Burgess Et Al v. Narconon: Narconon Georgia Appeal Brief

Case 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, NARCONON
INTERNATIONAL, and NARCONON OF GEORGIA, INC.

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia
District Court Docket No. 1:13-CV-02217-SCJ

BRIEF OF APPELLEE NARCONON OF GEORGIA, INC.

John K. Larkins, Jr.
Georgia Bar No. 438425
W. Taylor McNeill
Georgia Bar No. 239540
Chilivis, Cochran, Larkins & Bever, LLP
3127 Maple Drive, N.E.
Atlanta, Georgia 30305
Telephone: (404) 233-4171
jkl@cclblaw.com
wtm@cclblaw.com
Counsel for Appellee Narconon of Georgia, Inc.
Case: 14-11214 Date Filed: 06/16/2014 Page: 1 of 45

i

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit
Rule 26.1-1, counsel for Narconon of Georgia, Inc. (NNGA) hereby certifies that
NNGA has no parent corporation and that no publicly traded corporation owns ten
percent (10%) or more of NNGA.
Counsel for NNGA further certifies that the certificate of interested persons
in Plaintiffs brief is, to the best of counsels knowledge, a full and complete list of
all parties with an interest in the outcome of this appeal.


ii

STATEMENT REGARDING ORAL ARGUMENT
NNGA does not request oral argument. Given the posture of the case at the
time of the District Courts dismissal and the limited number of issues raised on
appeal, NNGA submits that oral argument would not significantly aid the Courts
decisional process.

iii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ......................................................... i
STATEMENT REGARDING ORAL ARGUMENT .............................................. ii
TABLE OF CONTENTS ......................................................................................... iii
TABLE OF AUTHORITIES ..................................................................................... v
STATEMENT REGARDING ADOPTION OF BRIEFS OF OTHER PARTIES ... 1
STATEMENT OF THE ISSUES............................................................................... 2
STANDARD OF REVIEW ....................................................................................... 3
SUMMARY OF THE ARGUMENT ........................................................................ 5
ARGUMENT AND CITATION OF AUTHORITY ................................................. 8
I. Count Two Breach of Contract .................................................................. 8
A. Plaintiffs Failed To Show A Contract Term That Was Breached ................. 9
B. Plaintiffs Failed To Show Implied Contract Terms That Were
Breached............................................................................................................11
C. Plaintiffs Failed To Allege Damages ..........................................................13
II. Count Three Unjust Enrichment ..............................................................14
III. Count Four Detrimental Reliance ............................................................15
IV. Count Five Negligence Per Se .................................................................17

iv

V. Count One Fraudulent Misrepresentation ................................................20
A. Plaintiffs Fraud Claims Failed To Plead Fraud With Particularity .........20
B. Plaintiffs Fraud Claims Failed Substantively ...........................................24
VI. Counts Six Through Ten Georgia RICO ..................................................26
A. Plaintiffs RICO Claims Failed To Plead Fraud With Particularity 26
B. Plaintiffs RICO Claim For False Statements To A Government Agency
Failed To Comply With Rule 9(b) And Failed To Allege Defendants Conduct
Was The Proximate Cause Of Plaintiffs Injuries .............................................27
VII. The District Court Properly Denied Plaintiffs Unsupported Request For
Leave To Amend Their Complaint .......................................................................30
CONCLUSION ........................................................................................................33
CERTIFICATE OF COMPLIANCE .......................................................................34
CERTIFICATE OF SERVICE ................................................................................35


v

TABLE OF AUTHORITIES
Federal Cases
*Adkins v. Cagle Foods JV, LLC,
411 F.3d 1320 (11th Cir. 2005) 16
Ambrosia Coal & Const. Co. v. Pages Morales,
482 F.3d 1309 (11th Cir. 2007) 23, 26
Am. Casual Dining, L.P. v. Moes Sw. Grill, LLC,
426 F. Supp. 2d 1356 (N.D. Ga. 2006) ..... 8
Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937 (2009) ... 3
Bell Atl. Corp. v. Twombly,
550 U.S. 544, 127 S. Ct. 1955 (2007) ... 3, 9, 14, 24
Curtis Inv. Co., LLC v. Bayerische Hypo-und Vereinsbank, AG,
341 Fed. Appx. 487 (11th Cir. 2009) .. 26
Detris v. Coats,
523 Fed. Appx. 612 (11th Cir. 2013) .. 31
*Doe v. Fulton-DeKalb Hosp. Auth.,
628 F.3d 1325 (11th Cir. 2010) 17, 18, 19
Faith Enters. Grp., Inc. v. Avis Budget Grp., Inc.,
1:11-CV-3166-TWT, 2012 WL 1409403 (N.D. Ga. Apr. 20, 2012) .. 26

vi

Hill v. Bank of America,
512 Fed. Appx. 905 (11th Cir. 2013) .. 31
Liquidation Commn of Banco Intercontinental, S.A. v. Renta,
530 F.3d 1339 (11th Cir. 2008) . 27, 28
*Long v. Satz,
181 F.3d 1275 (11th Cir. 1999) ... 4, 30, 31, 32
Mills v. Foremost Ins. Co.,
511 F.3d 1300 (11th Cir. 2008) . 3
Rance v. Winn,
287 Fed. Appx. 840 (11th Cir. 2008) 31, 32
Terrell v. DirectTV, LLC,
12-81244-CIV, 2013 WL 3810619 (S.D. Fla. July 22, 2013) 9
United States v. Al-Arian,
514 F.3d 1184 (11th Cir. 2008) ... 24, 26, 29
U.S. ex rel. Atkins v. McInteer,
470 F.3d 1350 (11th Cir. 2006) ... 31
*Waithe v. Arrowhead Clinic, Inc.,
491 Fed. Appx. 32 (11th Cir. 2012) 25
*West Coast Roofing & Waterproofing, Inc. v. Johns Manville, Inc.,
287 Fed. Appx. 81 (11th Cir. 2008) ... 22, 23

