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March 27, 2026 Get Citation Alerts Download PDF Add Note

Kevin L. Shehee v. Diana Lynch

Court of Appeals for the Eleventh Circuit

• Citations: None known
• Docket Number: 25-11842
• Precedential Status: Non-Precedential

• Nature of Suit: NEW

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

• Similar Cases (16.2K)

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Combined Opinion

USCA11 Case: 25-11842 Document: 31-1 Date Filed: 03/27/2026 Page: 1 of 11

NOT FOR PUBLICATION

In the
United States Court of Appeals
For the Eleventh Circuit

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No. 25-11842
Non-Argument Calendar

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KEVIN L. SHEHEE,
Plaintiff-Appellant,
versus

DIANA ANN LYNCH,
DIANA LYNCH AMENDED AND RESTATED LIVING TRUST,
LYNCH LAW GROUP, INC.,
a Georgia Business Corporation,
LYNCH LAND, HOLDINGS, LLC,
a Georgia Limited Liability Company,
TEMPAT SALA, LLC.,
a Georgia Limited Liability Company, et al.,
Defendants-Appellees.
USCA11 Case: 25-11842 Document: 31-1 Date Filed: 03/27/2026 Page: 2 of 11

2 Opinion of the Court 25-11842

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Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:23-cv-04506-VMC

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Before ROSENBAUM, GRANT, and MARCUS, Circuit Judges.
PER CURIAM:
Kevin Shehee, proceeding pro se on appeal, appeals the dis-
trict court’s order denying him leave to amend his complaint, filed
pursuant to Federal Rules of Civil Procedure 59 and 60. Shehee’s
complaint brought suit against several individuals and entities in-
volved in a plan Shehee had invested in to develop land in the Do-
minican Republic. On appeal, he argues that the district court
abused its discretion by denying him leave to amend on futility
grounds since his proposed amended complaint would have cured
the deficiencies the court’s Rule 12(b)(6) order of dismissal noted
as to seven counts in his complaint. After careful review, we affirm.
We generally review the denial of a motion to amend a com-
plaint for abuse of discretion, while we review de novo the legal
conclusion of whether a particular amendment to the complaint
would have been futile. Corsello v. Lincare, Inc., 428 F.3d 1008, 1012
(11th Cir. 2005). A district court does not abuse its discretion in
denying leave to amend when amendment would have been futile.
Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262–63 (11th Cir. 2004).
Once the district court has dismissed the plaintiff’s com-
plaint and entered a final judgment in favor of the defendant, leave
to amend under Rule 15(a) “has no application.” U.S. ex rel. Atkins
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25-11842 Opinion of the Court 3

v. McInteer, 470 F.3d 1350, 1361 n.22 (11th Cir. 2006). Instead,
“[p]ost-judgment, the plaintiff may seek leave to amend if he is
granted relief under Rule 59(e) or Rule 60(b)(6).” Id. A district
court need not allow amendment in the event of undue delay, bad
faith, repeated failure to cure deficiencies, where amendment
would cause undue prejudice to the opposing party, or where
amendment would be futile. Huins v. Sch. Dist. of Manatee Cnty.,
151 F.4th 1268, 1286 (11th Cir. 2025).
Under Rule 8, a pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled to re-
lief.” Fed. R. Civ. P. 8. This means that a plaintiff “does not need
detailed factual allegations,” but he must provide grounds for an
entitlement to relief that consist of more “than labels and conclu-
sions” or “a formulaic recitation of the elements of a cause of ac-
tion.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Fac-
tual allegations must be enough to raise a right to relief above the
speculative level . . . .” Id. A complaint must contain “enough facts
to state a claim to relief that is plausible on its face.” Id. at 570.
We hold pro se pleadings to a less stringent standard than
formal pleadings drafted by lawyers and liberally construe them.
Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014). Nev-
ertheless, the leniency afforded pro se litigants with liberal con-
struction “does not give a court license to serve as de facto counsel
for a party, or to rewrite an otherwise deficient pleading in order to
sustain an action.” Id. at 1168–69 (citation modified). Additionally,
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4 Opinion of the Court 25-11842

