                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 12-3077
                       ___________________________

Farm Credit Services of America, FLCA, a federally chartered instrumentality of
 the United States; Farm Credit Services of America, PCA, a federally chartered
                       instrumentality of the United States

                            lllllllllllllllllllll Plaintiffs

                                          v.

 Brad Haun; Michelle Haun; Cecil D. Haun; Carole L. Haun; Joseph H. Page;
      Frances K. Page; Carol Knisley; Shirley Knisley, each Individuals

                          lllllllllllllllllllll Defendants

                            ------------------------------

                       Joseph H. Page; Frances K. Page

                lllllllllllllllllllllCounter Claimants - Appellants

                                          v.

Farm Credit Services of America, FLCA, a federally chartered instrumentality of
 the United States; Farm Credit Services of America, PCA, a federally chartered
                       instrumentality of the United States

                lllllllllllllllllllllCounter Defendants - Appellees

                            ------------------------------

  Brad Haun; Cecil D. Haun; Shirley Knisley; Michelle Haun; Carole L. Haun

                       lllllllllllllllllllllCounter Claimants
                                         v.

Farm Credit Services of America, FLCA, a federally chartered instrumentality of
 the United States; Farm Credit Services of America, PCA, a federally chartered
                       instrumentality of the United States

                      lllllllllllllllllllllCounter Defendants

                      ___________________________

                              No. 12-3078
                      ___________________________

Farm Credit Services of America, FLCA, a federally chartered instrumentality of
 the United States; Farm Credit Services of America, PCA, a federally chartered
                       instrumentality of the United States

                           lllllllllllllllllllll Plaintiffs

                                         v.

 Brad Haun; Michelle Haun; Cecil D. Haun; Carole L. Haun; Joseph H. Page;
      Frances K. Page; Carol Knisley; Shirley Knisley, each Individuals

                          lllllllllllllllllllll Defendants

                           ------------------------------

                       Joseph H. Page; Frances K. Page

                      lllllllllllllllllllllCounter Claimants

                                         v.

Farm Credit Services of America, FLCA, a federally chartered instrumentality of
 the United States; Farm Credit Services of America, PCA, a federally chartered
                       instrumentality of the United States

                      lllllllllllllllllllllCounter Defendants

                                         -2-
                              ------------------------------

   Brad Haun; Cecil D. Haun; Shirley Knisley; Michelle Haun; Carole L. Haun;
                                 Carol Knisley

                   lllllllllllllllllllllCounter Claimants - Appellants

                                           v.

 Farm Credit Services of America, FLCA, a federally chartered instrumentality of
  the United States; Farm Credit Services of America, PCA, a federally chartered
                        instrumentality of the United States

                  lllllllllllllllllllllCounter Defendants - Appellees
                           ___________________________


                                    ____________

                      Appeal from United States District Court
                       for the District of Nebraska - Omaha
                                  ____________

                              Submitted: May 15, 2013
                               Filed: August 20, 2013
                                   ____________

Before RILEY, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
                              ____________

MELLOY, Circuit Judge.

      Brad Haun, Michelle Haun, Carole Haun, Cecil Haun, Carol Knisley, Shirley
Knisley, Joseph Page, and Frances Page (collectively, "appellants") appeal the district




                                           -3-
court's1 dismissal of their counterclaims against Farm Credit Services of America,
FLCA and Farm Credit Services of America, PCA (together, "Farm Credit"). We
affirm.

                                         I.

      Appellants are owners and/or managers of Big Drive Cattle, LLC ("Big
Drive"), a Nebraska limited liability corporation. In 2010, Big Drive executed
various promissory notes and loan agreements ("the notes" and "the loan
agreements") with Farm Credit. Pursuant to the loan agreements and/or the notes,
Farm Credit reserved the right to inspect the loan collateral, which included cattle
herds. Appellants were not party to the loan agreements or the notes in their
individual capacities. Separate from the loan agreements and the notes, appellants
personally guaranteed Big Drive's obligations to Farm Credit.

      At some point after appellants signed the guarantees, appellants and Farm
Credit discovered some of the cattle owned by Big Drive were missing. At oral
argument, the parties acknowledged that an employee of Big Drive who had been
responsible for keeping cattle counts had stolen some of the cattle. The employee had
made inaccurate reports in order to cover his thefts.

      When the notes matured and all amounts came due, Big Drive failed to pay.
Big Drive subsequently filed for bankruptcy. Farm Credit then made demand on
appellants for payment of the outstanding amounts and, when appellants refused,
Farm Credit filed suit against appellants, seeking to enforce appellants' guarantees.