vii

White v. Americas Servicing Co.,
461 Fed. Appx. 841 (11th Cir. 2012) .. 20
Williams v. Bd. of Regents of Univ. Sys. of Ga.,
477 F.3d 1282 (11th Cir.2007) 24
Ziemba v. Cascade Intl, Inc.,
256 F.3d 1194 (11th Cir. 2001) ... 20
State Cases
Bank Bldg. & Equip. Corp. v. Ga. State Bank,
132 Ga. App. 762, 209 S.E.2d 82 (1974) 21
Bank of Dade v. Reeves,
257 Ga. 51, 354 S.E.2d 131 (1987) ......... 16
Brown v. Belinfante,
252 Ga. App. 856, 557 S.E.2d 399 (2001) .. 17
*Ceasar v. Wells Fargo Bank, N.A.,
322 Ga. App. 529, 744 S.E.2d 369 (2013) .. 14
*Combs v. Atlanta Auto Auction, Inc.,
287 Ga. App. 9, 650 S.E.2d 709 (2007) .. 19
Donaldson v. Dept of Transp.,
236 Ga. App. 411, 511 S.E.2d 210 (1999) ...... 17


viii

Duke Galish, LLC v. Manton,
308 Ga. App. 316, 707 S.E.2d 555 (2011) 8
Fisher v. Toombs County Nursing Home,
223 Ga. App. 842, 479 S.E.2d 184 (1996) 11, 12
Maddox v. S. Engg Co.,
216 Ga. App. 6, 453 S.E.2d 70 (1995) 28
*Maddox v. S. Engg Co.,
231 Ga. App. 802, 500 S.E.2d 591 (1998) .. 28, 29, 30
Morris v. Pugmire Lincoln Mercury, Inc.,
283 Ga. App. 238, 641 S.E.2d 222 (2007) ... 24
Regl Pacesetters, Inc. v. Eckerd Drugs of Ga, Inc.,
183 Ga. App. 196, 358 S.E.2d 481 (1987) .. 12
Siegel v. Park Ave. Condo. Ass'n, Inc.,
322 Ga. App. 337, 744 S.E.2d 876 (2013) .. 19
Federal Rules and Statutes
Fed. R. Civ. P. 9 . passim
Fed. R. Civ. P. 12 ......... 3
Fed. R. Civ. P. 15 . 30, 32
Georgia Rules and Statutes
O.C.G.A. 16-10-20 . 28

ix

O.C.G.A. 16-14-6(c) . 29
O.C.G.A. 26-5-3 . 17
Ga. Comp. R. & Regs. 290-4-2 .. 17
Ga. Comp. R. & Regs. 290-9-12-.09(8) ... 18
Ga. Comp. R. & Regs. 290-9-12-.02 ... 18
Ga. Comp. R. & Regs. 290-4-2-.02 .. 19

1

STATEMENT REGARDING ADOPTION OF
BRIEFS OF OTHER PARTIES

Pursuant to Federal Rule of Appellate Procedure 28(i) and Eleventh Circuit
Rule 28-1(f), NNGA hereby adopts the Statement of the Case of Appellees
Association for Better Living and Education International (ABLE) and Narconon
International (Narconon Int.).


2

STATEMENT OF THE ISSUES
The issues on appeal relating to NNGA are:
1

1. Whether the District Court erred in dismissing Plaintiffs claims for
failure to state a claim upon which relief could be granted; and
2. Whether the District Court abused its discretion by dismissing
Plaintiffs Complaint without leave to amend.

1
The District Courts ruling regarding jurisdiction over Defendant Religious
Technology Center, Inc. (RTC), identified by Plaintiffs as an issue on appeal,
pertained to RTC only and, accordingly, is not briefed by NNGA.

3

STANDARD OF REVIEW
1. NNGA disagrees with Plaintiffs standard of review of the District
Courts grant of the motions to dismiss. The correct standard of review is that the
Court reviews de novo the District Courts grant of a motion to dismiss under
Rules 9(b) and 12(b)(6) for failure to state a claim, accepting the allegations in the
Complaint as true and construing them in the light most favorable to Plaintiffs.
Mills v. Foremost Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008).
Further, the legal standard applicable to consideration of a motion to dismiss
is the Twombly-Iqbal standard. To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1940
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955
(2007)). The complaint must include sufficient factual allegations to raise a right
to relief above the speculative level. Twombly, 550 U.S. at 555, 127 S. Ct. at
1965. [A] formulaic recitation of the elements of a cause of action will not do[.]
Id. [W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged but it has not
show[n] that the pleader is entitled to relief. Iqbal, 556 U.S. at 679, 129 S. Ct.
at 1950 (internal punctuation and citation omitted).

4

2. Plaintiffs correctly state that the Court reviews the District Courts
decision to deny Plaintiffs leave to amend their Complaint for abuse of discretion.
Long v. Satz, 181 F.3d 1275, 1278 (11th Cir. 1999).


5

SUMMARY OF THE ARGUMENT
Plaintiffs failed to identify the terms of the contract supposedly breached,
failed to plead facts showing the breach, and failed to make any plausible and
sufficient allegation of resultant damages. Plaintiffs attempt to imply terms to the
contract is equally unavailing, as Plaintiffs failed to plead any implied terms,
much less to indicate why those undescribed terms are absolutely necessary to
effectuate the intention of the parties. The District Court therefore properly
dismissed Plaintiffs breach of contract claim (Count Two).
Because Plaintiffs affirmatively pled the existence of an express contract,
their unjust enrichment claim (Count Three) also failed. Likewise, Plaintiffs
detrimental reliance claim (Count Four) failed since there is no cause of action for
detrimental reliance. Additionally, Plaintiffs pleading of an express contract
defeats the contention that Count Four was intended to assert a claim for
promissory estoppel, since promissory estoppel cannot exist where there is an
express contract. The dismissal of Counts Three and Four should therefore be
affirmed.
The District Court properly dismissed Plaintiffs negligence per se claim
(Count Five) because the statute and regulations relied upon by Plaintiffs were
expressly intended for licensing and inspection purposes, not to establish a
standard of conduct to protect individuals. Moreover, the alleged regulatory

6

violations cited by Plaintiffs were not capable of being causally connected to
Plaintiffs alleged injuries.
With regard to Plaintiffs fraudulent misrepresentation claim (Count One),
the District Court correctly concluded that Plaintiffs failed to plead the claim in
accordance with Fed. R. Civ. P. 9(b). Plaintiffs fraud claim failed to identify the
specific source of any of the alleged fraudulent representations, the person(s)
making those representations, the time and place of the representations, and how
the statements were misleading. Plaintiffs made no attempt to provide allegations
against each specific Defendant, and instead provided only generalized allegations
lumping multiple Defendants together. Plaintiffs claim for fraud failed to plead
essential facts necessary to sustain the cause of action, and it, therefore, also failed
substantively.
Plaintiffs RICO claims (Counts Six through Ten) all sounded in fraud
and, as a result, all required compliance with the particularity requirement of Rule
9(b). Because Plaintiffs RICO claims did not identify the time or place of the
alleged fraud forming the basis of their RICO claims, and neither did they
articulate which specific Defendant committed which specific fraudulent acts, the
District Court correctly dismissed Plaintiffs RICO claims for failure to comply
with rule 9(b).