“issues not briefed on appeal by a pro se litigant are deemed aban-
doned.” Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). “A
party fails to adequately brief a claim when he does not plainly and
prominently raise it, for instance by devoting a discrete section of
his argument to those claims.” Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681 (11th Cir. 2014) (citation modified). An appellant
abandons a claim when, for example: (a) he makes only passing ref-
erence to it, (b) raises it in a perfunctory manner without support-
ing arguments and authority, (c) refers to it only in the “statement
of the case” or “summary of the argument,” (d) refers to the issue
as mere background to his main argument, or (e) raises it for the
first time in his reply brief. Id. at 681–83.
Under § 10(b) of the Securities Exchange Act of 1934 and
Securities and Exchange Commission (“SEC”) Rule 10b-5, it is un-
lawful for an individual to “use or employ . . . any manipulative or
deceptive device” in connection with the purchase or sale of a se-
curity. 15 U.S.C. § 78j(b); 17 C.F.R. § 240.10b-5. To state a claim of
securities fraud under these provisions, a plaintiff must allege “(1)
a material misrepresentation or omission; (2) made with scienter;
(3) a connection with the purchase or sale of a security; (4) reliance
on the misstatement or omission; (5) economic loss; and (6) a
causal connection between the material misrepresentation or omis-
sion and the loss.” Mizarro v. Home Depot, Inc., 544 F.3d 1230, 1236–
37 (11th Cir. 2008). For a Rule 10b-5 claim to survive a Rule 12(b)(6)
motion to dismiss, it must satisfy the standard federal notice plead-
ing requirements, the special fraud pleading requirements in Rule
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25-11842 Opinion of the Court 5

9(b), and the additional pleading requirements imposed by the Pri-
vate Securities Litigation Reform Act (“PSLRA”). FindWhat Investor
Grp. v. FindWhat.com, 658 F.3d 1282, 1296 (11th Cir. 2011).
Beyond Rule 8’s notice pleading standards, Rule 9(b) requires
a plaintiff alleging fraud or mistake to “state with particularity the
circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b).
Rule 9(b) further requires the plaintiff to plead: (1) precisely what
statement or omissions were made in which documents or oral rep-
resentations; (2) the time and place of each statement and the per-
son responsible for making (or, in the case of omissions, not mak-
ing) them; (3) the content of such statements and the manner in
which they misled the plaintiff; and (4) what the defendant obtained
as a consequence of the fraud. FindWhat Investor Grp., 658 F.3d at
1296. “Failure to satisfy Rule 9(b) is a ground for dismissal of a
complaint.” Id. (citation modified).
The PSLRA also requires a Rule 10b-5 claim predicated on
false or misleading statements or omissions to “specify each state-
ment alleged to have been misleading, the reason or reasons why
the statement is misleading, and, if an allegation regarding the
statement or omission is made on information and belief, the com-
plaint shall state with particularity all facts on which that belief is
formed.” 15 U.S.C. § 78u-4(b)(1). And when a Rule 10(b)-5 claim
includes scienter as an element, “with respect to each act or omis-
sion alleged to violate this chapter, [the plaintiff shall] state with
particularity facts giving rise to a strong inference that the defend-
ant acted with the required state of mind.” Id. § 78u-4(b)(2)(A).
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6 Opinion of the Court 25-11842

The Georgia Uniform Securities Act makes it “unlawful for
a person to offer or sell a security in [Georgia] unless: (1) The secu-
rity is a federal covered security; (2) The security, transaction, or
offer is exempted from registration under Code Sections 10-5-10
through 10-5-12; or (3) The security is registered under this Chap-
ter.” O.C.G.A. § 10-5-20. Additionally, a claim brought under
O.C.G.A. § 10-5-58(b) provides for liability if:
the person sells a security in violation of Code Section
10-5-20, or, by means of an untrue statement of a ma-
terial fact or an omission to state a material fact nec-
essary in order to make the statement made, in light
of the circumstances under which it is made, not mis-
leading, the purchaser not knowing the untruth or
omission and the seller not sustaining the burden of
proof that the seller did not know and, in the exercise
of reasonable care, could not have known of the un-
truth or omission.
Id. § 10-5-58(b).
Under Georgia law, a breach of fiduciary duty claim has
three elements: “(1) the existence of a fiduciary duty; (2) breach of
that duty; and (3) damage proximately caused by the breach.” King
v. King, 69 F.4th 738, 743 (11th Cir. 2023) (quoting Ray v. Hadaway,
811 S.E.2d 80, 84 (Ga. Ct. App. 2018)). As for the Georgia tort of
common law fraud, it has five essential elements:
(1) that the defendant made the [fraudulent mis]rep-
resentations; (2) that at the time he knew they were
false; (3) that he made them with the intention and
purpose of deceiving the plaintiff; (4) that the plaintiff
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25-11842 Opinion of the Court 7

justifiably relied on such representations; and (5) that
the plaintiff sustained the alleged loss and damage as
the proximate result of their having been made.

