     Case: 11-20428     Document: 00511854032         Page: 1     Date Filed: 05/14/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           May 14, 2012

                                       No. 11-20428                        Lyle W. Cayce
                                                                                Clerk

ALBERT M. ROBINSON,

                                                  Plaintiff - Appellant
v.

HOME DEPOT USA INC; JEFFERY SEAN HASLEY; JOHN DOE 2,
employee of Home Depot USA, Inc.; JOHN DOE 3, employee of Home Depot
USA, Inc.; JOHN DOE 1, assistant manager of Home Depot USA, Inc. in
Houston,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-cv-00145


Before HIGGINBOTHAM, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Albert Robinson, proceeding pro se, brought this
lawsuit against Home Depot USA, Inc. (“Home Depot”), multiple unnamed Home
Depot employees, and a Houston police officer (together, “Defendants”) in the
Southern District of Florida, asserting numerous causes of action stemming from
events that allegedly occurred outside a Home Depot retail store in Houston,

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 11-20428

Texas. Following motions from the Defendants and on the recommendation of
a magistrate judge, the case was transferred to the Southern District of Texas.
After the case was transferred, Robinson failed to comply with multiple court
orders, including orders to participate in pretrial conferences. The district court
eventually dismissed his suit for lack of prosecution, and Robinson now appeals
on a variety of grounds.
                        FACTS AND PROCEEDINGS
      Robinson’s complaint alleges that on September 15, 2008, he was selling
generators and other items from a trailer near a Home Depot retail store in
Houston, Texas. After learning that someone at Home Depot had been
complaining about him, Robinson packed up his trailer, drove into the Home
Depot parking lot, and went inside the store to speak with the manager.
Robinson then returned to his vehicle, and an assistant manager approached a
police car and talked to the officer in the car. The police officer, Defendant-
Appellee Hasley, approached Robinson and asked him about his sale of
generators. Hasley indicated that he was going to issue a ticket to Robinson for
peddling without a license. After a verbal exchange, Robinson alleges that
Hasley yanked Robinson out of the car, handcuffed him, and “pulled [Robinson’s]
pants and underwear down to [his] ankles,” resulting in Robinson being left
partially naked in front of the Home Depot entrance. Hasley then searched
Robinson’s vehicle while Robinson remained unclothed from the waist down for
over 15 minutes.
      Based on the above allegations, Robinson filed suit in the Southern
District of Florida, raising a number of constitutional and statutory claims.
Defendants moved to dismiss the action on account of improper venue. The case
was referred to a magistrate judge, who recommended that the action be
transferred to the Southern District of Texas, where the events giving rise to the
complaint allegedly occurred. Robinson timely objected to the magistrate judge’s

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                                 No. 11-20428

report, but the court overruled the objections and transferred the action to the
Southern District of Texas.
      In the Southern District of Texas the case was again referred to a
magistrate judge who, on March 25, 2011, issued a notice of a telephonic hearing
to be held at 10:00 a.m. on March 29, 2011. Robinson did not call in to the
hearing, but he did call the case manager later that day to inquire what had
occurred during the hearing. The magistrate judge determined that Robinson
had failed to appear “despite being advised of that opportunity by the court and
opposing counsel.” The magistrate judge then scheduled a Rule 16 pretrial
conference for April 19, 2011, and ordered that Robinson and opposing counsel
appear personally for the conference.
      Robinson moved to be permitted to proceed via telephone. He alleged that
he had not received the court’s notice of the March 29 hearing and that he had
not received notice from opposing counsel prior to the hearing. Referencing
conspiracy theories involving the City of Houston and various city officials and
agencies, Robinson additionally contended that his life would be in peril if he
were forced to return to Houston. He claimed that he had uncovered fraudulent
schemes perpetrated by the City of Houston against the public and asserted that
if he returned to Houston, “the city [would] have him arrested or shot, most
likely shot.” He also asserted that he could not afford to travel to Houston.
      When Robinson did not appear for the scheduled hearing on April 19,
2011, the magistrate judge ordered Robinson to appear personally before the
court on April 29, 2011, and to show cause why the case should not be dismissed
for want of prosecution and failure to obey a court order. Robinson was further
ordered to come prepared to disclose information regarding persons likely to
have discoverable information, and documents he may wish to use to support his
claims, and a computation of his damages. Robinson was warned that “[f]ailure



