* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 22 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JEFF A. BAKER,

Plaintiff-Appellant,

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

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.-2-

This appeal arises from plaintiff’s diversity actio n against defendant for wrongful termination, promissory estoppel, misrepre sentation, 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 ent itle him to relief. See Yoder v. Honeywell, Inc. , 104 F.3d 1215, 1224 (10th Cir. 1997). We also re view the grant of summary judgment de novo, and, like the districtcourt, 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 f actual 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.-3-

Plaintiff holds a college degree in mechanical engi neering from the University of Wyoming, his home state, and he was e mployed by Monsanto as a project engineer in Houston. Plaintiff enjoyed his work, but he and his family wished to relocate. Through a headhunter, plaintif f arranged an interview with defendant in Green River, Wyoming. Shortly after the interview, defendant extended a written offer of employment as the maint enance engineer at its Green River facility. Defendant also agreed to pay plain tiff’s relocation expenses, which plaintiff agreed to reimburse in the event pl aintiff voluntarily terminated his employment within one year. Plaintiff signed aLetter of Agreement regarding the relocation, specifically acknowledging that the “agreement shall not be construed as a guarantee of employment for any peri od 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 repay ment of the relocation expenses. One year after he accepted the job, plaintiff resig ned and is now employed by another company. We will first address the grant of summary judgmenton plaintiff’s promissory estoppel claim. Plaintiff claims that d efendant’s employees represented to him that he would be permanently emp loyed as the only maintenance engineer and that he would be “in line” for the position of-4-

superintendent of maintenance. App. at 3. Plainti ff complains that he was, in fact, hired as a planner and that was the job he pe rformed. He maintains that accepting and performing an inferior position to th at 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 a greement existed; (2) he acted to his detriment in reasonable reliance on the agreeme nt; 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 of fer of employment “as Maintenance Engineer at our Green River Soda Ash Op eration.” App. at 221. Nowhere in the record is there evidence of a clear and definite agreement that plaintiff would be the only maintenance engineer orthat 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 there1 Because we hold that plaintiff has not made the req uired showing of a clear

and definite agreement, discussion of the remaining two requirements is not necessary. We note, however, that we also agree wi th the district court that plaintiff has not met the third requirement for rel ief 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 mon ey while employed by defendant than he had in his previous job; and plai ntiff 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 previ ous two jobs and offers other benefits he did not have with either defendant or M onsanto.

2 The district court also dismissed count four of pla intiff’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- evidence of a clear and definite agreement that pla intiff 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. Ther e is no evidence of any clear and definite agreement regarding what duties plaint iff was to perform when defendant offered him the position of maintenance e ngineer. 1 In addition to promissory estoppel, plaintiff claim s he is entitled to relief on the similar basis of equitable estoppel. Plaint iff’s complaint raises no such claim, and the district court did not address equit able 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 districtcourt erred in dismissing three of his claims under Fed. R. Civ. P. 12(b)(6). 2Defendant argues that we lack2 (...continued)

waived the issue. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). -6- 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. Pl aintiff’s notice of appeal from the grant of summary judgment was sufficient to inc lude appeal from all previously decided interlocutory orders, however; c onsequently, 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 plaint iff’s claim for breach of the covenant of good faith and fair dealing. “An i mplied 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 excepti onal. See id. Such a relationship can be evidenced by the existence of “ separate consideration, rights created by common law or statute, or rights accruin g with longevity of service.” Id. at 278; see also Duart , 859 F. Supp. at 1463. None of those factors are present in this case.-7-

The district court was also correct in dismissing p laintiff’s breach of contract claim. Plaintiff argues that the at-will employment presumption was altered by defendant’s promise of permanent employm ent. This is true only if plaintiff “supplied additional consideration or if the employment contract contains explicit language stating that [plaintiff] can onlybe terminated for cause.” Terry , 947 P.2d at 276. Nothing in defendant’s offer of e mployment 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 relocatio n agreement language obligated plaintiff, in exchange for relocation money, either to work for one year or to repay the relocation ass istance. “The consideration exchanged by the parties does not include job secur ity 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 [def endant’s] unfettered right to discharge at any time and without cause.” Id. In addition, we note that the relocation agreement contains a specific disclaimerthat it cannot be construed as a guarantee of employment for any specific period o f time following relocation.
See Duart , 859 F. Supp. at 1459-62 (discussing Wyoming law r egarding effect of disclaimers).-8-

Similarly, plaintiff’s misrepresentation claims wer e properly dismissed. We agree with the district court that plaintiff did not plead facts with sufficient particularity to support a claim for fraudulent mis representation. See Duffy v.
Brown , 708 P.2d 433, 437 (Wyo. 1985) (listing elements o f fraudulent misrepresentation). Neither did plaintiff plead fa cts 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 GreenRiver operation and that he would be “in line” for the plant supervisor positio n. These general allegations are insufficient to survive a 12(b)(6) motion and, in f act, when plaintiff was the only maintenance engineer at the Green River operation w hen he was hired. Finally, contrary to plaintiff’s assertion, the dis trict 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 fou nd that permitting amendment would be futile. Further, it found that the motion was “untimely and unduly prejudicial” because it was filed “well afte r the close of discovery and only three months prior to trial.” App. at 60. Inlight of these findings, the district court acted within its discretion in refus ing to allow amendment.-9-

The judgment of the United States District Court fo r the District of Wyoming is AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge