                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                           April 20, 2020
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 HUA CAI,

       Plaintiff - Appellant,

 v.                                                          No. 19-4116
                                                     (D.C. No. 2:18-CV-00968-TS)
 HUNTSMAN CORPORATION,                                         (D. Utah)

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT *
                         _________________________________

Before HOLMES, PHILLIPS, and CARSON, Circuit Judges.
                  _________________________________

      Hua Cai, appearing pro se, appeals from the district court’s entry of judgment

on the pleadings in favor of Defendant Huntsman Corporation on his

breach-of-contract claim. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
                                   I.   Background

       Huntsman Corporation’s Chinese subsidiary, Huntsman Chemical Trading

(Shanghai) Ltd., employed Cai in Shanghai, China. But Huntsman Corporation was

not a party to Cai’s employment contract and it never employed Cai.

       Huntsman Shanghai and Cai agreed in their contract that Cai’s continued

employment with the firm would be subject to satisfactory performance during a

six-month probationary period. Near the end of Cai’s probation, his supervisor at

Huntsman Shanghai, Frank Xing, fired him ostensibly for being incompetent. Cai

claims that Xing manufactured this pretense to cover-up his real reason for firing

Cai—namely, retaliation for Cai’s threat to report Xing’s abusive conduct and

falsification of data.

       Cai sued Huntsman Shanghai in China, seeking reinstatement. His action

“went through labor arbitration court, trial court, appellate court, superior court, and

procuratorate.” R. at 7. Cai lost at every step. He also lodged several complaints

with Huntsman Corporation’s ethics and corporate compliance department. The

department investigated Cai’s case and allegedly found abnormalities related to the

“‘faking data’ issue” but confirmed that Xing correctly fired Cai. Id. at 6.

       Cai then brought this suit against Huntsman Corporation. He asserts certain

Business Conduct Guidelines published by Huntsman Corporation constitute an

enforceable contract between himself and Huntsman Corporation. Cai further avers

that Huntsman Corporation breached this contract by failing to conduct an adequate



                                            2
investigation into his complaints and by failing to stop Huntsman Shanghai from

using unethical and dishonest tactics to defeat his suit.

      The district court granted judgment to Huntsman Corporation on the pleadings

under Fed. R. Civ. P. 12(c), concluding that the Business Conduct Guidelines “do not

constitute a binding contract.” R. at 214. 1

                                    II. Discussion

      “A decision by the district court granting a defense motion for judgment on the

pleadings is reviewed de novo, using the same standard of review applicable to a

Rule 12(b)(6) motion.” Aspenwood Inv. Co. v. Martinez, 355 F.3d 1256, 1259

(10th Cir. 2004). “Thus, all the well-pleaded allegations of the complaint are

accepted as true and construed in the light most favorable to the plaintiff.” Id. “[T]o

survive judgment on the pleadings, [a plaintiff] must allege ‘a claim to relief that is

plausible on its face.’” Sanchez v. U.S. Dep’t of Energy, 870 F.3d 1185, 1199

(10th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “To

determine whether the claim to relief is ‘plausible on its face,’ we examine the

elements of the particular claim and review whether the plaintiff has pleaded ‘factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.’” Id. (quoting Iqbal, 556 U.S. at 678). In ruling on


      1
        The district court also found that “[e]ven assuming the Business Conduct
Guidelines did constitute a contract between [Cai] and [Huntsman Corporation],
[Cai] has failed to show that [Huntsman Corporation] breached those Guidelines.”
R. at 214. Because we affirm the district court’s conclusion that the parties did not
form a binding contract, we do not address Cai’s arguments related to Huntsman
Corporation’s alleged breach of contract.
                                               3
the motion, the court “may consider documents referred to in the complaint if the

documents are central to the plaintiff’s claim and the parties do not dispute the

documents’ authenticity.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th

Cir. 2002).

      We construe Cai’s pro se filings liberally but do not serve as his advocate. See

Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

A. The Business Conduct Guidelines Do Not Constitute A Binding Contract

      The parties do not contest the district court’s application of Utah law to the

question of whether they formed a contract. 2 Under Utah law, “formation of a

contract [generally] requires an offer, an acceptance, and consideration.” Cea v.

Hoffman, 276 P.3d 1178, 1185 (Utah Ct. App. 2012) (citing Golden Key Realty, Inc.

v. Mantas, 699 P.2d 730, 732 (Utah 1985)). “For an offer to be one that would create

a valid and binding contract, its terms must be definite and unambiguous.” DCM Inv.

Corp. v. Pinecrest Inv. Co., 34 P.3d 785, 789 (Utah 2001). And “[t]he obligations of



      2
        Cai alleges Huntsman Corporation maintains its principal place of business in
Utah and his complaint cited Utah law in support of his allegation that the “‘Business
Conduct Guidelines’ is a kind of contract between headquarter[s] and I.” R. at 6
(citing Uhrhahn Constr. & Design, Inc. v. Hopkins, 179 P.3d 808, 813 (Utah Ct. App.
2008)). The district court applied Utah law to reject this allegation. While Cai’s
opening brief claims generally that the district court applied the wrong law in
deciding the case and cites Illinois, Massachusetts, and Utah law in support of his
argument regarding contract formation, Cai does not explicitly argue that the district
court erred by applying Utah law. Cf. Kelley v. City of Albuquerque, 542 F.3d 802,
819 (10th Cir. 2008) (“[P]erfunctory” allegations of error that “fail[] to frame and
develop an issue” are insufficient “to invoke appellate review.” (internal quotation
marks omitted)). And in his reply brief, Cai relies on Utah law to support his claim
that Huntsman Corporation contracted directly with him.
                                           4
the parties must be ‘set forth with sufficient definiteness that [the contract] can be

performed.’” Cea, 276 P.3d at 1185 (second alteration in original) (quoting Ferris v.

