                                                     [ DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                                FILED
                       ________________________        U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                         SEPTEMBER 24, 2010
                             No. 10-12135
                          Non-Argument Panel                  JOHN LEY
                                                               CLERK
                       ________________________

                 D.C. Docket No. 1:09-cv-00176-CAP


ARIESO, INC.,
                                                     Plaintiff-Counter-
                                                     Defendant-Appellee,

                                  versus

MARYAM RHAMANI,

                                                     Defendant-Counter-
                                                     Claimant-Appellant,
SHIRIN DEHGHAN,
                                                     Counter-Defendant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________
                           (September 24, 2010)

Before BARKETT, HULL and HILL, Circuit Judges.
PER CURIAM:

         Arieso, Inc. and Shirin Dehghan (“Arieso” collectively) brought this action

to recover payments made to defendant, Maryam Rahmani, which she was

obligated to return in the event she terminated her employment with Arieso during

the initial two-year period, which she did. Rahmani counterclaimed for fraud,

claiming that she was fraudulently induced to accept employment with Arieso and

that Arieso’s misrepresentations constituted constructive discharge such that she is

not obligated to repay the payments made to her. The parties filed cross-motions

for summary judgment.

         The district court granted judgment to Arieso on Rahmani’s counterclaims,

and dismissed Rahmani’s motion for summary judgment as moot. Rahmani

appeals. Arieso has filed a motion for damages and costs pursuant to Fed. R. App.

P. 38.

         The district court granted Arieso summary judgment on Rahmani’s

counterclaims on the ground that Rahmani’s fraud claim regarding her

employment with Arieso fails as a matter of law because of the merger clause in

the agreement. Under Georgia law, if a contract contains a merger clause that

specifically bars reliance on any representations not set forth in the contract, the

party claiming fraud is barred from reliance on any other representations.

                                           2
Reichman v. Southern Ear, Nose & Throat Surgeons, P.C.,. 598 S.E.2d 12, 16 (Ga.

Ct. App. 2004) (“If the contract has a merger clause and the party has affirmed the

contract, the merger clause generally precludes any fraud action for oral

misrepresentations not included in the agreement”). Furthermore, if the party

claiming fraud does not seek to rescind the contract and to restore anything of

value obtained thereunder, the merger clause in the contract is determinative.

Marrale v. Gwinnett Place Ford, 609 S.E.2d 659, 662 (Ga. Ct. App. 2005).

      In this case, Rahmani read and signed an agreement with Arieso that

contained a merger clause specifically disclaiming any vested rights to pay or

benefits – claims she now makes based upon representations she asserts were

made to her outside the agreement. Exclusion of such claims was the very purpose

of the agreement. Furthermore, it is undisputed that she has never sought to

rescind this agreement or to return the payments subsequently made to her under

the agreement.

      Since it is undisputed that Rahmani read and signed the agreement and that

she never sought to rescind it or return the payments made to her, the district court

held that she failed to establish that there are any triable material facts as to

whether she justifiably relied upon any material misrepresentations by Arieso.

Therefore, the district court held that the merger clause barred her fraud claim as a

                                            3
matter of law. We find no error in this conclusion.

      As to Arieso’s motion for sanctions, we conclude that it is not meritorious.

Although we agree with Arieso that much of Rahmani’s appellate argument is

directed at irrelevant issues, she does argue that the district court erred in its

application of the merger clause and that under Georgia law she is not always

required to seek to rescind the contract. While we find no merit to her arguments,

we cannot conclude that they are totally frivolous.

      Accordingly, the judgment of the district court is due to be affirmed and the

motion for sanctions to be denied.

      AFFIRMED. MOTION FOR SANCTIONS DENIED.




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