author: MARTIN, Circuit Judge:

text:
    THERMOSET CORPORATION, a Florida corporation f.k.a. Thermoset Roofing Corp., Plaintiff-Appellant, v. BUILDING MATERIALS CORP OF AMERICA, a Delaware corporation d.b.a. GAF Materials Corporation, Roofing Supply Group Orlando LLC, a Delaware limited liability company, Defendants-Appellees.
    No. 15-13942 Non-Argument Calendar
    United States Court of Appeals, Eleventh Circuit.
    (March 2, 2017)

      Andrea Cox, Arnstein & Lehr, LLP, Miami, FL, Gary Louis Brown, Arnstein & Lehr, LLP, Fort Lauderdale, FL,- for Plaintiff-Appellant.
    ■Frederick Jay Fein, Stephanie Gail Kol-man, Daniel Ramon Lever, Clyde & Co US, LLP, Steven Wayne Cornman, Jr., Kubicki Draper, Miami, FL, for Defendants-Appellees.
    Before HULL, MARTIN, and EBEL, Circuit Judges.

       Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit Court of Appeals, sitting by designation.

   MARTIN, Circuit Judge:

Thermoset Corporation (“Thermoset”), a roofing contractor, brought this product liability action in Florida state court against Building Materials Corporation (“GAF”) and Roofing Supply Group Orlando '(“RSGO”), a manufacturer and a distributor of roofing materials (collectively, “the defendants”). GAF removed the case to federal court based on diversity jurisdiction, and the District Court granted summary judgment to the defendants. Thermoset appealed. Shortly afterwards, it became apparent that RSGO was.not a diverse party at the time of removal. In light of this jurisdictional defect, Thermoset asks us to remand the entire case back to state court. After careful consideration, and with the benefit of oral argument, we vacate the District Court’s summary judgment order and remand with instructions' to send this case back to the state court for further proceedings.

I. BACKGROUND AND PROCEDURAL HISTORY

A. THERMOSET SUES GAF AND RSGO OVER MALFUNCTIONING ROOFING SYSTEM

Thermoset is a roofing contractor organized under Florida law with its principal place of business in Florida. In 2005, Ther-moset entered into a “Master Select Roofing Contractor Agreement” with GAF, a manufacturer of roofing products and systems incorporated in Delaware with a principal place of business in New Jersey. This agreement enabled Thermoset to use GAF’s products on various jobs, and over time, Thermoset developed a working relationship with GAF’s representatives.

Thermoset and its affiliates were hired to install a roof system at Lynden Pindling International Airport in Nassau, Bahamas. The system had to satisfy certain project requirements because of the Bahamian climate. It had to be able to withstand certain wind velocities and uplift pressures. Thermoset asked GAF if it manufactured a roof system that fit these specifications. Dario Miranda, GAF’s senior commercial specialist, told Thermoset that GAF had something called the “TPO system” that met the requirements and used a water-based adhesive (“H20 adhesive”). Thermo-set also discussed the TPO system and the project requirements with Bob Vitale, an employee of RSGO. RSGO is a distributor of GAF roofing products organized as a limited liability company under Delaware law with a principal place of business in Texas. Thermoset says it relied on recommendations from RSGO and GAF to buy roofing materials and components for the TPO system from RSGO.

Thermoset began work on the project in March 2010. However, portions of the TPO system’s outer membrane soon became detached from the insulation in several places. The same thing happened when Tropical Storm Nicole struck Nassau, even though those winds were weaker than the wind velocities that the roofing system was required by the specifications to withstand. Thermoset notified GAF and RSGO of the TPO system’s malfunction. Although RSGO issued an $82,000 credit to Thermo-set for return of the H20 adhesive and certain replacement materials, Thermoset says this amount didn’t fully compensate for its damages. Thus, it continued to make demands from GAF and RSGO for compensation and assistance with repairs, but to no avail..

Thermoset says it incurred losses upwards of $1 million. To recover these losses, it filed suit in Florida state court against the defendants on December 31, 2013. Thermoset made claims for breach of the implied warranty of merchantability; breach of implied warranty of fitness for a particular purpose; breach of express warranty; negligent misrepresentation; and violation of Florida’s Deceptive and Unfair Trade Practices Act, Fla. Stat. §§ 501.201-213. On February 3, 2014, GAF removed the case to federal court. Specifically, it invoked the District Court’s diversity jurisdiction. After the parties conducted discovery, the defendants jointly moved for summary judgment. The District Court granted summary judgment to the defendants. Thermoset appealed.

B. JURISDICTIONAL ISSUE

After Thermoset filed its notice of appeal, this Court noticed that the pleadings below did not sufficiently allege the citizenship of RSGO, as is required to invoke the District Court’s diversity jurisdiction. See 28 U.S.C. § 1332(a). Specifically, because “a limited liability company is a citizen of any state of which a member of the company is a citizen,” Rolling Greens MHP, L.P. v. Comcast SCH Holdings, L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) (per curiam), the pleadings were required (but failed) to provide the citizenship of each member of RSGO. Thus, we inquired of the parties how they thought this defect could and should be cured. See Mallory & Evans Contractors & Eng’rs, LLC v. Tuskegee Univ., 663 F.3d 1304, 1304 (11th Cir. 2011) (per curiam) (“We are obligated to raise concerns about the district court’s subject matter jurisdiction sua sponte.”). From the answers to the jurisdictional question, it became apparent that RSGO was in fact not diverse at the time of removal. One of its members was— like Thermoset — a Florida citizen.

II. DISCUSSION

The threshold issue now before us is therefore whether we have diversity jurisdiction. Belleri v. United States, 712 F.3d 543, 547 (11th Cir. 2013) (“We may not consider the merits ... unless and until we are assured of our subject matter jurisdiction.”). The defendants admit RSGO was not a diverse party at the timé of removal. However, they say both this Court and the District Court can properly exercise diversity jurisdiction over the entire case because RSGO is a nominal party whose citizenship should not be considered for jurisdictional purposes. In the alternative, the defendants argue we should dismiss the non-diverse RSGO under Federal Rule of Civil Procedure 21 in order to preserve diversity jurisdiction over the rest of the case. For its part, Thermoset says RSGO is a real party in interest whose citizenship cannot be ignored. Ther-moset also urges us not to use our Rule 21 powers to dismiss RSGO, but to instead vacate the District Court’s summary judgment order for lack of subject-matter jurisdiction and remand the entire case back to Florida state court. We conclude that (1) RSGO is a real party in interest and not a nominal party; and (2) dismissal of RSGO pursuant to Rule 21 would not be proper. We discuss each conclusion in turn.

A. RSGO IS NOT A NOMINAL PARTY

Federal courts are courts of limited subject-matter jurisdiction. See PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d 1299, 1305 (11th Cir. 2016). A district court can hear a case only if it has “at least one of three types of subject matter jurisdiction: (1) jurisdiction under specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).” Id. (quotation omitted). GAF invoked the District Court’s diversity jurisdiction here, and it is clear that neither of the other types apply.