      1
        The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.

                                         -4-
       Appellants filed counterclaims against Farm Credit for negligence, negligent
misrepresentations, and breach of the duty of good faith and fair dealing. In support
of their counterclaims, appellants alleged Farm Credit negligently inspected the loan
collateral and then provided appellants with inaccurate reports on the state of the loan
collateral. Appellants also alleged Farm Credit ignored an "express directive" to
remove a particular employee from Big Drive's line of credit.2 Farm Credit filed a
motion to dismiss appellants' counterclaims for failure to state claims for relief. The
district court granted Farm Credit's motion, dismissing appellants' counterclaims
without prejudice, and granted appellants leave to file amended counterclaims. The
district court ruled, in part, that it was "unable to discern whether the alleged duties
[asserted in appellants' counterclaims] are believed to have arisen out of the loan
agreements, the guarantees, or some other source."

       Appellants then filed amended counterclaims asserting the same causes of
action, and Farm Credit moved to dismiss appellants' amended counterclaims with
prejudice. The district court granted Farm Credit's motion. The district court
concluded that appellants' amended counterclaim for negligence failed to specify the
source of Farm Credit's alleged duty and lacked specific facts regarding Farm Credit's
alleged breaches; that appellants' amended counterclaim for negligent
misrepresentation failed to meet the particularity requirement of Federal Rule of Civil
Procedure 9(b) for fraud claims; and that appellants' amended counterclaim for breach
of the duty of good faith and fair dealing failed to include sufficient facts tying a



      2
         It is not entirely clear from appellants' pleadings whether the line of credit to
which appellants refer was extended to appellants themselves or to Big Drive.
However, because appellants refer to Farm Credit's alleged duty to "follow any and
all directives of [Big Drive] . . . regarding removal of [employees] from the line of
credit and/or loans," we assume the line of credit was extended to Big Drive, not to
appellants. (Emphasis added.) Our analysis would not change even if the line of
credit was in fact extended to appellants.

                                           -5-
specific contractual provision to Farm Credit's alleged breach and failed to offer
anything other than a boilerplate claim for damages.

       Following the district court's dismissal of their counterclaims with prejudice,
appellants filed this timely appeal. Only appellants' counterclaims are before us.
Farm Credit sought and was granted dismissal of its claims against appellants after
it separately received full payment of the amounts due under the notes and the loan
agreements.3

                                           II.

      We review a district court's order granting a motion to dismiss de novo,
accepting the allegations in the complaint as true and drawing all reasonable
inferences in favor of the nonmoving party. Young v. City of St. Charles, Mo., 244
F.3d 623, 627 (8th Cir. 2001). "To survive a motion to dismiss, a complaint . . . must
contain 'enough facts to state a claim to relief that is plausible on its face.'" Bradley
Timberland Res. v. Bradley Lumber Co., 712 F.3d 401, 406 (8th Cir. 2013) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "The plausibility standard


      3
          Farm Credit received payment in the course of Big Drive's bankruptcy
proceedings. When Farm Credit moved to dismiss its federal district court claims
against appellants without prejudice, appellants objected, arguing that because Farm
Credit had been paid in full, Farm Credit's claims against appellants should be
dismissed with prejudice. Farm Credit argued it wished to preserve claims for
attorneys' fees and costs. The district court dismissed Farm Credit's claims without
prejudice, and appellants do not raise that dismissal on appeal. Additionally, the
district court denied appellants a second opportunity to amend their counterclaims.
Appellants do not raise that denial on appeal. Therefore, we consider the request to
amend abandoned. See Freitas v. Wells Fargo Home Mortg., Inc., 703 F.3d 436, 438
n.3 (8th Cir. 2013) ("A party's failure to raise or discuss an issue in his brief is to be
deemed an abandonment of that issue." (quoting Jasperson v. Purolator Courier Corp.,
765 F.2d 736, 740 (8th Cir. 1985))).

                                           -6-
requires a plaintiff to 'plead[ ] factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.'" Id.
(alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
"'[C]onclusory statements' and 'naked assertion[s] devoid of further factual
enhancement' are insufficient." Retro Television Network, Inc. v. Luken Commc'ns,
LLC, 696 F.3d 766, 768 (8th Cir. 2012) (alterations in original) (quoting Iqbal, 556
U.S. at 678). We may affirm the district court's ruling "on any ground supported by
the record." Christiansen v. West Branch Cmty. Sch. Dist., 674 F.3d 927, 934 (8th
Cir. 2012) (quoting Wycoff v. Menke, 773 F.2d 983, 986 (8th Cir. 1985)).

