UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1277



LARRY JAMES,

                                             Plaintiff - Appellant,


           versus

PRATT   AND  WHITNEY,     UNITED   TECHNOLOGIES
CORPORATION,

                                              Defendant - Appellee.


Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CA-03-1022-2-18)


Argued:   December 2, 2004                 Decided:   March 23, 2005


Before WILKINSON, Circuit Judge, W. Craig BROADWATER, United States
District Judge for the Northern District of West Virginia, sitting
by designation, and Norman K. MOON, United States District Judge
for the Western District of Virginia, sitting by designation.


Affirmed in part, reversed in part and remanded by unpublished per
curiam opinion.


Chalmers Carey Johnson, Charleston, South Carolina, for Appellant.
Ellis Reed-Hill Lesemann, Cherie W. Blackburn, NELSON, MULLINS,
RILEY & SCARBOROUGH, L.L.P., Charleston, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:


     Appellant Larry James filed this action on February 6, 2003,

in the Court of Common Pleas of the County of Charleston, South

Carolina,     against     Pratt     and        Whitney,    United    Technologies

Corporation, asserting claims of civil conspiracy, intentional

interference with contractual relations, and intentional infliction

of emotional distress.       After removal, the district court granted

Pratt   &   Whitney’s     motion    for    partial      judgment    on    the   civil

conspiracy    claim   and   the    intentional       infliction      of   emotional

distress claim.       James seeks review of that decision.                  For the

reasons set forth below, we hold that the district court did not

err when it dismissed James’s intentional infliction of emotional

distress claim. We, therefore, affirm that portion of the district

court’s decision.         We further hold, however, that the district

court erred when it dismissed appellant’s civil conspiracy claim.

Consistent with this determination, we vacate that portion of the

judgment of the district court and remand the case for further

proceedings consistent with this opinion.



                                          I.

     James is an aircraft mechanic employed in a supervisory

position    by   United    Airlines,      Inc.,    at     the   Charleston,     South

Carolina, Air Force Base.          James is also a shop steward and union

representative for the International Association of Machinists and

                                          2
Aerospace   Workers.      James’s      job        duties    include   conducting

maintenance and certification of aircraft engines for the United

States Air Force.      Pratt & Whitney designed and manufactured the

aircraft engines on which James works. United contracts with Pratt

& Whitney to provide maintenance to the aircraft engines and

certify   that   the   engines   are       safe    for     use.   Despite   this

arrangement, James is not an employee of Pratt & Whitney but James

is employed by United.

     In 2000, another aircraft mechanic discovered a crack in one

of the engines and notified his supervisor, James. James inspected

the crack, confirmed that it was unsafe for use, and reported the

damage to United.       United’s foreman confronted James and the

mechanic who discovered the crack and demanded that the damage

report be withdrawn.     The foreman told James that an employee with

Pratt & Whitney demanded that the damage report be altered.                 After

refusing to falsify the damage report, James was called to a

meeting with the foreman and a representative from Pratt & Whitney.

At this meeting, Pratt & Whitney’s representative demanded that the

report be altered.      Again, James refused to falsify the damage

report.

     After this incident, James claims that representatives of

Pratt & Whitney began showing up at his work area and scrutinizing

his work. James asserts that this scrutiny continued over time and

became extremely oppressive and hostile. Shortly thereafter, James


                                       3
received    a    disciplinary       notice      terminating    his   employment      on

November 30, 2000.          James was off the job for approximately five

months.     In the interim, he filed a grievance pursuant to the

collective bargaining agreement between United and the union.                       The

grievance       procedure    reached    a    positive    conclusion,     and    James

returned to his job on April 30, 2001.

     As a result of this termination, James lost salary and other

benefits. Specifically, the complaint asserts that during the time

he was unemployed, James suffered lost wages, lost benefits,

consequential economic damages, severe emotional distress, and

injury to his reputation.              The instant complaint was filed on

February 6, 2003, alleging that as the result of his refusal to

falsify the maintenance report, Pratt & Whitney (1) unlawfully

conspired with United to have James terminated, (2) intentionally

interfered with James’s employment contract with United, and (3)

intentionally inflicted emotional distress on James.

