego or agency theory against these Appellees, Plaintiffs have still failed to

allege which Defendants made which allegedly-fraudulent statements. Narconon

International and ABLE are entitled to fair notice regarding their alleged role in

the claimed fraud. Brooks, 116 F.3d at 1381 (Because fair notice is [p]erhaps the

most basic consideration underlying Rule 9(b) . . . , the plaintiff who pleads fraud

3

Under Georgia law, a licensor or franchisor is allowed to control the time,manner, and method of its franchisees daily operations without the franchisee

becoming the franchisors agent. DaimlerChrysler Motors Co., LLC v. Clemente,

294 Ga. App. 38, 44-45, 668 S.E.2d 737, 745-46 (2008) ([A] franchisor may

protect its franchise and its trade name by setting standards governing its

franchisees operations, and these standards may be quite detailed, specific, and

strict. . . . Moreover, the fact that a franchise agreement authorizes periodic

inspections of the franchise and gives the franchisor the right to terminate the

agreement for noncompliance is not enough to prove an agency relationship.)

(quotingSchlotzskys, Inc. v. Hyde, 245 Ga. App. 888, 890, 538 S.E.2d 561, 563

(2000)) (citations omitted). ABLE licenses the Narconon name and marks toNarconon International which in turn licenses the name and marks to independent

local operations such as NNGA. (App. Vol. 1, Doc. No. 4, at 6). Thus, ABLE and

Narconon International can permissibly control the time, manner, and method of

NNGAs operations to protect the integrity of the Narconon marks without that

control giving rise to a valid claim of an agency relationship or of an alter ego

theory.



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must reasonably notify the defendants of their purported role in the scheme.)

(citations omitted). A mere assertion that all of the Defendants made all of the

alleged misrepresentations tells ABLE and Narconon International nothing about

their purported role in the alleged fraud.

Moreover, almost without exception, Plaintiffs have failed to allege

specifically how the alleged misrepresentations were communicated and how each

of them specifically relied on those alleged misrepresentations. The only specific

example that Plaintiffs provide is the alleged representation in an e-mail attached

to their Complaint that the program had a 70% success rate. But that e-mail, on its

face, was not delivered to any of the Plaintiffs, and Plaintiffs have failed to allege

how they relied on any statements in that e-mail to their detriment. (App. Vol. 1,

Doc. No. 1, Compl. Ex. B at 1-2). Thus, regardless of the source of the alleged

misrepresentation, the District Courts dismissal of Plaintiffs fraud claims was

proper.

The cases Plaintiffs cite in their Brief demonstrate their failure to satisfy

Rule 9(b)s particularity standard. For example, in United States ex rel.

Yannacopolous v. General Dynamics, 315 F. Supp. 2d 939 (N.D. Ill. 2004), the

district court found sufficient the plaintiffs fraud allegations that contained

specific dates regarding contract submissions and modifications, as well as

specific timeframes during which defendants submitted allegedly fraudulent



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communications. Id. at 945. In the present case, Plaintiffs have failed to provide

any dates for any of the alleged misrepresentations. Instead, Plaintiffs merely

insist that their allegations regarding the dates on which they each entered into

their contracts with NNGA satisfy the requirements of Rule 9(b). Reciting the date

on which Plaintiffs entered into an agreement with NNGA reveals nothing about

when and how the alleged misrepresentations were made or about who made those

alleged misrepresentations.

In Stires v. Carnival Corp., 243 F. Supp. 2d 1313, 1320 (M.D. Fla. 2002),

another case on which Plaintiffs rely, the district court explained that, because the

plaintiff had allege[d] specific misrepresentations and had also alleged where

the misrepresentations occurred, the plaintiff had sufficiently stated a fraud claim.

Plaintiffs fail to do either in their Complaint in this matter.

2. Plaintiffs Georgia RICO Claims Suffer the Same Defects as the

Fraudulent Misrepresentation Claims.

The District Court properly concluded that Plaintiffs Georgia RICO claims

failed for the same reasons as their fraudulent misrepresentation claims. To

establish a Georgia RICO claim, a plaintiff must demonstrate, among other things,

that their injuries flowed directly from one or more predicate acts. Maddox v.