In order for a district court to properly exercise diversity jurisdiction over a case, the action must be between “citizens of different States.” 28 U.S.C. § 1332(a)(1). Also, “diversity jurisdiction is determined at the time of filing the complaint or, if the case has been removed, at the time of removal.” PTA-FLA, 844 F.3d at 1306. The defendants now acknowledge that RSGO was, like Thermoset, a citizen of Florida at the time of removal. Thus, it appears the District Court did not have diversity jurisdiction over this action.

Yet we are mindful that federal courts “must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy.” Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 461, 100 S.Ct. 1779, 1782, 64 L.Ed.2d 425 (1980). So if RSGO is a nominal party, then this Court and the District Court can ignore its citizenship and exercise diversity jurisdiction over the entire action.

This Court has acknowledged “there is no bright-line rule” for distinguishing between real and nominal parties. Payroll Mgmt., Inc. v. Lexington Ins. Co., 566 Fed.Appx. 796, 799 (11th Cir. 2014) (per curiam) (unpublished). In Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen and Assistants’ Local 349, 427 F.2d 325 (5th Cir. 1970), we defined “nominal or formal parties” as those that are “neither necessary nor indispensable” to the action. Id. at 327. We also said “[t]he ultimate test” for whether a defendant is nominal is “whether in the absence of the defendant, the Court can enter a final judgment consistent with equity and good conscience which would not be in any way unfair or inequitable to plaintiff.” Id (quotation omitted and alteiation adopted).

Under this test, RSGO is more than just a nominal defendant. At the time this case was removed to federal court, RSGO’s absence would have put Thermo-set at risk of receiving inadequate relief. Florida is not a joint-and-several liability state. Under Florida law, a defendant in a product liability action (like GAF) is liable only for the amount of damages proportional to its percentage of fault. See Fla. Stat. § 768.81(3). Thus, if RSGO were not at the trial, GAF could argue that RSGO caused the problems, so GAF was not at fault for Thermoset’s damages. If the fact-finder agreed, GAF would pay nothing, leaving Thérmoset with incomplete relief. This demonstrates a significant risk that a final judgment in RSGO’s absence would be “unfair or inequitable” to Thermoset. Tri-Cities Newspapers, 427 F.2d at 327.

The defendants argue RSGO may be categorized as a nominal party because GAF agreed to defend and fully indemnify RSGO for any losses resulting from an adverse judgment. But if RSGO is not present at trial, so as to have its name appear on the verdict form, the jury-would have no opportunity to assess its liability in the first place. Without such a jury finding, Thermoset could not be sure of identifying, much less recovering, RSGO’s share of any damages owed in this action. Thus with RSGO absent from the case, a promise of indemnification by GAF does nothing to ensure adequate relief for Ther-moset.

The defendants also say RSGO is a nominal party because it played “no active role in the alleged warranty, design, or manufacture” óf the roof system, and was merely a middleman. We take this as an argument that RSGO’s absence could not have put Thermoset at risk of receiving incomplete relief because RSGO could not have been held liable for any portion of Thermo-set’s damages as a mere middleman. However, Thermoset has pointed to evidence indicating that RSGO was more than a just a go-between insofar as Robert Vitale, an employee of RSGO, made roofing material recommendations to Thermoset. And even if RSGO was just a middleman that sold the roofing materials to Thermoset, it could still be liable for some portion of Thermoset’s damages under Thermoset’s implied warranty theories. For example, under Florida law, a warranty that a seller’s goods are merchantable (fit for their ordinary purposes) is implied if the seller “is a merchant with respect to goods of that kind.” Fla. Stat. § 672.314. Thus, a seller can breach this implied warranty by doing nothing more than being a merchant of certain products and selling those products. As a result, RSGO cannot demonstrate that its absence would not have created any risk of inadequate relief.

B. DISMISSING RSGO TO PRESERVE JURISDICTION WOULD NOT BE PROPER

Because RSGO is a real party in interest, its non-diverse citizenship destroys federal jurisdiction for this case. However, Federal Rule of Civil Procedure 21 gives us the power to dismiss a non-diverse party like RSGO in order to preserve jurisdiction over the rest of the case and “rescue an otherwise valid judgment.” Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1343 (11th Cir. 2011); accord Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832-37, 109 S.Ct. 2218, 2222-25, 104 L.Ed.2d 893 (1989). The Supreme Court has instructed us to use this power “sparingly.” Newman-Green, 490 U.S. at 837, 109 S.Ct. at 2225. Specifically, we can dismiss a non-diverse party “only if no party will be prejudiced by the dismissal.” Molinos, 633 F.3d at 1343. Under Newman-Green, this prejudice determination requires us to look at two factors. See Molinos, 633 F.3d at 1343. First, we must decide whether the non-diverse party is “indispensable” under Federal Rule of Civil Procedure 19. Id. “If the [non-diverse] party is indispensable, then we must dismiss the entire case [for lack of subject-matter jurisdiction]” — we cannot dismiss the non-diverse party and keep the rest of the case. Id. Second, if the non-diverse party is not indispensable, “we must inquire whether the presence of the non-diverse party provided the other side with a tactical advantage in the litigation.” Id. at 1344.

Rule 19 establishes a two-step inquiry for deciding whether RSGO is indispensable. First, we must consider whether RSGO is a “required party” under clause (a)(1). If RSGO is “required,” then we move to a second step and ask whether “in equity and good conscience, the action should proceed” without RSGO under subsection (b). And if we conclude that the case should not continue without RSGO, then RSGO is an indispensable party and we must dismiss the entire case. See Molinos, 633 F.3d at 1343.

Under Rule 19⅛ two-step inquiry, we conclude RSGO is an indispensable party. First, RSGO is a “required party” under clause (a)(1) because “the court cannot accord complete relief among existing parties” in RSGO’s absence. Fed. R. Civ. P. 19(a)(1)(A); As we described above, RSGO’s absence would put Thermoset at risk of receiving incomplete relief because Florida is not a joint-and-several liability state. There are also other plausible ways in which RSGO’s absence could prevent Thermoset from receiving complete relief (or any relief at all). For example, a jury might find that no implied warranties existed between GAF and Thermoset because there was no privity between them. If so, the only entity from which Thermo-set could recover damages is RSGO. Beyond that, if we dismiss RSGO, the only way Thermoset could ensure itself complete relief would be by bringing another action against RSGO in state court over the same injury. But clause (a)(1) of Rule 19 was designed to protect not only the interests of the parties, but also the interests of “the public in avoiding repeated lawsuits on the same essential subject matter.” Fed. R. Civ. P. 19 advisory committee’s note to 1966 amendment. In light of both the text and the purpose of. clause (a)(1), RSGO is a required party.

