IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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:*

United States Court of Appeals

Fifth Circuit

F I L E D

March 18, 2013

Lyle W. Cayce

Clerk

* 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.

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Plaintiffs–Appellees Frederick and Annie Griffin (“the Griffins”) 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 entered into a mortgage agreement that was

ultimately assigned to ABN AMRO Mortgage Group, Inc., whose successor is

CitiMortgage, Inc. (collectively “CitiMortgage”). The mortgage agreement they

signed contains an arbitration rider that reads, in pertinent part: 

ARBITRATION OF DISPUTES. All disputes, claims, or

controversies arising from or related to the loan evidenced by the

Note, including statutory claims, shall be resolved by binding

arbitration, and not by court action, except as provided in

“Exclusion from Arbitration” below. This arbitration agreement 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 FROM ARBITRATION. This agreement shall not

limit the right of Lenders to . . . accelerate or require immediate

payment in full of the secured indebtedness or exercise the other

Remedies described in the Security Instrument before, during, or

after any arbitration, including the right to foreclose against or sell

the property . . . .

In September 2006, the Griffins requested a loan modification, which

CitiMortgage granted. After the loan modification agreement was executed,

CitiMortgage found a mistake in the agreement that meant the unpaid principal

amount had been understated by $32,356.30. CitiMortgage contacted the

Griffins and asked them to initial a corrected version of the document. The

Griffins refused the request, and stopped making mortgage payments. In

response, CitiMortgage engaged Morris & Associates, for whom Emily Courteau

is an attorney, (collectively with CitiMortgage, “Appellees”) to begin foreclosure

proceedings. 

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The Griffins then brought suit in the Chancery Court of DeSoto County,

Mississippi. Their complaint contained numerous allegations against Appellees,

including claims of fraudulent misrepresentation in connection with the

preparation of the loan modification documents and breach of contract stemming

from the foreclosure proceedings. Appellees removed the case to federal court,

and moved to compel arbitration on the basis of the mandatory arbitration

clause in the Griffins’ original mortgage agreement. 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, 2009); the Griffins then appealed to this

Court. While the case was on appeal, the National Arbitration Forum (“NAF”),

the mortgage agreement’s designated arbitrator, withdrew from the consumer

arbitration business. This Court found that the district court had not erred in

granting the 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 until seven months later, when their

attorneys filed an unopposed motion to withdraw as counsel. The district court

denied the motion, and simultaneously ordered the Griffins to resume litigation

or voluntarily dismiss the suit. Eventually Appellees filed a motion for dismissal

for failure to prosecute, which prompted the Griffins to respond with a motion

to declare the arbitration agreement unenforceable. Realizing that a

determination againsttheGriffins would lead to another time-consuming appeal

to the Fifth Circuit, Appellees filed a motion to withdraw their arbitration

demand. On December 13, 2011, the district court granted the motion, and in

the order, also warned the Griffins that if they persisted in showing a lack of

interest in prosecuting the suit, it would be dismissed. 

Soon afterward, Appellees moved to have the case dismissed for failure to

state a claim, and the Griffins responded without raising any objection to the

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December 13 order. The parties scheduled a settlement conference, but before

it could be held, the Griffins’ attorney once again moved to withdraw as counsel,

citing an inability “to communicate with the plaintiffs concerning the litigation

in this case,” as well as the Griffins’ insistence “on pursuing objectives that [the

attorney] consider[ed] to be imprudent and providing [the attorney] with

instructions that [we]re inconsistent with [his] professional advice.” A

magistrate judge granted the attorney’s motion, and again warned the Griffins

that if they did not retain new counsel and proceed with the case, it would be

dismissed for failure to prosecute. The Griffins responded with a pro se motion

in which they stated that they did not wish to continue with the case, but,

somewhat inconsistently, also raised their first 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 subject arbitration clause requires the use of the NAF as the

exclusive arbitrator, and the same clause requires “no court action.”

. . . The Plaintiffs contend that the arbitration clause intended the

NAF to be the exclusive tribunal for adjudicating disputes between

the parties and that the language “no court action” specifically

intended that a court would not hear the parties’ dispute.

The district court ruled on the Griffins’ pro se motion on May 23, 2012. In

its order, the court registered its surprise at the Griffins’ new litigation position,

and noted that “[t]he fact that plaintiffs would raise this objection [to court

litigation, rather than arbitration] months later and (apparently) against the

advice of counsel raises questions in this court’s mind as to whether they are

simply playing games with it.” The court also observed that “[t]he plaintiffs’ pro

se brief makes it clear why their former counsel felt it necessary to withdraw

from this case, since their own words call for 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 of their apparent unwillingness to litigate

their case, the district court accordingly dismissed the Griffins’ case for failure

to prosecute. The Griffins quickly filed what amounted to a motion for

reconsideration, which the district court denied. The Griffins now appeal the

December 13 order granting Appellees’ motion to withdraw Appellees’

arbitration demand, the May 23 order dismissing 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 to dismiss an action for a plaintiff’s failure to prosecute. McCullough v.

Lunaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). We review Rule 41(b) dismissals

for abuse of discretion. Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962); see

also Pierce v. Underwood, 487 U.S. 552, 558 n.1 (1988) (decisions relating

broadly to the “supervision of litigation” are given abuse-of-discretion review). 

The district court did not abuse its discretion in dismissing the Griffins’

case. The importance of the power 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 cases and to avoid congestion in the

calendars of the District Courts.” Link, 370 U.S. at 629–30. A Rule 41(b)

dismissal will be affirmed if there is “a clear record of delay or contumacious

conduct by the plaintiff . . . and . . . lesser sanctions would not serve the best

interests of justice.” Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir. 1982)

(internal quotation marks omitted). The court may also take 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 delay was the result of intentional conduct.” Sealed Appellant v.

Sealed Appellee, 452 F.3d 415, 418 (5th Cir. 2006). The many lengthy periods

of inaction on the Griffins’ part would alone warrant concluding that the district

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court was within its rights in dismissing this case. That the court’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

Griffins’ self-defeating litigation position further justifies the district court’s

decision. Far from abusing its discretion, the district court properly exercised

its power to control its docket in dismissing the Griffins’ case. 

Given our disposition of the Rule 41(b) issue, the Griffins’ 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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