IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-50655

JERNARD GRIGGS, 

 Plaintiff - Appellant

v.

S.G.E. MANAGEMENT, L.L.C.; STREAM GAS & ELECTRIC, LIMITED, 

doing business as Stream Energy; STREAM S.P.E. G.P., L.L.C; STREAM 

S.P.E., LIMITED; IGNITE HOLDINGS, LIMITED, formerly known as Ignite 

Energy, Limited, doing business as Ignite, doing business as Ignite Powered 

by Stream Energy; CHRIS DOMHOFF; ROB SNYDER; PIERRE KOSHAKJI; 

DOUGLAS WITT; STEVE FLORES; MICHAEL TACKER; DONNY 

ANDERSON; STEVE FISHER; RANDY HEDGE; LOGAN STOUT; 

PRESLEY SWAGERTY, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Western District of Texas

Before STEWART, Chief Judge, and WIENER and HIGGINSON, Circuit 

Judges.

WIENER, Circuit Judge:

When Plaintiff-Appellant Jernard Griggs began working as an 

Independent Associate (“IA”) for Ignite, he agreed to Ignite’s Policies & 

Procedures, which includes an arbitration clause covering all claims between 

(1) any two or more IAs and (2) any IA and Ignite. The arbitration clause also 

gives the arbitrator the “sole power” to decide questions of arbitrability. 

United States Court of Appeals

Fifth Circuit

FILED

September 27, 2018

Lyle W. Cayce

Clerk

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Despite that, Griggs brought a class action in federal court, asserting RICO 

claims against Defendants-Appellees Ignite, Stream, their related entities, and 

several other IAs (collectively, “Defendants”). The district court (1) ruled that

the parties had agreed to arbitrate arbitrability; (2) compelled arbitration; and 

(3) stayed the case pending arbitration. After the case had been stayed for a 

year without Griggs having submitted his claims to arbitration, the court 

dismissed the case without prejudice. Griggs appealed; we have appellate 

jurisdiction; we affirm.

I. Facts and Proceedings

Stream is a Texas electricity provider that markets its services through 

Ignite, its wholly owned subsidiary. Ignite is a multi-level marketing program

that Griggs contends is an illegal pyramid scheme in which the participants 

(the IAs) are destined to lose money.1 This court, sitting en banc, recently 

described these entities:

Stream’s marketing arm, Ignite, operates a multi-level marketing 

program in which IAs (1) sell energy to customers, and (2) recruit 

other individuals to join as IAs who in turn sell energy to 

customers and recruit individuals to join as IAs. Under the IA 

program, Ignite charges individuals for the right to sell Stream 

services to customers and to recruit IAs.2

In that case, Torres v. S.G.E. Management, several IAs brought a class action 

against Stream, Ignite, and several particularly successful IAs.3 The district 

court compelled arbitration, but this court reversed, holding that the 

arbitration agreement was unenforceable.4 The district court, on remand,

 

1 See Torres v. S.G.E. Mgmt., L.L.C., 838 F.3d 629, 632–33 (5th Cir. 2016) (en banc), 

cert. denied, 138 S. Ct. 76 (2017). Griggs refers to these participants as “Ignite Associates.”

2 Id. at 633. 

3 Id. at 634; Torres v. S.G.E. Mgmt., L.L.C., 397 F. App’x 63, 64 (5th Cir. 2010).

4 Torres, 397 F. App’x at 68.

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certified a class, but only for those IAs who had joined Ignite between January 

1, 2005 and April 2, 2011.5 The court explained that Ignite had amended the 

arbitration clause required for new IAs, effective April 3, 2011, eliminating the 

defect.6 This court upheld class certification en banc.7

Griggs joined Ignite as an IA on March 22, 2012, obviously after the 

amended arbitration clause took effect. When Griggs became an IA, he agreed 

to Ignite’s “Policies & Procedures” and “Terms & Conditions.” Those two 

documents and a third one titled the “Compensation Plan,” were parts of the 

Independent Associate Agreement (“Agreement”). The Compensation Plan is 

not in the record. The Policies & Procedures states that if it conflicts with 

another part of the Agreement, the Policies & Procedures controls.

