                                                                                     United States Court of Appeals
                                                                                              Fifth Circuit
                                                                                             F I L E D
                                                   In the                                     March 16, 2006
                          United States Court of Appeals                                Charles R. Fulbruge III
                                        for the Fifth Circuit                                   Clerk
                                             _______________

                                               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,                             Steven Ingram appeals various rulings.
  Circuit Judges.                                       We dismiss the appeal as frivolous pursuant to
                                                        Fifth Circuit Rule 42.2.
PER CURIAM:*


   *                                                        *
     Pursuant to 5TH CIR. R. 47.5, the court has             (...continued)
determined that this opinion should not be published    and is not precedent except under the limited circum-
                                      (continued...)    stances set forth in 5TH CIR. R. 47.5.4.
                      I.                               305, 311 (5th Cir. 1991). Under 28 U.S.C.
    Ingram worked as a pizza delivery driver           § 1441(b),
for Papa John’s in Austin, Texas, for approxi-
mately six years. Papa John’s fired him, al-               any civil action brought in a State court of
leging that he had breached company policy                 which the district courts of the United
prohibiting the sharing of confidential infor-             States have original jurisdiction, may be
mation with third parties.                                 removed by the defendant or the defen-
                                                           dants, to the district court of the United
    Ingram sued Papa John’s in state court                 States for the district and division embrac-
claiming, inter alia, that Papa John’s had dis-            ing the place where such action is pending.
criminated against him in violation of 42
U.S.C. § 1981 and that his 401(k) plan had             Because Ingram stated claims under two fed-
sold stock without his consent in violation of         eral statutes, the district court had original jur-
ERISA. Ingram also asserted various state              isdiction pursuant to 28 U.S.C. § 1331. Ac-
law tort claims.                                       cordingly, removal was proper, and the motion
                                                       to remand was appropriately denied.
     Papa John’s removed to federal court on
the basis of federal question jurisdiction. In-                               III.
gram filed a motion to remand, which the dis-              We review the denial of a discovery re-
trict court denied. During the course of litiga-       quest for abuse of discretion. See Brown v.
tion, the district court also denied a motion by       Arlen Mgmt. Corp., 663 F.2d 575, 580 (5th
Ingram to serve additional interrogatories and         Cir. 1981). “[P]laintiff's entitlement to discov-
admissions on Papa John’s.                             ery prior to a ruling on a motion for summary
                                                       judgment is not unlimited, and may be cut off
    Papa John’s filed a motion for summary             when the record shows that the requested
judgment asserting, inter alia, that Ingram            discovery is not likely to produce the facts
cannot establish a prima facie case for dis-           needed by plaintiff to withstand a Rule 56(e)
crimination because he is not a member of a            motion for summary judgment.” Paul Kadair,
protected class, and that the company cannot           Inc. v. Sony Corp. of Am., 694 F.2d 1017,
be sued under ERISA because it is not the ad-          1029-30 (5th Cir. 1983). Because Ingram has
ministrator of the 401(k) plan. The district           not demonstrated that any of the information
court granted summary judgment for Papa                sought in the additional interrogatories would
John’s on the § 1981 and ERISA claims. Pur-            have produced facts enabling him to withstand
suant to 28 U.S.C. § 1367(c)(3), the court dis-        summary judgment, there is no abuse of
missed, without prejudice, the state law tort          discretion.
claims. Ingram appeals the denial of his mo-
tions to remand and for additional discovery,                               IV.
the summary judgment, and the attendant dis-              Rule 56 of the Federal Rules of Civil Pro-
missal of his state law claims.                        cedure provides that summary judgment

                    II.                                    shall be rendered forthwith if the plead-
    We review de novo the denial of a motion               ings, depositions, answers to interrogato-
to remand. See Great Plains Trust Co. v.                   ries, and admissions on file, together with
Morgan Stanley Dean Witter & Co., 313 F.3d                 affidavits, if any, show that there is no gen-

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

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