     Pursuant to 28 U.S.C. §§ 1332 and 1442, Pratt & Whitney

removed the action to the United States District Court for the

District of South Carolina on April 2, 2003.                  On October 10, 2003,

Pratt   &   Whitney    filed    a    motion      for   partial   judgment      on   the

pleadings for dismissal of the claims for civil conspiracy and

intentional infliction of emotional distress pursuant to Rule 12(c)

of the Federal Rules of Civil Procedure.                 Pratt & Whitney argued

that retaliatory discharge alone may not serve as a basis for a


                                            4
claim of intentional infliction of emotional distress.               Therefore,

Pratt   &    Whitney   claimed   it    was    not   liable   for    intentional

infliction of emotional distress. Pratt & Whitney also argued that

the claim for civil conspiracy should be dismissed because the

complaint did not specifically allege special damages, a pleading

requirement under South Carolina law.

     The district court held a hearing on the motion for partial

judgment on the pleadings on December 30, 2003.                 At the hearing,

the district court orally granted Pratt & Whitney’s motion for

partial judgment and stated that a written order would follow.

During the pendency of the motion for partial judgment, discovery

continued between the parties.         In his deposition, James conceded

that due to the collective bargaining agreement between United and

the union, the claim for intentional interference with contractual

relations was not viable under applicable law.               Pratt & Whitney,

therefore, filed a motion for summary judgment on the intentional

interference of contractual relations claim on January 30, 2004.

On February 10, 2004, the district court issued its written order

granting Pratt & Whitney’s motion to dismiss the civil conspiracy

claim and the intentional infliction of emotional distress claim.

        By   consent   of   James,    the    district   court    dismissed   the

intentional interference of contractual relations claim on February

23, 2004.     On March 1, 2004, James filed a notice of appeal of the

district court’s February 10, 2004 order granting Pratt & Whitney’s


                                       5
motion to dismiss the claims for civil conspiracy and intentional

infliction of emotional distress.



                                    II.

     The    court   reviews   a   decision   to   grant    judgment   on   the

pleadings de novo, applying the same standard for Rule 12(c)

motions as for motions made pursuant to Rule 12(b)(6).                Burbach

Broad. Co. v. Elkins Radio Corp., 

, 405-06 (4th Cir.

2002); Edwards v. City of Goldsboro, 178 F.3d 231,243 (4th Cir.

1999).    “Accordingly, we assume the facts alleged in the complaint

are true and draw all reasonable factual inferences in appellant’s

favor.”    

ground of appeal is that the district court erred

when it dismissed the claim for civil conspiracy.               Under South

Carolina law, when asserting a claim for civil conspiracy, one must

allege and specifically plead special damages.            The district court

determined that James failed to meet that requirement.

     James argues that it is permissible under Rule 8(e)(2) of the

Federal Rules of Civil Procedure to plead alternate causes of

action or legal theories.         He maintains that at the motion to

dismiss stage, it is permissible under the rules of civil procedure

to plead as many separate causes of action as the facts may

support, regardless of the fact that some may be inconsistent or


                                     6
mutually exclusive.   He further argues that even if the complaint

failed to adequately plead special damages, he should be allowed to

amend his complaint under Rule 15(a) of the Federal Rules of Civil

Procedure.   Pratt & Whitney counters that special damages is an

element of the claim that must be properly pled. James’s complaint

asserts the three claims described above.      At the end of the

sections asserting the causes of action for civil conspiracy and

intentional interference with contractual relations, James uses the

same named items of damages: 1) suffered lost wages; 2) suffered

lost benefits; 3) suffered consequential economic damages; 4)

suffered severe emotional distress; and 5) suffered injury to his

reputation as a mechanic and union member in a leadership position.

It is this repetition of damages that Pratt & Whitney alleges is

insufficient1.

     A cause of action for civil conspiracy is defined as “(1) a

combination of two or more persons, (2) for the purpose of injuring

the plaintiff, (3) which causes him special damage.”     Vaught v.

Waites, 

, 95 (S.C. Ct. App. 1986) (citing Lee v.

Chesterfield Gen. Hosp. Inc., 

(S.C. Ct. App. 1986)).


