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Civil Litigation No. 01-11549, 5/5/2003. Click here for the full text of this decision FACTS: Denise Arguello and Alberto Govea appeal 1. a judgment as a matter of law on their claims of race discrimination in violation of 42 U.S.C. �1981; and 2. the denial of their claims for injunctive relief under 42 U.S.C. �2000a. Arguello and Govea, who are Hispanic, entered a store owned by Conoco Inc., intending to purchase gasoline and other items. There was a heated confrontation, during which the employee made several racially derisive remarks. Arguello and Govea allege that they were deprived of their ability to enter into a contract on nondiscriminatory terms as prohibited by �1981. The jury decided for plaintiffs, but the district court granted Conoco’s motion for j.m.l. under Federal Rule of Civil Procedure (50)(b). HOLDING: Affirmed. Section 1981 does not provide a general cause of action for race discrimination. Rather, it prohibits intentional race discrimination with respect to certain enumerated activities. At issue here is plaintiffs’ ability “to make and enforce contracts” on nondiscriminatory terms. 42 U.S.C. �1981(a). To establish a deprivation of �1981 rights in the retail context, the plaintiff must demonstrate “the loss of an actual, not speculative or prospective, contract interest.” An allegation of “the mere possibility that a retail merchant would interfere with a customer’s right to contract in the future” is insufficient to support recovery under �1981. Morris v. Dillard Dep’t Stores Inc., 277 F.3d 743 (5th Cir. 2001). Instead, the plaintiff “must offer evidence of some tangible attempt to contract” that in some way was “thwarted” by the defendant. The law in this circuit for �1981 claims in the retail context is established by Morris. There, this court plainly stated the rule that “where a customer has engaged in an actual attempt to contract that was thwarted by the merchant, courts have been willing to recognize a �1981 claim.” The Morriscourt cited with approval, inter alia, Henderson v. Jewel Food Stores Inc.,1996 U.S. Dist. LEXIS 15796 (N.D. Ill. Oct. 23, 1996) (No. 96-C-3666), as “holding that ‘a �1981 claim must allege that the plaintiff was “actually prevented, and not merely deterred, from making a purchase or receiving service after attempting to do so.’” The Morriscourt summarized its holding by stating that “Morris must offer evidence of some tangible attempt to contract with Dillard’s during the course of the ban, which could give rise to a contractual duty between her and the merchant, and which was in some way thwarted.” Govea cannot make that showing. Although his decision to abandon his purchase resulted from Smith’s mistreatment of his daughter, the clerk did not actually interfere with an attempted purchase. According to Govea’s own testimony, he voluntarily set the beer on the counter and left without trying to buy it. Consequently, there is no basis on which a reasonable jury could conclude that the clerk prevented Govea from making a purchase. Nor can the clerk’s later conduct in locking him out of the store support a claim under �1981, because his subsequent attempts to gain entry into the store were, again by his own admission, not to buy anything but to determine the clerk’s name so he could provide it to a Conoco representative. Arguello likewise cannot establish interference with an actual contract interest. Her claim must fail, because she successfully completed the transaction. Having received all she was entitled to under the retail-sales contract, she cannot demonstrate any loss recoverable under �1981. OPINION: Smith, J.; Smith, Barksdale and E. Garza, JJ.

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