GCA Strategic Inv. Fund, Ltd. v. Joseph Charles & Assoc., Inc., 537 S.E.2d
677, 681–82 (Ga. Ct. App. 2000) (citation modified). A claim of con-
version under Georgia law is “the unauthorized assumption and
exercise of the right of ownership over personal property belong-
ing to another which is contrary to the owner’s right.” Swish Mfg.
Southeast v. Manhattan Fire & Marine Ins. Co., 675 F.2d 1218, 1219
(11th Cir. 1982) (citation modified). To establish a claim of conver-
sion, a plaintiff “must show (1) title to the property or the right of
possession, (2) actual possession in the other party, (3) demand for
return of the property, and (4) refusal by the other party to return
the property.” Trey Inman & Assoc., P.C. v. Bank of Am., N.A., 702
S.E.2d 711, 716 (Ga. Ct. App. 2010) (citation modified).
The federal Racketeer Influenced and Corrupt Organiza-
tions Act (“RICO”) makes it “unlawful for any person employed by
or associated with any enterprise engaged in, or the activities of
which affect, interstate or foreign commerce, to conduct or partic-
ipate, directly or indirectly, in the conduct of such enterprise’s af-
fairs through a pattern of racketeering activity or collection of un-
lawful debt.” 18 U.S.C. § 1962 (c). RICO provides a civil cause of
action for “any person injured in his business or property by reason
of the conduct of a qualifying enterprise’s affairs through a pattern
of acts indictable as mail fraud.” Ray v. Spirit Airlines, Inc., 836 F.3d
1340, 1348 (11th Cir. 2016) (quoting Bridge v. Phx. Bond & Indem. Co.,
553 U.S. 639, 647 (2008)). A civil RICO claim requires the plaintiff
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8 Opinion of the Court 25-11842

to “plausibly allege six elements: that the defendants (1) operated
or managed (2) an enterprise (3) through a pattern (4) of racketeer-
ing activity that included at least two predicate acts of racketeering,
which (5) caused (6) injury to the business or property of the plain-
tiff.” Cisneros v. Petland, Inc., 972 F.3d 1204, 1211 (11th Cir. 2020).
“[I]ndependently chargeable instances of mail or wire fraud cannot
constitute a ‘pattern of racketeering activity’ when they arise from
a single transaction.” Id. at 1216. In addition, “no person may rely
upon any conduct that would have been actionable as fraud in the
purchase or sale of securities to establish a violation” under § 1962.
18 U.S.C. § 1964 (c).
Georgia law similarly makes it “unlawful for any person,
through a pattern of racketeering activity or proceeds derived
therefrom, to acquire or maintain, directly or indirectly, any inter-
est in or control of any enterprise, real property, or personal prop-
erty of any nature, including money.” O.C.G.A. § 16-14-4(a). To
state a RICO claim under Georgia law, a plaintiff must allege that
(1) “the defendants violated or conspired to violate the RICO stat-
ute,” (2) “that as a result of this conduct the plaintiff has suffered
injury,” and (3) “that the defendant’s violation of or conspiracy to
violate the RICO statute was the proximate cause of the injury.”
Wylie v. Denton, 746 S.E.2d 689, 693 (Ga. Ct. App. 2013). A “‘pattern
of racketeering activity’ means that there have been at least two
acts of racketeering that are interrelated and that were done in fur-
therance of one or more incidents, schemes, or transactions.” Id.
(citation modified). Under Georgia law, if the predicate acts for a
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25-11842 Opinion of the Court 9

