### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60501 Summary Calendar

FREDERICK GRIFFIN and ANNIE Y. GRIFFIN Plaintiffs–Appellants
v. ABN AMRO MORTGAGE GROUP, INC., its Affiliates, Heirs and Assigns, MORRIS & ASSOCIATES, EMILY K. COURTEAU, individually and in her capacity as substituted trustee on the deed of trust, and CITIMORTGAGE, INC., as Successor in Interest to ABN Defendants–Appellees

Appeal from the United States District Court for the Northern District of Mississippi Civil Action No. 2:08cv1-M-A

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D March 18, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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Plaintiffs–Appellees Frederick a nd Annie Griffin (“the G riffins”) appeal the dismissal of their fraud and breach of contract suit against their mortgagee for misconduct associated with a home loan modification. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND In June 2001, the Griffins ent e r e d i n to a m ortgage agreement that was ultimately assigned to ABN AMRO M o rtgage Group, Inc., whose s u c c e s sor is CitiMortgage, Inc. (collectively “CitiMortgage”). The mortgage agreement they signed contains an arbitration rider that reads, in pertinent part: ARBITRATION OF DISPUTES. Al l disputes, claims, or con t r o v e rsies arising from o r related t o the loan evidenced by th e Note, including statutory claims, shall be resolved by binding arbitration, and not b y c o u rt action, except as provided in “Exclusion from Arbitration” below. This arbitration a greement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1–14) and the Code of Procedure of the National Arbitration Forum . . . .
EXCLUSION F ROM A RBITRATION. This agreement shall n ot limit the right of L enders to

. . . accelerate or require immediate payment in full o f the secured indebtedness o r e xercise the other Remedies described in the Security Instrument befo r e , during, or after any arbitration, including the right to foreclose against or s ell the property . . . .
In September 2006, the Griffins requested a l o a n modification, which CitiMortgage granted. Af t e r t h e loan m odification agreement was executed, CitiMortgage f

ound a m istake in the agreement that meant the unpaid p rincipal amount had been u nderstated by $ 32,356.30. CitiMortgage c o n tacted the Griffins and a s k e d t h e m to initial a corrected version of the document. The Griffins ref

u s e d the request, and stopped making mortgage payments. In
response, CitiMortgage engaged M orris & A ssociates, for whom Emily Courteau is a n attorney, (collectively w ith CitiMortgage, “Appellees”) to begin foreclosure proceedings.

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The Griffins then brought suit in the Chancery Court of DeSoto County, Mississippi. Their c o m p l ai nt c o nt ai n e d n umerous allegations against Appellees, including claims of fraudulent misrepresentation in c onnection with the preparation o f the l oan m odificati o n do c u m e nt s and breach of c ontract s temming from the foreclosure proceedings. Appellees removed the case to federal court, and moved to c ompel a rbitratio n o n t h e b asis o f the mandatory arbitration clause i n the Griffins’ original mortgage a greement. The district court granted Appellees’ motion, see Griffin v. ABN Amro Mortg. Grp. Inc. , No. 2:08cv1, 2009 WL 324015, at *3 (N.D. Miss. Feb. 6, 2 009); the Griffins then appea l e d t o this Court. While th e case was on appeal, the National Arbitration F orum (“NAF”), the mortgage agreement’s designated arbitrator, withdrew from the c o nsumer arbitration business. This Court found that the district court had not erred in granting t h e motion to compel arbitration, but remanded the case for a determination of how NAF’s withdrawal affected that conclusion. See Griffin v. ABN Amro Mortg. Grp. Inc. , 378 F. App’x 437, 440 (5th Cir. 2010). The Griffins took no further action u n til seven months la ter, when their attorneys filed a n unopposed motion to withdraw as counsel. The district court denied the motion, and simultaneously ordered the Griffins to resume l itigation

or voluntarily dismiss the suit. Eventually Appellees filed a motion for dismissal for failure to p rosecute, which prompted the Griffins to respond with a motion to declare the arbitratio n agreement u nenforceable. Realizing that a determinatio n a g ain s t th e G rif f i n s w o uld lead t o another time-consuming appeal to the Fifth C ircuit, Appellees filed a m o t i o n t o withdraw their arbitration deman d

. On D ecember 13, 2011, the di strict court granted the motion, and in the order, also warned the Griffins that if they p e r s i sted in showing a lack of interest in prosecuting the suit, it would be dismissed. Soon afterward, Appellees moved t o have the case dismissed for failure to sta t e a c l aim, and the Griffins responded w ithout r aising any objection to the