7

Finally, the District Court acted well within its discretion in denying
Plaintiffs unsupported request for leave to amend their Complaint. Plaintiffs
improperly included their request for leave to amend in their response to
Defendants motions to dismiss, and, further, they did not provide the District
Court with a proposed amendment or otherwise set forth how a proposed amended
complaint would cure the flaws in their original pleading. The District Court
therefore properly exercised its discretion in dismissing the action with prejudice.


8

ARGUMENT AND CITATION OF AUTHORITY
I. Count Two Breach of Contract
2

Addressing Count Two of the Complaint (Breach of Contract), the District
Court correctly held that once a plaintiff establishes the existence of a valid
contract, the elements of a breach of contract claim are (1) breach, and the (2)
resultant damages (3) to the party who has the right to complain about the contract
being broken. (App. Vol. 2, Doc. 40 at pp. 18-19, quoting Duke Galish, LLC v.
Manton, 308 Ga. App. 316, 707 S.E.2d 555 (2011).) The District Court also
correctly held that in order to properly plead a breach of contract claim, a plaintiff
must allege the contractual provision breached. (Id. at p. 19, citing Am. Casual
Dining, L.P. v. Moes Sw. Grill, LLC, 426 F. Supp. 2d 1356 (N.D. Ga. 2006)
(Additionally, in order to be properly pled, a breach of contract claim must
sufficiently allege a provision of the contract at issue has been breached.).)
The District Court found that the Complaint merely asserted that a written
contract existed between each Plaintiff and all Defendants,
3
and that Plaintiffs do
not articulate a specific contract at issue in this action. (App. Vol. 2, Doc. 40 at p.

2
NNGA addresses Plaintiffs claims in the same order argued by Plaintiffs in
their brief. Thus, Count One (Fraud) is argued in connection with the RICO
counts (Counts Six through Ten).

3
Plaintiffs did not allege how Defendants RTC, ABLE, and Narconon Int. could
be jointly liable under Plaintiffs contracts with NNGA.


9

19.) The District Court made it clear, however, that the dismissal of the breach of
contract claim was not due to the absence of a contract, but because the named
plaintiffs fail to plausibly establish that a provision within the relatives respective
enrollment contracts was actually breached. (Id. at p. 24.)
A breach of contract claim requires [a plaintiff] to identify the terms of the
contract, how [the defendant] breached those terms and the damages resulting from
the breach. Terrell v. DirectTV, LLC, No. 12-81244-CIV, 2013 WL 3810619 at
*2 (S.D. Fla. July 22, 2013). Plaintiffs failed to identify the terms of the contract
supposedly breached, failed to plead facts showing the breach, and failed to make
any plausible and sufficient allegation of resultant damages. Indeed, Plaintiffs
generalized allegation in paragraph 118 of the Complaint (App. Vol. 1, Doc. 1,
Compl. at 118) that Defendants [sic] breach proximately caused substantial
damage to the Plaintiffs and the class, and Plaintiffs and the class members are
entitled to recover damages is simply a classic, and insufficient, formulaic
recitation. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955,
1965 (2007) (a complaint requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.)
A. Plaintiffs Failed To Show A Contract Term That Was Breached
In their brief to this Court, Plaintiffs first response to the District Courts
reasoning is that they were required to make a plausible showing, with all

10

inferences made in their favor, as to the existence of a contract they were not
required to attach a copy of the contract to their complaint. (Pls. Br. at p. 9.)
The District Court never said that Plaintiffs were required to attach a copy of the
relevant contract(s) to their Complaint, however.
4
Rather, the District Court found
that the fatal flaw in Plaintiffs pleading was that they did not articulate a specific
contract term that was breached. (App. Vol. 2, Doc. 40 at p. 24.)
Plaintiffs argue that they sufficiently alleged breach of contract by asserting
that, despite their contract with Defendants for drug and alcohol rehabilitation
services, those services were never provided. (Id. at p. 10.) However, there was
nothing in the Complaint supporting the conclusory contention that services were
never provided. Rather, in paragraph 117 of the Complaint, Plaintiffs pled
various alleged misrepresentations by Defendants which Plaintiffs contended
were breaches of contract.
5
(App. Vol. 1, Doc. 1, Compl. at 117.) The
Complaint did not identify any contract term breached by the purported
misrepresentations.
For example, the first allegation in paragraph 117 of the Complaint averred:

4
Ironically, NNGA submitted certain contract documents with its motion to
dismiss, which Plaintiffs did not dispute.

5
The list of breaches is substantially the same as Plaintiffs list of false
representations of material fact in the fraud count. (See App. Vol. 1, Doc. 1,
Compl. at 111.)

11

Defendants, by and through its [sic] agents, employees or
representatives, breached their contractual duties by: a. misrepresenting
their connection of Scientology and the origins of Narconon
technology, including the origins of the New Life Detoxification
Program and the written course materials.

Assuming this allegation is true, Plaintiffs failed to identify a contractual provision
or duty that the alleged misrepresentation of Defendants connection to
Scientology and origins breached. The same analysis applies to each of the
misrepresentations listed by Plaintiffs.
B. Plaintiffs Failed To Show Implied Contract Terms That Were
Breached

Recognizing their problem with the absence of express contract provisions,
Plaintiffs suggest that the various misrepresentations are breaches of implied
terms of the written agreement. See, e.g., Fisher v. Toombs County Nursing
Home, 223 Ga. App. 842, 479 S.E.2d 184 (1996). But the Complaint failed to
plead any implied terms, much less to indicate why those undescribed terms are
absolutely necessary to effectuate the intention of the parties, which is the
legal requirement for a court to find an implied contractual term:
In deciding whether to imply promises or duties to the terms of a
contract, the introduction of an implied term into the contract of the
parties can only be justified when the implied term is not inconsistent
with some express term of the contract and where there arises from the
language of the contract itself, and the circumstances under which it
was entered into, an inference that it is absolutely necessary to
introduce the term to effectuate the intention of the parties.


