                    Case: 12-10051         Date Filed: 11/09/2012   Page: 1 of 8

                                                                       [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10051
                                        Non-Argument Calendar
                                      ________________________

                                D.C. Docket No. 1:11-cv-02130-WSD



JUSTIN LEE,

llllllllllllllllllllllllllllllllllllllll                            Plaintiff - Appellant,

                                                 versus

CATERPILLAR, INC.,

llllllllllllllllllllllllllllllllllllllll                            Defendant - Appellee.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________

                                           (November 9, 2012)

Before MARCUS, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:

         Plaintiff-Appellant Justin Lee appeals from the district court’s order granting
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Defendant-Appellee Caterpillar, Inc.’s motion for judgment on the pleadings in Lee’s

state-law action arising out of the termination of Lee’s employment by one of

Caterpillar’s contractors, Supply Chain Services International, Inc. (“SCSI”). In his

complaint, Lee alleged that Caterpillar caused SCSI to terminate Lee’s employment

when Caterpillar falsely reported to SCSI that Lee had been involved in an altercation

at Caterpillar’s assembly plant in Griffin, Georgia. The district court held that Lee’s

complaint alleged a single claim for defamation, which was time-barred, and there

was no basis on which to toll the statute of limitations. The district court also rejected

Lee’s argument that his complaint actually comprised five separate causes of action,

but nevertheless analyzed the elements of these claims and concluded that Lee had

failed to state a claim as to any of them. On appeal, Lee argues that: (1) the district

court erred in holding that no other claims besides a defamation claim were alleged

in the complaint; (2) the district court erred in concluding that Lee’s tortious-

interference-with-employment claim failed to allege that Caterpillar was a stranger

to Lee’s employment relationship with SCSI; and (3) the district court erred in

concluding that Lee’s negligence claim failed to allege that Caterpillar owed any duty

to him. After thorough review, we affirm.

      We review de novo the district court’s grant of judgment on the pleadings,

applying the same legal standard as the trial court. See Hart v. Hodges, 587 F.3d

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1288, 1290 n.1 (11th Cir. 2009). Judgment on the pleadings under Fed. R. Civ. P.

12(c) is appropriate only “when no issues of material fact exist, and the moving party

is entitled to judgment as a matter of law based on the substance of the pleadings and

any judicially noticed facts.” Cunningham v. District Attorney’s Office for Escambia

County, 592 F.3d 1237, 1255 (11th Cir. 2010). In considering a motion for judgment

on the pleadings, the court should resolve all reasonable doubts about the facts in the

favor of the non-movant, and draw all justifiable inferences in his or her favor. See

id. Moreover, “while notice pleading may not require that the pleader allege a

‘specific fact’ to cover every element or allege ‘with precision’ each element of a

claim, it is still necessary that a complaint ‘contain either direct or inferential

allegations respecting all the material elements necessary to sustain a recovery under

some viable legal theory.’” Financial Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d

1276, 1282-83 (11th Cir. 2007) (quotation omitted).

       First, we find no merit in Lee’s argument that the district court erred in granting

judgment on the pleadings for his tortious-interference-with-employment claim.1 To

state a claim for tortious interference with employment under Georgia law, a plaintiff

must allege: (1) the existence of an employment relationship; (2) interference by one


       1
         To begin with, we need not address whether Lee’s complaint properly framed his claims
because the district court never required him to provide a more definite statement and instead
addressed the claims on the merits.

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who is a “stranger” to the relationship; and (3) resulting damage to the employment

relationship. See Hylton v. American Ass’n, 448 S.E.2d 741, 744 (Ga. App. Ct.

1994). In tortious interference cases, the term “stranger” has been interpreted broadly

by Georgia courts. See Britt Paulk Ins. Agency, Inc. v. Vandroff Ins. Agency, Inc.,

952 F. Supp. 1575, 1584 (N.D. Ga. 1996) (citing cases). “One is not a stranger to the

contract just because one is not a party to the contract.” Mabra v. SF, Inc., 728 S.E.2d

737, 740 (Ga. App. 2012) (quotation omitted). “Those who have a direct economic

interest in or would benefit from a contract with which they are alleged to have

interfered (even though not intended third-party beneficiaries of the contract) are not

strangers to the contract and cannot have tortiously interfered.” Id. Moreover, “all

parties to an interwoven contractual arrangement are [not strangers and therefore] not

liable for tortious interference with any of the contracts or business relationships.”

Id. (quotation omitted).

