           Case: 12-10825   Date Filed: 02/26/2013   Page: 1 of 8

                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-10825
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 4:11-cv-00135-JRH-GRS



JOHN SCOTT WEDEMEYER,

                    Plaintiff - Appellant,

versus

PNEUDRAULICS, INC.,

                    Defendant - Appellee.

                      ________________________

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

                            (February 26, 2013)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      Plaintiff-Appellant John Scott Wedemeyer appeals from the district court’s

final orders granting Defendant-Appellee Pneudraulics, Inc.’s motion to dismiss

Wedemeyer’s complaint and denying Wedemeyer’s motion for leave to amend the

complaint. In Wedemeyer’s complaint, which Pneudralics had removed to federal

court, Wedemeyer alleged that his employer, Gulfstream Aerospace, terminated his

employment as a test pilot because the aircraft he was piloting “went off the

runway causing extensive damages to the airplane.”          He further alleged that

Pneudraulics’s negligent manufacture of a swivel assembly caused the crash, and

that as a result of the crash, he was fired and the “incident has greatly impacted his

career.” The district court denied Wedemeyer’s motion to amend his complaint

due to the amendment’s futility, and thereafter dismissed Wedemeyer’s complaint

for failure to state a claim. On appeal, Wedemeyer challenges both of these

decisions. After thorough review, we affirm.

      We review de novo the district court’s grant of a motion to dismiss. Randall

v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). Although the review of the denial of

a motion for leave to amend is typically reviewed for abuse of discretion, “when

the district court denies the plaintiff leave to amend due to futility, we review the

denial de novo because it is concluding that as a matter of law an amended

complaint would necessarily fail.” Hollywood Mobile Estates Ltd. v. Seminole

Tribe of Fla., 641 F.3d 1259, 1264 (11th Cir. 2011).


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      Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a

short and plain statement of the claim showing that the [plaintiff] is entitled to

relief.” The complaint “must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face’” in order to survive a motion to

dismiss for failure to state a claim on which relief can be granted under

Fed.R.Civ.P. 12(b)(6). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atlantic v. Twombly, 550 U.S. 544, 570 (2007)).            In reviewing a motion to

dismiss, we accept as true all factual allegations contained in the complaint, but we

are “not bound to accept as true a legal conclusion couched as a factual allegation.”

Id. (quotation omitted). Threadbare recitations of the elements of a cause of

action, supported only by conclusory statements, do not suffice. Id. Further, “only

a complaint that states a plausible claim for relief survives a motion to dismiss.”

Id. at 679. “Determining whether a complaint states a plausible claim for relief

will . . . be a context-specific task that requires the reviewing court to draw on its

judicial experience and common sense.” Id.

      First, we are unpersuaded by Wedemeyer’s argument that the district court

erred in dismissing his original complaint. In that complaint, Wedemeyer alleged

that Pneudraulics’s negligent manufacture of a swivel assembly caused Gulfstream

to terminate him. However, Georgia has long refused to recognize a claim for

negligent interference with business employment. In Byrd v. English, 43 S.E. 419


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(Ga. 1903), the plaintiff operated a printing business, and he had a contract with

the Georgia Electric Light Company (“GELC”) to supply electricity to his

business. Employees of the defendant negligently damaged GELC’s conduit wires

that serviced the plaintiff’s business. The plaintiff sued the defendant, not GELC,

for damages that resulted from the disruption of his business. Id. at 419-420. The

Supreme Court of Georgia held that the plaintiff’s petition did not state a cause of

action. Id. at 421. The court determined that the foundation of plaintiff’s claim

was his contract with GELC and that the defendant was not remotely connected to

that contract; therefore, even though the terms of the contract prevented the

plaintiff from recovering against GELC, the defendant could not be held

responsible for plaintiff’s claims. Id. at 420; see also Robins Dry Dock & Repair

Co. v. Flint, 275 U.S. 303, 309 (1927) (citing Byrd for the proposition that “a tort

to the person or property of one man does not make the tort-feasor liable to another

merely because the injured person was under a contract with that other unknown to

the doer of the wrong”).

      Similarly, in Morse v. Piedmont Hotel Co., 139 S.E.2d 133 (Ga. 1964), the

Georgia Court of Appeals said: “Generally, a person is not liable for the

unintentional invasion of the interest of another in his contractual or employment

relationships with third persons.”   Id. at 135.   There, the plaintiff, a jewelry

salesman who had entrusted his wares to a hotel bell boy, sued the hotel for


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damages stemming from the loss of his jewelry. The jewelry belonged to the

plaintiff’s employer, not to the plaintiff. As a result of the incident, the plaintiff

could not obtain insurance coverage and the employer terminated the plaintiff.