     1
        In the cause of action for intentional infliction of
emotional distress James does not recite the same demand for
damages as in the other two causes of action. In the intentional
infliction of emotional distress cause of action, James states that
as a proximate result of Pratt & Whitney’s conduct, he suffered
severe emotional distress and mental anguish. James further states
that as a result of this conduct, he is entitled to actual damages,
consequential damages, punitive damages, and other damages as
determined by the court.

                                 7
Special damages are defined as “[d]amages for losses that are the

natural and proximate, but not the necessary, result of the injury

may be recovered only when such special damages are sufficiently

stated and claimed.”     Sheek v. Lee, 

, 497 (S.C. 1986)

(emphasis in original).       “Special damages must be alleged in the

complaint to avoid surprise to the other party.”           

early South Carolina case involving a claim and delivery

for certain articles of personal property compares general damages

and special damages as follows:

        [W]hat are called general damages, as contradistinguished
        from special damages, are admitted in evidence under a
        general allegation,-indeed, are inferred by the law
        itself,- for the reason that they are the immediate,
        direct, and proximate result of the act complained of,
        as, for instance, an injury to the property itself, or
        its value, by detention, etc., while damages which,
        although the natural, are not the necessary, consequence
        of the act, being outside of the costs and disbursements
        allowed by law, and consequently, in their nature, are
        not admissible in evidence without special notice of the
        claim in the allegations of the complaint, are therefore
        called special damages.

Loeb v. Mann, 

, 2 (S.C. 1893) (internal quotations

omitted).     The concept that a defendant must be on notice of the

special circumstances was also found in a breach of contract

action. See Givens v. North Augusta Elec. Improvement Co., 

,     1069   (S.C.   1912)   (noting   that   since   the   complaint

unequivocally     claimed   special   circumstances,   defendant   was   on

notice and could be held liable for special damages).


                                      8
     Special damages appear to arise in two types of cases other

than civil conspiracy: disputes involving real property and causes

of action for libel and slander.      See e.g., Smith v. Phoenix

Furniture Co., 

, 971 (D.S.C. 1972) (“[s]pecial

damages in the context of libel or slander, are damages with

respect to the property, business, profession or occupation which

are computable in money . . . [s]uch special damages must be a loss

of money or some other material temporal advantage capable of being

assessed at monetary value”); Stern & Stern Associates v. Timmons,

, 125 (S.C. 1992) (defining special damages in a suit

for specific performance of a real estate contract as “by their

very nature conditioned by the particular circumstances of each

case . . . [t]he party claiming special damages must show that the

defendant was clearly warned of the probable existence of unusual

circumstances or that because of the defendant's own education,

training, or information, the defendant had reason to foresee the

probable existence of such circumstances . . . special damages are

considered within the contemplation of the parties at the time the

contract was signed”) (internal citations omitted); Capps v. Watts,

, 609 (S.C. 1978) (stating that in a suit for libel

“[g]eneral damages are those damages which the law presumes,

without proof, to have resulted from the publication of the libel

. . . [s]pecial damage is actual damage and must be pled and

proved”) (quotations omitted); Windham v. Honeycutt, 

185, 187 (S.C. Ct. App. 1986) (“[s]pecial damages are those that

may reasonably be supposed to have been in the contemplation of

both parties, at the time of contracting, as the probable result of

the breach”) (citation omitted).

       There are two key South Carolina cases involving special

damages for a claim of civil conspiracy.      See Vaught, 

; Todd v. S.C. Farm Bureau Mutual Ins. Co., 

(S.C.

1981) rev’d on other grounds, 

(1984) quashed in part

on other grounds, 

(1985).     In Todd, Plaintiff sued

his former employer for various causes of action, including a civil

conspiracy claim, relating to the termination of his employment

relationship with the Farm Bureau defendants.    

.     The issue presented on appeal was whether the amended

complaint properly pled a claim for civil conspiracy.    