Jennings, 595 P.2d 857, 859 (Utah 1979)).

      Applying this law, the district court reasoned that “the terms of the Business

Conduct Guidelines are far from ‘definite and unambiguous.’ Rather, the Guidelines

speak in aspirational tones about the values of the company and the type of

workplace they seek to establish.” R. at 214. It further observed that “the Guidelines

do not provide the basis for determining the existence of a breach or for giving the

appropriate remedy.” Id. It therefore concluded that the Business Conduct

Guidelines “do not constitute a binding contract.” Id.

      Cai argues that “Utah Law only requires offer, acceptance and consideration to

be definite and unambiguous.” Aplt. Reply Br. at 4. And he claims that “[t]he terms

of [the Business Conduct Guidelines] are clear and definite enough to form a

contract.” Id. at 1 (boldface omitted). But while he points to various statements in

the Guidelines outlining Huntsman Corporation’s policies on reporting alleged

violations, retaliation for such reporting, and discipline for violating the Guidelines,

Cai does not grapple with the district court’s reasoning that the Guidelines were too

nebulous to constitute a binding contract. Indeed, Cai does not point to any language

in the Guidelines that evinces an offer, acceptance, or exchange of consideration.

      Cai also notes that an employee handbook can constitute a contract. But the

unpublished Utah case he cites holds that the type of contract created is an

employment contract and that the employee’s continued employment constitutes

                                            5
acceptance of the employer’s offer and supplies the consideration. See First Am.

Title Ins. v. Nw. Title Ins. Agency, No. 2:15-CV-00229-DN, 2016 WL 6902473, at

*22 (D. Utah Nov. 23, 2016) (“‘An employee manual may create a unilateral

contract.’ . . . ‘[T]he employee’s retention of employment constitutes acceptance of

the offer of a unilateral contract; by continuing to stay on the job, although free to

leave, the employment supplies the necessary consideration for the offer.’” (quoting

Reynolds v. Gentry Fin. Corp. & Royal Mgmt., 368 P.3d 96, 100 (Utah Ct. App.

2016)). Cai concedes the Business Conduct Guidelines do not form an employment

contract and does not claim Huntsman Corporation ever employed him. We therefore

conclude the employee handbook cases have no relevance here.

      We affirm the district court’s conclusion that the Business Conduct Guidelines

do not constitute a binding contract between Cai and Huntsman Corporation.

B. The District Court Did Not Err By Considering Huntsman Corporation’s
   Argument

      Cai also asserts that the district court erred by considering Huntsman

Corporation’s argument that the Business Conduct Guidelines do not constitute a

binding contract because Huntsman first asserted this argument in its reply in support

of its motion for judgment on the pleadings. Cf. D. Utah Civ. R. 7-1(b)(2)(A)

(“Reply memoranda . . . must be limited to rebuttal of matters raised in the

memorandum in opposition.”).

      Huntsman Corporation argued in its motion for judgment on the pleadings that

it “is not—and has never been—a party to any contract with [Cai].” R. at 35. In


                                            6
response, Cai clarified his position that “the contract [Huntsman Corporation]

breached is . . . named ‘Business Conduct Guidelines[,]’ . . . made between [Cai]

and . . . Huntsman Corporation.” Id. at 90. Huntsman Corporation then argued in

reply that “the Business Conduct Guidelines alone are nowhere near sufficiently

definite to form an offer that would constitute a binding contract.” Id. at 155.

Huntsman Corporation’s reply directly rebutted the contention from Cai’s opposition

brief that the Business Conduct Guidelines constituted a binding contract between

Huntsman Corporation and himself. The district court did not err by considering this

rebuttal argument.

C. Cai’s Remaining Arguments Lack Merit

       Cai contends that Huntsman Corporation mischaracterized his complaint in its

filings with the district court by construing his claims as breach-of-contract claims

against Huntsman Shanghai. He then argues that the district court accepted this

alleged ruse and failed to consider his “actual allegation . . . that [Huntsman

Corporation] breached [the Business Conduct Guidelines].” Aplt. Opening Br. at 7.

We reject this frivolous argument since the district court squarely addressed Cai’s

assertion that Huntsman Corporation formed a contract with him and then breached

that contract.

       Cai also avers the district court erred by stating that his employment contract

with Huntsman Shanghai “incorporated Defendant Huntsman Corporation’s Business

Conduct Guidelines.” R. at 211. The district court’s view tracks closely with Cai’s

own allegation in the complaint that “by signing the employment contract [with

                                            7
Huntsman Shanghai] plaintiff acknowledged [he would] fully abide by the corporate

‘Business Conduct Guidelines.’” Id. at 5. In any event, the district court’s

disposition did not relate to its assessment of whether Cai’s employment contract

incorporated the Business Conduct Guidelines. We therefore will not review this

allegation of error. See, e.g., Orr v. City of Albuquerque, 417 F.3d 1144, 1154

(10th Cir. 2005) (observing that the court “will not address [an] issue [that] has no

bearing on the ultimate outcome of [the] case”).

                                  III. Conclusion

      We affirm the district court’s dismissal of Cai’s breach-of-contract claim

against Huntsman Corporation.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




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