Second, under subsection (b) of Rule 19, we cannot conclude “in equity and good conscience” that the suit should continue ■without RSGO. Subsection (b) instructs us to consider four factors to make this determination: (1) the extent to which a judgment rendered in RSGO’s absence might prejudice RSGO or the other parties; (2) “the extent to which any prejudice could be lessened or avoided by” “protective provisions in the judgment,” “shaping the relief,” or “other measures”; (3) whether a judgment rendered in [RSGO’s] absence would be adequate; and (4) whether Ther-moset would have an adequate remedy if we dismissed the entire case. Fed. R. Civ. P. 19(b)(1) — (4). These factors “are not intended to exclude other considerations which may be applicable in particular situations,” so we may incorporate other factors into our analysis if they are relevant. Fed. R. Civ. P. 19 advisory committee’s note to 1966 amendment. We will consider each of these factors, although not in order.

The third factor listed in subsection (b) (whether a judgment rendered in RSGO’s absence would be adequate) closely parallels the “required party” test in clause (a)(1) (whether such a judgment can accord complete relief among existing parties). Thus, the “required party” analysis applies here: RSGO’s absence would create a significant risk of inadequate relief for Thermoset because (1) Florida is not a joint-and-several liability state; and (2) there are other plausible scenarios in which RSGO’s absence from this action could prevent Thermoset from recovering all of its lawful damages. The third subsection (b) factor therefore weighs against continuing this action without RSGO as a party.

The second subsection (b) factor (whether there are any available measures for lessening or avoiding the prejudicial effects of rendering a judgment in RSGO’s absence) “meshes” with the third factor. Fed. R. Civ. P. 19 advisory committee’s note to 1966 amendment. The defendants do not identify any measures that any party or the court could take to mitigate the risk of inadequate relief that RSGO’s absence would create. As we have explained, GAF’s indemnification agreement with RSGO would not lessen this risk. This factor therefore also militates against finding that this case can and should proceed without RSGO.

In contrast, the first factor in subsection (b) (the extent to which a judgment rendered in RSGO’s absence might prejudice RSGO or the existing parties) does not weigh against dismissing RSGO to retain jurisdiction over the rest of the case. This factor considers whether RSGO would be adversely affected if it were dismissed from the action, and whether a judgment rendered in RSGO’s absence would have collateral consequences on GAF or Ther-moset. Fed. R. Civ. P. 19 advisory committee’s note to 1966 amendment. For this factor, neither Thermoset nor the defendants argue that dismissing RSGO would prejudice RSGO or have adverse collateral consequences on GAF or Thermoset. This factor therefore bears little weight in our decision.

The fourth and last subsection (b) factor strongly weighs against proceeding without RSGO. This factor asks whether Ther-moset would have an adequate remedy if we dismissed the entire action. Upon bur dismissal of the case, Thermoset could continue its action against both GAF and RSGO in state court (which is where it initially filed the case before GAF removed it to federal court). Because RSGO would be a party to that action, Thermoset would not be at risk of receiving incomplete relief and would therefore have an adequate remedy. The fact that Thermoset would have an adequate remedy in state court points in favor of dismissing the entire action instead of continuing, it in federal court without RSGO as a party.

One more factor that weighs against dismissing RSGO to preserve jurisdiction over the rest of the action is the fact that GAF invoked the District Court’s diversity jurisdiction. Had Thermoset initiated its action in federal district court, we might have reason to think that sending the entire case back to state court would unfairly benefit Thermoset and conflict with “equity and good conscience.” Fed. R. Civ. P. 19(b). But this is not what happened here. GAF removed this ease from state court to federal court. This meant it was GAF’s burden to prove diversity jurisdiction. See Molinos, 633 F.3d at 1340. Allowing this action to continue without RSGO would therefore unfairly reward GAF for the jurisdictional defect it created and should have known about all along.

The defendants raise another equitable consideration to argue against dismissal of the entire action. This is, of course, the fact that this case has already been litigated to a final judgment. In support, they draw attention to the Supreme Court’s statement that “[o]nce a diversity case has been tried in federal court ... considerations of finality, efficiency, and economy become overwhelming.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 75, 117 S.Ct. 467, 476, 136 L.Ed.2d 437 (1996). However, unlike in Caterpillar, this case has not yet gone to trial, so “considerations of finality, efficiency, and economy” are not yet “overwhelming.” See id. Also, the defendants conceded at oral argument that at least some of the written discovery and deposition testimony obtained in the course of these federal proceedings could be reused in state court if we dismiss the entire case from federal court. See Fla. Stat. § 90.803(22) (providing an exception to hearsay for former testimony); Fla. R. Civ. P. 1.330. Thus, Florida law would allow the parties to mitigate a portion of the waste created by remanding the case back to state court. Finally, we are mindful that dismissing RSGO would create inefficiency in any event because Thermoset would respond to RSGO’s dismissal by suing RSGO over the same subject matter in state court. On this record, the fact that this case has already been litigated to summary judgment does not convince us to continue this action in federal court without RSGO as a party.

III. CONCLUSION

Because RSGO is not a nominal party, its non-diverse citizenship cannot be ignored for jurisdictional purposes. And because RSGO is an indispensable party under Rule 19, we cannot preserve jurisdiction over the rest of the case by dismissing RSGO. As a result, we vacate the District Court’s summary judgment order and send this case back to the District Court with instructions to remand it to the Florida state court for further proceedings.

VACATED AND REMANDED.

      . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Id, at 1209.

      . The defendants admit in their answer to the jurisdictional question that Thermoset discussed the purchase of roofing materials for the project with Mr. Vitale, but they allege for the first time on appeal that Mr. Vitale was an employee of Roofing Supply Group, LLC, nut RSGO. Even though this allegation, if true, might absolve RSGO of liability under some of Thermoset’s theories, neither defendant made this allegation in the District Court. Beyond that, even accepting this premise as true, RSGO could still be held liable under Thermoset’s implied warranty theories.

      . Indeed, GAF made exactly this argument below in both its motion to dismiss and its response to Thermoset's motion for summary judgment.


source: Caselaw Access Project

author: WILLIAM PRYOR, Circuit Judge: ED CARNES, Chief Judge, JORDAN, Circuit Judge,

license: Public Domain

text:
    Ace PATTERSON, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
    No. 12-12653
    United States Court of Appeals, Eleventh Circuit.
    (March 3, 2017)

      Erica Hashimoto, Georgetown Appellate Litigation Clinic, Zaneta Kim, Branden Lewiston, Georgetown University Law Center, Washington, DC, Zack Kelehear, Maria Rivera-Diaz, University of Georgia School of Law, Athens, GA, for Petitioner-Appellant.
    Bryan G. Jordan, Pam Bondi, Attorney General’s Office, Tallahassee, FL, for Respondent-Appellee.
    Michelle Yard, Conrad Benjamin Kahn, Federal Public Defender’s Office, Orlando, FL, for Amici Curiae.
    Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.
   WILLIAM PRYOR, Circuit Judge:

