IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-11028

Summary Calendar

LAURA LEE MASTRONARDI, formerly known as Laura Lee Sawyer; 

BRENTON JAMES MASTRONARDI,

 Plaintiffs - Appellants

v.

WELLS FARGO BANK, NATIONAL ASSOCIATION; HECTOR ESTRADA; 

MEGAN MARIN, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:15-CV-452

Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

The district court dismissed Laura Lee and Brenton James 

Mastronardi’s breach of contract, conspiracy, fraud, and fraudulent 

inducement claims against Wells Fargo Bank and two bank employees. We 

AFFIRM.

* 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.

United States Court of Appeals

Fifth Circuit

FILED

June 29, 2016

Lyle W. Cayce

Clerk

 

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No. 15-11028

FACTS AND PROCEDURAL BACKGROUND

In 2012, Laura Lee and Brenton James Mastronardi defaulted on the 

loan on their home in Fort Worth, Texas. Wells Fargo Bank, the mortgagee, 

enrolled the Mastronardis in a forbearance plan to reduce their monthly 

payments for one year. The Mastronardis alleged that Wells Fargo agreed to 

modify their loan when the plan ended but later reneged. The Mastronardis 

further alleged that the denial of their loan modification application was the 

result of a conspiracy between Wells Fargo and two of its employees, Hector 

Estrada and Megan Marin, to lose and refuse to process the documentation 

necessary to complete the transaction. After Wells Fargo began the foreclosure 

process, the Mastronardis filed this lawsuit in Texas state court alleging

breach of contract, conspiracy, fraud, and fraudulent inducement claims 

against Wells Fargo, Estrada, and Marin (collectively, “the defendants”).

The defendants removed the case on diversity grounds under 28 U.S.C. 

§ 1332. They argued that Wells Fargo’s principal place of business is South 

Dakota, and Estrada’s and Marin’s Texas domiciles should be disregarded 

because the employees were “nominal parties . . . improperly joined.” The

Mastronardis countered that they stated viable fraud and conspiracy claims

against Estrada and Marin and moved to remand. The district court held 

Estrada and Marin were improperly joined, dismissed the claims against them, 

and denied the motion to remand. The district court later dismissed the claims 

against Wells Fargo with prejudice pursuant to Federal Rule of Civil Procedure 

41(b) for failure to prosecute. The Mastronardis timely appealed.

DISCUSSION

I. Fraudulent Joinder 

The Mastronardis first contend the district court erred in analyzing the 

sufficiency of their fraud and conspiracy claims against Estrada and Marin 

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under the equivalent of the federal pleading standard instead of Texas’s more 

lenient “notice” pleading standard. The district court concluded that a recent 

amendment to the Texas Rules of Civil Procedure made the state’s “failure-tostate-a-claim rule . . . substantially the same as the federal rule . . . .” The 

Mastronardis concede on appeal that their complaint “may not ‘meet . . . federal 

pleading requirements . . . .’” 

Under the fraudulent joinder doctrine, a district court may dismiss a 

nondiverse defendant who is made a party in order to defeat federal 

jurisdiction. Flagg v. Stryker Corp., 819 F.3d 132, 136–37 (5th Cir. 2016) (en 

banc). One of the ways a defendant may establish improper joinder is by 

showing “there is no possibility of recovery by the plaintiff against [a

nondiverse] defendant, . . . mean[ing] that there is no reasonable basis for the 

district court to predict that the plaintiff might be able to recover against [a

nondiverse] defendant.”1 Smallwood v. Ill. Cent. R.R., 385 F.3d 568, 573 (5th 

Cir. 2004) (en banc). Wells Fargo argues that the federal pleading standard 

applies when a court considers whether a defendant is fraudulently joined. 

The Mastronardis’ claims against Estrada and Marin are insufficiently pled 

under either the federal standard or the revised Texas standard, which now 

tracks the federal standard. See TEX. R. CIV. P. 91a.1; Wooley v. Schaffer, 447 

S.W.3d 71, 75–76 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). 

II. Rule 41(b) Dismissal

The Mastronardis next argue that the district court abused its discretion 

1 The Mastronardis also argue that the defendants did not “clearly and convincingly 

prove[]” that Estrada and Marin were improperly joined. This argument was not presented 

to the district court and is therefore waived. See Texas Commercial Energy v. TXU Energy, 

Inc., 413 F.3d 503, 510 (5th Cir. 2005). 

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in dismissing their claims against Wells Fargo with prejudice2 for failure to 

prosecute. See FED. R. CIV. P. 41(b). “A dismissal with prejudice is an extreme 

sanction . . . .” Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 

1992) (quotation marks omitted). We will affirm a Rule 41(b) dismissal withprejudice for failure to prosecute where “(1) there is a clear record of delay or 

contumacious conduct by the plaintiff, and (2) the . . . record shows that the 

district court employed lesser sanctions that proved to be futile.” Id. (footnote 

omitted). Affirmance also usually requires the existence of “at least one of 

three aggravating factors” including delay caused by the plaintiff (not counsel), 

“delay caused by intentional conduct[,]” or “actual prejudice to the defendant.” 

Id.

Here, after dismissing the claims against Estrada and Marin, the district 

court ordered the Mastronardis to file an amended complaint alleging claims 

against Wells Fargo “consistent with federal pleading requirements . . . .” The 

Mastronardis requested a three-day extension, which was granted, but failed 

to file an amended complaint. The district court ordered the Mastronardis to 

“show cause by an appropriate written filing . . . why their claims in this action 

should not be dismissed . . . .” The show cause order warned the Mastronardis 

that failure to comply “may result in the imposition of sanctions,” including 

dismissal. The Mastronardis again failed to file. 

The Mastronardis admit their violation of the court’s orders was

“inexcusable.” They contend, however, that with-prejudice dismissal was 

unwarranted because there was no inordinate delay in the case, nothing in the 

record indicates their conduct was “willful and deliberate,” and the district 

2 The final judgment does not state whether the lawsuit is dismissed with prejudice. 

A Rule 41(b) dismissal for failure to prosecute, however, “is a complete adjudication on the 

merits, and thus with prejudice” unless the order states otherwise. Edwards v. City of 

Houston, 78 F.3d 983, 994 (5th Cir. 1996). 

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court failed to consider imposing a lesser sanction. 

While there is no evidence of intentional conduct in the record, the 

Mastronardis and their counsel offered no explanation in their motion for 

reconsideration for their failure to follow the district court’s orders. They also

do not provide any explanation on appeal except that their conduct was caused 

by the “inadvertence” of their attorney. We have held that there was no abuse 

of discretion in a Rule 41(b) dismissal with prejudice when a plaintiff provided 

no explanation for his inaction on a case. Dillon v. Diamond Offshore Mgmt. 

Co., No. 02-40064, 2002 WL 1940080, at *1 (5th Cir. July 23, 2002). A 

plaintiff’s failure to give a meaningful explanation for failure to comply with a 

court order to file an amended complaint by a certain date may by itself justify 

a dismissal. Here, though, the district court first imposed a lesser penalty 

through a show-cause order, warning the Mastronardis that failure to respond 

to that order could result in dismissal. See Callip v. Harris Cnty. Child Welfare 

Dep’t, 757 F.2d 1513, 1521 (5th Cir. 1985) (providing that an “explicit 

warning[]” is a lesser sanction than dismissal). 

On these facts, the district court did not abuse its discretion in 

dismissing the Mastronardis’ case with prejudice.

AFFIRMED.

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