Supreme Court of South Carolina ruled that the trial court

erred when it overruled defendant’s demurrer.     

so

holding, the court stated that

       [T]he fifth cause of action [civil conspiracy claim] does
       no more than incorporate the prior allegations and then
       allege the existence of a civil conspiracy and pray for
       damages resulting from the conspiracy.     No additional
       acts in furtherance of the conspiracy are plead. The
       only alleged wrongful acts plead are those for which
       damages have already been sought.

director of sanitation sued the city manager and

members of city council for civil conspiracy for terminating his


                                  10
employment    without   just   cause.     

.

Partially relying on Todd, the trial court granted summary judgment

for defendants holding that no conspiracy existed as a matter of

law because Vaught could not predicate his conspiracy claim on the

same facts as a breach of contract claim and defendants were the

alter egos of the City and, therefore, could not conspire with

themselves.   

upholding the trial court, the Court of

Appeals held that the trial court had correctly determined that the

civil conspiracy action was nothing more than an “embellishment of

his breach of contract action.”     

that the

civil conspiracy claim inadequately pled special damages in that

“[t]he damages sought in the conspiracy cause of action are the

same as those sought in the breach of contract cause of action.”

held that the plaintiff in Vaught did the

same thing as the plaintiff in Todd in that the complaint “does no

more than incorporate the prior allegations and then allege the

existence of a civil conspiracy.”         

).

      In this case, the district court’s decision relies heavily on

the unpublished decision of Little v. Brown & Williamson Tobacco

Corp., No. C.A. 2:98-1879-23, 

(D.S.C. March 3,

1999)2.   In discussing the element of special damages, the district


      2
       In Little, the district court was faced with reviewing
twelve causes of action: 1) voluntary assumption of a special
undertaking, 2) breach of implied warranties, 3) unfair acts or

                                   11
court in this case states:

     The third element of a conspiracy claim requires
     plaintiff   to   plead   and   prove   special   damages.
     Essentially, this means that the complaint must describe
     damages that occurred as a result of the conspiracy
     itself, in addition to any damages alleged as a result of
     any other claims.      That is, the damages allegedly
     resulting from the conspiracy must not overlap with or be
     subsumed by the damages resulting from the other claims.

J.A. 147 (quoting Little, 

, at *14). The district

court then found that James had not pled a viable cause of action

for civil conspiracy because he did not specifically plead special

damages.   Specifically, the district court stated that “[s]pecial

damages are an essential element of pleading a cause of action for

civil conspiracy in the first place; one need not make a prima

facie case in pleading special damages, but one must at least plead

them in order to state a claim.”     J.A. 149.   The district court

concluded that James’s complaint did not meet this basic pleading

standard and granted Pratt & Whitney’s motion to dismiss the claim.

     Based upon Todd and Vaught, the issue presented in this

appeal, therefore, is not necessarily whether the damages pled


practices in violation of the South Carolina Unfair Trade Practices
Act (UPTA), 4) deceptive acts or practices in violation of the
UTPA, 5) unfair methods of competition in violation of the UTPA, 6)
fraudulent misrepresentation, concealment and nondisclosure, 7)
negligent misrepresentation, concealment and nondisclosure, 8)
negligence, 9) strict liability, 10) civil conspiracy, 11) aiding
and abetting, and 12) loss of consortium. Regarding the motion to
dismiss, the trial court noted that the plaintiffs for their civil
conspiracy claim re-alleged the damages that they had already
alleged in association with all of their other claims. 

district court opinions are not binding precedence on
this court. Loc. R. 36(c)

                                12
overlapped, or were subsumed by, the other damages asserted.

Rather, the issue is whether James’s civil conspiracy claim just

incorporated prior factual allegations from the other causes of

action then recited the same demand for damages.                   In sum, the

question to be answered is whether James’s complaint adequately set

forth “additional acts in furtherance of the conspiracy.” 

.

     Therefore, the allegations of each of the causes of action

must be compared.        If appellant failed to allege facts for his

civil conspiracy claim separate and distinct from his other two

claims, then his civil conspiracy claim would fail under Todd.               If

appellant,     however,      did    allege    separate     civil     conspiracy

allegations then the court would need to determine if appellant

pled damages that “are the natural and proximate, but not the

necessary result of the injury.”            

.

