[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-13258

Non-Argument Calendar

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D.C. Docket No. 1:16-cv-02425-LMM

CHRYSTEN WRIGHT, et al.,

 Plaintiffs,

MONIQUE SIMMS, 

SAMMY DAVIS, 

 Plaintiffs - Appellants,

versus

SCALES 925 ATLANTA, LLC, et al.,

 Defendants,

CLIFFORD JOSEPH HARRIS, JR., 

CLIFFORD JOSEPH HARRIS, JR., 

d.b.a. The Royal Group LLC, 

 Defendants - Appellees.

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________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(February 5, 2019)

Before TJOFLAT, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM: 

Plaintiff-Appellants Monique Simms and Sammy Davis appeal the grant of 

summary judgment to Defendant-Appellee Clifford Harris, Jr., on their claims 

arising out of their employment at Harris’s now-closed restaurant, Scales 925. The 

question in this appeal is whether Harris can be held personally liable for these 

claims. The district court concluded that Harris was protected against personal 

liability by the legal form of a limited liability company (“LLC”), so it granted 

summary judgment in his favor. Simms and Davis dispute several aspects of the 

court’s reasoning, but they have identified no error, so we affirm. 

I.

In December 2014, defendants Harris and Charles Hughes1 were approached 

about lending celebrity and financial support to Vibe Restaurant and Bar, which 

 1 As we explain in more detail below, Charles Hughes was a defendant in the districtcourt proceedings, but he is not implicated in this appeal. Hughes was dismissed in the district 

court-proceedings after the claims against him were settled.

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was located on Ivan Allen Boulevard in Atlanta. Harris—a rapper,2 actor, and 

entrepreneur—is also a promoter for various entertainment venues. 

Shortly after Harris and Hughes were approached about Vibe Restaurant and 

Bar, the restaurant managers at the time—the Social Life Restaurant Group

(“Social Life”) and the Venue Restaurant Group (“Venue”)—signed a contract 

concerning Vibe (“the Vibe Agreement”) with The Encore Group, LLC 

(“Encore”), and The Royal Group, LLC (“Royal”). Hughes signed on behalf of 

Encore as its sole member. Harris, in turn, signed on behalf of Royal as its sole 

member. It is undisputed that Royal was not a validly formed LLC. 

The Vibe Agreement called for the creation of a “joint venture entity” to 

take over day-to-day management of restaurant operations. In exchange for taking 

over these management responsibilities and making capital improvements, Royal 

and Encore were entitled to 75% of all net profits generated each month. The lease 

remained in the names of Venue and Social Life. 

Harris and Hughes then enlisted the help of an attorney to form two LLCs—

Scales 925 Atlanta Management, LLC and Scales 925 Atlanta, LLC—and they 

renamed the restaurant Scales 925 (“Restaurant”). These LLCs were validly 

formed in January 2015. The attorney who organized these entities drafted 

operating agreements for each of them, though the agreements were never signed. 

 2 Harris is known in the entertainment world as “T.I.”

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The operating agreement for Scales 925 Atlanta Management, LLC, stated that 

Royal and Encore would each own a 45% stake, with two other individuals holding 

the remaining 10%. The operating agreement for Scales 925 Atlanta, LLC,

provided that it was to be owned solely by Scales 925 Atlanta Management, LLC.

In mid-2015, Simms and Davis were hired as the Restaurant’s general 

manager and executive chef, respectively. They executed employment agreements 

reflecting, among other things, their salaries and bonus compensation. Simms’s 

employment agreement is not in the record, but we assume, as the parties agree, 

that it is identical to Davis’s in all respects relevant to this appeal. According to 

Davis’s employment agreement, the contract was executed “by and between 

SCALES 925 ATLANTA, LLC (the ‘Company’), . . . and Sam Davis.” The 

agreement stated that Davis agreed to the supervision of “the Company’s 

management, [Harris] and [Hughes].” Hughes signed the agreement on behalf of 

Scales 925 Atlanta, LLC as its “managing member.” Harris was not listed as a 

party to the agreement and did not sign the agreement. 

Just over a year after the Restaurant opened, several servers at the Restaurant 

joined Simms and Davis in a lawsuit against Harris, Hughes, Venue, and the two 

Scales LLCs. They alleged claims of breach of contract, failure to pay minimum 

and overtime wages, and fraud. The servers eventually settled their claims against 

the defendants, and Simms and Davis dismissed their claims with prejudice against 

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Hughes, Venue, and the two Scales LLCs. So Simms and Davis are the only 

remaining plaintiffs, and Harris is the only remaining defendant. 

Simms and Davis did not allege that Harris personally committed any of the 

acts on which their claims were based. The bad actor for each of their claims—for 

breach of the employment agreements, failure to pay final paychecks, and 

common-law fraud and deceit3

—was identified as Hughes, who was more actively 

involved in managing the Restaurant. Nevertheless, Simms and Davis alleged that 

the defendants were “all business partners” operating the Restaurant and that, as a 

result, Harris was “jointly and severally liable” for actions taken by Hughes “[a]s a 

general partner” on behalf of the Restaurant. 