This appeal requires us to decide whether a consent order that a state prisoner not undergo chemical castration allows him to attack his eighteen-year-old convictions a second time, notwithstanding the statute-ry bar of successive petitions, 28 U.S.C. § 2244(b)(1). In 1998, a Florida jury convicted Ace Patterson of burglary, aggravated kidnapping of a child, and two counts of capital sexual battery. The trial court sentenced him to life imprisonment and chemical castration. Patterson then filed several unsuccessful collateral attacks in state court and a petition for a writ of habeas corpus that the district court dismissed as untimely. In 2009, Patterson filed a motion to correct án illegal sentence, Fla. R. Crim. P. 8.800, on the ground that the trial court failed to comply with the statutory prerequisites for chemical castration. After the state and the victim’s guardian ad litem consented to Patterson’s motion, a Florida court granted it and ordered that he not undergo chemical castration. But the Florida court did not enter a new judgment or order commanding the Secretary of the Department of Corrections to imprison him. Patterson then filed another federal petition that attacked his convictions. The district court dismissed that petition as “second or successive.” § 2244(b)(1). Patterson argues that the order that he not undergo chemical castration constitutes a new “judgment,” 28 U.S.C. § 2254(b)(1), that makes his latest petition not second or successive under Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010). But because Patterson is not “in custody pursuant to,” § 2254(b)(1), the consent order that he not undergo chemical castration, that order does not trigger a new round of federal collateral review. See Magwood, 561 U.S. at 332-33, 130 S.Ct. 2788. We affirm the dismissal of Patterson’s petition as second or successive.

I. BACKGROUND

Ace Patterson is a prisoner in the custody of the Secretary of the Florida Department of Corrections. In 1997, he visited his cousin and his cousin’s fiancée at their home in Madison County, Florida. There, the couple introduced Patterson to their eight-year-old daughter before she went to bed. Patterson ate dinner and spent time with the couple and then left for the night. But he later returned uninvited.

In the middle of the night, Patterson broke into his cousin’s home and lifted his cousin’s sleeping eight-year-old daughter out of her bed. He carried her outside, brought her to the woods, and raped her. When she tried to scream, Patterson gagged her by sticking his fingers down her throat. When she tried to escape, Patterson grabbed her leg, dragged her back into the dirt, and raped her again. After the assault, the girl found her way back home. Her parents awoke to the sound of their eight-year-old daughter knocking on the front door — crying, covered in dirt, missing a clump of hair, and covered in scratches and bruises. The medical examiners later discovered dirt in her vagina and severe vaginal lacerations.

In 1998, a jury convicted Patterson of burglary, aggravated kidnapping of a child, and two counts of capital sexual battery. The Florida trial court sentenced him to 311 months of imprisonment for the burglary and kidnapping convictions and to consecutive sentences of life imprisonment and chemical castration for the sexual battery convictions. The sentencing form “committed [Patterson] to the custody of the Department of Corrections” and directed the Department to “keep and safely imprison” Patterson for the remainder of his life. A state appellate court later affirmed his convictions and sentences. Patterson v. State, 736 So.2d 1185 (Fla. Dist. Ct. App. 1999).

Patterson then initiated a flurry of collateral attacks against his convictions, including four petitions for writs of habeas corpus in state court and an ethics complaint against the prosecutor who tried his case. His efforts failed, and a Florida appellate court warned him that “the filing of any further successive and/or frivolous petitions or appeals may result in the imposition of sanctions.” Patterson v. State, 788 So.2d 397 (Fla. Dist. Ct. App. 2001).

In 2006, Patterson filed his first federal petition for a writ of habeas corpus. He alleged that his convictions were secured in violation of the Due Process Clause of the Fourteenth Amendment, the Self-Incrimination Clause of the Fifth Amendment, and the right to effective assistance of counsel under the Sixth Amendment. The district court dismissed his petition as untimely. Ordinarily, that decision would have brought closure to the victim of his crimes, who was by then eighteen years old.

Patterson then pursued a different line of attack. Instead of challenging his convictions, he challenged the portion of his sentence that required chemical castration. Patterson filed a motion to correct an illegal sentence, Fla. R. Crim. P. 3.80Ó, on the ground that the trial court did not comply with the statutory prerequisites for chemical castration. The State of Florida and the guardian ad litem for the victim assented to Patterson’s motion. With Patterson imprisoned for life, the prosecutor and guardian ad litem viewed chemical castration as a. “moot point” and believed that contesting his motion was not worth “exposing] the victim to the painful remembrance of the Defendant’s actions against her.”

In 2009, the Florida trial court granted Patterson’s motion in an order that stated, “[T]he Defendant shall not have to undergo [chemical castration] as previously ordered by the Court at his sentencing in the above styled matter.” The 2009 order did not vacate Patterson’s sentence and replace it with a new one. Nor did it direct the Department of . Corrections to hold Patterson or perform any affirmative act.

After his success in state court, Patterson resumed his attack on his 1998 convictions in federal court. In 2011, he filed a second petition for a writ of habeas corpus, which again alleged that his convictions were secured in violation of the Fifth, Sixth, and Fourteenth Amendments. A magistrate judge recommended dismissing Patterson’s petition as second or successive because Patterson was “not in custody pursuant to” the 2009 order. The district court adopted that recommendation and dismissed Patterson’s petition as second or successive.

A divided panel of this Court reversed. Patterson v. Sec’y, Fla. Dep’t of Corr., 812 F.3d 885 (11th Cir. 2016), reh’g en banc granted, opinion vacated, 836 F.3d 1358 (11th Cir. 2016). The panel concluded that Patterson’s petition was not second or successive because Patterson was in custody pursuant to a new judgment — the order that he not undergo chemical castration. We vacated the panel opinion and ordered rehearing en banc. We appointed Professor Erica Hashimoto to represent Patterson throughout this appeal. We thank Professor Hashimoto for her excellent brief and oral argument in keeping with the highest tradition of the legal profession.

II. STANDARD OF REVIEW

We review de novo whether a petition for a writ of habeas corpus is second or successive. Stewart v. United States, 646 F.3d 856, 858 (11th Cir. 2011).

III. DISCUSSION

After a state prisoner has had a trial, a direct appeal, and an opportunity for collateral review in the state courts, he typically gets one, and only one, chance to collaterally attack his conviction in federal court. With exceptions not relevant here, section 2244(b) prohibits a state prisoner from filing a “second or successive” habeas petition. 28 U.S.C. § 2244(b). This prohibition “is grounded in respect for the finality of criminal judgments.” Calderon v. Thompson, 523 U.S. 538, 558, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). Finality, in turn, is essential to achieving the goals of our criminal justice system: “Deterrence depends upon the expectation that ‘one violating the law will swiftly and certainly become subject to punishment, just punishment.’ Rehabilitation demands that the convicted defendant realize that ‘he is justly subject to sanction, that he stands in need of rehabilitation.’ ” Engle v. Isaac, 456 U.S. 107, 127 n.32, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (quoting Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 452 (1963); Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 146 (1970)). Finality also “benefits the victim by helping [her] put the trauma of the crime and prosecution behind [her].” Presnell v. Kemp, 835 F.2d 1567, 1573 (11th Cir. 1988).

