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                                                                                [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 16-11663
                              ________________________

                         D.C. Docket No. 1:14-cv-03006-LMM


ANDREW FELDMAN,

                                                         Plaintiff - Appellant,

                                            versus


AMERICAN DAWN, INC.,
VYTO TOZER,
PAUL RASBAND,

                                                         Defendants - Appellees.

                              ________________________

                     Appeals from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                      (March 3, 2017)

Before WILLIAM PRYOR, JORDAN, and BALDOCK, * Circuit Judges.

WILLIAM PRYOR, Circuit Judge:


*
 Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
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      The main question presented by this appeal is whether an employee has

antitrust standing to challenge a conspiracy directed at his employer because the

alleged conspiracy caused the employee’s termination. We must also decide

whether the employee pleaded claims of racketeering, tortious interference, civil

conspiracy, negligent misrepresentation, and fraud. American Dawn, Inc., a

leading manufacturer of restaurant linens, fired Andrew Feldman, a restaurant

linen salesman, for participating in a fraudulent scheme against ALSCO, a

company that sells restaurant linens. Feldman later found employment with Baltic

Linen Company, a competitor of American Dawn. After Feldman joined Baltic,

Vyto Tozer, a sales manager at American Dawn, and Paul Rasband, a consultant

for ALSCO, allegedly conspired to freeze Baltic out of the restaurant linens

market. Feldman’s job at Baltic was collateral damage of the alleged conspiracy,

and he filed a complaint against American Dawn, Tozer, and Rasband that alleges

violation of the antitrust laws, 15 U.S.C. § 1 et seq., and several other civil claims,

which the district court dismissed. Because Feldman lacks antitrust standing to

challenge a conspiracy directed at Baltic and his complaint fails to state any other

claim, we affirm.

                               I.     BACKGROUND

      According to his complaint, Andrew Feldman worked for fourteen years as a

regional sales manager for American Dawn, Inc., a company that manufactures and


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sells textiles throughout the United States. Feldman was a leading salesman to

ALSCO, a company that sells linens to restaurants, and one of the largest clients of

American Dawn. Feldman’s primary contact at ALSCO was a consultant named

Paul Rasband. Feldman’s supervisor at American Dawn was Vyto Tozer. Tozer

and Rasband were personal friends.

      American Dawn fired Feldman in 2011 for his participation in a deferred

billing scheme. Under this practice, ALSCO ordered products from American

Dawn, which shipped the products, and American Dawn billed ALSCO for the

products at a later date. American Dawn used deferred billing to carry over its

revenues from one fiscal year to the next and to hide its shipment of substandard

goods to ALSCO. Employees of American Dawn deferred the bills of about thirty

percent of its accounts with ALSCO. An internal audit of ALSCO revealed the

deferred billing scheme, which prompted ALSCO to open an investigation. The

investigation uncovered an email sent to Feldman about the deferred billing of an

American Dawn account. When ALSCO confronted American Dawn with this

evidence, American Dawn blamed Feldman and fired him.

      Although Feldman admitted in his complaint that he participated in the

deferred billing scheme, he alleged that American Dawn fired him as

“punishment” for another questionable practice of employees of American

Dawn—the shipment of substandard products to ALSCO. During Feldman’s time


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at the company, American Dawn routinely substituted inferior goods for the goods

that ALSCO ordered. To avoid product inspections implemented by ALSCO,

Tozer directed Feldman and other employees to falsify product tests and to alter

sales records. Rasband knew that the shipment of substandard products caused

ALSCO to overpay American Dawn by as much as $175,000, but he requested that

American Dawn repay less than half that amount. Feldman expressed concern

about these practices to the management of American Dawn.

      After American Dawn fired Feldman, Tozer encouraged Feldman to seek

severance pay. But American Dawn refused to offer Feldman severance. Tozer told

Feldman that American Dawn refused to pay him severance because Feldman

accepted a position with another company, Baltic, within thirty days of his

termination. When Feldman raised the issue with the owners of American Dawn,

he received a different response. They told him that they fired him because of his

participation in the deferred billing scheme: “your dishonesty detrimentally

impacted [the] relationship [of American Dawn] with a valued customer.” Feldman

never received severance from American Dawn.

      Baltic is a competitor of American Dawn. After it hired Feldman, Tozer and

Rasband conspired to “freeze out Baltic . . . from sourcing [or] supplying

commercial textiles to the restaurant linen rental market.” Rasband told Feldman’s

supervisors that it was a “big mistake” to have hired Feldman and that Feldman


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“was no longer welcome at ALSCO, and that no one else from Baltic could be

used . . . to secure ALSCO’s business.” Tozer told a Baltic executive that Feldman

“post-dated and re-dated bills so that [Feldman] could receive more money” during

his tenure at American Dawn and that Feldman acted as an “unethical ‘lone-wolf.’”

Tozer and Rasband made these accusations to ensure that ALSCO remained an

American Dawn customer “and not to deal with [Feldman] or Baltic.”

        In early 2012, Rasband requested bids on behalf of ALSCO from linens

manufacturers, including Baltic and American Dawn. Although Baltic submitted

one of the lowest bids overall, American Dawn won the contract because before it

submitted its final bid to ALSCO, Rasband informed Tozer of the details of

competing bids and American Dawn altered its proposal in response. In exchange

for this information, which American Dawn failed to give to Baltic or other

companies, Tozer gave Rasband gifts “and other personal benefits.” The

conspiracy to freeze Baltic out of the market by refusing to deal with Feldman and

manipulating the bidding process led to Feldman’s discharge from Baltic in May

2013.

        Feldman filed a ten-count complaint against American Dawn, Rasband, and

Tozer in the district court. Against all defendants, Feldman alleged violations of

the federal antitrust laws, 15 U.S.C. § 1 et seq., violations of the federal and

Georgia Racketeering Influenced and Corrupt Organizations acts, 18 U.S.C.


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§ 1961 et seq., Ga. Code Ann. § 16-14-1 et seq., and interference with business

relations Against Rasband and Tozer, Feldman alleged a conspiracy to violate the

federal and Georgia racketeering acts, interference with employment, and civil

conspiracy. Against American Dawn and Tozer, Feldman alleged claims of

negligent misrepresentation and fraud. American Dawn, Tozer, and Rasband

moved to dismiss the complaint for failure to state a claim, and the district court

granted their motions.

                         II.   STANDARD OF REVIEW

       We review de novo the dismissal of a complaint under Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim and construe all the allegations as

true. Hughes v. Lott, 350 F.3d 1157, 1159–60 (11th Cir. 2003). A plaintiff must

plausibly allege all the elements of the claim for relief. Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). Conclusory allegations and legal conclusions are not sufficient;

the plaintiffs must “state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 557, 570 (2007). For the claims of fraud, “a party

must state with particularity the circumstances constituting fraud or mistake.” Fed.

R. Civ. P. 9(b); see also Lamm v. State St. Bank & Trust, 749 F.3d 938, 951 (11th

Cir. 2014) (negligent misrepresentation); Am. Dental Ass’n v. Cigna Corp., 605

F.3d 1283, 1291 (11th Cir. 2010) (racketeering acts). “[A] plaintiff must allege:

‘(1) the precise statements, documents, or misrepresentations made; (2) the time,


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place, and person responsible for the statement; (3) the content and manner in

which these statements misled the [p]laintiff[]; and (4) what the defendant[] gained

by the alleged fraud.’” Am. Dental, 605 F.3d at 1291 (quoting Brooks v. Blue Cross

& Blue Shield of Fla., Inc., 116 F.3d 1364, 1380–81 (11th Cir. 1997)).

                               III.   DISCUSSION

      We divide our discussion in four parts. First, we explain that Feldman lacks

antitrust standing because he did not suffer an antitrust injury. Second, we explain

that the complaint fails to allege predicate acts of racketeering activity that were

the proximate cause of Feldman’s injury. Third, we explain that Feldman’s

complaint fails to state a claim of tortious interference with business relations,

tortious interference with employment, or civil conspiracy, because American

Dawn, Rasband, and Tozer were not strangers to the relationship between

Feldman, Baltic, and ALSCO. Fourth, we explain that the complaint fails to state

claims of fraud or negligent misrepresentation because Tozer’s promise of

severance pay was unenforceable as a contract.

                      A. Feldman Suffered No Antitrust Injury.

      In addition to “the basic ‘case or controversy’ or ‘injury in fact’ required by

Article III of the Constitution,” a private plaintiff who seeks damages under the

antitrust laws, such as Feldman, must establish “antitrust standing.” Sunbeam

Television Corp. v. Nielsen Media Research, Inc., 711 F.3d 1264, 1270 (11th Cir.


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2013). To do so, Feldman must allege that he suffered an antitrust injury and that

he is an “efficient enforcer” of the antitrust laws. Id. at 1271. An antitrust injury is

the kind of injury that “the antitrust laws were intended to prevent and that flows

from [the conduct that] makes [the] acts [of a defendant] unlawful.” Brunswick

Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977).

      Feldman argues that he has antitrust standing to challenge two categories of

antitcompetetive conduct: conduct targeted at the labor market for Feldman’s

labor, and conduct targeted at the market for restaurant linens. Both arguments fail.

We address each in turn.

      Although “employees who are precluded from selling their labor have not

necessarily suffered an antitrust injury, ‘employees may challenge antitrust

violations that are premised on restraining the employment market.’” Eichorn v.

AT & T Corp., 248 F.3d 131, 140–41 (3d Cir. 2001) (quoting Phillip Areeda &

Herbert Hovenkamp, Antitrust Law ¶ 377a (rev. ed. 1995) (footnotes omitted)); see

also Tugboat, Inc. v. Mobile Towing Co., 534 F.2d 1172, 1176 (5th Cir. 1976). For

example, the Third Circuit ruled that former employees had standing to challenge a

“no-hire agreement” between three telecommunications companies, including one

company for which the employees had worked. Eichorn, 248 F.3d at 141–42. The

companies agreed not to hire the employees of the other companies, and the

plaintiffs alleged that this agreement was a restraint of the labor market in which


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they were participants. Id. at 141–42. The court explained that the employees had

standing “[b]ecause the no-hire agreement directly impeded plaintiffs’ ability to

sell their labor to at least three companies within the competitive market.” Id. at

142. The Tenth Circuit reached a similar conclusion. See Roman v. Cessna Aircraft

Co., 55 F.3d 542, 544–45 (10th Cir. 1995). It ruled that a former employee of

Boeing had standing to challenge an agreement between Boeing and Cessna not to

hire employees “away from each other.” Id. at 543, 545. The court explained that

“‘[j]ust as antitrust law seeks to preserve the free market opportunities of buyers

and sellers of goods, so also it seeks to do the same for buyers and sellers of

employment services.’” Id. at 544 (quoting Areeda & Hovenkamp, supra, at ¶ 377c

(footnotes omitted)).

      Feldman lacks antitrust standing to challenge a conspiracy “premised on

restraining the employment market” for restaurant linen salesmen because he did

not allege one. Eichorn, 248 F.3d at 141 (quoting Areeda & Hovenkamp, supra, at

¶ 377a (footnotes omitted)). His complaint alleges a conspiracy targeted at Baltic,

not Feldman, to “freeze out Baltic . . . from sourcing [or] supplying commercial

textiles to the restaurant linen rental market.” Feldman’s complaint alleges no

agreements between competing restaurant linens producers akin to the agreements

that have previously provided antitrust standing for a former employee. See

Eichorn, 248 F.3d at 141–42, Roman, 55 F.3d at 544–45.


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      Although Feldman lost his job with Baltic because of this alleged

conspiracy, his collateral injury does not change our conclusion. That one laborer

suffered injury does not convert the conspiracy into one aimed at restraining

competition in the labor market. Indeed, the conspiracy injured Feldman to harm

Baltic and competition in the market for restaurant linens, not to harm competition

in the market for restaurant linens salesmen.

      Feldman also argues that he has antitrust standing to challenge the

conspiracy to restrain competition in the restaurant linens market, but that

argument runs counter to our precedent. Although antitrust law recognizes

instances where a non-market participant has antitrust standing to challenge a

conspiracy because his injury is “inextricably intertwined with the injury the

conspirators sought to inflict on . . . the . . . market,” Blue Shield of Virginia v.