Southern Engineering Co., 231 Ga. App. 802, 806, 500 S.E.2d 591, 594 (1998).

Plaintiffs assert five separate Georgia RICO counts based on the predicate acts of

Theft by Deception (Count Six), Mail and Wire Fraud (Count Seven), False



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Statements to a Government Agency (Count Eight), Credit Card Fraud (Count

Nine), and Identity Fraud (Count Ten). As explained further below, each of

those claims is subject to the heightened pleading standard of Rule 9(b), and the

District Court correctly held that Plaintiffs failed to satisfy that standard. See

Ambrosia Coal & Constr. Co. v. Pages Morales, 482 F.3d 1309, 1317 (11th Cir.

2007) (holding that RICO claims must allege (1) the precise statements,

documents or misrepresentations made; (2) the time andplace of and [the] person

responsiblefor the statement; (3) the contentand mannerin which the statements

misled the Plaintiffs; and (4) what the Defendants gained by the alleged fraud)

(emphasis added).

a. Theft by Deception and Mail and Wire Fraud.

Plaintiffs concede that their Georgia RICO claims based on the predicate

acts of theft by deception and mail and wire fraud are subject to the heightened

pleading requirements of Rule 9(b). (Pls. Br. at 19-20). Plaintiffs allegations in

support of those claims suffer from the very same deficiencies as the allegations

made in support of their fraudulent misrepresentation claim. Plaintiffs improperly

lump all of the Appellees together, asserting that allDefendants made allof the

misrepresentations underlying their theft by deception and mail and wire fraud

predicate acts. (App. Vol. 1, Doc. No. 1, Compl. 133-34, 141-42). See Brooks,

116 F.3d at 1381 ([I]n a case involving multiple defendants . . . the complaint



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should inform each defendant of the nature of his alleged participation in the

fraud.).

Additionally, Plaintiffs have failed to allege specifically how either

Narconon International or ABLE used the mail or wires to defraud Plaintiffs; the

Complaint is devoid of any detail regarding a single mailed or wired

communication that was allegedly misleading. See U.S. v. Ward, 486 F.3d 1212,

1221-22 (11th Cir. 2007) (explaining that the essential elements of both mail and

wire fraud are that a person (1) intentionally participate in a scheme or artifice to

defraud another of money or property and (2) uses or causes the use of the

mails or wires for the purpose of executing the scheme or artifice). These claims

fail on their face.

b. Credit Card Fraud and Identity Fraud.

Similarly, Plaintiffs do not dispute that their credit card fraud and identity

fraud-based RICO claims are subject to the particularity requirements of Rule

9(b).4

(Pls. Br. at 20). Once again, the allegations supporting those claims suffer

from the same defects as the allegations underlying Plaintiffs other fraud-based

claims. In support of their credit card fraud predicate act, Plaintiffs allege that

all Defendants, by and through their agents . . . opened several high interest credit

4Although they did not make this clarification in their Complaint, Plaintiffs

Georgia RICO claims based on credit card fraud and identity fraud are applicable

only to some, but not all of the Plaintiffs. (SeeApp. Vol. 1, Doc. No. 1, Compl.

4, 19; Pls. Br. at 21).



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cards in the name of [Narconon Georgias] patients and/or patients family

members, without their permission, and used those credit cards to pay for

[Narconon Georgias] fees but provide no further detail. (App. Vol. 1, Doc. No.

1, Compl. 159). The allegations supporting their count based on the predicate act

of identity fraud are identical, and thus, no more detailed. (Id. 167).

Accordingly, the District Court properly dismissed Plaintiffs claims based on

credit card and identity fraud.

c. False Statements to a Government Agency.