After discovery, the district court granted summary judgment to Harris. 

Citing supplemental briefing submitted at the court’s request, the court explained 

that Simms and Davis based Harris’s liability for all claims on two main theories: 

(1) common-law partnership or joint venture; and (2) piercing the corporate veil. 

But if neither of these two theories was viable, the court stated, Harris was shielded 

from personal liability under Georgia law applicable to LLCs. See O.C.G.A. § 14-

11-303(a). Then, concluding that the evidence did not support the first theory and 

that the second theory was not properly raised, the court determined that Harris 

 3 One other claim, for deceptive business practices, was dismissed by the district court 

based on a motion to dismiss. The appellants have abandoned this claim by failing to clearly 

raise it on appeal. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680–81 (11th Cir. 

2014) (issues not plainly raised on appeal are abandoned).

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was not liable and granted his motion for summary judgment. This appeal 

followed.

II.

We review a decision to grant summary judgment de novo, viewing the 

evidence and drawing all reasonable inferences in favor of the non-moving party. 

Haynes v. McCalla Raymer, LLC, 793 F.3d 1246, 1249 (11th Cir. 2015). 

Summary judgment is appropriate if “the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.” Fed. R. Civ. P. 56(a). Georgia law governs our resolution of this matter.

III.

The central dispute in this case concerns the legal structure under which 

Harris and Hughes managed the Restaurant. Simms and Davis maintain that the 

Restaurant was operated as a partnership, which would make Harris, as a partner,

“jointly and severally liable for all debts, obligations, and liabilities of the 

partnership.”4

 O.C.G.A. § 14-8-15. In contrast, Harris contends, and the district 

court found, that he and Hughes clearly intended to and did operate the Restaurant 

 4 Simms and Davis also present arguments relating to their “joint venture” theory of 

liability. See Kissun v. Humana, Inc., 479 S.E.2d 751, 752 (Ga. 1997); Boatman v. George 

Hyman Constr. Co., 276 S.E.2d 272, 274–75 (Ga. Ct. App. 1981). But as the court explained, a 

joint-venture agreement, like a partnership agreement, depends on the intent of the parties 

involved. See Aaron Rents, Inc. v. Fourteenth St. Venture, L.P., 533 S.E.2d 759, 762 (Ga. Ct. 

App. 2000). Because we conclude that the evidence is clear that Harris and Hughes intended to 

operate the Restaurant as an LLC, the joint-venture theory fails for the same reasons as the 

partnership theory. 

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as an LLC, and that he is shielded from liability by that legal form. See id. § 14-

11-303 (stating that a “member, manager, agent, or employee of a limited liability 

company is not liable,” solely by reason of that status, for the obligations of the 

LLC or “for the acts or omissions of any other member, manager, agent, or 

employee of the limited liability company, whether arising in contract, tort, or 

otherwise”). Harris also notes that he did not sign the employment agreements at 

issue, and so he asserts he cannot be held liable for breach of contract. 

A partnership under Georgia law is “an association of two or more persons 

to carry on as co-owners a business for profit.” Id. § 14-8-6(1). Courts generally 

look to several factors to determine the existence of a partnership, including “a 

common enterprise, the sharing of risk, the sharing of expenses, the sharing of 

profits and losses, a joint right of control over the business, and a joint ownership 

of capital.” Aaron Rents, Inc. v. Fourteenth St. Venture, L.P., 533 S.E.2d 759, 

747–48 (Ct. App. Ga. 2000). “But the intention of the parties is the true test of 

whether there is partnership.” Id. 

Here, we agree with the district court that Harris and Hughes clearly 

intended to and did operate the Restaurant as an LLC, not a partnership. After 

entering into the Vibe Agreement, they formed two valid LLCs for the purpose of 

managing restaurant functions, and these two LLCs were, as the court stated, 

“consistently utilized to run the Scales 925 restaurant.” The plaintiffs’ 

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employment agreements clearly state that they were executed by and between 

“Scales 925 Atlanta, LLC,” an existing LLC, and the plaintiffs, and Hughes signed 

the contract on behalf of the LLC as its “managing member,” not in his individual 

or some other capacity. In addition, Scales 925 Atlanta, LLC, was listed as the 

employer on each plaintiff’s W-2 and paystubs, and the checks in the record that 

were signed by Harris personally were all paid out of a “Scales 925 Atlanta, LLC” 

bank account. Thus, the evidence clearly reflects that Harris and Hughes intended 

for the duties of employer—and the actions out of which Simms and Davis’s 

claims arise—to be undertaken, legally speaking, by Scales 925 Atlanta, LLC, 

even if Hughes was the one who in fact undertook those duties on its behalf. 

