[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-13036

Non-Argument Calendar

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D.C. Docket No. 1:15-cv-00152-LJA

CHRIS PAYNE, 

individually and on behalf of the members of 

Doco Federal Credit Union, 

 Plaintiff - Appellant,

versus

DOCO CREDIT UNION, 

and its Officers, Directors, Executives, Attorneys, 

Successors and Assigns, 

BARRY O. HEAPE, 

individually and in his capacity as 

President / CEO of DOCO Federal Credit Union, 

TOM POLLOCK, 

in his capacity as Board Chairman of DOCO Credit Union, 

 Defendants - Appellees.

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________________________

Appeal from the United States District Court

for the Middle District of Georgia

________________________

(May 8, 2018)

Before MARCUS, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM: 

Chris Payne sued DOCO Federal Credit Union, his former employer,

alleging he was fired in retaliation for raising concerns about the unlawful conduct 

of DOCO’s President and CEO, Barry Heape. Christopher Farr, another DOCO 

employee, had revealed Heape’s misconduct to Payne. But when the time came 

for his deposition, Farr fully supported Heape’s version of events. In light of

Farr’s testimony, Payne agreed to settle the case. 

Over two years after the settlement, Farr contacted Payne and admitted he 

had testified falsely. Payne then sued DOCO, Heape, and DOCO’s Board

Chairman Tom Pollock (collectively, Defendants), seeking rescission. The suit 

was dismissed without prejudice citing Payne’s failure to restore the funds he had 

received in the settlement. Payne returned the funds and sued again. The district 

court granted judgment on the pleadings for Defendants, holding Payne’s claim for 

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rescission was not prompt as a matter of law. Payne appeals that order and the 

subsequent denial of leave to amend his complaint. After review, we affirm.1

I. BACKGROUND

Chris Payne began working for DOCO Federal Credit Union on January 3, 

2006. In October of 2008, a DOCO-owned ATM machine was vandalized. 

Christopher Farr, another DOCO employee, confided in Payne that Barry Heape, 

DOCO’s President and CEO, had instructed Farr to further damage the vandalized 

machine in hopes the insurance company would declare it a total loss. Payne told

members of DOCO’s Board of Directors, including Tom Pollock, about Heape’s 

unlawful conduct.2

 Days later, Payne was fired.

On December 19, 2009, Payne sued alleging he was terminated in retaliation 

for reporting Heape. Although Payne had anticipated Farr’s testimony would 

“form[] the majority of the factual basis for [the] claims,” Farr’s deposition did not

corroborate Payne’s account. Instead, Farr testified in full support of Heape. 

Payne “felt compelled to compromise and settle” in light of Farr’s testimony. On 

 

1 “We review de novo an order granting judgment on the pleadings.” Perez v. Wells 

Fargo, N.A., 774 F.3d 1329, 1335 (11th Cir. 2014) (citation omitted). “Judgment on the 

pleadings is appropriate where there are no material facts in dispute and the moving party is 

entitled to judgment as a matter of law.” Id. (quotations omitted) Although we typically review 

the denial of a motion to amend a complaint for an abuse of discretion, “when the district court 

denies the plaintiff leave to amend due to futility, we review the denial de novo because [the 

district court] is concluding that as a matter of law an amended complaint ‘would necessarily 

fail.’” Freeman v. First Union Nat’l, 329 F.3d 1231, 1234 (11th Cir. 2003) (citation omitted). 

2 At the time of these events, Pollock was a member of DOCO’s Board of Directors. 

Pollock is now Board Chairman.

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November 19, 2010, the parties executed a Settlement Agreement and Release.

Payne voluntarily dismissed his suit in compliance with the parties’ agreement. 

In August or September of 2013, Payne received a series of calls and e-mails 

in which Farr acknowledged his deposition testimony had been false. Farr also 

informed Payne that Heape had perjured himself and destroyed key evidence. 

Heape had allegedly threatened to fire Farr unless his deposition testimony 

supported Heape’s version of events. “Shocked and astonished to learn of these 

revelations,” Payne “immediately felt as though he had been tricked . . . into 

settling” for less than the true value of his case.

Farr was not, however, consistently forthright about Heape’s misconduct. 

On September 24, 2013, while voluntarily giving Payne a sworn statement, Farr 

invoked his Fifth Amendment right against self-incrimination “and refused to 

answer the majority of the questions asked him . . . .” Farr again invoked his Fifth 

Amendment right on March 3, 2014 while testifying in a separate case related to 

these events. Finally, on June 27, 2014, Farr was granted immunity by the State of 

Georgia so that he could testify without fear of criminal prosecution.

