UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________

No. 00-50777 _______________________

John C. Wooley Plaintiff-Appellant,

versus

Jeff Johnson and Carol Johnson, Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (A-00-CV-146) _________________________________________________________________ April 6, 2001

Before KING, Chief Judge, REAVLEY and JONES, Circuit Judges.

PER CURIAM:*

Appellant John Wooley appeals the dismissal of his

declaratory judgment action. We reverse and remand.

This case stems from the appellees’ (the “Johnsons”)

long-term contractual relationship with Schlotsky’s Inc., of which

Wooley is the managing general partner. The Johnsons filed a civil

RICO claim in arbitration against Wooley and Schlotsky’s. Wooley

sought a declaratory judgment that he was not subject to the

arbitration and was not liable to the Johnsons for civil RICO

violations. The arbitrator excused Wooley from the arbitration,

making the first part of the declaratory judgment action moot.

* Pursuant to 5th Cir. Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. Rule 47.5.4. The Johnsons initially indicated that they would file a

counterclaim to Wooley’s declaratory judgment action, but later

backed off and claimed that they had “no present intent” to sue

him. The district court found no actual controversy and dismissed

the suit for lack of subject matter jurisdiction.

Reviewing this legal conclusion de novo, we hold that

these facts do establish an actual controversy under

. This case has “taken on final shape so that the court can

see what legal issues it is deciding.” Orix Credit Alliance, Inc.

v. Wolfe,

(5th Cir. 2000) (finding no controversy

where the case had not taken on a final shape). The only

contingency here is whether the Johnsons will file suit against

Wooley, and this alone does not preclude a controversy. Rowan

Cos., Inc. v. Griffin,

(5th Cir. 1989) (finding an

actual controversy even though a claimant had not yet filed for

disputed benefits). Given the past behavior of the Johnsons and

their refusal to rule out a future suit, we conclude that an actual

controversy exists.

The Johnsons’ argument that they are not subject to

personal jurisdiction in Texas is meritless. Burger King Corp. v.

Rudzewicz, controls this case in all material respects.

(1985) (involving a similar long-term relationship).

The Johnsons’ arguments that Wooley lacks standing is

also without merit. Collin Cty. v. Homeowners Ass’n for Values

Essential to Neighborhoods,

(5th Cir. 1990). For these reasons, we REVERSE the dismissal and REMAND

for further proceedings.