Simms and Davis argue that a common-law partnership existed because 

Harris identified Hughes as his “partner” on Instagram and in a discussion with 

Davis. But “the use of the label . . . does not by itself demonstrate the existence of 

a legal ‘partnership’ and all the rights and obligations engendered thereby,” Jerry 

Dickerson Presents, Inc. v. Concert S. Chastain Promotions, 579 S.E.2d 761, 768 

(Ga. Ct. App. 2003), particularly when that label is used colloquially, as it was 

here. 

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Simms and Davis next contend that Harris is not a member of either of the 

Scales LLCs.

5 The district court rejected this argument based on the LLCs’ 

operating agreements, which the court found were binding under Georgia law even 

though unsigned. See O.C.G.A. § 14-11-101(18) (“A limited liability company is 

not required to execute its operating agreement, and, except as otherwise provided 

in the operating agreement, is bound by its operating agreement whether or not the 

limited liability company executes the operating agreement.”). According to these 

agreements, Scales 925 Atlanta, LLC, was wholly owned by Scales 925 

Management, LLC, which, in turn, was jointly owned by Encore, Royal, and two 

individuals. The court, noting that Royal was never a valid LLC, reasoned that any 

ownership interest in Royal’s name belonged to Harris, the only alleged member of 

Royal. The court therefore concluded that Harris was a member of Scales 925 

Atlanta, LLC, through his membership—in place of Royal—in Scales 925 

Management, LLC.

Simms and Davis respond with two arguments. First, they assert that Royal 

could not have passed its interest to Harris because it was never capable of owning 

 5 Simms and Davis do not explain how this argument helps them. They did not allege 

any specific wrongdoing by Harris, and he was not listed as a party to the employment 

agreements and did not sign the agreements in any capacity. So without more, he cannot be held 

personally liable. Kaesemeyer v. Angiogenix, 629 S.E.2d 22, 25 (Ga. Ct. App. 2006) (“It is 

axiomatic that a person who is not a party to a contract is not bound by its terms.”). In any event, 

it appears that this argument is in service of their overall argument that Harris’s relationship with 

the Restaurant was “either a partnership or joint venture.” We assume without deciding that it 

would be helpful to them and so address the merits of the court’s ruling on this issue. 

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an interest. Fair enough. But under Georgia law, “[a]n undertaking by an 

individual in a fictitious or trade name is the obligation of the individual.” Nat’l 

Cash Register Co. v. Sikes, 94 S.E.2d 391, 392 (Ga. Ct. App. 1956); see Hawkins 

v. Turner, 303 S.E.2d 164, 166 (Ga. Ct. App. 1983). Because Royal was not a 

valid LLC, we agree with the district court that this general rule, as applied here, 

means that any ownership interest in Royal’s name belonged to Harris. No interest 

was “passed” from Royal. Rather, Harris, as Royal’s sole alleged member, 

personally held Royal’s purported interest from the outset. 

Second, without disputing the validity of the operating agreements, Simms 

and Davis argue that Harris never became a member because he did not sign the 

operating agreements. We disagree. The operating agreement for Scales 925 

Management, LLC, did not require Harris to sign the agreement to become a 

member. The agreement expressly designated certain members, including Royal 

(Harris) and Encore (of which Hughes was the sole member), and then included a 

provision for admitting new members. Simms and Davis cite language from this 

provision in support of their claim that Harris was required to sign the operating 

agreement, but we agree with the district court that the cited language “applies 

only to admitting new members” not already designated in the agreement. 

Simms and Davis next argue that the district court should have permitted 

them to proceed against Harris under a veil-piercing theory. See Christopher v. 

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Sinyard, 723 S.E.2d 866, 867 (Ga. Ct. App. 2012) (“The concept of piercing the 

corporate veil is applied in Georgia to remedy injustices which arise where a party 

has overextended his privilege in the use of a corporate entity in order to defeat 

justice, perpetrate fraud or to evade contractual or tort responsibility.”). They 

contend that the defendants had fair notice of that theory because they alleged 

fraud and deceit, which are legal grounds to pierce the corporate veil. 

Simms and Davis have not shown that the district court erred by refusing to 

consider this theory at summary judgment. The claim of “fraud and deceit” 

alleged in the complaint had nothing to do with the legal structure of the 

Restaurant or how it was being operated by Harris and Hughes. Rather, it was 

about Hughes’s alleged false statements to employees that they would be paid for 

working the Restaurant’s grand opening and a New Year’s celebration. And 

Harris’s liability for the fraud claim, like his liability for the other claims, was 

based solely on a partnership theory of liability. There is nothing about these 

allegations that would have put the defendants on notice of a veil-piercing theory 

of individual liability. 

Finally, Simms and Davis argue that their employment agreements are 

unenforceable and that they can prove that they had a contract with Harris 

personally. Not only is this argument inconsistent with the breach-of-contract 

claim in their complaint, which was based solely on the written employment 

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agreements, but it was raised on appeal only in the reply brief. We decline to 

consider it. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (“[W]e do 

not address arguments raised for the first time in a . . . litigant’s reply brief.”).

IV.

For the reasons stated, we affirm the grant of summary judgment against 

Simms and Davis.

AFFIRMED.

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