Plaintiffs incorrectly contend that their Georgia RICO claims based on the

predicate act of False Statements to a Government Agency are not subject to the

heightened pleading requirements of Rule 9(b). This Court has held that RICO

claims based on non-fraud predicate acts do not have to be pled with particularity

only whenthe same misrepresentations do not form the basis of both the fraud and

non-fraud claims. Liquidation Commn of Banco Intercontinental, S.A. v. Renta,

530 F.3d 1339, 1355-56 (11th Cir. 2008).

In their allegations supporting their count for fraudulent misrepresentation,

Plaintiffs allege that all Defendants manipulated the law and provided false

information to regulators in order to avoid meaningful oversight, while continuing

to represent to potential patients that [Narconon Georgia] was fully compliant with

all applicable laws and regulations. (App. Vol. 1, Doc. No. 1, Compl. 111.b.).



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In the count of their Complaint asserting a violation of Georgia RICO based on

false statements to a government agency, Plaintiffs claim that all Defendants

knowingly and willfully falsified or concealed alleged facts regarding Narconon

Georgias operations and drug treatment program. (Id. 150). Because both

Plaintiffs fraud claims and RICO claims are based on the same alleged

misrepresentations, the same heightened pleading standard applies to both claims.

Plaintiffs cannot avoid the heightened pleading standards for fraud claims by

simply dressing up their fraud allegations as some other cause of action. Thus, for

all of the reasons described above, the District Court properly dismissed Plaintiffs

Georgia RICO claim based on alleged false statements to a government agency.

Moreover, even a cursory review of Plaintiffs allegations reveals that this

portion of the RICO claim sounds in fraud. Plaintiffs allege that all of the

Defendants knowingly and willfully falsified or concealed material allegations

from the State of Georgia. (Id. 150). Plaintiffs also allege that Georgia

regulatory agencies relied on Defendants false statements when licensing

[Narconon Georgias] program. (Id. 151). Given the false statements that are

clearly the foundation of this claim, it sounds in fraud.

Finally, as it relates to this component of the RICO claim, Plaintiffs failed to

plead how their purported injury was directly caused by ABLE or Narconon

International. Proximate or direct harm is a necessary element of a Georgia RICO



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28

claim based on false statements to a government agency. Federal courts should

scrutinize proximate causation at the pleading stage and carefully evaluate whether

the injury alleged was proximately caused by the claimed predicate act. See G &

G TIC, LLC v. Ala. Controls, Inc., No. 4:07-CV-162, 2008 WL 4457876, at *6

(M.D. Ga. Sept. 29, 2008) affd324 F. Appx 795 (11th Cir. 2009). In evaluating

proximate cause, the courts must ask whether the alleged violation led directly to

the plaintiffs injuries. Id. at *6 (quoting Anza v. Ideal Steel Supply Corp., 547

U.S. 451, 461 (2006)).

Plaintiffs alleged injury in this matter is that almost none of the patients

who complete Narconons unscientific and dangerous program will have achieved

sobriety or sufficient tools for managing their addictions. (App. Vol. 1, Doc. No.

1, Compl. 106). Plaintiffs have completely failed to explain how allegedly false

statements to government entities have any connection to the efficacy of NNGAs

treatment program. (See id. 150). Accordingly, for this additional reason,

Plaintiffs Georgia RICO claim based on alleged false statements to government

agencies was properly dismissed.

C. The District Court Properly Acted Within Its Discretion When It

Denied Plaintiffs Unsupported Request for Leave to Amend TheirComplaint.

Plaintiffs complain that the District Court erroneously failed to permit an

amended pleading. Because Plaintiffs never properly requested leave to amend,



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the District Court was permitted to reject Plaintiffs informal request on procedural

grounds alone. But even more telling is that Plaintiffs cannot demonstrate, even on

appeal, how a second bite at the apple would have cured their defective pleadings.

This Court applies an abuse of discretion standard to a district courts

decision to deny leave to amend. See Long v. Satz, 181 F.3d 1275, 1278 (11th Cir.

1999). In the present case, the District Court did not abuse its discretion when it

properly denied Plaintiffs request for leave to amend their complaint, made for the

first and only time in their brief in response to Appellees motions to dismiss, for

the simple reason that Plaintiffs neither submitted a proposed amended pleading

nor did they properly seek leave to amend.

