American Breast Care, L.P. v. Coloplast Corp. , 209 F. App'x 945 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15049 DEC 12, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-02288-CV-WBH-1
AMERICAN BREAST CARE, L.P.,
Plaintiff-Counter
Defendant-Appellee,
versus
COLORPLAST CORP.,
Defendant-Third Party
Plaintiff-Counter
Claimant-Appellant,
JOACHIM RECHENBERG,
Third-Party Defendant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 12, 2006)
Before ANDERSON and BARKETT Circuit Judges, and STROM,* District Judge.
______________
* Honorable Lyle E. Strom, United States District Judge for the District of Nebraska, sitting by
designation.
PER CURIAM:
Coloplast Corp. (“Coloplast”) appeals from a final judgment of the district
court granting summary judgment in favor of defendants American Breast Care,
L.P. and Jolly Rechenberg (collectively, “ABC”) on Coloplast’s tortious
interference and Lanham Act claims. After careful review, we affirm.1
Coloplast claims that ABC tortiously interfered with various employment
contracts when it recruited certain Coloplast employees to leave their jobs and join
ABC. In order to establish a claim for tortious interference under Georgia law,
“whether asserting interference with contractual relations, business relations, or
potential business relations,” a plaintiff must prove:
(1) improper action or wrongful conduct by the defendant without privilege;
(2) the defendant acted purposely and with malice with the intent to injure;
(3) the defendant induced a breach of contractual obligations or caused a
party or third parties to discontinue or fail to enter into an anticipated
business relationship with the plaintiff; and (4) the defendant’s tortious
conduct proximately caused damage to the plaintiff.
Disaster Services, Inc. v. ERC Partnership, 492 S.E.2d 526, 528-29 (Ga. Ct. App.
1997) (internal citations omitted) (emphasis added). To satisfy this four-part test,
plaintiff must show more than that the defendant simply persuaded a person to
break a contract. Sommers Co. v. Moore, 621 S.E.2d 789, 791 (Ga. Ct. App. 2005);
1
We review de novo the district court’s grant of summary judgment, applying the same
legal standards as the district court. Whalley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir.
1999).
2
Architectural Mfg. Co. v. Airotec, Inc., 116 S.E.2d 744, 746 (Ga. Ct. App. 1969).
The plaintiff must adduce evidence of “improper action or wrongful conduct,”
which Georgia courts have defined as “constitut[ing] conduct wrongful in itself;
thus, improper conduct means wrongful action that generally involves predatory
tactics such as physical violence, fraud or misrepresentation, defamation, use of
confidential information, abusive civil suits, and unwarranted criminal
prosecutions.” Sommers, 621 S.E.2d at 791 (quoting Disaster Services, 492 S.E.2d
at 529). The district court found no evidence in the record to support the claim that
ABC had engaged in this conduct. Having reviewed the record, we find no error in
this determination.
We find no basis to reverse the district court’s grant of summary judgment in
favor of ABC on Coloplast’s Lanham Act claims.
AFFIRMED
3