McCready, 457 U.S. 465, 484 (1982), that doctrine does not apply here. We have

held that “[n]either an officer nor an employee of a corporation has standing to

bring an action in his own right for an antitrust violation causing injury to the

corporation and its business.” Nat’l Indep. Theatre Exhibitors, Inc. v. Buena Vista

Distrib. Co., 748 F.2d 602, 608 (11th Cir. 1984). Feldman argues that National

Independent Theatre Exhibitors is distinguishable because in that case we

explained that the “there was no evidence that any of the . . . alleged behavior was

directed against [the defendant] individually,” id., and Feldman’s complaint, in


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contrast, alleges that American Dawn, Tozer, and Rasband targeted him

individually. But whether American Dawn, Tozer, and Rasband targeted Feldman

is beside the point. Feldman did not suffer an antitrust injury because his complaint

alleges, like the plaintiff in National Independent Theatre Exhibitors, that he

suffered injury in the form of lost employment as an effect of the conspiracy to

harm the market for restaurant linens. Feldman’s “financial injury” was

“secondary” to the goal of reduced competition in the market for restaurant linens.

Id. (citation omitted).

      Although National Independent Theatre Exhibitors forecloses Feldman’s

alternative argument on the facts alleged, he urges us to adopt one of the holdings

of Ostrofe v. H.S. Crocker Co., 740 F.2d 739 (9th Cir. 1984). We cannot do so. In

Ostrofe, the Ninth Circuit ruled that an employee had antitrust standing to

challenge anticompetitive activity involving his employer because the employee

would not participate in the scheme and his employer fired him as a result. Id. at

744. The court explained that “the injury [the employee] sustained was such an

integral part of the scheme to eliminate competition in that market” that the

employee suffered antitrust injury. Id. at 746. This decision conflicts with our

precedent. See Nat’l Indep. Theatre Exhibitors, 748 F.2d at 608. And there are

compelling arguments against following the decision of the Ninth Circuit in any

event. See Ostrofe, 740 F.2d at 748–52 (Kennedy, J. dissenting). Perhaps


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recognizing these problems, the Ninth Circuit narrowed the application of Ostrofe

to circumstances, not alleged in Feldman’s complaint, where an employee was an

“essential participant” in an antitrust conspiracy, the employee’s termination was a

“‘necessary means’ to accomplish the scheme, and the employee has the greatest

incentive to challenge the antitrust violation.” Vinci v. Waste Mgmt., Inc., 80 F.3d

1372, 1375–76 (9th Cir. 1996) (citation omitted). Feldman’s complaint does not

satisfy that standard, so his alternative theory does not help him. Feldman has not

alleged a cognizable antitrust injury and does not have antitrust standing to sue

American Dawn, Tozer, and Rasband.

      B. The Complaint Fails to Allege Violations of the Racketeering Acts.

      The complaint fails to state claims that American Dawn, Tozer, and Rasband

violated the federal and Georgia racketeering acts, 18 U.S.C. § 1961 et seq., Ga.

Code Ann. § 16-14-1 et seq., and that Tozer and Rasband conspired to violate

those acts when they colluded to conceal their participation in the deferred billing

scheme and the shipment of substandard products to ALSCO. The federal and

Georgia racketeering acts are “essentially identical,” meaning failure to state a

claim under the federal act warrants dismissal under the Georgia act. Simpson v.

Sanderson Farms, Inc., 744 F.3d 702, 705 n.1 (11th Cir. 2014) (citation omitted).

To state a civil claim under the federal Racketeering Act, 18 U.S.C. § 1964(c), a

complaint must allege “that the defendant committed a pattern of . . . predicate


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acts,” “that the plaintiff suffered injury to business or property,” and “that the

defendant’s racketeering activity proximately caused the injury.” Id. at 705.

(citations omitted). “In order to prove a pattern of racketeering . . ., a plaintiff must

show at least two racketeering predicates that are related, and that they amount to

or pose a threat of continued criminal activity.” Am. Dental Ass’n, 605 F.3d at

1290–91. To prove proximate causation, “[t]he connection between the

racketeering activity and the injury can be neither remote, purely contingent, nor

indirect.” Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1349 (11th Cir. 2016)

(citations omitted).

       Feldman argues that the complaint alleges a pattern of predicate acts in

violation of the Travel Act, 18 U.S.C. § 1952, but the text of that statute refutes his

argument. The Travel Act prohibits “distribut[ing] the proceeds of” “any business

enterprise involving gambling, liquor . . ., narcotics . . ., . . . prostitution . . .,

extortion, bribery, . . . arson,” id. § 1952(a)(1) & (b), or money laundering, id.

§ 1956. The complaint alleges none of these activities. Although the Travel Act

incorporates the state law definition of some of these prohibited activities––id.

§ 1952(b) (“‘[U]nlawful activity’ means . . . extortion, bribery, or arson in

violation of the laws of the State in which committed.”)––it does not incorporate

common law fraud.




