United States Court of Appeals Fifth Circuit 

## FILED March 16, 2006 Charles R. Fulbruge III Clerk 

## In the 

# United States Court of Appeals for the Fifth Circuit

_______________


### m 05-50367 Summary Calendar

_______________



### S TEVEN 

### J. I NGRAM 

### , Plaintiff-Appellant,
VERSUS


### P APA 

### J OHN 

### ’ S 

### I NTERNATIONAL 

### , I NC 

### .; J OHN 

### S CHNATTER 

### , P RESIDENT , P APA J OHN ’ S I NTERNATIONAL , 

### Defendants-Appellees.

____________________________________ Appeal from the United States District Court fo r the Western District of Texas 

### m 1:04-CV-203

______________________________

Before S MITH , G ARZA , and P RADO , Circuit Judges.

P ER C URIAM : * S t even Ingram appeals various rul ings. We dismiss the appeal as frivo lo us pursuant to Fift h Circuit Rule 42.2.

* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published (continued...) * (...continued)

and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.2 I. Ingram worked as a pizza delivery driver fo r Papa John’s in Austin, Texas, fo r approximat ely six years. Papa John’s fired him, alleging th at he had breac hed com pany policy pro hibit ing t he sharing of confidential informat io n wit h t hird parties. Ingram sued Papa John’s in state cou r t claiming, inter alia , that Papa John’s had discriminat ed against him in vio lat io n of 42 U.S.C. § 1981 and th at his 401(k) plan had
so ld stock with out hi s consent in violation of ERISA. Ingram also asserted various state law tort cl aims. Papa John’s removed to federal court on t he basis of federal question jurisdiction. Ingram filed a mo tion to remand, which the district court denied. During the course of litigation, the district court also denied a mo tion by Ingram to serve additional int errogatories and admissions on Papa John’s. Papa John’s filed a mo tion fo r summary j udgment asserting, inter alia , th at In gram cannot establ

ish a p rima facie case fo r discriminat io n because he is no t a member of a protected class, and th at the com pany cannot be sued under ERISA because it is not the administ rator o f t he 401(k) pl an. The district court granted summary judgment fo r Papa John’s on the § 1981 and ERISA claims. Pursuant to 28 U.S.C. § 1367(c)(3), the court dismissed, wit hout prejudice, the state law tort claims. Ingram appeals the denial of his motions t o rem and and for additional discovery, the summary judgment, and the attendant dismissal o f his st ate l aw claims.

II. We review de novo the denial of a mo tion to remand. S ee Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co. , 313 F.3d 305, 311 (5th Ci r. 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 de f

endant or the defendants, to the district c o urt of the Unit ed States fo r the district and divisio n embracing the place where such action is pending.
Because Ingram stated claims under two federal statutes, the district court had original jurisdiction pursuant to 28 U.S.C. § 1331. Accordingly, removal was proper, and the mo tion to remand was appropriately denied.

III. We review th e denial of a discovery request fo r abuse of discretion. S ee Brow n v. Arlen Mgmt. Corp. , 663 F.2d 5 75, 580 (5th Cir. 1981). “[P]laintiff's entitlement to discovery prior to a rul

ing on a mo tion fo r summary judgment is not unlimited, and may be cut off when the recor d shows that the requested discovery is not likely to pr oduce the f acts needed by plaint iff to with stand a Rule 56(e)
mo tion fo r summary judgment.” Paul Kadair, Inc. v. S ony Corp. of Am. , 694 F.2d 1017, 1029-30 (5th Cir. 1983). Because Ingram has not demonstrated th at any of the info rmation sought in the additional int errogatories would have produced facts enabling him to wit hstand summary judgment, there is no abuse of discretion.
IV. Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment
shall be rendered fo r thwit h if the pleadings, depositions, answers to int errogatories, and admissions on file, together with affidavit s, if any, show th at there is no gen-3

uine issue as t o any mat erial fact and that the mo ving party is entitled to a judgment as a matter of law.

FED

. R. C IV

. P. 56(c). We review a summary judgment de novo using the sam e criteria as does the district court. Patterson v. Mobil Oil Corp. , 335 F.3d 476, 487 (5th Cir. 2003).

A. Ingram asserts th at he is entitled to § 1981 relief because Papa John’s “conspired to terminat e Caucasian drivers having 3 years or mo re employment wit h [the com pany]

. . . [and] an hourly salary of $6.50-$7.50/hr,” then replaced this group wit h lo w er-wage “fo reign workers such as Brazilians.” Second Amended Com

plaint ¶¶ 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 com plaint liberally), we understand Ingram to allege discriminat io n 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. ” B ullard v. OMI Georgia, Inc. , 6 4 0 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 raci al discriminat io n, he has not stated a claim under . . . § 1981.”).
Even if I ngram has intended to claim race discriminat io n, and even if his claim th at Caucasian drivers were replaced by Brazilian drivers is construed as a race claim, the protected g r oup he identifies is Caucasian drivers wit h th ree 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 cannot establish even a prima facie case of discriminat io n, so summar y judgment on his § 1981 claim was proper.

B. Generally speaking, only th ose responsible fo r administ ering a covered plan can b e sued under ERISA. Ingram admit ted i n a deposition th at Papa John’s is not the administrator of the 401(k) plan of

fered to it s employees and th at Papa John’s did not di rect the pl an administ rators 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, under § 1367(c)(3) the distric t court had com
plete discretion whether to dismiss, wit hout prejudice, the supplemental state law claims. Its exercise of that discretion was proper.
This appeal is frivo lo us and is accordingly DISMISSED. See 5 TH C IR

. R. 42.2.