Filing a motion is the proper method to request leave to amend a complaint.

. . . A motion for leave to amend should either set forth the substance of the

proposed amendment or attach a copy of the proposed amendment. Long, 181

F.3d at 1279. Accordingly, when a plaintiff submits nothing more than a bare

request in a response brief for permission to amend its complaint in an unspecified

manner, the district courts denial of that request is proper. U.S. ex rel. Atkins v.

McInteer, 470 F.3d 1350, 1362 (11th Cir. 2006) (affirming district courts

dismissal of the plaintiffs complaint with prejudice, even though the plaintiff had

requested leave to amend in its brief opposing a motion to dismiss, because the

plaintiff had not submitted a proposed amended complaint or set forth the



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30

allegations that such an amendment would contain); see also Detris v. Coats, 523

Fed. Appx 612, 618 (11th Cir. 2013) (the district court properly denied the

plaintiffs request, made in response to a motion to dismiss, that any dismissal be

without prejudice).

Plaintiffs requested the opportunity to amend their complaint in their

response briefs below, but they did not attach to their briefs a proposed amendment

or otherwise set forth the allegations that a proposed amended complaint would

contain. (See, e.g., App. Vol. 1, Doc. No. 14, at 24-25; App. Vol. 2, Doc. No. 15,

at 25). Without knowing what a proposed amended complaint would allege, the

District Court was left to speculate whether the proposed amendment would have

cured the pleading deficiencies contained in Plaintiffs original complaint.

Moreover, allowing Plaintiffs to amend their complaint now would, in

effect, provide them a second bite at the appellate apple, allowing them to seek

review by this Court again if, after remand, they are permitted to file an amended

complaint that is also subject to dismissal. This Court actively seeks to avoid

appellate review in such a piecemeal fashion. See Wagner v. Daewoo Heavy

Indus. Am. Corp., 314 F.3d 541, 543-44 (11th Cir. 2002) (en banc) (quoting

PradoSteiman ex rel. Prado v. Bush, 221 F.3d 1266, 1276 (11th Cir. 2000)

(Piecemeal appellate review has a deleterious effect on judicial administration. It

increases the workload of the appellate courts, to the detriment of litigants and



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31

judges. . . . [I]t creates opportunities for abuse by litigants seeking to delay

resolution of a case by raising with the appellate court objections to the scope of an

order that should have been raised first with the district court itself.))

Plaintiffs incorrectly assert that merely because this action was removed

from state court they were somehow deprived of the opportunity to amend their

complaint. Plaintiffs had ample opportunity, without having to seek leave of court,

to amend their complaint had they deemed it appropriate to do so. Federal Rule of

Civil Procedure 15 afforded Plaintiffs the right to amend their complaint as a

matter of course within twenty-one days after service of Appellees motions under

Rule 12(b). See FED. R. CIV. P. 15(a)(1)(B). Plaintiffs elected, for their own

strategic reasons, to rely upon their original complaint, even though Appellees had

articulated the various pleading defects contained therein.

Plaintiffs cannot now fairly complain about the strategic decision they made

to stand on their original pleading in the face of Appellees motions. Appellees

carefully explained the deficiencies in Plaintiffs pleading. Plaintiffs were fully

informed, in advance of the deadline to amend, about the pleading defects that the

District Court ultimately cited in its order dismissing the Complaint. Given

Plaintiffs election to stand on their original pleading, the District Court was

entitled to assume that the flaws in the Complaint could not be corrected.



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Accordingly, the District Court acted well within its discretion when it dismissed

the complaint with prejudice.

Plaintiffs misplace their reliance upon Bryant v. Dupree, 252 F.3d 1161

(11th Cir. 2001). InBryant, a panel of this Court citedBank v. Pitt, 928 F.2d 1108

(11th Cir. 1991), in finding that the district court erred when it refused to grant the

plaintiffs request for leave to amend made in their response to a motion to dismiss.