     The     complaint    reveals     that     James    adequately      asserted

independent allegations such that Pratt & Whitney was adequately

put on notice that it was being sued for civil conspiracy.                   See

e.g., Swierkiewicz v. Sorema N. A., 

, 511 (2002)

(stating     that   “under    a    notice    pleading    system,   it   is   not

appropriate to require a plaintiff to plead facts establishing a

prima facie case”); see also Fed. R. Civ. P. 8(a) (stating that “a

claim   shall contain . . . a short and plain statement of the

claim.”).     As set forth in paragraph 24, the complaint states in


                                       13
the “Facts” section, prior to the statement of the causes of

action, that Pratt & Whitney

     [C]onspired to take unlawful action against the
     Plaintiff, to harm him in retaliation for his refusal to
     participate in action which would have been in violation
     of his duty as a mechanic, applicable FAA regulations,
     and that would have put Men and Women of the United
     States Air Force, and civilian citizens of the United
     States in danger of injury or death.

J.A. 10.

     The language of the civil conspiracy cause of action likewise

contains independent allegations of a civil conspiracy that are not

identical to the language contained in the other causes of action.

J.A. 12-14. Specifically, in the civil conspiracy cause of action,

the complaint incorporates James’s earlier allegations and then

alleges “[t]hat the Defendant conspired and acted to harm the

Plaintiff in retaliation for the Plaintiff’s refusal to falsify

maintenance records concerning the C-17 Globemaster.”          J.A. 12.

Thus, James here did assert independent allegations in furtherance

of a civil conspiracy.

     Further, an analysis of the damages claimed in the complaint

indicates that appellant complied with South Carolina law.        In the

first cause of action for civil conspiracy, appellant sets forth in

paragraph 48 of the complaint the following named items of damages:

1) suffered lost wages; 2) suffered lost benefits; 3) suffered

consequential   economic   damages;   4)   suffered   severe   emotional

distress; and 5) suffered injury to his reputation as a mechanic


                                 14
and union member in a leadership position. J.A. 12.                Thus, special

damages as alleged in this case appear to be a “loss of money or

other material temporal advantage capable of being assessed a

monetary value.”       Phoenix Furniture 

.

     Under       federal    notice   pleading    standards,       James   is   only

required to meet the requirements of Rule 8(a) and put Pratt &

Whitney on notice of the claim. Obviously, James met that standard

here.   In addition, under Rule 15(a), James should have been given

the opportunity to amend the complaint and properly plead special

damages.     In addressing the standard for a motion for leave to

amend the Supreme Court has stated that “[i]f the underlying facts

or circumstances relied upon by a plaintiff may be a proper subject

of relief, he ought to be afforded an opportunity to test his claim

on the merits. In the absence of any apparent or declared reason--

such as    . . . futility of amendment . . . the leave sought should,

as the rules require, be ‘freely given.’”              Foman v. Davis, 

, 182 (1962).

     At    the    hearing    on   the   motion   for    partial    judgment,   the

district court specifically addressed the issue of whether the

complaint properly pled special damages and whether James would be

permitted to amend the complaint.             The district court closed the

hearing by granting the motion to dismiss the civil conspiracy

claim then stating “and if, in fact, there are special damages that

[James’s counsel] can find, then [James’s counsel] can file a


                                         15
motion to amend the pleading . . . and you can bring them back in.”

J.A. 101.   In the written order, the district court did not allow

James to amend his complaint because it found that “an amendment

should not be allowed where it is apparent from the alleged facts

that no basis for the separate damages exists.”           J.A. 149.    The

district court did not elaborate as to how the basis did not exist.

The district court also did not explain how the damages set forth

by James did not constitute special damages under South Carolina’s

definition.     By   dismissing   the   claim   because   of   duplicative

damages, the district court did not address whether the alleged

damages such as lost wages, benefits, and consequential economic

damages were the proximate, but not the necessary result of Pratt

& Whitney’s alleged conspiracy. Thus, the decision of the district

court should be reversed and the case remanded in order for the

district court to review the issue of special damages in light of

this opinion and to allow, if necessary, James an opportunity to

amend the complaint to properly plead special damages.

                                   B.

