United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 21, 2003

Charles R. Fulbruge III No. 02-20772 Clerk Summary Calendar

WOLFGANG HIRCZY DE MINO,

Plaintiff-Appellant,

versus

W. ANDREW ACHENBAUM, UNIVERSITY OF HOUSTON; JOHN ANTEL, Dean of the College of Liberal Arts and Social Sciences,

Defendants-Appellees.

Consolidated with

No. 02-20943

WOLFGANG HIRCZY DE MINO,

Plaintiff-Appellant,

versus

W. ANDREW ACHENBAUM; UNIVERSITY OF HOUSTON; EDWARD P. SHERIDAN, Doctor, Senior Vice Chancellor of the University of Houston System; JOHN ANTEL, Dean of the College of Liberal Arts and Social Sciences,

Defendants-Appellees.

- - - - - - - - - - Appeals from the United States District Court for the Southern District of Texas 01-CV-4306 - - - - - - - - - -

Before SMITH, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:1

1 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent Wolfgang Hirczy de Mino (de Mino) filed an action against the

University of Houston (UH) and W. Andrew Achenbaum based on an

alleged breach of an employment agreement, dated July 23, 2001,

under which de Mino was to teach certain classes during the 2001-02

academic year. The defendants timely removed the action to the

district court. On the defendants’ motion for summary judgment the

district court dismissed de Mino’s claims, which included both

federal civil rights claims and contract claims under state law.

The district court also taxed costs against de Mino in the amount

of $2935.34. De Mino timely appealed. This court ordered

supplemental briefing limited to the question whether any or all of

the issues raised on appeal were moot. We DISMISS IN PART as MOOT,

MODIFY the district court’s judgment by VACATING the award of

costs, and, as modified, AFFIRM IN PART.

“In the absence of its being raised by a party, this court is

obliged to raise the subject of mootness sua sponte.” Bailey v.

Southerland,

(5th Cir. 1987). This court does

not have the power under Article III of the Constitution to decide

the merits of a case that is moot. See Goldin v. Bartholow,

(5th Cir. 1999).

De Mino notes that his complaint “sought only injunctive

relief and there was no request for monetary damages.” Brief of

Appellant, at 5. “It is axiomatic that a request for injunctive

except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

2 relief remains live only so long as there is some present harm left

to enjoin. This is a corollary of the more general rule that a

case is moot when it no longer presents a live controversy with

respect to which the court can give meaningful relief.” McClelland

v. Gronwaldt,

(5th Cir. 1998) (internal

quotations, footnote, and brackets omitted), overruled on other

grounds, Arana v. Ochsner Health Plan,

, 440 & n.11

(5th Cir. 2003)(en banc); see also Craig v. Boren,

(1976); Hodges v. Schlinkert Sports Associates, Inc.,

(6th Cir. 1996).

De Mino’s pleadings and his arguments on appeal show that his

action sought only injunctive relief pursuant to an employment

agreement that, by its terms, has now expired. Because this court

cannot provide meaningful injunctive relief pursuant to an

agreement that has expired, see McClelland,

,

this action is moot to the extent that de Mino has raised issues

pertaining to the district court’s dismissal of his federal and

state law claims regarding the 2001-02 employment agreement. De

Mino has not shown that the district court erred in retaining

jurisdiction over his state law claims. See

;

Carnegie-Mellon Univ. v. Cohill,

(1988); Smith v.

Amedisys Inc.,

(5th Cir. 2002). Accordingly,

this appeal is DISMISSED IN PART as MOOT with respect to the

district court’s order of summary judgment on de Mino’s federal and

state law claims.

3 De Mino has not shown that the district court abused its

discretion in refusing to permit the joinder of Dr. Edward P.

Sheridan as a defendant. See FED. R. CIV. P. 15(a); United States

ex rel. Mathews v. HealthSouth Corp.,

(5th Cir.

2003); Exxon Corp. v. Maryland Cas. Co.,

, 662-63 &

n.10 (5th Cir. 1979). Nor has de Mino shown that the district

court abused its broad discretion in refusing to sanction the

defendants for alleged abuses of the discovery process. See FED.

R. APP. P. 37(d); Securities and Exchange Commission v. First

Financial Group of Texas, Inc.,

(5th Cir.

1981).

However, because de Mino obtained some relief from the

litigation, in the form of an enforceable order expressing the

parties’ agreement that de Mino be employed at UH during the Spring

2002 semester, we agree with de Mino that he was the prevailing

party for purposes of FED. R. CIV. P. 54(d)(1). See FED. R. CIV. P.

54(d)(1); Buckhannon Bd. & Care Home, Inc. v. West Virginia Dept.

of Health & Human Resources,

, 604 (2002); United

States v. Mitchell,

(5th Cir. 1978).

Accordingly, we MODIFY the district court’s judgment by VACATING

its award of costs. As MODIFIED, the judgment of the district

court is AFFIRMED IN PART.

DISMISSED IN PART AS MOOT; AFFIRMED IN PART AS MODIFIED.

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