The Policies & Procedures contains a provision requiring arbitration of 

“any claim, dispute or other difference between two or more IAs or between 

any IA(s) and Ignite or its affiliates, or any other claim or dispute of any kind 

arising under or in any way related to these Policies & Procedures or any other 

part of the [Agreement].” Its arbitration clause incorporates the rules of the 

American Arbitration Association and states that “the arbitrator will have the 

sole power to decide any question about the arbitrability of any claim.”

In May 2015, Griggs sued the various entities comprising Stream and 

Ignite, as well as several individuals who were either employees of Stream and 

Ignite or “Presidential Directors.” Presidential Directors are IAs “at the very 

top of the pyramid” who have been financially successful as a result of Ignite. 

Griggs alleged violations of the Racketeer Influenced and Corrupt 

 

5 Torres v. SGE Mgmt. LLC, No. 4:09-CV-2056, 2014 WL 129793, at *10 (S.D. Tex. 

Jan. 13, 2014), aff’d, 838 F.3d 629 (5th Cir. 2016) (en banc).

6 Id.

7 See Torres, 838 F.3d at 646.

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Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. Defendants moved to 

compel arbitration, and the magistrate judge issued a report and 

recommendation concluding that the arbitration agreement was valid and that 

the parties had agreed to arbitrate arbitrability.8 The district court granted 

the motion to compel arbitration and stayed the case pending arbitration.9

The case remained stayed for more than a year, during which time 

Griggs refused to arbitrate. The district court ordered Griggs to show cause 

why the case should not be dismissed for want of prosecution. Griggs 

responded:

Griggs anticipated that this Court would have already dismiss[ed] 

this case for want of prosecution because this Court left him only 

an arbitration which he has not pursued. So, Griggs states the 

following for the Court’s consideration:

1. Griggs understands and appreciates this Court’s 

order compelling arbitration. Griggs believes 

that the Court cons[idered] all arguments before 

it ruled.

2. However, Griggs disagrees with this Court’s 

conclusion that this matter must go to 

arbitration. 

3. Griggs will not pursue arbitration.

4. Griggs stands ready to litigate this case before 

this Court to a conclusion.

 

8 Griggs v. SGE Mgmt., LLC, No. A-15-CV-422-LY-ML, 2015 WL 11423656, at *4–8 

(W.D. Tex. Oct. 15, 2015).

9 The district court adopted the magistrate judge’s recommendation in its entirety.

Griggs v. SGE Mgmt., LLC, No. 1:15-CV-422-LY, 2015 WL 11438110, at *1–2 (W.D. Tex. Nov. 

4, 2015). 

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. . .

Griggs and his counsel mean no offense to this Court. However, 

they respectfully disagree with the Court’s arbitration order and 

Griggs will either litigate this matter now before this Court or will 

appeal when dismissed.

The district court then dismissed the case without prejudice, and Griggs 

appealed.

II. ANALYSIS

Two issues are presented in this appeal: (1) whether there is appellate 

jurisdiction and (2) whether the district court was within its discretion to 

dismiss the case for failure to prosecute. We address each issue in turn.

A. Appellate Jurisdiction 

A plaintiff seeking to appeal an order compelling arbitration may only 

do so if that order is a “final decision with respect to an arbitration.”10 A final 

decision is one that “ends the litigation on the merits and leaves nothing more 

for the court to do but execute the judgment.”11 When “the District Court has 

ordered the parties to proceed to arbitration, and dismissed all the claims 

before it, that decision is ‘final’ within the meaning of § 16(a)(3), and therefore 

appealable.”12 In contrast, if a district court orders that a case be stayed 

pending arbitration instead of dismissing it, that order is not appealable.13

Some circuits have held that district courts must stay a case when all claims 

 

10 9 U.S.C. § 16(a)(3).

11 Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86 (2000) (quoting Dig. Equip. 

Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994); Coopers & Lybrand v. Livesay, 437 

U.S. 463, 467 (1978)).

12 Green Tree, 531 U.S. at 89.

13 9 U.S.C. § 16(b)(1); Green Tree, 531 U.S. at 87 n.2.

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are submitted to arbitration, but this circuit allows district courts to dismiss 

such claims outright.14

1. Voluntary Dismissal Under Rule 41(a)

Defendants contend that Griggs voluntarily dismissed the case under 

Federal Rule of Civil Procedure 41(a). A voluntary dismissal of a case without 

prejudice is not a final appealable decision.15 Griggs contests whether the 

dismissal was voluntary, explaining that he never invoked Rule 41(a). 