Whether a petition is second or successive depends on “the judgment challenged.” Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273, 1278 (11th Cir. 2014). The judgment that matters for purposes of section 2244 is “the judgment authorizing the prisoner’s confinement.” Magwood, 561 U.S. at 332, 130 S.Ct. 2788 (emphasis omitted) (quoting Wilkinson v. Dotson, 544 U.S. 74, 83, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005)). This conclusion follows from the text of the statute. Section 2244(b) refers to second or successive petitions “under section 2254.” 28 U.S.C. § 2244(b). And section 2254 governs petitions that challenge “the judgment of a State court” “pursuant to” which the prisoner is “in custody.” Id. § 2254. Accordingly, the bar on second or successive petitions ordinarily prevents a prisoner from twice contesting the judgment authorizing his confinement. See Burton v. Stewart, 549 U.S. 147, 153, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007).

A petition is not second or successive if it challenges a “new judgment” issued after the prisoner filed his first petition, Magwood, 561 U.S. at 324, 130 S.Ct. 2788, but the new judgment must be a “judgment authorizing the prisoner’s confinement.” Id. at 332, 130 S.Ct. 2788 (emphasis omitted) (quoting Dotson, 544 U.S. at 83, 125 S.Ct. 1242). For example, in Magwood, the district court granted a prisoner’s first habeas petition and vacated his sentence. Id. at 326, 130 S.Ct. 2788. The state court then conducted a new sentencing hearing and entered a new judgment and sentence of imprisonment. Id. When the prisoner filed a second habeas petition, the Supreme Court held that it was not second or successive because the petition was the prisoner’s first challenge to the new prison sentence. Id. at 339, 130 S.Ct. 2788. Although the prisoner’s second petition restated the same errors as his first petition, the errors he alleged were new because at the resentencing hearing, the state court heard and rejected the prisoner’s arguments a second time. Id. And “[a]n error made a second time is still a new error.” Id.

The district court correctly concluded that the only judgment that authorizes Patterson’s confinement is the sentence entered in 1998. That judgment “committed [Patterson] to the custody of the Department of Corrections,” and that commitment has never been vacated or replaced. Patterson challenged that judgment in his 2006 petition for a writ of habeas corpus.

When his first federal petition was dismissed as untimely, Patterson lost his one chance to obtain federal habeas review of his 1998 judgment. See Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1353 (11th Cir. 2007). Because Patterson’s 2011 petition challenges the 1998 judgment a second time, the district court correctly dismissed it as second or successive. The 2009 order that granted Patterson’s uncontested motion to correct his sentence does not trigger a new round of federal review.

Our precedent in Insignares does not support Patterson’s argument. Although Patterson and Insignares both filed, successful motions to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a), the Florida trial court in Insignares went a step further: it also changed Insignares’s term of imprisonment and “entered [a] corrected sentence and new judgment.” 755 F.3d at 1277. This corrected sentence “committed [Insig-nares] to the custody of the Department of Corrections.” Here, the Florida trial court never issued a new prison sentence — in writing or otherwise — to replace Patterson’s 1998 sentence. The 2009 order bars the imposition of chemical castration, but it does not otherwise address the term of Patterson’s imprisonment. In short, Insig-nares had an intervening “judgment authorizing [his] confinement,” but Patterson does not. Id. at 1279 (emphasis omitted) (quoting Magwood, 561 U.S. at 332, 130 S.Ct. 2788).

Patterson and the dissent contend that the 1998 sentencing form and the order that Patterson not undergo chemical castration must be read together to describe his conviction and current sentence accurately, see Dissenting Op. at 1331-32, but the text of the governing statute makes clear that the only judgment that counts for purposes of section 2244 is the judgment “pursuant to” which the prisoner is “in custody.” 28 U.S.C. § 2254; see Magwood, 561 U.S. at 332-33, 130 S.Ct. 2788; Burton, 549 U.S. at 156, 127 S.Ct. 793. And Patterson is not in custody pursuant to the 2009 order because it does not authorize anything. Magwood, 561 U.S. at 332, 130 S.Ct. 2788. Instead, it states only in the negative that Patterson “shall not have to undergo [chemical castration].” That the Florida Department of Corrections must read both forms together to determine the scope of Patterson’s confinement does not transform the 2009 order into a judgment that authorizes Patterson’s custody. The 1998 judgment is the only judgment that allows the Department to imprison Patterson. The 2009 order imposes no sentence and gives the Department no authority.

Patterson also argues that any order that alters a sentence necessarily constitutes a new judgment, but this argument is difficult to square with our precedent that suggests that not all changes to a sentence create a new judgment. We have held that when a court corrects a clerical mistake, no new judgment arises for purposes of Federal Rule of Appellate Procedure 4(B)(1)(A). See United States v. Portillo, 363 F.3d 1161, 1165-66 (11th Cir. 2004). Although we have not applied this precedent in the context of second petitions, we reject the notion that the Antiterrorism and Effective Death Penalty Act, the “central purpose” of which “was to ensure greater finality of state and federal court judgments in criminal cases,” Gonzalez v. Sec’y for Dep’t of Corr., 366 F.3d 1253, 1269 (11th Cir. 2004) (en banc), is more accommodating of untimely and successive petitions than Rule 4(b)(1)(A) is of untimely direct appeals. And, contrary to the dissent’s assertion, Dissenting Op. at 1332, because an order that corrects a clerical error likely would not create a new judgment, a petitioner would not be entitled to a second round of habeas review. See Magwood, 561 U.S. at 331, 130 S.Ct. 2788.

Recognizing that his suggested rule runs counter to Portillo, Patterson attempts to limit his test to whether a prisoner’s sentence has materially changed, but this limitation still misses the point. The relevant question is not the magnitude of the change, but the issuance of a new judgment authorizing the prisoner’s confinement. Id. at. 332, 130 S.Ct. 2788. The state court did not issue a new judgment authorizing Patterson’s confinement when it granted Patterson’s motion to correct his sentence. And the 1998 judgment remains the only order that commands the Secretary to imprison Patterson.

Many ameliorative changes in sentences that state courts might grant as a matter of course, such as the removal of a fine or a restitution obligation, would trigger a new round of federal habeas review under Patterson’s proposed standard of “material change.” At oral argument, Patterson’s counsel stated that orders that remove restitution and fines might be “in a slightly different category” than orders that remove chemical castration because fines and restitution are not part of a prisoner’s custodial sentence and cannot be challenged in a habeas proceeding. See Mamone v. United States, 559 F.3d 1209, 1211 (11th Cir. 2009). But whether a challenge to the removed portion of the sentence was initially cognizable in a habeas proceeding is irrelevant to whether the removal of that condition produces a new judgment. Patterson’s focus on the magnitude and type of change to the sentence is beside the point. The only question is whether the 2009 order authorizes his confinement.