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      In addition, Feldman argues that the complaint alleges predicate acts of wire

fraud, 18 U.S.C. § 1343. Feldman contends that the complaint alleges that Tozer

and Rasband used the wires to spread falsehoods about Feldman to conceal their

involvement in the deferred billing of ALSCO accounts and the shipment of

substandard goods to ALSCO. According to Feldman, the comments of Tozer and

Rasband were part of a “campaign to portray . . . Feldman as the villain in the

deferred billing saga” and those comments constitute wire fraud. We disagree.

      The complaint fails to allege predicate acts of wire fraud. “[W]ire fraud

occurs when a person (1) intentionally participates in a scheme to defraud another

of money or property and (2) uses the mails or wires in furtherance of that

scheme.” Am. Dental, 605 F.3d at 1290 (citation omitted). The district court

explained, and we agree, that the complaint alleges only one statement––not two––

made by either Tozer or Rasband over the wires in furtherance of the conspiracy to

defraud ALSCO: when Rasband told Baltic managers that it was a “‘big mistake’

. . . to have hired . . . Feldman.” We also agree with the district court that this

statement is not actionable as wire fraud because it is an expression of opinion, not

“a misrepresentation as to some existing fact.” Cf. United States v. Svete, 556 F.3d

1157, 1162 (11th Cir. 2009) (citation omitted).

      Even if the complaint had alleged fraudulent statements made over the

wires, Feldman’s argument would still fail because the statements were not the


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proximate cause of Feldman’s injury. Feldman argues that the “Complaint

aver[red] that [Tozer and Rasband] urged ALSCO not to deal with . . . Feldman in

furtherance of their plan to ‘frame’ him for the [deferred] billing scheme,” and this

cover-up “procured” Feldman’s “constructive discharge” from the industry. But

the complaint made clear that the alleged wire fraud targeted ALSCO, not

Feldman, because Tozer and Rasband sought to cover up their involvement in the

deferred billing scheme and the shipment of substandard goods to ALSCO.

Proximate causation requires a direct relation between the “injury asserted and the

injurious conduct alleged,” Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 457

(2006) (citation omitted), and, here, the alleged injurious conduct targeted ALSCO.

      Feldman’s complaint fails to allege violations of the federal and Georgia

racketeering acts. In addition, we affirm the dismissal of Feldman’s claim that

Tozer and Rasband conspired to violate the racketeering acts. This claim

necessarily fails because the complaint fails to allege an underlying violation of the

racketeering acts. Jackson v. BellSouth Telecomm’ns, 372 F.3d 1250, 1269 (11th

Cir. 2004).

 C. The Complaint Fails to Allege Tortious Interference with Business Relations,
          Tortious Interference with Employment, and Civil Conspiracy.

      Under Georgia law, a claim of tortious interference with business relations

requires “improper action or wrongful conduct by the defendant,” while acting as a

“stranger to the contract or business relation at issue.” Mabra v. SF, Inc., 728
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S.E.2d 737, 739–40 (Ga. Ct. App. 2012) (citations omitted). “One is not a stranger

to the contract just because one is not a party to the contract.” Id. at 740 (citation

omitted). Parties to an “interwoven contractual arrangement” and parties that have

a “direct economic interest in or would benefit from a contract with which they are

alleged to have interfered” are not strangers to that contract or relationship. Id.

(citations omitted). The Georgia Court of Appeals has ruled that an arcade game

salesman, for example, was not a stranger to a business relationship between his

former employer and several of its clients despite his solicitation of those clients

for his new employer because the salesman had developed relationships with those

clients when he worked for his previous employer. Tom’s Amusement Co. v. Total

Vending Servs., 533 S.E.2d 413, 417–18 (Ga. Ct. App. 2000).

      Feldman argues that he alleged that Tozer and American Dawn tortiously

interfered with Feldman’s relationship with ALSCO, but we disagree. Neither

Tozer nor American Dawn were strangers to Feldman’s relationship with ALSCO.

Like the employee in Tom’s Amusement, the complaint alleges that Feldman

developed his relationship with ALSCO during his time as an employee of

American Dawn. For example, the complaint alleges that “ALSCO was . . .

Feldman’s biggest client,” “Feldman served as one of [American Dawn]’s leading

sales persons to ALSCO,” and “[a]n implied . . . contractual relationship between

. . . Feldman and ALSCO arose through the course of his dealings with ALSCO.”