There are three forms of voluntary dismissal under that Rule. The record 

does not indicate that all parties stipulated to dismissal.16 Defendants had not 

answered or moved for summary judgment, so a court order was not required

for Griggs to dismiss the case.17 The question then is whether Griggs’s response 

to the show-cause order amounts to a voluntary dismissal under Rule 

41(a)(1)(i), which allows a plaintiff to dismiss an action by filing a notice of 

dismissal.

There is limited authority describing the notice requirements for a 

plaintiff to dismiss a case under Rule 41(a)(1)(i).18 It is clear, however, that “[a]

notice of dismissal is self-effectuating and terminates the case in and of itself;

no order or other action of the district court is required.”19 In Bierman v. 

 

14 Compare Katz v. Cellco P’ship, 794 F.3d 341, 345–47 (2d Cir. 2015), with Alford v. 

Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992).

15 Marshall v. Kan. City S. Ry. Co., 378 F.3d 495, 499–500 (5th Cir. 2004) (citing Ryan 

v. Occidental Petroleum Corp., 577 F.2d 298 (5th Cir. 1978)).

16 See Fed. R. Civ. P. 41(a)(1)(ii). 

17 See Id. R. 41(a)(2). 

18 This court has expounded somewhat on the requirements for a stipulated dismissal 

under Rule 41(a)(1)(ii), explaining that it can be an oral dismissal, despite that Rule’s 

requirement that a dismissal be filed with the court. Oswalt v. Scripto, Inc., 616 F.2d 191, 

195 (5th Cir. 1980). But this court has also held that an informal statement that a party 

would not pursue one claim was not sufficient to stipulate to dismissal of that claim. G.A. 

Thompson & Co. v. Partridge, 636 F.2d 945, 951–52 (5th Cir. 1981).

19 Bechuck v. Home Depot U.S.A., Inc., 814 F.3d 287, 291 (5th Cir. 2016) (quoting In 

re Amerijet Int’l, Inc., 785 F.3d 967, 973 (5th Cir. 2015) (per curiam)).

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Tampa Electric Co., the district court ordered the plaintiff to file quarterly 

status reports, warning that if he did not, the court would dismiss the 

complaint.20 After the plaintiff failed to comply and the court dismissed the 

case, the plaintiff insisted that his failure to file the reports amounted to a Rule 

41(a) notice of dismissal.21 This court disagreed, explaining that the order 

specifically stated that the case was dismissed for want of prosecution and 

therefore was not voluntary.22

In Vincent v. A.C. & S., Inc., the plaintiff informed the district court that 

he had settled with the defendants. After that, the court ordered that the case 

would be dismissed without prejudice on stipulation of the parties, but could 

be reopened in ninety days if the settlement was not “consummated.”23 The 

parties stipulated to dismissal more than four months later.24 This court stated 

on appeal that the earlier order was not a voluntary dismissal, but rather “a 

tentative termination of the . . . suit.”25 By informing the court that the case 

had settled, the plaintiff did not “instigate[] dismissal.”26 These cases indicate 

that a plaintiff’s inaction is not sufficient to dismiss a case voluntarily.

Here, after the district court compelled arbitration and stayed the case 

in November 2015, the parties submitted a status report in February 2016, 

notifying the court that Griggs had not submitted the dispute to arbitration. 

More than a year later, the court again ordered a status report, and the parties 

confirmed in June 2017 that Griggs still had not submitted the case to 

arbitration. The court then ordered Griggs to show cause why it should not 

 

20 604 F.2d 929, 930 (5th Cir. 1979). 

21 Id.

22 Id. at 931.

23 833 F.2d 553, 554 (5th Cir. 1987).

24 Id. at 555.

25 Id.

26 Id. at 556.

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dismiss the case “for want of prosecution.” Griggs responded that he 

“disagree[d] with th[e] Court’s conclusion that this matter must go to 

arbitration,” and informed the court that he would not “pursue” arbitration. 

He added that he “st[ood] ready to litigate this case[.]” Finally, Griggs stated 

“[d]ifferent district courts do not stay, but dismiss, allowing the plaintiff to 

appeal an order of arbitration. . . . Griggs will either litigate this matter now 

before this Court or will appeal when dismissed.”