Georgia RICO claim are based on mail or wire fraud, “the circum-
stance[s] constituting fraud or mistake shall be stated with particu-
larity” in the complaint, and the complaint must also “include such
matters as the time, place, and content of the alleged misrepresen-
tations, as well as who made the alleged misrepresentations and to
whom.” O.C.G.A. § 9-11-9(b); Bazemore v. U.S. Bank Nat’l Assoc., 872
S.E.2d 491, 498 n.6 (Ga. Ct. App. 2022).
Here, we begin by noting that Shehee does not challenge the
district court’s underlying order of dismissal. Instead, he challenges
only the court’s subsequent order that denied Shehee’s motion for
leave to file an amended complaint, which the district court deter-
mined would have been futile. We cannot say that the district
court abused its discretion in denying him leave to amend.
In the underlying order of dismissal, the district court de-
scribed the deficiencies for each of Shehee’s seven counts; never-
theless, in his proposed amended complaint, he failed to correct
these deficiencies. So, for example, in Count One, which sought to
allege a violation of § 10(b) of the Securities Exchange Act and SEC
Rule 10b-5, the proposed amended complaint merely claimed that
all of the defendants but one signed a corporate resolution on be-
half of Tempat Sala, LLC to purchase land for the benefit of Tem-
pat Sala Samana Bay Development, SRL and that the defendants
intentionally created the Dominican company to deprive him of his
investment interest. Yet these allegations failed to “specify each
statement alleged to have been misleading[ or] the reason or rea-
sons why the statement [was] misleading.” 15 U.S.C. § 78u-4(b)(1).
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10 Opinion of the Court 25-11842

The proposed complaint also made conclusory allegations under a
“Made With Scienter” subheading, claiming that the defendants in-
tentionally incorporated Tempat Sala Samana Bay Development,
SRL to deprive Shehee of his financial interest in the proposed real
estate development and claimed that the defendants “inten[ded] to
take full control of the corporation” without Shehee. These allega-
tions still failed to “state with particularity facts giving rise to a
strong inference that the defendant acted with the required state of
mind.” Id. § 78u-4(b)(2)(A).
As for Count Two, which sought to allege a violation of the
Georgia Uniform Securities Act, the proposed amended complaint
alleged that Shehee flagged securities compliance issues with the
defendants and that he encouraged his relatives to invest in Tempat
Sala, LLC. However, it did not plausibly state how the defendants
violated the statute; among other things, it failed to identify which
securities he or his relatives bought or sold, from whom they were
bought, or how they were unlawfully sold. See O.C.G.A. §§ 10-5-
20, 10-5-58(b). As for Count Three, which sought to allege a breach
of fiduciary duty, Shehee’s proposed amended complaint did not
allege a breach or any harm, stating only that one of the defendants,
Diana Lynch, carbon copied Shehee on an e-mail and cancelled his
corporate e-mail address. See King, 69 F.4th at 743. As for Count
Four, which sought to allege common law fraud and deceit, he
failed to state “precisely what statements or omissions were made
in which documents or oral representations” as well as “the person
responsible for making . . . them.” FindWhat Investor Grp., 658 F.3d
at 1296; Fed. R. Civ. P. 9(b). As for Count Five, which sought to
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25-11842 Opinion of the Court 11

allege conversion, his proposed amended complaint merely rein-
corporated prior paragraphs in the complaint and conclusorily as-
serted that they supported his claim, inadequately providing only
“a formulaic recitation of the elements.” Twombly, 550 U.S. at 555.
As for Count Six, which sought to allege a federal RICO violation,
Shehee’s proposed amended complaint failed to state any predicate
acts to establish a “pattern of racketeering activity.” Cisneros, 972
F.3d at 1211, 1216; 18 U.S.C. §§ 1962, 1964(c). As for Count Seven,
which sought to allege a Georgia RICO violation, Shehee merely
“incorporate[d] and restate[d]” prior paragraphs in his proposed
amended complaint, thereby failing to satisfy Rule 9(b)’s height-
ened pleading requirement, to clarify which misrepresentations or
material facts he relied on, or to allege mail and wire fraud with
particularity. Fed. R. Civ. P. 9(b); O.C.G.A. § 9-11-9(b); Bazemore,
872 S.E.2d at 498 n.6.
In short, because all of the counts in Shehee’s proposed
amended complaint still would have been subject to dismissal for
failure to state a claim, the district court did not abuse its discretion
in denying him leave to amend as futile. We need not reach
Shehee’s remaining arguments. To the extent he challenges the
defendants’ motion for sanctions under Rule 11, this argument is
of no moment because the district court dismissed both parties’
motions for sanctions. Further, to the extent he argues in his reply
brief that the defendants used “hallucinated content” in their plead-
ings, he abandoned this argument by failing to raise it properly in
his initial brief before our Court. Sapuppo, 739 F.3d at 681–83.
AFFIRMED.