252 F.3d at 1163. In a lateren bancopinion, however, this Court expressly held:

[W]e overrule Bankand substitute the following rule: A district courtis not required to grant a plaintiff leave to amend his complaint sua

spontewhen the plaintiff, who is represented by counsel, never filed a

motion to amend nor requested leave to amend before the district

court.

See Wagner, 314 F.3d at 542.5

Because the authority cited in Bryant has been

overruled, the panels decision in Bryanthas been effectively overruled by the en

bancdecision inWagner.

Bryant is also factually distinguishable from the case at bar. The plaintiffs

in Bryantdid not have prior notice of the grounds upon which the district court

ultimately dismissed their complaint. Indeed, the district court had previously

entered an order stating that the Plaintiffs complaint satisfied the heightened

5As explained above, in order to properly request leave to amend, Plaintiffs were

required to file a motion seeking leave and to provide the District Court with a

copy of the proposed amendment or set forth the allegations that such an

amendment would contain. Atkins, 470 F.3d at 1362. Plaintiffs did neither.



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33

pleading requirements at issue in that case. Bryant, 252 F.3d at 1164. In contrast,

the briefs submitted by Appellees in support of their motions to dismiss carefully

identified and explained the pleading defects attendant to each of Plaintiffs claims.

Thus, unlike the plaintiffs inBryant, Plaintiffs were informed of the defects in their

Complaint but decided to stand by their pleadings anyway. Bryantsimply does not

support Plaintiffs argument.6

In summary, Plaintiffs could have amended their Complaint as a matter of

course, but they elected not to do so. The District Court acted well within its

discretion, and consistent with the direction of this Court, when it refused to permit

Plaintiffs to file an unspecified amendment for which leave was never properly

sought.

Conclusion

For the foregoing reasons, the Court should affirm the District Courts

dismissal of all of Plaintiffs claims against Narconon International and ABLE.

The Court should also affirm the District Courts denial of Plaintiffs unsupported

request for leave to amend their deficient Complaint.

6In the two other cases Plaintiffs cite in support of their argument, the plaintiffs

had actually filed a separate motion seeking leave to amend. See Foman v. Davis,

371 U.S. 178, 179 (1962); Corsello v. Lincare, Inc., 428 F.3d 1008, 1011 (11th

Cir. 2005). Those cases are, therefore, also easily distinguishable.



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This 16th day of June, 2014.

By: /s/Daniel F. Diffley

Cari K. Dawson


Daniel F. Diffley


David B. Carpenter


Alston & Bird LLP

1201 W. Peachtree Street

Atlanta, GA 30309-3424

Telephone: 404-881-7000

Facsimile: [email protected]

[email protected]

[email protected]

Attorneys for Appellees Narconon

International and Association for

Better Living and Education

International

Matthew S. Coles


Thomas M. Barton


Aaron P.M. Tady


Coles Barton LLP

150 South Perry Street, Suite 100

Lawrenceville, Georgia 30046

Telephone: 770-995-5552

Facsimile: [email protected]

[email protected]

[email protected]



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Certificate of Compliance

1. This brief complies with the type-volume limitation of Federal Rule of

Appellate Procedure 32(a)(7)(B) because it contains 8,054 words, excluding the

portions of the brief exempted by Federal Rule of Appellate Procedure

32(a)(7)(B)(iii) and 11th Circuit Rule 32-4.

2. This brief complies with the type-face and style requirements of

Federal Rule of Appellate Procedure 32(a)(5) and (6) because it has been prepared

in a proportionally-spaced type-face using Word 2013 in 14-point Times New

Roman font.

This 16th day of June, 2014.

/s/Daniel F. Diffley

Attorney for Appellees Narconon

International and Association forBetter Living and Education

International



49/49

Certificate of Service

This is to certify that on June 16, 2014, the foregoing brief was served upon

all parties to this matter via the CM/ECF system. I further certify that I have

served seven (7) paper copies of the foregoing brief to the Clerk of Court for filing

in accordance with the Courts local rules.

/s/Daniel F. Diffley

Attorney for Appellees Narconon

International and Association for

Better Living and EducationInternational


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Burgess et al v. Narconon: NN Int/ABLE Appeal Brief

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