These statements do not serve as a notice of dismissal, but rather are 

statements of inaction. If the district court had not dismissed the case, it is 

unlikely that the parties would have understood that Grigg’s response to the 

show-cause order dismissed the case. Because that response was not a “selfeffectuating”27 notice of dismissal, it was not a voluntary dismissal under Rule 

41(a).

2. Dismissal Without Prejudice

We thus must determine whether the district court’s dismissal without 

prejudice supports appellate jurisdiction.28 This court has not expressly 

addressed whether a Rule 41(b) dismissal without prejudice is an appealable 

order, but it has exercised jurisdiction over appeals from such orders.29

Rule 41 contemplates that some dismissals might not fall “under this 

rule,”30 so the question remains whether the fact that the dismissal was 

without prejudice itself deprives the court of jurisdiction. Several unpublished 

opinions of this court have held that a dismissal without prejudice is a final

 

27 Bechuck, 814 F.3d at 291 (quoting Amerijet, 785 F.3d at 973). 

28 Castaneda v. Falcon, 166 F.3d 799, 801 (5th Cir. 1999) (“We must always be sure of 

our appellate jurisdiction and, if there is doubt, we must address it, sua sponte if necessary.”).

29 See, e.g., Martinez v. Johnson, 104 F.3d 769, 771–72 (5th Cir. 1997); Boazman v. 

Econ. Lab., Inc., 537 F.2d 210, 212–13 (5th Cir. 1976).

30 Fed. R. Civ. P. 41(b). 

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decision if all that is left for the plaintiff to do is to submit the claim to 

arbitration.31 The Third, Ninth, and Eleventh Circuits have reached the same 

conclusion.32

In Green Tree Financial Corp.-Alabama v. Randolph, the Supreme Court 

did not distinguish between dismissals with and without prejudice when 

holding that a decision “order[ing] the parties to proceed to arbitration, and 

dismiss[ing] all the claims before it, . . . is ‘final’ within the meaning of 

 

31 See, e.g., Westlake Styrene Corp. v. P.M.I. Trading, Ltd., 71 F. App’x 442, 442 (5th 

Cir. 2003) (“The dismissal without prejudice ended the litigation on the merits, by sending 

all the issues to arbitration and leaving the district court nothing more to do than execute 

the judgment. Thus, it was a final decision, and we have appellate jurisdiction.”); Brandom 

v. Gulf Coast Bank & Tr. Co., 253 F.3d 706 (5th Cir. 2001) (unpublished) (“A district court 

order compelling arbitration and dismissing a party’s underlying claims is immediately 

appealable because it is a ‘final decision with respect to an arbitration’ within the meaning 

of the Federal Arbitration Act.”). See also Inv. Partners, L.P. v. Glamour Shots Licensing, 

Inc., 298 F.3d 314, 316 (5th Cir. 2002) (“[W]e conclude that appellate jurisdiction exists 

because Investment Partners seeks to void the entire arbitration clause on public policy 

grounds, albeit by means of attacking the remedy provision, and the Supreme Court disposed 

of a similar argument, without submitting the issue first to the arbitrators, in [Green Tree].”); 

Hirras v. Nat’l R.R. Passenger Corp., 10 F.3d 1142, 1144 n.2 (5th Cir. 1994) (“While an order 

dismissing a complaint ‘without prejudice’ usually is not appealable because the plaintiff may 

file an amended complaint, the district court’s order in this case is final and appealable 

because no amendment is possible. ‘Without prejudice’ here simply meant without detriment 

to [the plaintiff’s] ability to present the claims to an arbitrator.”), vacated on other grounds 

by 512 U.S. 1231 (1994). 32 Hill v. Rent-A-Center, Inc., 398 F.3d 1286, 1288 (11th Cir. 2005) (“Contrary to the 

defendant’s argument that the district court order is not appealable because it had dismissed 

Hill’s case without prejudice to reinstatement if arbitration was not completed successfully, 

the order was clearly a ‘final order’ insofar as compelled arbitration is concerned.”); Blair v. 

Scott Specialty Gases, 283 F.3d 595, 602 (3d Cir. 2002) (“We conclude that even though the 

District Court’s order dismissed this case without prejudice and directed the parties to 

proceed with arbitration, the order was final and appealable.”); Interactive Flight Techs., Inc. 

v. Swissair Swiss Air Transp. Co., 249 F.3d 1177, 1179 (9th Cir. 2001) (“[T]he district court’s 

order and judgment sufficiently show that the court intended to close this case without 

precluding the parties from bringing a new action after completing arbitration. It is only in 

this sense that the dismissal was ‘without prejudice,’ and that is not enough to show that the 

dismissal was interlocutory rather than an appealable final decision.” (citing Green Tree, 513 

U.S. at 86–87)). 