        Before moving to our analysis, we address several of appellants' allegations.
First, in their amended counterclaims appellants state that "Farm Credit undertook a
duty related to the loans and guarantees . . . of ensuring that certain counts regarding
cattle and inventory were conducted on a monthly basis" and that "Farm Credit's
duties arise from . . . the promissory note, restructuring agreement, and guarantees."4
(Emphases added.) But as appellants acknowledged at oral argument, Farm Credit
had no contractual duty to provide appellants with accurate reports on the state of the
loan collateral. Therefore, appellants cannot rely on the loan agreements, the notes,
the guarantees, or any other contracts for the source of the legal duty of accurate
reporting they allege Farm Credit owed to them.

      Second, appellants' allegation that Farm Credit ignored an "express directive"
to remove a particular employee from Big Drive's line of credit is not relevant to their
amended counterclaims. Assuming appellants have standing in this case to make a




      4
       We take these quotes from the amended counterclaims filed by the Pages.
The amended counterclaims filed separately by the Hauns and Knisleys contain
substantially similar language.

                                          -7-
claim based on Farm Credit's alleged failure to follow the "express directive,"5 Farm
Credit's duty to follow such a directive would be a contractual duty arising from the
guarantees, the notes, the loan agreements, or some other contract. In other words,
if appellants have a claim against Farm Credit based on Farm Credit's alleged failure
to follow the "express directive," that claim is a contract claim, not a tort claim, and
at oral argument appellants clearly stated that their counterclaims are exclusively tort
claims.

      We now address appellants' three amended counterclaims, all of which arise
under Nebraska law.

A. Negligence and Negligent Misrepresentation

       Appellants' first amended counterclaim is for negligence. "In order to recover
in a negligence action, a plaintiff must show a legal duty owed by the defendant to
the plaintiff, a breach of such duty, causation, and damages." A.W. v. Lancaster
Cnty. Sch. Dist. 0001, 784 N.W.2d 907, 913 (Neb. 2010). The Nebraska Supreme
Court has explained:

      [T]he threshold inquiry in any negligence action is whether the
      defendant owed the plaintiff a duty. A "duty" is an obligation, to which
      the law gives recognition and effect, to conform to a particular standard
      of conduct toward another. If there is no duty owed, there can be no
      negligence.

Durre v. Wilkinson Dev., Inc., 830 N.W.2d 72, 80 (Neb. 2013) (citations omitted).
Thus, in order to state a negligence claim, appellants must plead facts sufficient for



      5
        If the line of credit was extended to Big Drive, claims relating to the line of
credit may belong to Big Drive rather than appellants.

                                          -8-
us to reasonably infer Farm Credit had a legal duty to accurately report to appellants
on the state of the loan collateral.

       Appellants concede Farm Credit had no contractual duty to accurately report
to them the state of the loan collateral. Instead, appellants simply allege Farm Credit
"undertook" a duty to provide accurate reports. But appellants do not point to any
Nebraska case or indeed any case at all suggesting that a lender undertakes any kind
of duty flowing to a guarantor when the lender exercises its right to inspect loan
collateral. Nor do appellants plead any facts showing Farm Credit undertook such a
duty. Appellants state only that Farm Credit negligently inspected the loan collateral
and then provided inaccurate reports.

       Because appellants themselves stated at oral argument that no Nebraska court
or statute has recognized the kind of lender duty they allege Farm Credit breached,
this is not a case where "[c]ommon sense and judicial experience counsel that
pleading this issue does not require great detail." Hamilton v. Palm, 621 F.3d 816,
819 (8th Cir. 2010). Appellants must provide something beyond their "naked
assertion" that Farm Credit undertook a previously unrecognized legal duty. See
Twombly, 550 U.S. at 557. In the absence of any legal authority or supporting facts,
appellants have not pleaded any plausible duty requiring Farm Credit to provide
appellants with accurate reports on the loan collateral. Thus, appellants fail to state
a claim for negligence.