      Here, Lee admits in his brief that Caterpillar contracts with various vendors and

staffing services (including SCSI) for, among other things, inspection and auditing

services for incoming parts and outgoing engine and generator assemblies. Through

SCSI, Lee worked at a Caterpillar facility as an auditor to provide inspection services

of engine assemblies prior to deliver to Caterpillar’s customers. Lee’s position arose

out of the increasing number of complaints Caterpillar was receiving from its

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customers regarding the quality of Caterpillar’s products. To address these concerns,

an independent auditor position was created to assure Caterpillar’s customers of the

quality of products being manufactured by Caterpillar. Lee alleges that Caterpillar’s

actions that are the subject of this action are in retaliation for the number of negative

citations that Lee made against Caterpillar during the course of performing his job as

an auditor. Based on these allegations, it is clear that Caterpillar was not a stranger

to the employment contract between Lee and SCSI. SCSI employed Lee to provide

services to Caterpillar based on a contract between Caterpillar and SCSI, and

Caterpillar therefore benefitted from Lee’s employment contract with SCSI. Lee’s

assertion that only Caterpillar’s customers (and not Caterpillar itself) benefitted from

the contract carries no weight -- Caterpillar clearly benefits if its customers receive

better products from Caterpillar.

       As for Lee’s claim that Caterpillar “contracted” away its right to argue that it

is not a stranger, this argument was not raised below. See Access Now, Inc. v. Sw.

Airlines Co., 385 F.3d 1324, 1331 (11th Cir.2004) (noting that we have “repeatedly

held that an issue not raised in the district court and raised for the first time in an

appeal will not be considered”) (quotation omitted)).2 In any event, Lee fails to


       2
        Lee also complains that he had no opportunity before the district court to raise his
waiver argument. However, Lee had more than enough opportunity to establish the “stranger”
element of the tort, since it was Lee’s burden, as the plaintiff, to somehow establish the elements

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explain how -- even if this allegation were true -- Caterpillar’s agreement not to

interfere with or wrongfully influence SCSI’s employment decisions (included in its

contract with SCSI) means that Caterpillar is a stranger as a matter of law for

purposes of a tortious interference claim. He also cites no case law in support of his

argument. Nor does he cite any case law in support of the proposition that the

“stranger” element is an affirmative defense, rather than an element he must prove.

In short, Lee has failed to establish the elements of a tortious interference claim.

       We are also unpersuaded by his claim that the district court erred in granting

judgment on the pleadings for his negligence claim. To state a claim for negligence,

a plaintiff must allege: (1) a legal duty; (2) a breach of this duty; (3) an injury; and (4)

a causal connection between the breach and the injury.                    Rasnick v. Krishna

Hospitality, Inc., 713 S.E.2d 835, 837 (Ga. 2011). “Before negligence can be

predicated upon a given act, some duty to the individual complaining must be sought

and found, the observance of which duty would have averted or avoided the injury

or damage.” City of Douglasville v. Queen, 514 S.E.2d 195, 197 (Ga. 1999)

(quotation omitted). Lee claims that he alleged the duty element by pleading that

“Defendant ha[d] a duty and obligation not to improperly interfere with or wrongfully

influence the employment determinations of SCSI or otherwise improperly


of his claims in the complaint itself. See Financial Sec. Assur., 500 F.3d at 1282-83.

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manipulate the auditing services provided by SCSI.” However, while this allegation

describes a purported duty to SCSI, it notably describes no duty to Lee himself. Lee

failed to allege any other duty on which his negligence claim is based before the

district court, and therefore has waived any argument on this issue. Access Now, 385

F.3d at 1331.

      Nevertheless, Lee now claims for the first time on appeal that Caterpillar had

a “general duty” not to subject others to unreasonable risk of harm under Georgia law.

See Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110, 1114 (11th Cir. 1992)

(“Georgia courts recognize a general duty one owes to all the world not to subject

them to an unreasonable risk of harm”) (citing Bradley Center, Inc. v. Wessner, 296

S.E.2d 693 (Ga. 1982)). However, the Georgia Supreme Court has instructed that in

these general negligence cases, “the common law and statutes regard conduct

involving an unreasonable risk of harm as antisocial conduct. This is the essence of

negligence law.” Ellington v. Tolar Const. Co., 227 S.E.2d 336, 339 (Ga. 1976)

(emphasis added). Lee cites nothing for the proposition that Caterpillar’s statements

to SCSI and Lee’s termination amount to the “unreasonable risk of harm” envisioned

by the “general duty” standard in Bradley Center or Ellington.

      Indeed, all of the cases cited by Lee involved some sort of serious act or

omission resulting in physical injury or death -- such as publishing an advertisement

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for a hired killer, obstructing a roadway with a company’s trash container, or leaving

a gun accessible to a prisoner on work detail, see Blue Br. at 17-18 -- and Lee

provides nothing of the sort in his case. At most, he says that Caterpillar selectively

reported about an altercation involving Lee to SCSI, and failed to give Caterpillar

exculpatory evidence. This allegation does not satisfy the duty standard of Georgia’s

negligence cause of action.3

       AFFIRMED.




       3
         As for Lee’s claim that negligence claims in Georgia are not susceptible to pretrial
adjudication, Georgia courts have clearly held that under Georgia law, the existence of a legal
duty presents a threshold question of law for the court. First Federal Sav. Bank of Brunswick v.
Fretthold, 394 S.E.2d 128, 131 (Ga. App. 1990).

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