     The second ground for appeal is that the district court erred

when it dismissed the claim for intentional infliction of emotional

distress.     The district court ruled that, as a matter of law,

James’s termination was not sufficiently outrageous to support a

claim for intentional infliction of emotional distress.               James

contends that this is not the typical retaliatory discharge case


                                   16
because Pratt & Whitney was not his employer.               The allegation is

that Pratt & Whitney, a third party, conspired with the employer,

United, to have James terminated.           It is the involvement of the

third party here that James argues makes Pratt & Whitney’s conduct

outrageous and extreme. Pratt & Whitney counters that the district

court properly determined as a matter of law that its actions do

not meet the standard for outrageous conduct under applicable South

Carolina law.    The fact that Pratt & Whitney is a third party is

immaterial   because   if   an   employer     cannot   be   held    liable   for

intentional infliction of emotional distress as the result of a

retaliatory discharge then a third party certainly cannot be held

liable for intentional infliction of emotional distress as the

result of conspiring with an employer to cause a retaliatory

discharge.

     Under South Carolina law, the tort of intentional infliction

of   emotional   distress        has   four    elements:      (1)    defendant

intentionally or recklessly inflicted severe emotional distress or

was certain or substantially certain that such distress would

result from his conduct, (2) the conduct was so extreme and

outrageous as to exceed all possible bounds of decency and must be

regarded as atrocious, and utterly intolerable in a civilized

community, (3) the actions of the defendant caused the plaintiff's

emotional distress; and (4) the emotional distress suffered by the

plaintiff was severe so that no reasonable man could be expected to


                                       17
endure it.     Ford v. Hutson, 

, 778 (S.C. 1981) (citing

Vicnire v. Ford Motor Co., 

(Me. 1979)) (quotations

omitted).

      It is permissible for a court to find as a matter of law that

based   on     the   allegations   contained   in    a     complaint   that   a

defendant’s conduct is not so extreme and outrageous to allow

recovery for intentional infliction of emotional distress.                  See

(stating that “[i]t is for the court to

determine in the first instance whether the defendant’s conduct may

reasonably be regarded as so extreme and outrageous as to permit

recovery, and only where reasonable persons may differ is the

question one for the jury”) (citation omitted). Thus, the question

of   whether    Pratt   &   Whitney’s   conduct     here    was   extreme   and

outrageous may be decided by the district court upon a review of

the pleadings.

      South Carolina courts have been reluctant to find outrageous

conduct in a variety of settings.           See Gattison v. S.C. State

College, 

(S.C. Ct. App. 1995) (holding that hostile

work environment was not outrageous); Shupe v. Settle, 

(S.C. Ct. App. 1994) (failing to find outrage where doctor

mistakenly informed daughter of father’s death when father was

still alive); Manley v. Manley, 

(S.C. Ct. App. 1987)

(finding good faith, involuntary committal of mother to state

hospital not outrageous); Folkens v. Hunt, 

, 845


                                     18
(S.C. Ct. App. 1986) (holding “not all conduct . . . causing

emotional distress in a business setting may serve as a basis for

an action alleging outrage”); Save Charleston Foundation v. Murray,

  (S.C.   Ct.   App.     1985)   (holding     conversion     of

promissory note and bringing action on note not sufficient).

      In light of this authority, Pratt & Whitney’s conduct here was

not sufficiently outrageous to maintain the claim for intentional

infliction of emotional distress.           James’s argument that Pratt &

Whitney’s conduct here was outrageous because it was a third party

and not the employer is a distinction without a difference.                It is

a short step to infer from South Carolina’s case law holding that

mere retaliatory discharge does not constitute outrageous conduct,

to the holding that a third party’s involvement or procurement of

a retaliatory discharge does not constitute outrageous conduct.

The Court concludes, therefore, that under these facts, the South

Carolina courts would not find this conduct so extreme such that it

would   be   actionable     for   intentional      infliction    of    emotional

distress. Thus, the district court’s decision dismissing the claim

for   intentional    infliction     of     emotional   distress       should   be

affirmed.



                                     III.

      The judgment of the district court is affirmed as to the claim

for intentional infliction of emotional distress and reversed and


                                      19
the case remanded for disposition consistent with this opinion as

to the claim for civil conspiracy.



                  AFFIRMED IN PART, REVERSED IN PART AND REMANDED




                               20