Plaintiff sued the hotel claiming that the theft of the jewelry case resulted from the

hotel’s negligence and caused his termination by the employer. Id. at 134. Morse

aptly applies here:

      The rights or interests of [Wedemeyer] which he alleges have been damaged
      -- … the interest in his employment -- he had by virtue of relations with
      others than [Pneudraulics]. The petition does not show that [Wedemeyer]
      had property rights in his relationships with [Gulfstream Aerospace], but
      such interests of [Wedemeyer] as were damaged inhered in [that
      relationship.] The law does not place upon [Pneudraulics] the duty to protect
      these interests of [Wedemeyer] against unintentional invasion.

Id. at 135 (citations omitted).

      Wedemeyer claims that Georgia recognizes this kind of negligence claim

where the plaintiff has suffered an injury to his person or property, citing McGill &

Sons, Inc. v. Flood & Assoc., Inc., 248 S.E.2d 23, 24 (Ga. App. 1978) (“There is

no liability for negligence since there was no injury to any person or property as a

result of the alleged delays.”). But even if this is true, there are no allegations of

physical injury in his original complaint. At most, he says that the “incident has

greatly impacted his career.” Under Georgia law, “[a]n at-will employee generally

does not have a reasonable expectation of continued employment to establish a

property right protected by law.” Fink v. Dodd, 649 S.E.2d 359, 362 (Ga. App.


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2007). In other words, Wedemeyer’s alleged loss of his employment was not an

injury to a property right, and he has not alleged a negligence claim cognizable

under Georgia law. The district court, therefore, did not err in dismissing the claim

in Wedemeyer’s original complaint.

      We also find no merit to Wedemeyer’s argument that the district court erred

in refusing him leave to amend.         Ordinarily, “[i]f the underlying facts or

circumstances relied upon by a plaintiff may be a proper subject of relief,” Foman

v. Davis, 371 U.S. 178, 182 (1962), leave to amend should “be freely given,”

Fed.R.Civ.P. 15(a). Under Foman, however, a district court may properly deny

leave to amend the complaint under Rule 15(a) when such amendment would be

futile. 371 U.S. at 182. Denial of leave to amend is justified by futility when the

complaint as amended is still subject to dismissal. See Hall v. United Ins. Co. of

America, 367 F.3d 1255, 1262-63 (11th Cir. 2004).

      Wedemeyer argues that for purposes of his negligence claim, he alleged

personal injury in his amended complaint, which says that as a result of the

incident, “Plaintiff   has also suffered physically, including but not limited to

headaches, sleeplessness, chronic nausea and anxiety.” However, any physical

injury he claims flowed from his loss of employment cannot constitute a

cognizable injury -- it is simply too attenuated. Allowing these sorts of allegations

to satisfy the physical injury requirement would also effectively remove the


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requirement, given that these sorts of injuries presumably flow from most

economic injuries. Thus, viewing the allegations in the amended complaint by, as

we must, drawing on our judicial experience and common sense, Iqbal, 556 U.S. at

679, we cannot say the district court erred in concluding that the vague statements

regarding Wedemeyer’s injuries plausibly allege any sort of physical injury

sufficient to state a claim under Georgia law. 1

       Because Wedemeyer’s amended complaint failed to allege any cognizable

injury, his other purported claims requiring an injury element -- like product

liability and negligence per se -- also fail. Further, Wedemeyer’s attempts to allege

some sort of intentional conduct fall flat as well, as he has not made any argument

to us about how his allegations of intent or a violation of administrative regulations

are anything more than “[t]hreadbare recitations of the elements of a cause of

action, supported only by conclusory statements.”              Id. at 678. Similarly, his

constructive fraud claim fails since there is no allegation whatsoever that

Pneudraulics acted with any malice towards him. In short, the district court did not

err in finding that it would futile to allow Wedemeyer to amend his complaint, nor

did it abuse its discretion in refusing the amendment.


1
  Moreover, to the extent Wedemeyer mentioned “whiplash-type injuries” in response to
Pneudralics’s motion to dismiss, there was absolutely no reference to whiplash in the amended
complaint, which he notably filed after his response to the motion to dismiss. Indeed, in his
response to Pneudralics’s motion to stay discovery (filed the same day as his response to the
motion to dismiss), he said, “No one was injured [in the incident] thanks to Scott Wedemeyer’s
quick thinking.”
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AFFIRMED.




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