Ingram v. Papa John's Intl Inc, et al

United States Court of Appeals
Fifth Circuit
F I L E D
March 16, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-50367
Summary Calendar
_______________
STEVEN J. INGRAM,
Plaintiff-Appellant,
VERSUS
PAPA JOHN’S INTERNATIONAL, INC.;
JOHN SCHNATTER,
PRESIDENT, PAPA JOHN’S INTERNATIONAL,
Defendants-Appellees.
____________________________________
Appeal from the United States District Court
for the Western District of Texas
m 1:04-CV-203
______________________________
Before SMITH, GARZA, and PRADO,
Circuit Judges.
PER CURIAM:*
Steven Ingram appeals various rulings.
We dismiss the appeal as frivolous pursuant to
Fifth Circuit Rule 42.2.
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be published
(continued...)
*(...continued)
and is not precedent except under the limited circum-
stances set forth in 5TH CIR. R. 47.5.4.

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I.
Ingram worked as a pizza delivery driver
for Papa John’s in Austin, Texas, for approxi-
mately six years. Papa John’s fired him, al-
leging that he had breached company policy
prohibiting the sharing of confidential infor-
mation with third parties.
Ingram sued Papa John’s in state court
claiming, inter alia, that Papa John’s had dis-
criminated against him in violation of 42
U.S.C. § 1981 and that his 401(k) plan had
sold stock without his consent in violation of
ERISA. Ingram also asserted various state
law tort claims.
Papa John’s removed to federal court on
the basis of federal question jurisdiction. In-
gram filed a motion to remand, which the dis-
trict court denied. During the course of litiga-
tion, the district court also denied a motion by
Ingram to serve additional interrogatories and
admissions on Papa John’s.
Papa John’s filed a motion for summary
judgment asserting, inter alia, that Ingram
cannot establish a prima facie case for dis-
crimination because he is not a member of a
protected class, and that the company cannot
be sued under ERISA because it is not the ad-
ministrator of the 401(k) plan. The district
court granted summary judgment for Papa
John’s on the § 1981 and ERISA claims. Pur-
suant to 28 U.S.C. § 1367(c)(3), the court dis-
missed, without prejudice, the state law tort
claims. Ingram appeals the denial of his mo-
tions to remand and for additional discovery,
the summary judgment, and the attendant dis-
missal of his state law claims.
II.
We review de novo the denial of a motion
to remand. See Great Plains Trust Co. v.
Morgan Stanley Dean Witter & Co., 313 F.3d
305, 311 (5th Cir. 1991). Under 28 U.S.C.
§ 1441(b),
any civil action brought in a State court of
which the district courts of the United
States have original jurisdiction, may be
removed by the defendant or the defen-
dants, to the district court of the United
States for the district and division embrac-
ing the place where such action is pending.
Because Ingram stated claims under two fed-
eral statutes, the district court had original jur-
isdiction pursuant to 28 U.S.C. § 1331. Ac-
cordingly, removal was proper, and the motion
to remand was appropriately denied.
III.
We review the denial of a discovery re-
quest for abuse of discretion. See Brown v.
Arlen Mgmt. Corp., 663 F.2d 575, 580 (5th
Cir. 1981). “[P]laintiff's entitlement to discov-
ery prior to a ruling on a motion for summary
judgment is not unlimited, and may be cut off
when the record shows that the requested
discovery is not likely to produce the facts
needed by plaintiff to withstand a Rule 56(e)
motion for summary judgment.” Paul Kadair,
Inc. v. Sony Corp. of Am., 694 F.2d 1017,
1029-30 (5th Cir. 1983). Because Ingram has
not demonstrated that any of the information
sought in the additional interrogatories would
have produced facts enabling him to withstand
summary judgment, there is no abuse of
discretion.
IV.
Rule 56 of the Federal Rules of Civil Pro-
cedure provides that summary judgment
shall be rendered forthwith if the plead-
ings, depositions, answers to interrogato-
ries, and admissions on file, together with
affidavits, if any, show that there is no gen-

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uine issue as to any material fact and that
the moving party is entitled to a judgment
as a matter of law.
FED. R. CIV. P. 56(c). We review a summary
judgment de novo using the same criteria as
does the district court. Patterson v. Mobil Oil
Corp., 335 F.3d 476, 487 (5th Cir. 2003).
A.
Ingram asserts that he is entitled to § 1981
relief because Papa John’s “conspired to ter-
minate Caucasian drivers having 3 years or
more employment with [the company] . . .
[and] an hourly salary of $6.50-$7.50/hr,”
then replaced this group with lower-wage
“foreign workers such as Brazilians.” Second
Amended Complaint ¶¶ 39, 42. Interpreting
his pro se claim as charitably as possible, see
McDonald v. Entergy Operations, Inc., 2006
U.S. App. LEXIS 1949, at *5 n.3 (5th Cir.
Jan. 25, 2006) (reading pro se 1981 complaint
liberally), we understand Ingram to allege dis-
crimination on the basis of national origin, not
race.
Race, however, is the only protected class
under § 1981. “Discrimination purely on the
basis of national origin does not create a cause
of action under section 1981.” Bullard v.
OMI Georgia, Inc., 640 F.2d 632, 634 (5th
Cir. Unit B Mar. 1981). Accord Burditt v.
Geneva Capital, LLC, 2006 U.S. App. LEXIS
242, at *4 (5th Cir. Jan. 5, 2006) (per curiam)
(“Because Burditt has not alleged racial
discrimination, he has not stated a claim under
. . . § 1981.”).
Even if Ingram has intended to claim race
discrimination, and even if his claim that Cau-
casian drivers were replaced by Brazilian driv-
ers is construed as a race claim, the protected
group he identifies is Caucasian drivers with
three years’ employment and a wage of $6.00
to $7.50 per hour. As the district court found,
this is not a protected group. Ingram thus can-
not establish even a prima facie case of dis-
crimination, so summary judgment on his
§ 1981 claim was proper.
B.
Generally speaking, only those responsible
for administering a covered plan can be sued
under ERISA. Ingram admitted in a deposi-
tion that Papa John’s is not the administrator
of the 401(k) plan offered to its employees and
that Papa John’s did not direct the plan ad-
ministrators to take the challenged action.
Consequently, the district court was correct to
grant summary judgment on the ERISA claim.
Having disposed of the two claims on
which removal jurisdiction was premised, un-
der § 1367(c)(3) the district court had com-
plete discretion whether to dismiss, without
prejudice, the supplemental state law claims.
Its exercise of that discretion was proper.
This appeal is frivolous and is accordingly
DISMISSED. See 5TH CIR. R. 42.2.

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