The dissent argues that, in the wake of our ruling, “all Florida prisoners who obtain a favorable Rule 3.800(a) order striking or vacating part of their initial sentence ... will simply have the state trial court enter a new judgment,” Dissenting Op. at 1331, but the dissent cites no authority for this proposition. And it is unclear that Florida law would entitle every prisoner to that remedy. Rule 3.800(a) allows a court to correct an illegal sentence “at any time” if the “records demonstrate on their face an entitlement” to relief. This rule encompasses clerical errors, Carson v. State, 489 So.2d 1236, 1238 (Fla. Dist. Ct. App. 1986), which “generally relate back” to the date of initial judgment. R. R. Ricou & Sons Co. v. Merwin, 94 Fla. 86, 113 So. 745, 746 (1927). An order that relates back to an original sentence merely amends the original order and may not entitle' the defendant to vacatur of the original judgment and entry of a new one. That Rule 3.800(a) encompasses clerical errors, which relate back, suggests that other modifications under Rule 3.800(a) may also relate back to the original sentencing and would not require a judge to vacate the original sen•tence and issue a new one. And we know, of course, that the judge in Patterson’s case did not do so.

As a practical matter, Patterson’s proposed resolution of this appeal might hurt prisoners more than it helps. To be sure, if any change to a sentence triggers another opportunity for federal review, state prisoners would potentially have greater access to the federal writ of habeas corpus. But then state officials' would be less willing to agree to sentencing changes that benefit prisoners, and state courts would be more hesitant to approve them. Courts have the discretion to accept a prosecutor’s concession, in lieu of reaching the merits, in close cases and in cases where no error occurred. See Casey v. United States, 343 U.S. 808, 808, 72 S.Ct. 999, 96 L.Ed. 1317 (1952); Santiago-Lugo v. Warden, 785 F.3d 467, 475 (11th Cir. 2015). But Florida’s courts “have a constitutional and statutory duty not to accept an inappropriate concession” when it “might be to the detriment of the victims of crime and/or to the people of the State of Florida,” Reed v. State, 783 So.2d 1192, 1196 n.2 (Fla. Dist. Ot. App. 2001), quashed on other grounds, 837 So.2d 366 (Fla. 2002), a possibility that would arise more often if a merciful concession required prosecutors to defend and victims to endure a new round of federal habeas review.

The dissent contends that we “seem[ ] to be saying” that prosecutors and state courts would refuse to correct illegal sentences under clear state law to avoid additional federal habeas review, see Dissenting Op. at 1332-38, but that contention constructs a straw man. Nothing in our analysis suggests that prosecutors and state courts would refuse to modify an illegal sentence. Instead, our analysis recognizes that prosecutors may sometimes consent to motions under Rule 3.800(a) even when the prisoner’s sentence may not be illegal. Here, the record establishes that the prosecution assented to Patterson’s motion to remove chemical castration from his sentence because it viewed chemical castration as a “moot point” in the light of Patterson’s life sentence and because contesting the motion was not worth “exposing] the victim to the painful remembrance of [Patterson’s] actions against her.” But we doubt that the prosecution would have so readily assented to Patterson’s motion had it known that the resulting order would subject Patterson’s victim to a second round of lengthy habeas review.

The Antiterrorism and Effective Death Penalty Act gives state prisoners only one opportunity to challenge their sentence in federal court. Patterson wasted that opportunity ten years ago when he filed his first petition late. Patterson would have us hold that any order that changes a prisoner’s sentence is a new judgment that triggers a new round of federal review. But the only judgment that matters is the judgment that authorizes Patterson’s confinement — the very judgment that Patterson has been attacking for eighteen years and that he wants to attack again. The Act requires that we say “no more.” The ciis-trict court correctly dismissed Patterson’s petition as second or successive.

IY. CONCLUSION

We AFFIRM the dismissal of .Patterson’s petition for a writ of habeas corpus.

ED CARNES, Chief Judge,

concurring:

I fully concur in the well-reasoned majority opinion, and write separately only to make clear that this Court does not reach the two questions contained in the second issue that we asked the parties to brief. We stated those questions as follows:

Should Insignares v. Secretary, 755 F.3d 1273 (11th Cir. 2014), and Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d 1286 (11th Cir. 2007), be overruled insofar as either of them [1] allows a non-detrimental change in a prisoner’s sentence to constitute a new judgment under Mag-wood, or [2] allows a prisoner who obtains a non-detrimental change in his sentence to also challenge his original, undisturbed conviction as though the conviction had occurred at the date of the change in the sentence?

Regardless of the first question, we know from the Magwood opinion itself that the second question was not decided in that case because the Supreme Court’s opinion tells us it was not. The Court expressly stated: “This case gives us no occasion to address” whether its reasoning “would allow a petitioner who obtains a conditional writ as to his sentence to file a subsequent application challenging not only his resulting, new sentence, but also his original, undisturbed conviction.” Magwood v. Patterson, 561 U.S. 320, 342, 130 S.Ct. 2788, 2802, 177 L.Ed.2d 592 (2010). In his second or successive application, Magwood had not attempted to challenge his undisturbed conviction, only his new sentence. Id. The Supreme Court did note that “[s]everal Courts of Appeals have held that a petitioner who succeeds on a first habeas application and is resentenced may challenge only the portion of a judgment that arose as a result of a previous successful action.” Id. at 342 n.16, 130 S.Ct. at 2802 n.16 (quotation marks omitted) (citing decisions of the Second, Sixth, and Seventh Circuits).

Because Patterson’s second or successive habeas application does challenge his conviction, this case might have presented the undisturbed conviction/new sentence issue that Magwood reserved, allowing us to decide whether to overrule our Insig-nares and Ferreira decisions. It does not, however, because there was no new judgment in this case. As a result, that issue is one for another day.

JORDAN, Circuit Judge,

joined by WILSON, MARTIN, ROSENBAUM and JILL PRYOR, Circuit Judges, dissenting:

There are legitimate questions about whether Insignares v. Secretary, Florida Department of Corrections, 755 F.3d 1273 (11th Cir. 2014), correctly applied Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), as to when there is an intervening judgment under 28 U.S.C. §§ 2244(b) & 2254(b). But if we are going to leave Insignares undisturbed, I “do not see how [that case] and [the majority’s decision here] can coexist.” United States v. Bryan, 339 U.S. 323, 343, 70 S.Ct. 724, 94 L.Ed. 884 (1950) (Jackson, J., concurring). As explained in the now-vacated panel opinion:

A “basic principle of justice [is] that like cases should be decided alike,” Martin v. Franklin Capital Corp., 546 U.S. 132, 139, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005), and [there is] no meaningful distinction between Mr. Insignares’ case and Mr. Patterson’s case. Just as Mr. Insignares’ initial § 2254 petition was dismissed for untimeliness, so too was Mr. Patterson’s initial § 2254 petition. Just as Mr. Insignares filed a motion with the state trial court to correct his illegal sentence under Rule 3.800, so too did Mr. Patterson. Just as the state trial court granted Mr. Insignares’ motion to correct, substantively amending a part of the sentence but leaving Mr. Insig-nares’ remaining convictions and total custodial sentences intact, so too did the state trial court here grant Mr. Patterson’s motion to correct, substantively vacating a portion of the sentence but leaving Mr. Patterson’s remaining convictions and total custodial sentences intact. Just as Mr. Insignares benefitted from the new sentence, so too did Mr. Patterson benefit from the new sentence. And just as the second habeas petition filed by Mr. Insignares asserted claims related to his underlying convictions (and not to the new sentence), so too did the second habeas petition filed by Mr. Patterson assert claims related to his underlying convictions (and not to the new sentence). As in Insignares, the state trial court’s grant of Mr. Patterson’s Rule 3.800 motion and its vacatur of the punishment of chemical castration from the original sentence constituted a resentencing that resulted in a new judgment, even though Mr. Patterson’s total custodial term (life in prison) remained the same, and even though the current habeas corpus petition challenges only the underlying convictions.