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§ 16(a)(3), and therefore appealable.”33 The Court explained that the Federal

Arbitration Act contemplates further proceedings after a dismissal for the 

court “to enter judgment on an arbitration award,” which does not disturb 

finality.34 The Court has recently explained that finality is “given a practical 

rather than a technical construction.”35

Defendants rely on the Supreme Court’s decision in Microsoft v. Baker

and a recent Fourth Circuit decision, Keena v. Groupon, Inc., to support their 

contention that a plaintiff may not appeal an order compelling arbitration 

merely by convincing the district court to dismiss the case.36 In Microsoft, the 

plaintiffs filed individual claims and class allegations against Microsoft. The 

district court struck the class allegations, “effectively declining to certify the 

class.”37 The Ninth Circuit denied the plaintiffs permission to appeal that 

decision under Rule 23(f). The plaintiffs then stipulated to a voluntary 

dismissal, with prejudice, of their individual claims. On appeal following the 

voluntary dismissal, the plaintiffs sought a reversal of the district court’s order 

striking the class allegations. The Ninth Circuit held that the voluntary 

dismissal was an appealable final decision and vacated the district court’s 

denial of class certification. The Supreme Court reversed, rejecting the 

plaintiffs’ “voluntary-dismissal tactic” on the ground that the plaintiffs’ appeal 

 

33 Green Tree, 531 U.S. at 89; see also Blair, 283 F.3d at 602 (“Green Tree . . . does not 

draw any distinctions within the universe of dismissals.”).

34 Green Tree, 531 U.S. at 86.

35 Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1712 (2017) (quoting Eisen v. Carlisle & 

Jacquelin, 417 U.S. 156, 171 (1974)); cf. Ameser v. Nordstrom Inc., 368 F. App’x 504, 507 (5th 

Cir. 2010) (“[T]his court’s determination of its jurisdiction over a dismissal or denial without 

prejudice to refile varies depending on the circumstances[.] . . . Each case requires an 

examination of the finality of the underlying order.”). 

36 Microsoft, 137 S. Ct. at 1715; Keena v. Groupon, Inc., 886 F.3d 360, 364 (4th Cir. 

2018).

37 Microsoft, 137 S. Ct. at 1717 (Thomas, J., concurring).

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sought review of the “inherently interlocutory” order striking the class 

allegations, not the review of final order dismissing the case.38 The Court 

explained that 28 U.S.C. § 1291’s “firm final-judgment rule is not satisfied 

whenever a litigant persuades a district court to issue an order purporting to 

end the litigation.”39 “Because [this] dismissal device subverts the finaljudgment rule and the process Congress has established for refining that rule 

and for determining when nonfinal orders may be immediately appealed, . . . 

the tactic does not give rise to a ‘final decision’ under § 1291.”40

The plaintiff in Keena brought a class action against Groupon, which 

then moved to enforce an arbitration clause. The district court ordered the 

parties to arbitrate and stayed the case pending arbitration.41 A few weeks 

later, the plaintiff moved to amend that order, seeking dismissal with prejudice 

and “advis[ing] the court that she would not pursue arbitration because the 

costs of that process outweighed the potential recovery.”42 The district court 

agreed to amend the order and dismissed the case with prejudice. The Fourth 

Circuit, comparing these facts to the tactic in Microsoft, explained that “Keena 

unsuccessfully sought the district court’s certification of an interlocutory 

appeal. Then, in another creative ‘voluntary-dismissal tactic,’ Keena’s lawyer 

sought to preempt the denial of interlocutory review by voluntarily dismissing 

Keena’s complaint with prejudice.”43 The “voluntary-dismissal tactic also 

fail[ed] to account for the longstanding principle that a party is not entitled to 

 

38 Id. at 1715 (majority op.) (quoting Camesi v. Univ. of Pitt. Med. Ctr., 729 F.3d 239, 

244 (3d Cir. 2013)). 