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December 13 o rder. The parties scheduled a settlement conference, but before it could be held, the Griffins’ attorney o nce again moved to withdraw as counsel, citing an inability “to communicate with the p l aintiffs concerning the l itigation in this case,” as well as the G riffins’ insistence “on p ursuing objectives that [the attorney] co n s i d e r [ ed] to be imprudent and providing [the attorney] with instructions that [we]re incon s i s t e n t with [his] professional advice.” A magistrate j u d ge granted the attorney’s motion, a nd a gain warned the Griffins that if they did not r etain new counsel and proceed with the case, it w ould be dismissed for failure to prosecute. The Griffins r e sponded with a pro se motion in which they s tated that they did not wish t o continue with the ca s e , but, somewhat inconsistently, al s o r a ised their f irst objection to the December 13 order. Contrary to the position they had taken for the previous four years, the Griffins now argued that the arbitration clause prohibited their case from being heard in the courts. The motion stated: The s ubject arbitration clause requires the use of the NAF as th e exclusive arbitrator, and the same clause requires “ n o court action.” . . . The Plaintiffs contend that the arbitration clause intended the NAF to be the exclusive tribunal for a djudicating disputes between the parties and that the language “no court action” s p ecifically intended that a court would not hear the parties’ dispute.
The district court ruled on the Griffins’ pro s e motion on May 23, 2012. In its o rder, the court registered its surprise at the Griffins’ new litigation position, and noted that “[t]he fact that p l a i n t i f f s would raise this objection [to court litigation, rather than arbitration] m onths later and (app a rently) against the advice of counsel raises questions i n this court’s mind as to whether they are simply playing games with it.” The court also observed that “[t]he plaintiffs’ p ro

se brief makes i t c l e a r w h y their former counsel felt it necessary to withdraw from this case, since their own words call f or nothing less than the dismissal of their own case.” Citing this conclusion and the multiple warnings the Griffins

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had received about the consequences o f their apparent unwillingness to litigate their case, the district court accordingly dismissed the Griffins’ case for failure to prosec u t e . T he Griffins quickly filed what amounted t o a motion for reconsideration, which the distric t c ourt denied. The Griffins now appeal the December 13 order grant i n g Appellees’ motion to withdraw Appellees’ arbitration demand, the May 23 order dismis s i n g the Griffins’ case, and the denial of the Griffins’ motion for reconsideration. II. DISCUSSION Rule 41(b) of the Federal Rules of Civil Procedure authorizes a district court t o dismiss an action for a plaintiff’s failure t o prosecute. M c C u l lo ugh v. Lunaugh , 8 35 F.2d 1 126, 1 127 (5th C ir. 1 988). We review Rule 4 1(b) di smissals for abuse of discretion. Link v. Wabash R.R. Co. , 370 U.S. 6 26, 633 (1962); see also Pierce v. Underwood , 487 U.S. 552, 558 n .1 (1988) ( decisions relating broadly t o the “ supervision of litigatio n” a re given abuse-of-discretion review). The district court did not abuse its discretion in dismissing the G r i ffins’ case. The importance o f the p ower to dismiss a case for want of prosecution is well-established; threat of the sanction is necessary “in order to prevent undue delays in the disposition of pending c ases and to avoid congestion in the calendars of the D istrict Courts.” Link , 370 U.S. at 629–30. A Rule 41(b) dismissal will be affirmed if the re is “a c lear record of delay o r contumacious conduct by the plaintiff

. . . and

. . . l e s s e r s anctions would not serve the best interests of j u stice.” Roge rs v . K roger Co. , 669 F.2d 317, 320 ( 5th Cir. 1982) (internal quotation marks o mitted). The court m a y a l s o t ake into account the presence of “aggravating factors,” such as “the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay

. . . and whether the d e l a y was the result of intentional c onduct.” Se aled Appellant v. Sealed Appellee , 4 52 F .3d 415, 418 (5th C ir. 2 006). T h e m a n y l e ngthy periods of inaction on the Griffins’ part would alone w arrant concluding that the district

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court was within its rights in dismissing th is case. Th at the c o u r t ’ s multiple warnings about the consequences of Griffin’s behavior failed to prevent further delays indicates that lesser sanctions likely would not have been effective. The G r i ffins’ self-defeating litigation position further j ustifies the district cour t ’ s d e c ision. Far from abusing its discretion, the district c ourt properly exe r c i s e d its power to control its docket in dismissing the Griffins’ case. Given our disposition of the Rule 41(b) i ssue , t h e G r i ffins’ appeal of the December 13 order is denied as moot. III. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s judgment for Appellees.

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