Patterson v. Sec’y, Fla. Dep’t of Corr., 812 F.3d 885, 888-89 (11th Cir. 2016) (some language in brackets added). The majority tries valiantly to explain why Insignares does not govern, but its reasons — to the extent one can ascertain them — are unconvincing.

⅜: ⅜ ⅜ ⅜; ⅜ ⅜ ⅜

The majority says that, under Magwood, the only judgment.that authorizes Mr. Patterson’s confinement is the original 1998 judgment, which has never been vacated or replaced. See Maj. Op. at 1325-26. That, I think, is wrong on a number of levels.

A. criminal judgment (even under AED-PA) consists of the conviction and the sentence. See Burton v. Stewart, 549 U.S. 147, 156-57, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007); Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d 1286, 1292-93 (11th Cir. 2007). Not only has the Supreme Court emphasized the critical role that the sentence plays in a judgment, dictionaries from the time of AEDPA’s enactment confirm this . understanding. See Barron’s Law Dictionary 271 (4th Ed. 1996) (defining “judgment of conviction” as “the sentence in a criminal case formally entered in the clerk’s records”); Black’s Law Dictionary 842 (6th Ed. 1990) (stating that “ ‘sentence’' and ‘judgment’ are synonymous in a criminal action”).

Chemical castration is a criminal punishment under Florida law, see Tran v. State, 965 So.2d 226, 229 (Fla. 4th DCA 2007) (holding that chemical castration, which has been characterized by the Florida Legislature as a penalty, “is part of the defendant’s punishment and sentence”), and the Rule 3.800(a) order (however one wants to characterize it) eliminates that punishment from Mr. Patterson’s sentence. That order constitutes part of Mr. Patterson’s sentence because it substantively changes the way that the Department of Corrections can execute the initial judgment. Everyone but the majority recognizes this reality. '

⅝ # ⅝ ⅜ * # ⅝

Apparently sensing that this first reason is insufficient, the majority pivots,- and says that Insignares is distinguishable because the state trial court in that case, in addition to issuing a Rule, 3.800(a) order, also entered a new judgment. See Maj. Op. at 1325-26. This, essentially, mirrors the position that Florida took at oral argument:

Member of the Court: ... I want to know why you think — and there are various possible answers — but I want to know why you think this is not a new judgment. First, you told me it didn’t change his confinement, and we talked about that. Now you say that Insignares was different and you started on confinement grounds, but now, you say that there was a new piece of paper called a judgment in Insignares, which made all the difference in the world. What is the difference between Insignares and. this case in your opinion?
Counsel for the State: In my opinion, in Insignares, a new judgment and sentence, that is required by the Florida Department of Corrections to have in order to lawfully have someone in their custody exists in Insignares....
Member of the Court: So it’s ... the piece of paper called a judgment?
Counsel for the State: It is the piece of paper that complies with Florida law that says this is the judgment that gives you the authority to hold this person in custody.
Member of the Court: Under that theory ... even if Mr. Patterson doesn’t get relief in this case, someone who is in Mr. Patterson’s exact situation tomorrow, gets a sentence of chemical castration vacated pursuant to a 3.800 order, asks the judge to resentence him or her, gets a full resentencing, gets a new judgment minus the sentence of chemical castration — that person has a new judgment?
Counsel for the State: That is a new judgment.
Member of the Court: So it’s the piece of paper that matters?
Counsel for the State: It is a piece of paper. It really is.
Member of the Court: Got it. Okay. That is your answer? It is the piece of paper that matters.
Counsel for the State: That is my answer.

Audio of En Banc Oral Argument at 27:59-29:27.

It is true that there was a new formal judgment in Insignares, but that, it seems to me, is irrelevant. First, Florida law does not require that a criminal judgment be in writing. See Patterson, 812 F.3d at 890; Flowers v. State, 351 So.2d 387, 389 (Fla. 1st DCA 1977); Fla. R. Crim. P. 3.700. Second, Florida law indicates that Rule 3.800(a) orders can be tantamount to judgments and have the force of law when — as here — they impose a new sentence and end judicial labor. See Adams v. State, 949 So.2d 1125, 1126-27 (Fla. 3d DCA 2007); State v. Rudolf, 821 So.2d 385, 386 (Fla. 2d DCA 2002); State v. Delvalle, 745 So.2d 541, 542 (Fla. 4th DCA 1999). Accord De La Osa v. Wells Fargo Bank, N.A., So.3d 259, 261-62 (Fla. 3d DCA 2016) (en banc) (explaining the interchangeability of the terms “order” and “judgment” under Florida law).

This, of course, is why the Florida Department of Corrections- acknowledges that it cannot chemically castrate Mr. Patterson. If state officials admit that the Rule 3.800(a) order affects and modifies Mr. Patterson’s initial sentence, i.e., judgment, one is left to wonder why the majority thinks that the order amounts to nothing more than the ineffectual and legally insignificant, musings of a state trial court.

We have been told, time and again, that AEDPA — in both text and spirit — is meant to respect the way that states administer their criminal justice systems. Here, however, the majority is not concerned about the way that Florida law operates. It ignores Florida law holding that chemical castration is a criminal punishment, and refuses to recognize that under Florida law a Rule 3.800(a) order like the one here can have the force of law. And it relegates to the dustbin the Department of Corrections’ concession that, due to the state trial court’s order, it cannot chemically castrate Mr. Patterson. So much for respect.

⅜ ⅜ ⅜ ⅜ ⅞: ⅜ ⅜

If this case is all about a piece of paper, then' we have wasted valuable time and resources in convening en banc. If what matters is a formal paper called a judgment, then all Florida prisoners who obtain a favorable Rule 3.800(a) order striking or vacating part of their initial sentence — i.e., their initial punishment— will simply have the state trial court enter a new judgment setting out the current sentence and incorporate the terms of the Rule 3.800(a) order in the new judgment. That sort of a judgment, apparently, will suffice under Magwood.

The majority nevertheless suggests that Florida law may not entitle every prisoner who obtains Rule 3.800(a) relief to a new paper judgment. See Maj. Op. at 1327. But this suggestion should not be taken seriously, for the majority does not identify a principle of Florida law to support its theory. It offers only that the correction of a clerical error is an example of a situation in which a change “relates back” to the original sentence so as to not require the court to enter a new judgment. This cáse, of course, does not involve the correction of a clerical error, so the majority’s example is not helpful.

