Jolly v. Pappas Rest Inc

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 2, 1999
• Docket: 98-20880
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-20880 Summary Calendar _____________________

JACK JOLLY,

Plaintiff-Appellant,

versus

PAPPAS RESTAURANTS, INC.,

Defendant-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (H-97-CV-67) _________________________________________________________________

June 30, 1999

Before JOLLY, SMITH, and PARKER, Circuit Judges.

PER CURIAM:*

This case involves the appeal by Jack Jolly of a summary

judgment ruling in the defendant’s favor. The defendant, Pappas

Restaurants, Inc. (“Pappas”), owns the Dot Coffee Shop (“Coffee

Shop”), an establishment apparently frequented by Jolly and his now

deceased wife. The basis for the current controversy arises out of

an event that transpired on May 31, 1996--the day Jolly’s wife was

released from a hospital stay. To celebrate, the couple went to

the Coffee Shop for dinner. Midway through the meal, Jack Jolly

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. left the restaurant, apparently to assist some other party, and did

not return for approximately an hour and a half. During that time,

Mrs. Jolly, who was still medicated, fell asleep at the table.

When Jack Jolly returned, the Coffee Shop’s manager indicated that

she disapproved of his behavior and did not want the two of them

back in the restaurant.

Over the next few months, Mr. Jolly claims that he was denied

service at the Coffee Shop. Pappas, on the other hand, argues that

the only request made of Jolly was that he finish his meals in a

reasonable time frame. Pappas also notes that in June of 1996 it

provided Jolly with coupons for $100 worth of free food and

apologized for its service. It has since increased the value of

the coupons offered to $250. Throughout, it has repeatedly told

Jolly that he is welcome to dine at the Coffee Shop.

Jolly sued Pappas in state court, alleging intentional

infliction of emotional distress and violations of the Americans

with Disabilities Act(“ADA”). The defendant removed to the

Southern District of Texas. The district court dismissed the bulk

of the case in a summary judgment ruling that Jolly does not

challenge on appeal. The district court then ruled, in response to

Pappas’ motion, that with respect to the remaining claim, a request

for injunctive relief under Title III of the ADA, the court did not

have standing to hear the claim because Jolly had not demonstrated

a need for injunctive relief.

2 On appeal, Jolly raises two issues. First, Jolly argues that

the defendant waived its right to challenge standing. Second,

Jolly argues that even if Pappas now argues that it will welcome

him at the Coffee Shop, the fact that Pappas has denied him in the

past provides a sufficient basis for granting him an injunction

against Pappas. After a careful review of the briefs and the

record in this case, we find neither of Jolly’s arguments

persuasive.

As the district court correctly noted, a party never waives

its right to challenge subject matter jurisdiction. Avitts v.

Amoco Prod. Co., 53 F.3d 690, 692 (5th Cir. 1995) (“[T]he district

court `shall dismiss the action’ whenever `it appears by suggestion

of the parties or otherwise that the court lacks jurisdiction of

the subject matter.’” Fed.R.Civ.P. 12(h)(3).).

Jolly’s second argument--that the district court should have

concluded that he alleged a sufficient basis for an award of

injunctive relief--is equally unpersuasive. In the Fifth Circuit,

“a plaintiff seeking injunctive relief based on an alleged past

wrong must show that there is a real or immediate threat that he

will be wronged again.” Plumley v. Landmark Chevrolet, Inc., 122

F.3d 308, 312 (5th Cir. 1997); Armstrong v. Turner Industries,

Inc., 141 F.3d 554, 563-64 (5th Cir. 1998). In this case, a review

of the record reveals facts that, even in a light most favorable to

Jolly, simply do not provide a basis for finding such a threat.

3 For the foregoing reasons, the ruling of the district court is

A F F I R M E D.