On April 2, 2014, about three months before Farr received immunity, Payne 

filed a petition in Dougherty County Superior Court seeking to have the settlement 

agreement set aside. Defendants removed the case to the United States District 

Court for the Middle District of Georgia. After removal, Defendants moved to 

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dismiss, contending Payne could not pursue rescission until he had returned the 

funds paid to him under the settlement agreement. The district court agreed and 

dismissed the case without prejudice on May 15, 2015.

On July 16, 2015, Payne returned the funds. Two months later, on 

September 15, 2015, Plaintiff filed the instant case seeking rescission of the 

settlement agreement and advancing several other claims. Defendants filed a 

Partial Motion for Judgment on the Pleadings. The district court granted the 

motion, concluding as a matter of law that Payne’s restoration of the funds was 

untimely. This order effectively ended the case because the parties’ agreement 

contained a general release and covenant not to sue that precluded Payne from 

proceeding with his remaining claims. Payne moved for leave to amend his 

complaint, but the district court denied Payne’s motion, concluding amendment 

would be futile. Payne appealed.

II. ANALYSIS

A. Order Granting Judgment on the Pleadings for Defendants

Payne seeks rescission of a settlement agreement. “[I]n order to rescind, the 

defrauded party must promptly, upon discovery of the fraud, restore or offer to 

restore to the other party whatever he has received by virtue of the contract if it is 

of any value.” O.C.G.A § 13-4-60. Synonyms for promptly include “at once, 

quickly, readily, seasonably, timely, [and] expeditiously.” Jody v. Dunlevie, 77 

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S.E. 162, 164-65 (Ga. 1913) (citation omitted). The promptness inquiry is not 

mechanical. “What might be termed as prompt action in one case might in another 

instance be regarded as inexcusable laches.” Id. at 165. The central question is 

whether the facts reveal a reasonable excuse for delay. See id. (“If he waits 

unreasonably long before making a tender, he forfeits his right to rescission. . . . 

[We must determine] if there is any excuse for this long delay in tendering back the 

consideration of the contract of settlement.”).

Before reaching the merits, however, we must address Payne’s threshold 

argument that the district court erred by deciding whether restoration was prompt 

before summary judgment. Although promptness is “ordinarily a question for the 

jury,” Mitchell v. Backus Cadillac-Pontiac, Inc., 618 S.E.2d 87, 97 (Ga. Ct. App. 

2005) (citation omitted), courts have, in limited circumstances, determined 

restoration was not prompt as a matter of law, see, e.g., Walker v. Johnson, 630 

S.E.2d 70, 75 (Ga. Ct. App. 2006), Orion Capital Partners, L.P. v. Westinghouse 

Elec. Corp., 478 S.E.2d 382, 385-86 (Ga. Ct. App. 1996). Payne contends these 

cases, which were decided at the summary judgment stage, provide no support for 

deciding the matter at the pleading stage. Unlike a motion for summary judgment, 

“[a] motion for judgment on the pleadings pursuant to Federal Rule of Civil 

Procedure 12(c) is subject to the same standard as a Rule 12(b)(6) motion to 

dismiss.” United States v. Wood, 925 F.2d 1580, 1581 (11th Cir. 1991). 

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Payne’s argument is unavailing. In Jordy, the Supreme Court of Georgia 

disposed of a case by demurrer, holding as a matter of law that an offer to restore 

made sixteen months after discovery of the fraud was not prompt. 77 S.E. at 164-

65. Yesterday’s general demurrers are akin to today’s motions to dismiss. See 

Kimbrough v. State, 799 S.E.2d 229, 233 n.12 (Ga. 2017) (“Although the [Georgia] 

Civil Practice Act abolished civil demurrers, it retained their essential functions in 

[] motions upon the pleadings. . . . A motion to dismiss for failure to state a claim 

under O.C.G.A § 9-11-12(b)(6) performs substantially the same function as a 

general demurrer.”). Jordy’s procedural posture illustrates that the district court 

did not err by deciding rescission was not prompt before summary judgment.