12

Id. at 845, 479 S.E.2d at 184 (internal punctuation omitted).
6
There was no
express contractual term pled by Plaintiffs that would lend itself to the conclusion
that NNGA had an implied duty to make any of the representations expressed in
paragraph 117 of the Complaint.
Regl Pacesetters, Inc. v. Eckerd Drugs of Ga, Inc., 183 Ga. App. 196, 358
S.E.2d 481 (1987) illustrates the point. That case involved the issue of whether a
lease contained an implied term allowing renewal or extension of a sublease. The
Georgia Court of Appeals held that it could discern no intention of the parties one
way or the other concerning extension or renewal of the sublease and thus no
duty or obligation in this regard could be implied. Id. at 197, 358 S.E.2d at
483. Similarly, in the present case, Plaintiffs have not shown a contract term that
would support an implied term. Nothing is alleged to be present in the parties
contract from which a court could discern [an] intention of the parties one way or
the other to make or not make the representations listed in paragraph 117 of the
Complaint.
Plaintiffs assert that their allegation that NNGA fail[ed] to provide a drug-
free environment for its patients is sufficient to show a breach of contract, urging

6
Thus, in Fisher, where a party was obligated to pay for nursing home services
for a patient, there was necessarily an implied duty on the part of the nursing home
to inform the obligated party when the patient had left the facility, since at that
point the obligation to pay would cease.

13

that NNGA could have liability for violations of its Rules of Conduct that
prohibited the possession, use, exchange, or sale of drugs and alcohol by
patients. (Pls. Br. at p. 11.) Assuming arguendo that this rule was a contractual
term, it was a duty imposed upon the patient. There was no contractual duty
imposed upon NNGA by virtue of the promulgation of this rule. It is not
plausible that NNGA would promulgate a rule of conduct for its patients and
then, under an implied term theory, be charged with a breach of contract when a
patient failed to abide by the rule.
C. Plaintiffs Failed To Allege Damages
In order to state a claim, each Plaintiff must identify the nature of the alleged
injury so that the Court can determine whether there is a plausible basis to
conclude that the alleged injury was actually attributable to a breach. Even if it is
assumed that a breach of contract is somehow pled, Plaintiffs failed to plead any
damages to them resulting from the breach.
Plaintiffs assert they adequately alleged damages resulting from the alleged
breach by pleading: Defendants breach proximately caused substantial damage to
the Plaintiffs and the class, and Plaintiffs and the class members are entitled to
recover damages. (App. Vol. 1, Doc. 1, Compl. at 118.) As previously pointed
out, this allegation is nothing more than a formulaic recitation of an element of a

14

cause of action, and is entirely insufficient. See Twombly, 550 U.S. at 555, 127 S.
Ct. at 1965.
The District Court properly dismissed Count Two.
II. Count Three Unjust Enrichment
The District Court properly dismissed Count Three of the Complaint, which
purported to assert an unjust enrichment claim.
Unjust enrichment is an equitable principle that may apply when there is no
legal contract between the parties. Here, the claims arise from a written
contract. The existence of this written contract precludes the [plaintiffs] unjust
enrichment claim. Ceasar v. Wells Fargo Bank, N.A., 322 Ga. App. 529, 534,
744 S.E.2d 369 (2013).
Plaintiffs contend they pled unjust enrichment as an alternative and
inconsistent claim, to the breach of contract claim (even though the Complaint
does not say this). But Plaintiffs affirmatively pled the existence of an express
contract, and presented arguments to the District Court based on the agreements
attached to NNGAs motion to dismiss. (App. Vol. 2, Doc. No. 15 at pp. 11-12.)
Just as importantly, Plaintiffs pled that they made payments to NNGA pursuant to
those contracts. (See, e.g., App. Vol. 1, Doc. 1, Compl. at 115.) Plaintiffs did

15

not plead that they made payments other than those called for in their contracts,
and they did not allege that Defendants received any other enrichment.
7

In the present case, any benefit conferred upon NNGA accrued only as a
result of a contract, the existence and validity of which is undisputed. Since the
parties rights and obligations are governed by the express contracts, a claim of
unjust enrichment will not lie, and Plaintiffs claim for unjust enrichment failed to
state a claim.
The District Court properly dismissed Count Three.
III. Count Four Detrimental Reliance
Count Four of the Complaint sought to assert a claim of detrimental
reliance. The District Court held, correctly, that a claim for detrimental
reliance does not exist under Georgia law. (App. Vol. 2, Doc. 40 at p. 25.)
Dismissal was therefore proper.
Plaintiffs contended that Count Four was mislabeled, and that they really
meant to plead a promissory estoppel claim. Plaintiffs state that although they
incorrectly categorized the legal theory underlying their claim, they alleged the
necessary elements of promissory estoppel. (Pls. Br. at p. 14.) They did not.

7
Indeed, paragraph 119, the first paragraph of Count Three, describes a
contractual bargain payment of money for services and costs.

16

There is a simple response to Plaintiffs contention: an express contract and
promissory estoppel cannot simultaneously exist concerning the same subject
matter. See, e.g., Adkins v. Cagle Foods JV, LLC, 411 F.3d 1320, 1326 (11th Cir.
2005); Bank of Dade v. Reeves, 257 Ga. 51, 354 S.E.2d 131 (1987). Plaintiffs
alleged in Count Four itself that Plaintiffs signed a written contract with one
or more of the Defendants, and performed under the contract by rendering
payment for NNGAs services, (App. Vol. 1, Doc. 1, Compl. at 123),
Defendants failed to perform its [sic] duties under the contract.; (Id. at
124), and Plaintiffs and the class members have been harmed by their reliance on
the Defendants promise to perform under the contract. (Id. at 125.)
Plaintiffs pleading of a contract is fatal to a promissory estoppel claim.
Additionally, promissory estoppel is premised on a valid promise, for which
the estoppel furnishes consideration. The principle of promissory estoppel relates
to the sufficiency of consideration to enforce a promise. Bank of Dade, 257 Ga.
at 53, 354 S.E.2d at 133. Plaintiffs failed to identify any promise to be enforced
because of the absence of a traditional contract.
Count Four fails, even if it is analyzed as an attempted promissory estoppel
claim. The dismissal of Count Four should be affirmed.

