Cousin v. Ruby Tuesday Inc

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-60964

Summary Calendar

DARRELL COUSIN,

Plaintiff-Appellant,

versus

RUBY TUESDAY, INC

Defendant-Appellee.

Appeal from the United States District Court For the Northern District of Mississippi

(1:00-CV-125-S-D) June 18, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Darrell Cousin appeals the district court’s grant of summary

judgment to the defendant, Ruby Tuesday, on his Title VII claim

that he was terminated for refusing the sexual advances of his

manager. Cousin first sued Ruby Tuesday in state court, attaching

his EEOC right to sue letter to his complaint. Ruby Tuesday

removed to federal court, based on both diversity and federal

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. question jurisdiction. Cousin filed a motion to remand and

attempted to amend his complaint to add his supervisor, a non-

diverse defendant. He argues for the first time on appeal that

Mississippi law provides a remedy, and that he was not seeking

relief under Title VII, thereby also defeating federal question

jurisdiction. The magistrate denied Cousin’s motion to amend his

complaint, and the district court denied Cousin’s motion to remand,

and granted summary judgment to the defendant.

We are without jurisdiction to consider Cousin’s appeal of the

magistrate’s denial of his motion to amend his complaint, since he

did not object to the magistrate’s decision in the district court.1

Therefore, even assuming arguendo that, as Cousin claims, there was

no federal question jurisdiction because he did not specifically

cite Title VII in his complaint, diversity jurisdiction still

existed over this case.2 Therefore, after a de novo review,3 we

find that the district court properly denied Cousin’s motion to

remand.

Turning now to whether summary judgment was properly granted

for the defendant, which we also review de novo,4 we conclude that

1 Fed. R. Civ. P. 72(a); Edwards v. Johnson, 209 F.3d 772, 776 n.1 (5th Cir. 2000). 2 The complaint alleged damages of $200,000, meeting the amount in controversy requirement. 28 U.S.C. § 1332(a).

3 Hernandez v. Jobe Concrete Products, Inc., 282 F.3d 360, 361 (5th Cir. 2002). 4 Green v. CBS, Inc., 286 F.3d 281, 283 (5th Cir. 2002).

2 summary judgment was appropriate. While Cousin’s failure to

respond to the defendant’s motion does not, by itself, require Ruby

Tuesday to prevail,5 we agree with the district court that Ruby

Tuesday successfully made a prima facie showing that there was no

genuine issue of material fact. We therefore find that summary

judgment for Ruby Tuesday was appropriate.

AFFIRMED.

5 Resolution Trust Corp. v. Starkey, 41 F.3d 1019, 1023 (5th Cir. 1995).