Alternatively, Payne asserts the case ought to have proceeded to summary 

judgment to allow further development of the factual record. It is, however, 

unclear what further development is needed. Payne put forward the date on which 

he discovered the fraud, the date on which he restored the proceeds, and an 

explanation for the intervening period. No portion of Payne’s argument indicates 

what additional facts are lacking. Insofar as Payne is referring to the facts asserted 

in his proposed amended complaint, any error was vitiated by the district court’s 

consideration thereof, which is addressed in the next section of this opinion.3

 

 3 Payne also contends that “[i]n deciding against [him], the trial court drew inferences 

against the non-moving party, which is inappropriate when considering a 12(c) motion for 

judgment on the pleadings.” But because Payne does not identify any such inferences or 

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We turn, now, to the heart of the district court’s analysis. The district court 

analyzed Payne’s delay as if it had been nine months. It reached this figure by 

adding the seven months that elapsed between Payne’s discovery of the fraud

(which it assumed occurred early in September of 2013) and the filing of the first 

rescission action on April 2, 2014, to the two months that elapsed between the 

issuance of the order requiring Payne to return the funds on May 15, 2015 and the 

actual restoration of the funds on July 16, 2015. Payne contended the delay was 

not unreasonable because the time was spent diligently working to obtain a sworn 

statement from Farr, a critical witness. The district court rejected Payne’s excuse 

as insufficient and, in the absence of cause for delay, held restoration was not 

prompt.

Payne urges us not to consider the two months that elapsed between the 

issuance of the order requiring him to return the funds and the date on which he 

actually restored them. This period purportedly reflects time spent corresponding 

with Defendants about how and where to return the funds as well as the week the

funds spent in the mail. We need not assess the merits of Payne’s position. 

Instead, we assume, arguendo, that Payne delayed six months and ten days. This 

calculation excludes the two month period Payne objects to and gives Payne all 

 

otherwise develop his argument, it is waived. Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 

1570, 1573 n.6 (11th Cir. 1989) (stating that passing references are insufficient to raise issues for 

appeal and such issues are deemed abandoned).

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possible benefit by looking to the period between the filing of the first rescission 

action on April 2, 2014 and September 23, 2013 (the day before Farr gave Payne 

his sworn statement and, by logical implication, the last day on which Farr could 

have made his informal revelations to Payne).

As noted above, “the defrauded party must promptly, upon discovery of the 

fraud, restore or offer to restore to the other party whatever he has received by 

virtue of the contract if it is of any value.” O.C.G.A § 13-4-60. Georgia courts 

have found a delay of six months to be unreasonable. See Walker, 630 S.E.2d at

75. Here, Payne’s delay was longer. Although promptness is not a rule suited to 

mechanical application, examination of the record does not reveal a “reasonable 

excuse . . . for the delay in making the offer to restore the status.” Jordy, 77 S.E. at 

165.4

 

B. Order Denying Leave to Amend

Payne also contends the district court erred by concluding that amending his 

complaint would be futile. In support, Payne cites new allegations that his 

 

4 Payne proposes a different analysis. He asserts a delay in restoring consideration is 

only unreasonable if the defrauded party acted inconsistently with an intent to rescind or if the 

other party was prejudiced by the delay; however, none of the three cases Payne cites support

such a requirement. See generally Walker, 630 S.E.2d at 75; Orion Capital Partners, 478 S.E.2d 

at 385-86; Jordy, 77 S.E. 162 at 164-65. 

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attorneys offered to return the funds on March 3, 2014.5 Assuming Payne 

discovered the fraud on September 23, 2013, five months and eight days elapsed 

before Payne’s attorney offered to restore the funds. This calculus nudges the 

length of Payne’s delay twenty-two days below six months, a period Georgia 

courts have concluded was not prompt as a matter of law. But a twenty-two day 

change does not warrant a different result. Although Payne’s proposed 

amendments also flesh out the specific steps he took to secure immunity for Farr, 

the fact remains that procuring admissible evidence of fraud is not a reasonable 

excuse for delay, regardless of the effort expended. 

Alternatively, Payne asserts Defendants waived the tender requirement. The 

tender of benefits can be waived if “the party entitled to payment, by declaration or 

conduct . . . proclaims that, if tender of the amount due is made, an acceptance of it 

will be refused.” S.R. Co. v. Lawson, 353 S.E.2d 491, 494 (Ga. 1987). This 

argument was not raised before the district court, accordingly, we need not 

consider it. Stewart v. Dep’t of Health and Human Servs., 26 F.3d 115, 115 (11th 

Cir. 1994) (“As a general principle, this court will not address an argument that has 

not been raised in the district court.”). Even had the argument been properly 

presented, the facts in the proposed amended complaint do not show Defendants 

 

5 The parties disagree about whether Payne’s attorney’s statements constitute an offer to 

restore. We need not decide the issue. Assuming the March 2014 statements did constitute an 

offer to restore, the district court still did not err by determining the offer was not prompt.

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waived the tender requirement. We agree with the district court’s conclusion that 

amendment would have been futile. The judgment of the district court is

AFFIRMED.

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