                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 22 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JEFF A. BAKER,

                Plaintiff-Appellant,

    v.                                                   No. 97-8036
                                                    (D.C. No. 96-CV-51-D)
    GENERAL CHEMICAL                                      (D. Wyo.)
    CORPORATION, a Delaware
    Corporation,

                Defendant-Appellee.




                            ORDER AND JUDGMENT *



Before BALDOCK, EBEL, and MURPHY, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      This appeal arises from plaintiff’s diversity action against defendant for

wrongful termination, promissory estoppel, misrepresentation, interference with

advantageous business relations, and breach of the implied covenant of good faith

and fair dealing. The district court dismissed all but the promissory estoppel

claim under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, and it denied

plaintiff’s motion for leave to amend his complaint. Defendant moved for

summary judgment on the promissory estoppel claim, and the district court

granted the motion.

      We review the district court’s 12(b)(6) dismissals de novo. See Chemical

Weapons Working Group, Inc. v. United States Dep’t of the Army, 111 F.3d

1485, 1490 (10th Cir. 1997). We accept plaintiff’s well-pleaded allegations as

true, construe them in his favor, and will affirm the dismissal of plaintiff’s claims

only if he can prove no set of facts that would entitle him to relief. See Yoder v.

Honeywell, Inc., 104 F.3d 1215, 1224 (10th Cir. 1997). We also review the grant

of summary judgment de novo, and, like the district court, we apply Fed. R. Civ.

P. 56(c). See Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024

(10th Cir. 1992). We will affirm if, reading the factual record in the light most

favorable to plaintiff, there is no genuine dispute as to any material fact and the

defendant is entitled to judgment as a matter of law. See Kaul v. Stephan, 83

F.3d 1208, 1212 (10th Cir. 1996). Guided by these standards, we affirm.


                                          -2-
      Plaintiff holds a college degree in mechanical engineering from the

University of Wyoming, his home state, and he was employed by Monsanto as a

project engineer in Houston. Plaintiff enjoyed his work, but he and his family

wished to relocate. Through a headhunter, plaintiff arranged an interview with

defendant in Green River, Wyoming. Shortly after the interview, defendant

extended a written offer of employment as the maintenance engineer at its Green

River facility. Defendant also agreed to pay plaintiff’s relocation expenses,

which plaintiff agreed to reimburse in the event plaintiff voluntarily terminated

his employment within one year. Plaintiff signed a Letter of Agreement regarding

the relocation, specifically acknowledging that the “agreement shall not be

construed as a guarantee of employment for any period of time following [his]

relocation.” App. at 222. Plaintiff accepted the job offer, resigned his position at

Monsanto, and moved to Green River to assume the duties of his new job.

Plaintiff stayed in the job one year to avoid repayment of the relocation expenses.

One year after he accepted the job, plaintiff resigned and is now employed by

another company.

      We will first address the grant of summary judgment on plaintiff’s

promissory estoppel claim. Plaintiff claims that defendant’s employees

represented to him that he would be permanently employed as the only

maintenance engineer and that he would be “in line” for the position of


                                         -3-
superintendent of maintenance. App. at 3. Plaintiff complains that he was, in

fact, hired as a planner and that was the job he performed. He maintains that

accepting and performing an inferior position to that which he was promised was

detrimental to his engineering career.

      To establish a claim for promissory estoppel under Wyoming law, plaintiff

must show three things: (1) a clear and definite agreement existed; (2) he acted to

his detriment in reasonable reliance on the agreement; and (3) the equities support

enforcement of the agreement. See Terry v. Pioneer Press, Inc., 947 P.2d 273,

276-77 (Wyo. 1997); Duart v. FMC Wyoming Corp., 859 F. Supp. 1447, 1462

(D. Wyo. 1994), aff’d, 72 F.3d 117 (10th Cir. 1995). We agree with the district

court that the record in this case simply does not evidence that a clear and definite

agreement existed. Defendant extended a written offer of employment “as

Maintenance Engineer at our Green River Soda Ash Operation.” App. at 221.

Nowhere in the record is there evidence of a clear and definite agreement that

plaintiff would be the only maintenance engineer or that he would continue in that

position permanently. In fact, the job application plaintiff submitted specifically

acknowledged that “this employment application and any other company

documents are not contracts of employment and that any individual who is hired

may voluntarily leave employment upon proper notice and may be discharged by

General Chemical at any time with or without cause.” Id. at 177. Neither is there


                                         -4-
evidence of a clear and definite agreement that plaintiff would eventually assume

the plant supervisor position. Plaintiff’s claims that he did not perform the duties

of maintenance engineer are also to no avail. There is no evidence of any clear

and definite agreement regarding what duties plaintiff was to perform when

defendant offered him the position of maintenance engineer. 1

      In addition to promissory estoppel, plaintiff claims he is entitled to relief

on the similar basis of equitable estoppel. Plaintiff’s complaint raises no such

claim, and the district court did not address equitable estoppel. We, therefore,

decline to address this claim raised for the first time on appeal. See Walker v.

Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992).

