                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 19a0131n.06

                                           No. 18-5918


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                      FILED
 REGINALD BONNER,                                         )                     Mar 19, 2019
                                                          )                 DEBORAH S. HUNT, Clerk
        Plaintiff-Appellant,                              )
                                                          )
 v.                                                       )     ON APPEAL FROM THE
                                                          )     UNITED STATES DISTRICT
 UNITED PARCEL SERVICE, INC.; NATIONAL                    )     COURT FOR THE MIDDLE
 DIAGNOSTICS, INC.,                                       )     DISTRICT OF TENNESSEE
                                                          )
        Defendants-Appellees.                             )
                                                          )



BEFORE:        BATCHELDER, ROGERS, and THAPAR, Circuit Judges.

       ROGERS, Circuit Judge.

       After allegedly violating the terms of his drug rehabilitation program, Reginald Bonner

was terminated from his employment at United Parcel Service, Inc. in 2013. Bonner sued United

Parcel Service and the company that performed drug testing on United Parcel Service employees,

alleging breach of the defendants’ drug-testing contract and conspiracy to breach the contract. The

district court granted the defendants’ motion to dismiss under Fed. R. Civ. Proc. 12(b)(6). Because

Bonner has failed to allege facts showing that he was an intended third-party beneficiary to the

drug-testing contract, the case was properly dismissed.

       Bonner worked as a driver for United Parcel Service, Inc. (“UPS”) from 1983 until his

termination in 2013. Pursuant to a contract, co-defendant National Diagnostics, Inc. (“NDI”)

performs drug testing services on UPS employees. Bonner submitted a urine sample to NDI, which
No. 18-5918, Bonner v. United Parcel Serv., et al.


allegedly produced a “false positive for cocaine.” Bonner subsequently was involved in an

accident that disabled his UPS truck, and was required by UPS to participate in a drug

rehabilitation program. UPS terminated Bonner in April 2013 for allegedly violating the terms of

that program.

        Bonner brought this diversity suit against UPS and NDI, not on a negligence basis, but

alleging that the defendants had breached the contract providing that NDI would perform drug

testing on UPS employees and that defendants had conspired to breach the contract. The district

court granted the defendants’ motions to dismiss under Fed. R. Civ. Proc. 12(b)(6), because Bonner

did not plead facts plausibly showing that he was an intended third-party beneficiary to the

contract, as required for a breach of contract claim under Tennessee law. This appeal followed.

        At no time in the litigation has plaintiff identified any term of that contract, much less a

term that might have been intended to benefit third-party Bonner. Bonner has thus unquestionably

failed to allege facts showing that he was an intended third-party beneficiary to the defendants’

drug-testing contract. Third parties may recover for breach of contract only if they satisfy one of

the following tests: (1) the “intent to benefit” test, according to which “the contract was entered

into, at least in part, for that [third] party’s benefit”; or (2) the “duty owed” test, according to which

“one party to the contract assumed a duty that the other party owed to the third-party.” Smith v.

Chattanooga Medical Investors, Inc., 62 S.W.3d 178, 185 (Tenn. Ct. App. 2001).1

        Because Bonner did not plead the facts necessary to succeed on a third-party contract

action, his case was properly dismissed. “To survive a motion to dismiss [under Rule 12(b)(6)], a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is



1
  UPS points out that the drug-testing contract contains a choice-of-law provision specifying that the
contract “shall be construed in accordance with the laws of the state of Georgia.” However, the district
court applied Tennessee law, and Bonner does not argue on appeal that this was error.

                                                   -2-
No. 18-5918, Bonner v. United Parcel Serv., et al.


plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). Bonner’s complaint did not allege facts that meet that

standard.

       The judgment of the district court is affirmed.




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