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Feldman argues that although he sold “to ALSCO as an [American Dawn]

employee, any relationship he would have with ALSCO as a Baltic employee

would be independent of his prior status as an [American Dawn] employee.” But

this argument misconstrues the allegations in the complaint. His relationship with

ALSCO at Baltic was interwoven with, or derivative of, his time at American

Dawn.

      Feldman also argues that the complaint states a claim of tortious interference

against Rasband because Rasband was a stranger to Feldman’s relationship with

ALSCO, but we decline to decide this argument because Feldman failed to make it

to the district court. We will not consider arguments raised for the first time on

appeal. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).

We affirm the dismissal of the claim of tortious interference with a business

relationship.

      We also affirm the dismissal of Feldman’s claim of tortious interference

with employment against Rasband and Tozer. Feldman failed to preserve his

argument that Rasband interfered with his employment relationship with Baltic

because he raises it for the first time on appeal. Id. Likewise, he failed to preserve

his claim of tortious interference with employment against Tozer because he made

his argument that Tozer was a joint tortfeasor with Rasband for the first time in his

motion for reconsideration. Cf. O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th


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Cir. 1992) (“Motions to amend should not be used to raise arguments which could,

and should, have been made before the judgment was issued.”).

       Finally, we affirm the dismissal of the claim of civil conspiracy against

Tozer and Rasband. The district court ruled, and we agree, that the claim of civil

conspiracy necessarily fails because the complaint fails to allege underlying claims

of tortious interference. “Absent [an] underlying tort, there can be no liability for

civil conspiracy.” Best Jewelry Mfg. Co. v. Reed Elsevier Inc., 780 S.E.2d 689, 697

(Ga. Ct. App. 2015) (citation omitted).

D. The Complaint Fails to State Claims of Negligent Misrepresentation and Fraud.

       The district court correctly dismissed Feldman’s claims of negligent

misrepresentation and fraud predicated on Tozer’s allegedly false promise that

American Dawn would pay Feldman severance. Feldman has abandoned his claim

of negligent misrepresentation because, apart from one passing reference to the

claim in his opening brief, the issue “has not been briefed before the court.” Access

Now, 385 F.3d at 1330. And we agree with the district court that the complaint

fails to state a claim of fraud.

       “Fraud cannot be predicated upon statements which are promissory in their

nature as to future acts,” Alston v. Brown Transp. Corp., 356 S.E.2d 517, 518 (Ga.

Ct. App. 1987) (citation omitted), unless “there [was] a present intention not to

perform or a present knowledge that the future event will not occur,” Taylor v.


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Amisub, Inc., 368 S.E.2d 791, 793 (Ga. Ct. App. 1988) (citations omitted). But,

this exception does not apply where the “promises upon which the []appellant[]

rel[ies] . . . were unenforceable [as a contract] even absent any fraud at the time of

their utterance.” Id. (citation omitted). Feldman’s complaint fails to allege that

Tozer or American Dawn “promised to pay [him] any determinable sum as

severance pay,” and “[b]ecause price is an essential element of a valid contract,”

McLane v. Atlanta Mkt. Ctr. Mgmt. Co., 486 S.E.2d 30, 35–36 (Ga. Ct. App.

1997), rev’d on other grounds, 503 S.E.2d 278 (Ga. 1998), the complaint fails to

state a claim of fraud. See Amisub, 368 S.E.2d at 793.

      The decisions that Feldman argues compel reversal are distinguishable. Sims

v. Bayside Capital, Inc. involved a promise to pay severance that was significantly

more detailed than the alleged promise made by Tozer. 755 S.E.2d 520, 523 (Ga.

Ct. App. 2014) (explaining that the promise to pay severance included “six months

of his salary as severance, . . . health insurance coverage through the end of 2011,

and a payment of $175,000 as reimbursement for legal fees.”). Likewise, the

promise to pay severance in Vernon v. Assurance Forensic Accounting, LLC was

in writing and industry custom supported finding an enforceable severance

contract. 774 S.E.2d 197, 205–06 (Ga. Ct. App. 2015). We affirm the dismissal of

Feldman’s claims of negligent misrepresentation and fraud.




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                   IV.   CONCLUSION

We AFFIRM the dismissal of Feldman’s complaint.




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