39 Id. at 1715 

40 Id. at 1712.

41 Keena, 886 F.3d at 362.

42 Id.

43 Id.at 364.

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appeal from a consensual dismissal of her claims.”44 The Fourth Circuit held 

that it did not have appellate jurisdiction because the dismissal order was not 

an appealable final decision under § 1291.45

Those two cases are distinguishable from this one. Microsoft involved a 

tactic to avoid Rule 23(f)’s procedure governing appeals of class-certification 

decisions. The plaintiff in Keena sought a voluntary dismissal with prejudice

after the district court had stayed the case. 

Here, unlike the “inherently interlocutory” nature of class-certification 

decisions discussed in Microsoft, the district court’s dismissal in favor of 

arbitration does not raise a concern about “piecemeal appeals” because the 

dismissal ended the litigation on the merits.46 And, unlike Microsoft and

Keena, the instant dismissal was not voluntary, as we discussed in the 

preceding section. Griggs stated that he “stands ready to litigate this case 

before this Court to a conclusion” and “will either litigate this matter now 

before this Court or will appeal when dismissed.” Those statements of inaction

do not amount to a “voluntary-dismissal tactic” or a “consensual” dismissal of 

Griggs’s claims.47

 

44 Id. at 365.

45 Id.

46 See Microsoft, 137 S. Ct. at 1707 (“The tactic would undermine § 1291’s firm finality 

principle, designed to guard against piecemeal appeals, and subvert the balanced solution 

Rule 23(f) put in place for immediate review of class-action orders.”); id. at 1715 (“Plaintiffs 

in putative class actions cannot transform a tentative interlocutory order . . . into a final 

judgment within the meaning of § 1291 simply by dismissing their claims with prejudice.” 

(emphasis added)); id. (“The one-sidedness of respondents’ voluntary-dismissal device 

‘reinforce[s] our conclusion that [it] does not support appellate jurisdiction of prejudgment 

orders denying class certification.’” (quoting Coopers & Lybrand, 437 U.S. at 476)).

47 Keena, 886 F.3d at 365 (“Keena’s voluntary-dismissal tactic also fails to account for 

the longstanding principle that a party is not entitled to appeal from a consensual dismissal 

of her claims.”).

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The district court made clear over the course of a year and a half that it 

would take no action in this case. If Griggs took the court’s dismissal without 

prejudice as an invitation simply to re-file, he would have obtained the same 

result. The district court’s action “ended the litigation on the merits, by sending 

all the issues to arbitration and leaving the district court nothing more to do 

than execute the judgment. Thus, its order was a final decision, and we have 

appellate jurisdiction.”48

B. Dismissal for Failure to Prosecute

Rule 41(b) authorizes the district court to dismiss an action sua sponte

for failure to prosecute or comply with a court order.49 We review for abuse of 

discretion.50 When a dismissal is without prejudice but “the applicable statute 

of limitations probably bars future litigation, our examination is searching, 

and we review the dismissal as we would a dismissal with prejudice.”51 Neither 

party’s briefing discusses whether the heightened standard applies in this 

case. Even under the more exacting standard, however, Defendants would 

prevail. 

Dismissal with prejudice is appropriate only when there is “a showing of 

(a) a clear record of delay or contumacious conduct by the plaintiff, and (b) 

where lesser sanctions would not serve the best interests of justice.”52 “In most 

 

48 Westlake Styrene Corp., 71 F. App’x at 442; see Green Tree, 531 U.S. at 521 (“We 

therefore conclude that where, as here, the District Court has ordered the parties to proceed 

to arbitration, and dismissed all the claims before it, that decision is ‘final’ within the 

meaning of § 16(a)(3), and therefore appealable.”).

49 McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988).

50 Bryson v. United States, 553 F.3d 402, 403 (5th Cir. 2008).

51 Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 441 (5th Cir. 2016) (citing 

Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir. 2014) (per curiam) (internal quotation 

omitted)).

52 Gates v. Strain, 885 F.3d 874, 883 (5th Cir. 2018) (quoting Morris v. Ocean Sys., 

Inc., 730 F.2d 248, 252 (5th Cir. 1984)).

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cases, a plain record of delay or contumacious conduct is found if one of the 

three aggravating factors is also present: (1) delay caused by the plaintiff; (2) 

actual prejudice to the defendant; or (3) delay as a result of intentional 

conduct.”53 Here, there is a clear record of intentional delay and contumacious 

conduct.