17

IV. Count Five Negligence Per Se
Under Georgia law, a statute or regulation may create a duty requiring an
actor to conform to a certain standard of conduct for the protection of others
against unreasonable risks, the breach of which may be negligence per se.
Donaldson v. Dept of Transp., 236 Ga. App. 411, 416 511 S.E.2d 210 (1999)
(internal punctuation and citation omitted). As stated in Doe v. Fulton-DeKalb
Hosp. Auth., 628 F.3d 1325 (11th Cir. 2010):
Georgia law allows the adoption of a statute as a standard of conduct so
that its violation becomes negligence per se. In determining whether
the violation of a statute or ordinance is negligence per se as to a
particular person, it is necessary to examine the purposes of the
legislation and decide (1) whether the injured person falls within the
class of persons it was intended to protect and (2) whether the harm
complained of was the harm it was intended to guard against.

Id. at 1339 (quoting Brown v. Belinfante, 252 Ga. App. 856, 557 S.E.2d 399, 403
(2001)).
Count Five of the Complaint purported to assert a claim of negligence per
se, alleging violations of a statute, O.C.G.A. 26-5-3, and various regulations
found in Ga. Comp R. & Regs. 290-4-2 (repealed 2013).
8
In dismissing the
claim, the District Court determined that the statute cited by Plaintiffs simply

8
The District Court noted that the Georgia Rules and Regulations for Drug Abuse
Treatment and Education Programs were repealed, but analyzed the former rules
as they were in existence at the time the named plaintiffs complaint was filed.
(App. Vol. 2, Doc. 40 at p. 26 n.9.)


18

provides definitions, and, therefore, does not provide a basis for a negligence
per se claim. (App. Vol. 2, Doc. 40 at p. 26 n.8.) This holding is not
challenged on appeal.
With respect to the regulations cited by Plaintiffs, the District Court
held: As established by the Eleventh Circuit, when a regulation is intended for
licensing and inspection purposes, it does not create a standard of conduct to
protect individuals that lends itself to a negligence per se claim. (App. Vol.
2, Doc. 40 at p. 26, quoting Doe, 628 F.3d at 1339.)
Doe is on point so much so that it is not even addressed in Plaintiffs brief,
despite being the primary case relied upon by the District Court. Doe involved
claims against a hospital by persons being treated for addiction. The Doe plaintiffs
asserted that the defendants were negligent per se by virtue of the defendants
violation of a regulation of the Georgia Department of Human Services, Ga. Comp.
R. & Regs. 290-9-12-.09(8). Examining the purposes of the regulation,
however, this Court held that the regulation was intended for licensing and
inspection purposes and not for the creation of a standard of conduct to protect
individuals. This purpose was clearly set forth in the regulations: The purpose of
these rules is to provide for the licensing and inspection of narcotic treatment
programs. Doe, 628 F.3d at 1330 (quoting Reg. 290-9-12-.02) (emphasis added).
Since the stated purpose of the regulations was to provide for licensing and

19

inspection, the regulations did not establish a negligence per se standard of conduct.
As in Doe, Plaintiffs in the present case likewise sought to rely on
regulations of the Georgia Department of Human Services to establish a standard of
conduct. As in Doe, the purpose of the regulations in issue was expressed in the
regulations themselves. The purpose of these rules is to provide for the
licensing and inspection of drug abuse treatment and education programs.
(Reg. 290-4-2-.02 (Title and Purpose)) (emphasis added). This language, to
provide for the licensing and inspection, is identical to the language considered in
Doe. Thus, as in Doe, the regulations relied upon by Plaintiffs cannot be the basis
for a claim of negligence per se, and the District Courts holding should be
affirmed.
Additionally, the alleged breach of these administrative regulations is not
capable of being causally connected to Plaintiffs alleged harm. [T]he violation
must be capable of having a causal connection between it and the damage or injury
inflicted upon the other person. Siegel v. Park Ave. Condo. Ass'n, Inc., 322 Ga.
App. 337, 340, 744 S.E.2d 876 (2013). This refers to the character of the legal
duty involved, not proximate causation. Id. Because a violation of the licensure
regulations above was not capable of producing Plaintiffs alleged injuries,
Plaintiffs failed to state a claim upon which relief could be granted. See Combs v.
Atlanta Auto Auction, Inc., 287 Ga. App. 9, 14, 650 S.E.2d 709, 715 (2007)

20

(holding the defendants failure to obtain a certificate of occupancy for its facility
did not cause the plaintiffs injuries; the cause of the injuries was the accident and
the accident would have occurred even if a certificate had been issued).
V. Count One Fraudulent Misrepresentation
A. Plaintiffs Fraud Claims Failed To Plead Fraud With Particularity

Count One of the Complaint purported to plead a fraud claim. It is well
established that a complaint alleging fraud must state with particularity the
circumstances constituting fraud. Fed. R. Civ. P. 9(b). The purpose of Rule 9(b)s
particularity requirement is to alert[ ] defendants to the precise misconduct with
which they are charged and protect[ ] defendants against spurious charges of
immoral and fraudulent behavior. Ziemba v. Cascade Intl, Inc., 256 F.3d 1194,
1202 (11th Cir. 2001) (internal punctuation and citation omitted). To satisfy this
particularity requirement, a plaintiff must allege:
(1) The precise statements, documents, or misrepresentations made;
(2) the time, place and person responsible for the statement; (3) the
content and manner in which these statements misled the
[p]laintiffs; and (4) what the defendants gained by the alleged fraud.

White v. Americas Servicing Co., 461 Fed. Appx. 841, 843 (11th Cir. 2012)
(citation omitted).
In dismissing Count One, the District Court applied these established
pleading rules and correctly concluded that Plaintiffs failed to adequately plead
their claim for fraudulent misrepresentation. (App. Vol. 2, Doc. 40 at p. 14.)

