                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            JUNE 8, 2005
                             No. 04-15444
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

                  D. C. Docket No. 01-00160-CV-WLS-1

RICHARD WHEELER III,

                                                        Plaintiff-Counter-
                                                        Defendant-Appellant,
                                  versus


CAGLE FOODS JV, LLC
d.b.a. CAGLE-KEYSTONE FOODS, LLC,

                                                        Defendants-Counter
                                                        Claimants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                     _________________________

                              (June 8, 2005)

Before BIRCH, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:
      Richard Wheeler, a poultry farmer, appeals the summary judgment entered

for Cagle Foods JV, LLC, and argues that genuine issues of material fact remain

regarding each of his six claims. Wheeler’s appeal is virtually identical to an

appeal filed by another poultry farmer that this Court resolved recently. See Glass

v. Cagle’s Inc. et al., No. 04-15431 (11th Cir. April 5, 2005) (unpublished). The

claims against Cagle Foods are identical, as are the lawyers and the district judge.

Our resolution of this appeal is also the same: we affirm.

        Wheeler alleged the following six claims against Cagle Foods: (1)

violation of the Packers and Stockyard Act (PSA); (2) fraud; (3) violation of

Georgia RICO; (4) fraud in the inducement and promissory estoppel; (5)

violations of the Agricultural Fair Practices Act (AFPA); and (6) breach of

contract. After careful scrutiny of the extensive record, the district court entered

summary judgment for Cagle Foods on each claim. We review each claim de

novo. See Evanston Ins. Co. v. Stonewall Surplus Lines Ins. Co.,111 F.3d 852,

858 (11th Cir. 1997).

      Wheeler’s PSA claim fails. The PSA prohibits “unfair, unjustly

discriminatory, or deceptive practices or devices,” or “any undue or unreasonable

performance or advantage.” 7 U.S.C. §§ 192(a) and (b). Although Wheeler

argues that Cagle Foods violated the PSA by providing him with inferior birds and

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feed and improperly weighing birds, Wheeler presented no admissible evidence to

support these arguments. As to his complaint of inferior birds, Wheeler has

received numerous bird deliveries beginning in 1994 and he never noted the

alleged deficiencies on the delivery reports or kept any separate record of these

deficiencies. Moreover, we agree with the district court that Cagle Foods

produced “unrefuted evidence that it is virtually impossible for Cagle [Foods] to

target specific farms for delivery of inferior birds.” As to his complaint of

insufficient and inferior feed, Wheeler did not identify one instance where he was

charged for feed he did not receive, and he admitted that he consistently checked

his feed inventory to verify feed deliveries. As to his complaint about improper

weighing of birds, we agree with the district court that a reasonable reading of the

evidence attributes any improper weighing to “sporadic failures of drivers to

follow the rules or problems causing the plant to shut down temporarily,” none of

which violated the PSA. Moreover, the deposition testimony on which Wheeler

relies shows that other weighing discrepancies ended several years before Wheeler

became a grower.

      Wheeler also erroneously argues that the offer by Cagle Foods of a raise in

exchange for signing an arbitration contract violates the PSA. As explained by the

district court, the arbitration contracts did not violate the PSA because the

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contracts were offered to all growers. The district court properly granted summary

judgment on Wheeler’s PSA claim.

      Wheeler’s fraud and Georgia RICO claims fail for the same reasons his PSA

claim fails: he did not present any admissible evidence that Cagle Foods engaged

in the conduct alleged. Moreover, as to his fraud and RICO claims, Wheeler did

not present any evidence that he suffered any damages. The district court

properly granted summary judgment on Wheeler’s fraud and Georgia RICO

claims.

      Wheeler’s fraud in the inducement claim also fails because he did not

establish the elements of the cause of action. Wheeler erroneously argues that

Cagle Foods “induced him to purchase an unsuccessful farm and to borrow

hundreds of thousands of dollars by providing net income information that it knew

to be false and inaccurate.” Wheeler’s argument is belied by the merger clause in

every agreement between Cagle Foods and Wheeler. Moreover, the record shows

that Wheeler independently researched the projections and found them to be

reasonable and accurate. The district court correctly entered summary judgment

against Wheeler’s claim of fraud in the inducement.

      Wheeler’s promissory estoppel claim fails as a matter of law because that

equitable doctrine is unavailable when there is a written contract between the

                                         4
parties covering the disputed promises. See, e.g., Christensen v. Intelligent Sys.

Master Ltd. P’ship, 399 S.E.2d 495, 496 (Ga. App. 1990); Bank of Dade v.

Reeves, 354 S.E.2d 131, 133 (Ga. 1987). “Promissory estoppel is not a legal

doctrine designed to give a party to a negotiated commercial bargain a second bite

at the apple in the event it fails to prove breach of contract.” General Aviation,

Inc. v. Cessna Aircraft Co., 915 F.2d 1038, 1042 (6th Cir. 1990). The district

court properly granted summary judgment on Wheeler’s promissory estoppel

claim.

         Wheeler’s AFPA claim fails because Wheeler presented no evidence that

Cagle Foods or its agents interfered with his attempt to organize and participate in

a grower or poultry association or discriminated against him for such participation.

Wheeler testified that he was not harassed by Cagle Foods or its agents for

participating in the association. Wheeler also did not present any evidence of

retaliation. The district court properly granted summary judgment on Wheeler’s

AFPA claim.

         Finally, Wheeler’s breach of contract claim fails because the undisputed

evidence shows that Cagle Foods did not breach the grower contracts with

Wheeler, and Cagle Foods met all of its contractual obligations. In fact, Cagle

Foods increased Wheeler’s payment per pound, and Wheeler earned near the

                                           5
projected amount, or more, during the life of the contract. The district court

properly granted summary judgment on Wheeler’s breach of contract claim.

      For the foregoing reasons, the judgment of the district court is AFFIRMED.




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