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

_______________

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 dismissthe appeal asfrivolous 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determined that this opinion should not be published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 circumstances set forth in 5TH CIR. R. 47.5.4.
2

I.

Ingram worked as a pizza delivery driver

for Papa John’s in Austin, Texas, for approximately six years. Papa John’s fired him, alleging that he had breached company policy

prohibiting the sharing of confidential information with third parties.

Ingram sued Papa John’s in state court

claiming, inter alia, that Papa John’s had discriminated 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. Ingram filed a motion to remand, which the district court denied. During the course of litigation, 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 discrimination because he is not a member of a

protected class, and that the company cannot

be sued under ERISA because it is not the administrator of the 401(k) plan. The district

court granted summary judgment for Papa

John’s on the § 1981 and ERISA claims. Pursuant to 28 U.S.C. § 1367(c)(3), the court dismissed, without prejudice, the state law tort

claims. Ingram appeals the denial of his motions to remand and for additional discovery,

the summary judgment, and the attendant dismissal 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 defendants, to the district court of the United

Statesfor the district and division embracing the place where such action is pending.

Because Ingram stated claims under two federalstatutes, the district court had original jurisdiction pursuant to 28 U.S.C. § 1331. Accordingly, removalwas proper, and the motion

to remand was appropriately denied.

III.

We review the denial of a discovery request for abuse of discretion. See Brown v.

Arlen Mgmt. Corp., 663 F.2d 575, 580 (5th

Cir. 1981). “[P]laintiff's entitlement to discovery 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 forsummary 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 himto withstand

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 forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with

affidavits, if any,show that there is no gen-
3

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

doesthe 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 terminate 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 discrimination 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 Caucasian drivers were replaced byBrazilian drivers 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,

thisis not a protected group. Ingram thus cannot establish even a prima facie case of discrimination, 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 deposition that Papa John’s is not the administrator

ofthe 401(k) plan offered to its employees and

that Papa John’s did not direct the plan administrators 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 district court had complete 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.