21

Indeed, Plaintiffs Complaint failed to meet nearly all the requirements for
pleading a fraud claim under Rule 9(b). As to the who, when, and where
requirements, Plaintiffs alleged they spoke with one or more employees of NNGA
and/or International, and/or [were] provided with marketing materials regarding
NNGAs program. ( 2, 6, 10, 14, 17).
9
Plaintiffs apparently (and implausibly)
each claim to have relied on the same representations, but they fail to identify the
specific source of any of those representations, the person(s) making those
representations, the time and place of the representations, and how the statements
were misleading. (App. Vol. 1, Doc. 1, Compl. at 3, 7, 11, 15, & 18.) Nowhere
in the Complaint are there any specific representations attributed to any identified
representative of NNGA, much less the precise statement, its contents, and the time
it was made.
Plaintiffs contend they adequately alleged a time period for Defendants
fraud by specifying when they each sought the services of NNGA. (Pls. Br. at p.
17.) Nearly all of the record citations provided by Plaintiffs, however, merely state

9
Plaintiffs repeated use of and/or throughout their Complaint when attempting
to attribute wrongdoing to particular Defendants is emblematic of Plaintiffs failure
to plead their fraud claims in accordance with Rule 9(b). That the expression
and/or is equivocal and is neither positively conjunctive nor positively
disjunctive is settled by the decisions of this court beyond reasonable doubt.
Bank Bldg. & Equip. Corp. v. Ga. State Bank, 132 Ga. App. 762, 764-65, 209
S.E.2d 82 (1974) (quotation marks and citation omitted). And/or is a deliberate
amphibology; it is purposely ambiguous. Id.

22

the year in which the various Plaintiffs allegedly sought Defendants services.
(See, e.g., App. Vol. 1, Doc. 1, Compl. at 2: In 2011, Mr. Burgess and Ms.
Burgess sought the services.; Id. at 10: In 2012, Eric Martin sought the
services..) A lone reference to the year in which the alleged fraud occurred, or
even to the month and year, with no further temporal direction, fails to sufficiently
alert Defendants to the precise misconduct with which they are charged and does
not reach the level of particularity required by Rule 9(b). As the District Court
stated, Plaintiffs Complaint contained mere generalized allegations that fail to
specify with particularity the time and place these misrepresentations were made.
(App. Vol. 2, Doc. 40 at p. 14.)
The problems caused by Plaintiffs generalized allegations regarding the
time and place of the alleged fraud are compounded by their allegations as to the
who of the alleged fraud. Plaintiffs assert that the blurred and concealed
relationship among Defendants prevented them from pleading the issue with any
further specificity and that their Complaint was, in essence, good enough. (Pls.
Br. at pp. 18-19.) Plaintiffs cite no authority for this proposition. Furthermore,
Plaintiffs make no attempt to distinguish the myriad cases cited by both
Defendants and the District Court holding that allegations of fraud against multiple
defendants require specific allegations with respect to each defendant;
generalized allegations lumping multiple defendants together are insufficient.

23

(See App. Vol. 2, Doc. 40 at p. 14); see also West Coast Roofing & Waterproofing,
Inc. v. Johns Manville, Inc., 287 Fed. Appx. 81, 86 (11th Cir. 2008) (citing
Ambrosia Coal & Const. Co. v. Pages Morales, 482 F.3d 1309, 1317 (11th Cir.
2007)).
The District Court explicitly relied upon this principle from West Coast
Roofing when it held that Plaintiffs failed to allege with specificity the party that
actually engaged in each specific fraudulent misrepresentation. (App. Vol. 2,
Doc. 40 at p. 14.) For example, in paragraphs 111 and 112 of the Complaint,
Plaintiffs make the implausible assertion that Defendants, collectively, made 11
separate false representations and that each individual Plaintiff relied on all 11 of
those representations. (App. Vol. 1, Doc. 1, Compl. at 111-112.) Plaintiffs
made no attempt to provide allegations against each specific Defendant, and instead
provided only generalized allegations lumping multiple Defendants together. The
Complaint contains no details as to which Defendant made what particular
statement, to whom the statement was made, the precise content of those
statements, and how, when, and where Plaintiffs read, heard, saw, or otherwise
were exposed to the alleged misrepresentations.
The Complaint also failed to explain how the alleged misrepresentations
injured each Plaintiff. Although Plaintiffs made the conclusory general statement
that they actually relied upon those statements and representations, the details of

24

such actual reliance were not pled. (Id. at 112.) Indeed, the Complaint merely
stated that Plaintiffs and all class members suffered actual physical, mental, and
economic harm, implausibly suggesting that all Plaintiffs relied upon all of the
alleged misrepresentations, and all suffered the same undescribed injury. (Id. at
114.) In short, Plaintiffs Complaint did not plausibly, under Twombly, or
particularly, under Rule 9(b), state a claim for fraud. The District Court therefore
correctly concluded that Plaintiffs fraudulent misrepresentation claim did not
satisfy the heightened pleading requirements of Rule 9(b).
B. Plaintiffs Fraud Claims Failed Substantively
Not only did the fraud claims fail under Rule 9, they also failed
substantively.
10
Georgia law requires the plaintiff to show 1) the defendant made a
false representation; 2) the defendant knew the representation was false; 3) the
defendant made the representation with the intent to deceive the plaintiff; 4) the
plaintiff relied upon the representation; and 5) the plaintiff suffered damage caused
by such reliance. Morris v. Pugmire Lincoln Mercury, Inc., 283 Ga. App. 238,
240, 641 S.E.2d 222, 224 (2007). Wholly absent from Plaintiffs Complaint are

10
Although the District Court relied solely upon Rule 9(b) in dismissing
Plaintiffs fraud claims, this Court may affirm for any reason supported by the
record, even if not relied upon by the district court. United States v. Al-Arian,
514 F.3d 1184, 1189 (11th Cir.2008) (quoting Williams v. Bd. of Regents of Univ.
Sys. of Ga., 477 F.3d 1282, 1284 (11th Cir.2007)).