After the district court granted Defendants’ motion to compel arbitration 

and stayed the case, Griggs persistently refused to arbitrate as ordered. 

Specifically, a status report submitted three months after the arbitration order 

stated: “Plaintiff has not submitted the case to arbitration.” More than a year

after that, another status report explained that “plaintiff has not submitted 

the dispute to arbitration.” When the district court ordered Griggs to show 

cause why the case should not be dismissed “for want of prosecution” he 

responded that he “disagree[d] with this Court’s conclusion that this matter 

must go to arbitration,” “[would] not pursue arbitration,” and “[stood] ready to 

litigate this case before this Court to a conclusion.” The district court was well 

within its discretion to dismiss this case for want of prosecution in response to 

Griggs’s disobedience to its prior order.54

 

53 Stearman v. Comm’r, 436 F.3d 533, 535 (5th Cir. 2006) (citing Tello v. Comm’r, 410 

F.3d 743, 744 (5th Cir. 2005), cert. denied, 546 U.S. 873 (2005)).

54 Generally, “[u]nder the final judgment appealability rule, a party may obtain review 

of prejudicial adverse interlocutory rulings upon his appeal from adverse final judgment, at 

which time the interlocutory rulings (nonreviewable until then) are regarded as merged into 

the final judgment terminating the action.” Dickinson v. Auto Ctr. Mfg. Co., 733 F.2d 1092, 

1102 (5th Cir. 1983) (citing 9 Moore’s Federal Practice, ¶ 110.07 (2d ed. 1974)). However, in 

the context of dismissal for failure to prosecute, courts prudently decline to review adverse 

interlocutory rulings because the matter under review is the dismissal itself. Thus, in Ash v. 

Cvetkov, the Ninth Circuit explained:

We are of the opinion that the general rule should not apply in this 

situation . . . It would be unwise to encourage all would-be appellants from 

interlocutory orders to delay for the purpose of dismissal for lack of prosecution 

and review of otherwise unreviewable decisions. . . . [T]he sufferance of 

dismissal without prejudice because of failure to prosecute is not to be 

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III. CONCLUSION

The district court’s dismissal without prejudice is AFFIRMED.

 

employed as an avenue for reaching issues which are not subject to 

interlocutory appeal as of right. 

739 F.2d 493, 497 (9th Cir. 1984) (emphasis added); see also Shannon v. Gen. Elec. Co., 186 

F.3d 186, 192 (2d Cir. 1999) (Sotomayor, J.) (embracing the “general rule that interlocutory 

orders do not properly merge with a final judgment dismissing an action for failure to 

prosecute”); John’s Insulation, Inc. v. L. Addison & Assocs., Inc., 156 F.3d 101, 105 (1st Cir. 

1998) (applying the “majority rule” that “interlocutory rulings do not merge into a judgment 

of dismissal for failure to prosecute”); Marshall v. Sielaff, 492 F.2d 917, 919 (3d Cir. 1974) 

(“If a litigant could refuse to proceed whenever a trial judge ruled against him, wait for the 

court to enter a dismissal for failure to prosecute, and then obtain review of the judge's 

interlocutory decision, the policy against piecemeal litigation and review would be severely 

weakened.”); DuBose v. Minn., 893 F.2d 169, 171 (8th Cir. 1990) (citations omitted) (“Allowing 

use of such an avenue would circumvent the policy against piecemeal litigation and review.”); 

Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 366 (6th Cir. 1999) (holding that the court “need 

not review” interlocutory rulings “[i]n light of” the conclusion that the district court did not 

abuse its discretion in dismissing plaintiff’s action for lack of prosecution and citing DuBose).

Such an approach is particularly appropriate here because Griggs should not be 

permitted, through recalcitrance, to obtain the review of the arbitration clause that he was 

expressly denied in the district court, a review that Congress has foreclosed under the 

Federal Arbitration Act. See 9 U.S.C. § 16(b) (disallowing appeal to be taken from an 

interlocutory order compelling arbitration); see also Moses H. Cone Mem’l Hosp. v. Mercury 

Constr. Corp., 460 U.S. 1, 22 (1983) (noting the “statutory policy of rapid and unobstructed 

enforcement of arbitration agreements”).

 Case: 17-50655 Document: 00514659215 Page: 15 Date Filed: 09/27/2018