      We now turn to plaintiff’s claims that the district court erred in dismissing

three of his claims under Fed. R. Civ. P. 12(b)(6). 2 Defendant argues that we lack

1
       Because we hold that plaintiff has not made the required showing of a clear
and definite agreement, discussion of the remaining two requirements is not
necessary. We note, however, that we also agree with the district court that
plaintiff has not met the third requirement for relief under promissory estoppel.
The record does not show that the equities support enforcement of any agreement:
plaintiff and his family wished to relocate out of Texas, a goal which defendant
facilitated and financed; plaintiff earned more money while employed by
defendant than he had in his previous job; and plaintiff is currently employed with
another company and, even though it may not be his ideal job, his present
employment pays a higher base salary than his previous two jobs and offers other
benefits he did not have with either defendant or Monsanto.
2
       The district court also dismissed count four of plaintiff’s complaint,
interference with advantageous business relations. Plaintiff does not argue on
appeal that the district court erred in dismissing this claim, and, therefore, he has
                                                                         (continued...)

                                          -5-
jurisdiction to consider these claims because plaintiff did not specify in either his

notice of appeal or the docketing statement that he was appealing from the district

court’s grant of defendant’s motion to dismiss. Plaintiff’s notice of appeal from

the grant of summary judgment was sufficient to include appeal from all

previously decided interlocutory orders, however; consequently, we will address

the claims dismissed under 12(b)(6) and denial of the motion to amend. See Cole

v. Ruidoso Municipal Sch., 43 F.3d 1373, 1382 n.7 (10th Cir 1994).

       The district court was correct in dismissing plaintiff’s claim for breach of

the covenant of good faith and fair dealing. “An implied covenant of good faith

and fair dealing is a substitute for an express or implied-in-fact promise by the

employer and tests a defendant’s compliance with a duty imposed by law rather

than with a promise voluntarily made.” Terry, 947 P.2d at 277. It applies only

where a special relationship of trust and reliance exists between the employer and

employee, a condition that is both rare and exceptional. See id. Such a

relationship can be evidenced by the existence of “separate consideration, rights

created by common law or statute, or rights accruing with longevity of service.”

Id. at 278; see also Duart, 859 F. Supp. at 1463. None of those factors are present

in this case.


2
 (...continued)
waived the issue. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7
(10th Cir. 1994).

                                          -6-
      The district court was also correct in dismissing plaintiff’s breach of

contract claim. Plaintiff argues that the at-will employment presumption was

altered by defendant’s promise of permanent employment. This is true only if

plaintiff “supplied additional consideration or if the employment contract contains

explicit language stating that [plaintiff] can only be terminated for cause.” Terry,

947 P.2d at 276. Nothing in defendant’s offer of employment or any other

document alters the at-will presumption. The job application specifically

acknowledges the at-will nature of the employment. In addition, the relocation

agreement does not supply additional consideration. As was the case in Davis v.

Wyoming Med. Ctr., Inc., 934 P.2d 1246, 1250-51 (Wyo. 1997), the relocation

agreement language obligated plaintiff, in exchange for relocation money, either

to work for one year or to repay the relocation assistance. “The consideration

exchanged by the parties does not include job security or [plaintiff’s] assurance

that [he] would not resign in less than a year and is, therefore, not an agreement

for employment for one year and does not alter [defendant’s] unfettered right to

discharge at any time and without cause.” Id. In addition, we note that the

relocation agreement contains a specific disclaimer that it cannot be construed as

a guarantee of employment for any specific period of time following relocation.

See Duart, 859 F. Supp. at 1459-62 (discussing Wyoming law regarding effect of

disclaimers).


                                         -7-
      Similarly, plaintiff’s misrepresentation claims were properly dismissed.

We agree with the district court that plaintiff did not plead facts with sufficient

particularity to support a claim for fraudulent misrepresentation. See Duffy v.

Brown, 708 P.2d 433, 437 (Wyo. 1985) (listing elements of fraudulent

misrepresentation). Neither did plaintiff plead facts sufficient to support a claim

of negligent misrepresentation. See Verschoor v. Mountain West Farm Bureau

Mut. Ins. Co., 907 P.2d 1293, 1299 (Wyo. 1995) (listing elements of negligent

misrepresentation). Plaintiff alleges that defendant misrepresented to him that he

would be the only maintenance engineer at the Green River operation and that he

would be “in line” for the plant supervisor position. These general allegations are

insufficient to survive a 12(b)(6) motion and, in fact, when plaintiff was the only

maintenance engineer at the Green River operation when he was hired.

      Finally, contrary to plaintiff’s assertion, the district court did not abuse its

discretion in denying plaintiff’s motion to amend. See Ramirez v. Oklahoma

Dep’t of Mental Health, 41 F.3d 584, 596 n.9 (10th Cir. 1994). Because the

amendment added nothing new, the district court found that permitting

amendment would be futile. Further, it found that the motion was “untimely and

unduly prejudicial” because it was filed “well after the close of discovery and

only three months prior to trial.” App. at 60. In light of these findings, the

district court acted within its discretion in refusing to allow amendment.


                                          -8-
     The judgment of the United States District Court for the District of

Wyoming is AFFIRMED.



                                                  Entered for the Court



                                                  Michael R. Murphy
                                                  Circuit Judge




                                       -9-