Even the majority does not really believe that this case turns on whether there is a new piece of paper called a judgment, for it provides yet another reason for its holding. According to the majority, the Rule 3.800(a) order does not affect Mr. Patterson’s confinement because it “does not authorize anything.” Maj. Op. at 1326. The majority says this confidently, even though it recognizes that the Florida Department of Corrections must read the 1998 judgment together with the Rule 3.800(a) order to “determine the scope of [Mr.] Patterson’s confinement.” Id. In Magwood, the Supreme Court rejected the state’s argument that custody is the critical concept in determining whether a habe-as corpus petition is second or successive, see 561 U.S. at 333-34, 130 S.Ct. 2788 (explaining that the “judgment” is what matters), yet here the majority seems to give primacy to custody, and bases its decision on whether the Rule 3.800(a) order gives the Department of Corrections the power to confine Mr. Patterson. I do not know why the majority thinks that the rationale in Magwood can be jettisoned like driftwood.

* * * * * * *

The majority analogizes to an order which corrects a clerical error, see Maj. Op. at 1326-27, which we have indicated does not constitute a new judgment under the Federal Rules of Appellate Procedure. See United States v. Portillo, 363 F.3d 1161, 1165-66 (11th Cir. 2004). But the majqrity is setting up the proverbial straw man, because there is no way anyone can say that an order which prohibits the substantive punishment of chemical castration is in any way clerical.

Indeed, it is the majority’s position that may one day cause a conflict with cases like Portillo. Imagine a case in which a Florida court sentences a defendant to a term of 10 years, but then issues a judgment which mistakenly states that the sentence is 100 years. No one notices the error until the defendant has been in custody for 6 years. If the state court issues a new judgment which corrects the clerical error and commits the defendant to the custody of the Department of Corrections for (the correct) 10 years, that will, according to the majority’s apparent rationale, constitute a new judgment under Mag-wood. There will be a new piece of paper— the amended judgment — which will be affirmatively worded, i.e., it will give the Department of Corrections the authority to keep the defendant in custody, and that judgment will set out the length of his confinement.

I prefer the panel’s approach, which looks to see whether the state court corrects a legal error and enters a new sentence that is substantively different than the original sentence. See Patterson, 812 F.3d at 891. It may not be perfect, but it is more faithful to Insignares than what the majority is offering.

⅜ ⅜ ⅜ ⅜ ⅜ ⅝ ⅜

The majority closes .by telling us that, “as a practical matter,” the approach taken by the panel, and endorsed by Mr. Patterson, “might hurt prisoners more than it helps.” Maj. Op. at 1327. In and of itself, the majority’s prediction about the consequences of today’s decision is neither surprising nor inappropriate. Courts often have to consider the practical effects of the principle they are adopting. What is remarkable is the reason the majority believes its decision is prisoner-friendly.

According to the majority, if the panel approach prevails, “then state officials would be less willing to agree to sentencing changes that benefit prisoners, and state courts would be more hesitant to approve them.” Id. I do not understand. Here, for example, the prosecution conceded error (and the state trial court granted Rule 3.800(a) relief) because Florida law makes it clear that the punishment of chemical castration was improperly imposed. See Houston v. State, 852 So.2d 425, 428 (Fla. 5th DCA 2003).

What the majority seems to be saying is that, in order to preclude a new round of federal habeas corpus proceedings for state prisoners under Magwood, state prosecutors may not concede that a sentence has been illegally imposed even though state law on the subject is clear, and that state courts may decline to correct a sentence that is undoubtedly illegal under state law even though it is their duty to do so. In other words, state prosecutors and state courts will bend (or ignore) state law in order to achieve the purportedly desirable goal of limiting the access of state prisoners to further federal habeas corpus review.

The majority’s underlying assumption— which I do not share — is as odd as it is disconcerting. See Patterson, 812 F.3d at 895 (Haikala, J., concurring) (“The notion that a trial judge would refrain from correcting a sentencing error that all of the parties have acknowledged ... to avoid a potential habeas petition is repugnant to the judicial office.”). If the majority is right, however, then the trust we place in state courts to adjudicate issues of federal law (both statutory and constitutional) is completely misplaced, and the deference we give them under AEDPA is a colossal and unjustified mistake.


author: WILLIAM PRYOR, Circuit Judge:

text:
    Andrew FELDMAN, Plaintiff-Appellant, v. AMERICAN DAWN, INC., Vyto Tozer, Paul Rasband, Defendants-Appellees.
    No. 16-11663
    United States Court of Appeals, Eleventh Circuit.
    (March 3, 2017)

      James B. Lieber, Jacob Matthew Simon, Brad R. Korinski, Lieber Hammer Huber & Paul, P.C., Pittsburgh, PA, Nathan L. Garroway , Jeffrey A. Zachman, Dentons US, LLP, Atlanta, GA, for Plaintiff-Appellant.
    Brian E. Casey, South Bend, IN, John F. Meyers, Atlanta, GA, Barnes & Thorn-burg, LLP, for Defendants-Appellees American Dawn, Inc., Vyto Tozer.
    Andrew McCampbell Gibson, Joseph Jackson Harris, The Finley Firm, PC, Atlanta, GA, for Defendant-Appellee Paul Rasband.
    Before WILLIAM PRYOR, JORDAN, and BALDOCK, Circuit Judges.

       Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting by designation.

   WILLIAM PRYOR, Circuit Judge:

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 Feld-man 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 Ras-band 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 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 uncov-éred 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 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 Feld-man 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 “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. § 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, place, and person responsible for the statement; (3) the content and manner in which these statements misled the [p]lain-tiff[ ]; 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. 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, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977).

Feldman argues that he has antitrust standing to challenge two categories of anticompetitive 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 Hoven-kamp, 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 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.

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, 102 S.Ct. 2540, 73 L.Ed.2d 149 (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 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 The-atre 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 Os-trofe, 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 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 Ads.

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 ÁLSCO. 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 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 “distributing] 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.

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 AL-SCO: 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 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 AL-SCO. 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, 126 S.Ct. 1991, 164 L.Ed.2d 720 (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 Tor-tious 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., 316 Ga.App. 62, 728 S.E.2d 737, 739-40 (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., 243 Ga.App. 294, 533 S.E.2d 413, 417-18 (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 AL-SCO,” and “[a]n implied ... contractual relationship between ... Feldman and ALSCO arose through the course of his dealings with ALSCO.” 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 tort-feasor with Rasband for the first time in his motion for reconsideration. Cf. O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th 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., 334 Ga.App. 826, 780 S.E.2d 689, 697 (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. Carp., 182 Ga.App. 632, 356 S.E.2d 517, 518 (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. Amisub, Inc., 186 Ga.App. 834, 368 S.E.2d 791, 793 (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., 225 Ga.App. 818, 486 S.E.2d 30, 35-36 (1997), rev’d on other grounds, 269 Ga. 604, 503 S.E.2d 278 (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. 327 Ga.App. 47, 755 S.E.2d 520, 523 (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. 333 Ga.App. 377, 774 S.E.2d 197, 205-06 (2015). We affirm the dismissal of Feld-man’s claims of negligent misrepresentation and fraud.

IV. CONCLUSION

We AFFIRM the dismissal of Feld-man’s complaint.