B. Negligent Misrepresentation

       Appellants' second amended counterclaim is for negligent misrepresentation.
Negligent misrepresentation is "a subspecies of fraud," Farr v. Designer Phosphate
& Premix Int'l., Inc., 570 N.W.2d 320, 326 (Neb. 1997), and "a party must state with
particularity the circumstances constituting fraud," Fed. R. Civ. P. 9(b). Under the
law of negligent misrepresentation, "one who, in a transaction in which he has a

                                         -9-
pecuniary interest, supplies false information for the guidance of others . . . is subject
to liability for pecuniary loss caused by justifiable reliance upon the information, if
he fails to exercise reasonable care or competence in obtaining or communicating the
information." Nelson v. Wardyn, 820 N.W.2d 82, 87 (Neb. 2012). "In claims of
fraudulent or negligent misrepresentation, the supplier of false information must have
intended that the user of the information would be influenced by the information and
rely on it. But in a case of negligent misrepresentation, the defendant need not know
the statement is false." Lucky 7, L.L.C. v. THT Realty, L.L.C., 775 N.W.2d 671, 675
(Neb. 2009) (footnote omitted). Thus, although appellants need not plead that Farm
Credit knew the alleged misrepresentations were false, they must plead that Farm
Credit intended for appellants to rely on the alleged misrepresentations.

       Even if we determined, which we do not, that appellants stated the
circumstances surrounding Farm Credit's alleged misrepresentations with the required
particularity, appellants' second amended counterclaim would fail because appellants
do not plead the element of intent. Neither the amended counterclaim filed by the
Pages nor the amended counterclaim filed by the Hauns and Knisleys states that Farm
Credit made misrepresentations with the intent that appellants would rely on the
misrepresentations. On this ground alone, appellants' amended counterclaim for
negligent misrepresentation fails to state a claim for relief.

C. Breach of Duty of Good Faith and Fair Dealing

       Appellants' third and final amended counterclaim is for breach of the duty of
good faith and fair dealing. The duty or covenant of good faith and fair dealing
"exists in every contract." Spanish Oaks, Inc. v. Hy-Vee, Inc., 655 N.W.2d 390, 400
(Neb. 2003). "A violation of the covenant of good faith and fair dealing occurs only
when a party violates, nullifies, or significantly impairs any benefit of the contract."
RSUI Indem. Co. v. Bacon, 810 N.W.2d 666, 674 (Neb. 2011). As we note above,
appellants asserted that all of their counterclaims, including this final claim, are tort

                                          -10-
claims. Tort claims require proof of damages.6 See, e.g., Henriksen v. Gleason, 643
N.W.2d 652, 657 (Neb. 2002) ("[T]ort actions . . . protect a plaintiff's interest or right
to be free from another's conduct which causes damage or loss . . . .").

       Even assuming appellants otherwise properly raised their third counterclaim
and properly pleaded its other elements, we agree with the district court that
appellants fail to plead sufficient specific facts to establish damages arising from
Farm Credit's alleged breach of the duty of good faith and fair dealing. Indeed,
appellants' counterclaims offer no facts at all in support of their conclusory statement
that "[a]s a direct and proximate result of Farm Credit's foregoing breaches,
[appellants] were damaged." Moreover, appellants do not dispute Farm Credit's
statement that the amounts due on the notes and under the loan agreements have been
paid in full, which presumably discharged appellants' liability under the guarantees.
Thus, based on our "judicial experience and common sense," we see no plausible
source of appellants' alleged damages.7 Iqbal, 556 U.S. at 679. Without facts to
support a plausible claim for damages, appellants fail to state a claim based on a
breach of the duty of good faith and fair dealing. See id.



      6
        Some Nebraska authority suggests breach of the implied duty of good faith
and fair dealing is a contract claim, see Cimino v. FirsTier Bank, N.A., 530 N.W.2d
606, 609 (Neb. 1995) (breach of good faith and fair dealing sounds in contract), and
breach of an express duty of good faith and fair dealing is obviously a contract claim.
For purposes of our holding, whether appellants' third counterclaim is a tort claim or
a contract claim is irrelevant, because breach of contract claims also require proof of
damages. See, e..g., Fast Ball Sports, LLC v. Metro. Entm't & Convention Auth., No.
A-12-425, 2013 WL 3328305, at *5 (Neb. Ct. App. July 2, 2013) (recovery for breach
of contract requires proof defendant "caused the plaintiff damage").
      7
        By granting Farm Credit's motion to dismiss its claims against appellants
without prejudice, the district court preserved the possibility that Farm Credit may
seek attorneys' fees from appellants in the future. However, appellants do not argue
that Farm Credit has actually made such a claim.

                                          -11-
                                      III.

      For the reasons stated above, we affirm the district court's dismissal of
appellants' claims.
                     ______________________________




                                     -12-
