Cousin v. Ruby Tuesday Inc

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should not be published and is not precedent except under the limited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).
3