25

any allegations that any of the Defendants acted with intent to deceive
Plaintiffs.
Moreover, several of the alleged fraudulent misrepresentations attributed to
Defendants are actually omissions. For example, one of Plaintiffs recurring
allegations throughout their Complaint alleges that Defendants misrepresented
their connection to Scientology, presumably by failing to affirmatively disclose
the alleged connection to Plaintiffs. (App. Vol. 2, Doc. 1, Compl. at 81.)
Nowhere, however, do Plaintiffs allege that any of the Defendants had a duty to
disclose this alleged connection. As stated in Waithe v. Arrowhead Clinic, Inc.,
491 Fed. Appx. 32 (11th Cir. 2012), [a] party can be held liable for fraudulently
concealing a material fact only if the party has a duty to disclose or communicate
the fact. 491 Fed. Appx. at 38 (applying Georgia law).
Waithe involved claims against a chiropractic clinic for failing to disclose an
alleged business relationship with a law firm. Id. In dismissing the Waithe
plaintiffs fraud claims, this Court specifically noted the plaintiffs failure to cite
any authority supporting the proposition that under Georgia law a chiropractor has
a duty to disclose business relationships to patients. Id. Likewise, Plaintiffs in this
case cite no authority for the proposition that under federal or state law any of the
Defendants had a duty to disclose any alleged connection to Scientology to
potential patients. Absent a duty to disclose, Defendants cannot be held liable for

26

fraud based on the alleged concealments. Thus, while the District Court did not
reach this argument below, it provides an alternative basis on which to affirm the
District Courts decision. See Al-Arian, supra.
VI. Counts Six Through Ten Georgia RICO
A. Plaintiffs RICO Claims Failed To Plead Fraud With Particularity

Civil RICO claims are essentially a certain breed of fraud claims. Faith
Enters. Grp., Inc. v. Avis Budget Grp., Inc., 1:11-CV-3166-TWT, 2012 WL
1409403 at *4 (N.D. Ga. Apr. 20, 2012). Thus, the [Rule 9(b)] particularity
requirement for fraud applies to fraud-based state RICO claims, such as the instant
one[s], brought in federal court. Curtis Inv. Co., LLC v. Bayerische Hypo-und
Vereinsbank, AG, 341 Fed. Appx. 487, 493 (11th Cir. 2009). The same
requirements discussed above with regard to Count One therefore apply with equal
force here. Plaintiffs RICO claims must allege (1) the precise statements,
documents, or misrepresentations made; (2) the time and place of and person
responsible for the statement; (3) the content and manner in which the statements
misled the Plaintiffs; and (4) what the Defendants gained as a result of the alleged
fraud. Ambrosia Coal, 482 F.3d at 1316-17.
In their RICO claims, Plaintiffs merely repackaged their fraud allegations
under a new name. In fact, Plaintiffs concede that all but one of their RICO claims
sound in fraud and must therefore satisfy Rule 9(b)s heightened pleading

27

standard.
11
(Pls. Br. at pp. 19-22.) In light of Plaintiffs fraud claims being
improperly pled (see Section V, supra), their RICO claims likewise fail.
Moreover, in Liquidation Commn of Banco Intercontinental, S.A. v. Renta,
530 F.3d 1339 (11th Cir. 2008), this Court held that [w]hen fraud is pleaded as an
alternative claim, the non-fraud claims in the complaint need not be pleaded with
particularity unless the same misrepresentation forms the basis of both the fraud
and non-fraud claim. 530 F.3d at 1356 (emphasis added). As the District Court
explained when dismissing Plaintiffs RICO claims, even though several of
Plaintiffs RICO claims do not contain the word fraud, they all rely exclusively
on the allegation that Defendants engaged in a uniform course of fraudulent
conduct. (App. Vol. 2, Doc. 40 at pp.17-18.) Accordingly, the District Court
correctly concluded that all of Plaintiffs RICO claims sounded in fraud, that
Rule 9(b) therefore applied, and that Plaintiffs RICO claims failed to comply
therewith.
B. Plaintiffs RICO Claim For False Statements To A Government Agency
Failed To Comply With Rule 9(b) And Failed To Allege Defendants
Conduct Was The Proximate Cause Of Plaintiffs Injuries

Plaintiffs argue that Georgia law allows a RICO claim based on O.C.G.A.
16-10-20 to proceed even when the claim is not pled with particularity, citing

11
As to the remaining RICO claim, Plaintiffs erroneously assert that it does not
sound in fraud, see Section VI-B, infra.

28

Maddox v. S. Engg Co., 216 Ga. App. 6, 453 S.E.2d 70 (1995).
12
(Pls. Br. at p.
22.) In short, Plaintiffs contend their false statements RICO claim (Count Eight)
does not sound in fraud and therefore need not comply with Rule 9(b). Plaintiffs
are wrong.
As an initial matter, a cursory glance at the elements required to prove the
predicate act of false statements to a government agency shows that it does in fact
sound in fraud. Under O.C.G.A. 16-10-20, a person commits this offense if
she knowingly and willfully makes a false, fictitious, or fraudulent statement
or representation. Thus, by definition, it requires some type of false or fraudulent
conduct.
Furthermore, as stated above and in the District Courts decision, when fraud
claims and non-fraud claims rely on a uniform course of fraudulent conduct, the
non-fraud claims must also be pled with particularity. See, e.g., Renta, 530 F.3d at
1356. Here, Plaintiffs allegations in Count Eight were based on the same alleged
misrepresentations, albeit worded slightly differently, as their claim for fraud. (See
App. Vol. 1, Doc. 1, Compl. at 111(b): Defendants manipulated the law and
provided false information to regulators..) Thus, Rule 9(b) applies, and

12
For clarification, Maddox. v. S. Engg Co. made a second appearance at the
Georgia Court of Appeals three years later in Maddox v. S. Engg Co., 231 Ga.
App. 802, 500 S.E.2d 591, 594 (1998). Plaintiffs mistakenly rely on the earlier
Maddox decision, while several Defendants cite the subsequent Maddox decision
in support of unrelated arguments.

29

because Plaintiffs RICO claims were not pled with particularity, those claims
were rightfully dismissed.
Finally, even assuming Plaintiffs pled this claim with sufficient particularity,
its dismissal can be affirmed on grounds not relied upon by the District Court. See
Al-Arian, supra. Georgias Civil RICO statute provides a cause of action for [a]ny
person who is injured by reason of any violation of Code Section 16-14-4.
O.C.G.A. 16-14-6(c). As stated in Maddox, the language by reason of imposes
a proximate causation requirement on the plaintiff. 231 Ga. App. at 805, 500
S.E.2d at 594 (emphasis in original). Thus, a plaintiff has standing under RICO
only to the extent that [the RICO plaintiff] has been injured by the conduct
constituting the violation. Id. Put another way, the injury must flow directly
from the predicate acts. Id.
The analysis here is controlled by Maddox, which involved a Georgia RICO
claim based on false statements to a government agency and is thus analogous to the
present case. The Maddox plaintiff asserted that the defendant submitted false
statements to the United States Army Corps of Engineers in an application for a
permit to build a dam and reservoir upstream from the plaintiffs property. The
Georgia Court of Appeals held that the plaintiff was not injured as a direct result of
any misrepresentations, but rather by reason of the Corps decision to issue a permit
for the dam and reservoir upstream from his property. Id. at 806 (emphasis in

30

original). Although the plaintiff in Maddox may not have been injured but for the
misrepresentations, it [was] clear those misrepresentations were not the proximate
cause of his injuries. Id.
Plaintiffs in this case likewise were not injured as a direct result of any
alleged false statements Defendants made to the State of Georgia in a license
application. The alleged false statements here were neither made to nor intended
to be received by Plaintiffs. In fact, nowhere in the Complaint did Plaintiffs allege
that they were even aware of the alleged false statements at the time they agreed to
contract with Defendants. Thus, like in Maddox, Plaintiffs alleged injuries in this
case were, at best, nothing more than an eventual consequence of the alleged
false statements. Accordingly, because Plaintiffs failed to sufficiently allege that
Defendants false statements to a government agency were the proximate cause of
their injuries, Count Eight was properly dismissed.
VII. The District Court Properly Denied Plaintiffs Unsupported Request
For Leave To Amend Their Complaint

The District Court, citing Long v. Satz, 181 F.3d 1275 (11th Cir. 1999),
declined to allow amendment of the Complaint, stating it is procedurally improper
to request leave to amend under Rule 15 in a response to a motion to dismiss,
rather than in a separate motion. (App. Vol. 2, Doc. 40 at p. 24.) Plaintiffs
contend that this denial was an abuse of discretion. Remarkably, however,
Plaintiffs fail to discuss or even cite Long or that cases progeny.

31

In Long, as here, the plaintiffs memorandum in opposition to the
defendants motion to dismiss included a request for leave to amend should the
court be inclined to dismiss. 181 F.3d at 1277. This request was denied and the
plaintiffs appealed, contending that the lower court abused its discretion. This
Court held:
Filing a motion is the proper method to request leave to amend a
complaint. In this case, the plaintiff did not file a motion for leave
to amend. The request for leave to amend was included in the
memorandum she filed in opposition to the motion to dismiss.
Furthermore, she failed to attach the amendment or set forth the
substance of the proposed amendment. Failure to properly request
leave to amend, when she had adequate opportunity and time to do so,
precludes the plaintiff's argument on appeal that the district court
abused its discretion by denying her leave to amend her complaint. We
conclude that the district court did not abuse its discretion in denying
plaintiff leave to amend her complaint.

181 F.3d at 1279-80; accord, e.g., U.S. ex rel. Atkins v. McInteer, 470 F.3d 1350
(11th Cir. 2006) (request for leave to amend contained in memorandum in
opposition to motion to dismiss properly rejected); Detris v. Coats, 523 Fed. Appx.
612 (11th Cir. 2013); Rance v. Winn, 287 Fed. Appx. 840 (11th Cir. 2008).
The fact that the Complaint was removed to federal court is immaterial. See
Hill v. Bank of America, 512 Fed. Appx. 905 (11th Cir. 2013) (complaint
originally filed in Fulton County Superior Court). If anything, different pleading
standards between state and federal courts show that Plaintiffs should have availed
themselves of their free right to amend.

32

Similarly, the motions to dismiss put Plaintiffs on notice of pleading
deficiencies, and Plaintiffs, if they had the ability to cure the deficiencies, had
ample opportunity to do so. Nowhere is this more apparent than in Count Four, the
detrimental reliance claim, where Plaintiffs argued and acknowledged that they
had made an error in pleading yet they made no effort to cure.
Contrary to Plaintiffs suggestion, the rule requiring plaintiffs to properly
move for leave to amend as required by Rule 15(a) does affect Plaintiffs right to
amend. Indeed, Long itself stated: [t]he rule as applied in this circuit is where a
more carefully drafted complaint might state a claim, a plaintiff must be given at
least one chance to amend the complaint before the district court dismisses the
action with prejudice. 181 F.3d at 1279 (citation omitted). But in order to avail
themselves of this right, Plaintiffs were required to file a motion as required by
Rule 15(a), seeking leave to amend. E.g., Long, supra; Rance, supra. This they
did not do, and the District Court properly exercised its discretion to not allow
amendment of the Complaint and to dismiss the action with prejudice.


33

CONCLUSION
For the foregoing reasons, the Court should affirm the District Courts
dismissal of all of Plaintiffs claims. The Court should also affirm the District
Courts decision to deny Plaintiffs leave to amend their Complaint.
Respectfully submitted this 16th day of June, 2014.

/s/John K. Larkins, Jr.
Georgia State Bar No. 438425
Counsel for Narconon of Georgia

CHILIVIS, COCHRAN, LARKINS & BEVER, LLP
Telephone: (404) 233-4171
Facsimile: (404) 261-2842
jkl@cclblaw.com


34

CERTIFICATE OF COMPLIANCE
Undersigned counsel certifies that:
1. This brief complies with the type-face requirements of Fed. R. App. P.
32(a)(5) and the type-style requirements Fed. R. App. P. 32(a)(6) in that it was
prepared in proportionally spaced type-face using Microsoft Word 2013 in 14-
point Times New Roman.
2. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) in that it contains exactly 6,951 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(III).
Respectfully submitted,


Telephone: (404) 233-4171
Facsimile: (404) 261-2842
jkl@cclblaw.com


35

CERTIFICATE OF SERVICE
I hereby certify that I have electronically filed the Brief of Appellee
Narconon of Georgia, Inc. with the Clerk of Court using the CM/ECF system,
which will automatically send email notification of such filing to all counsel of
record.
I further certify that I have sent seven (7) paper copies of the Brief of
Appellee Narconon of Georgia, Inc. to the Clerk of Court for filing via Federal
Express delivery.
Respectfully submitted this 16th day of June, 2014.


Telephone: (404) 233-4171
Facsimile: (404) 261-2842
jkl@cclblaw.com


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