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                                 No. 11-20428

to attend this hearing will result in a recommendation that this case be
dismissed.” Robinson failed to appear for the scheduled show cause hearing.
      The magistrate judge issued a Memorandum and Recommendation
(“Recommendation”) in which she recommended that the action be dismissed on
grounds that Robinson had demonstrated an unwillingness to comply with court
orders and because Robinson, by reason of his stated refusal to come to Houston,
had shown that he would be unable to prosecute his case in the future, as he
could not conduct discovery or appear for trial.
      Robinson filed a timely set of objections to the Recommendation. He
argued that his failure to participate in the March 29, 2011, telephone
conference was due to a lack of notice. He also repeated his assertions that he
could not travel to Houston because of his limited finances and his fear of being
illegally incarcerated or killed. The district court adopted the Recommendation
and dismissed the case with prejudice pursuant to Federal Rule of Civil
Procedure 41(b). Robinson timely noticed his appeal.
                                DISCUSSION
1. Dismissal with Prejudice
      A district court may dismiss an action sua sponte for failure to prosecute.
FED. R. CIV. P. 41(b); Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1190 (5th Cir.
1992). A dismissal with prejudice is reviewed for abuse of discretion. Berry, 975
F.2d at 1191. However, this court affirms such a dismissal
      only when (1) there is a clear record of delay or contumacious
      conduct by the plaintiff, and (2) the district court has expressly
      determined that lesser sanctions would not prompt diligent
      prosecution, or the record shows that the district court employed
      lesser sanctions that proved to be futile.
Id. (footnote omitted); see also McNeal v. Papasan, 842 F.2d 787, 792 (5th Cir.
1988). We review factual findings made in support of a Rule 41(b) dismissal
under a clearly-erroneous standard. See Matter of Placid Oil Co., 932 F.2d 394,


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397 (5th Cir. 1991); Hornbuckle v. Arco Oil and Gas Co., 770 F.2d 1321, 1322
(5th Cir. 1985).
      Although our review is for abuse of discretion, the dismissal of a complaint
with prejudice is considered an extreme sanction. McNeal, 842 F.2d at 790; see
also Morris v. Ocean Systems, Inc., 730 F.2d 248, 252 (5th Cir. 1984) (“The cases
in this circuit in which dismissals with prejudice have been affirmed on appeal
illustrate that such a sanction is reserved for the most egregious of cases.”
(internal quotation marks and citation omitted)). In “most cases” where
dismissals with prejudice are affirmed, this court finds “at least one of three
aggravating factors: (1) delay caused by [the] plaintiff himself and not his
attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional
conduct.” Berry, 975 F.2d at 1191 (alteration in original) (internal quotation
marks omitted).
       The district court concluded that Robinson’s “excuse for failing to call in
for the March 29, 2011, telephone conference is patently false.” That Robinson
received advance notice of the hearing is supported by numerous indications in
the record that he was in almost constant contact with the case manager and
placed repeated calls to the magistrate judge’s chambers, including on the very
day of the telephone conference. The district court further determined that
Robinson’s excuses for failing to appear in person at court-ordered hearings on
April 19, 2011, and April 29, 2011, were baseless. Although Robinson continues
to dispute these determinations, the district court’s findings are not clearly
erroneous.
      Robinson argues that he could not travel to Houston for the court-ordered
hearings primarily because he would have been in serious danger there due to
the alleged conspiracy among powerful Houstonians to murder or wrongfully
imprison him. Robinson also contends that he could not afford to travel to
Houston, but while he clearly has limited means, the record does not

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                                  No. 11-20428

demonstrate that Robinson was wholly unable, due to his financial situation, to
travel to Houston. Rather, Robinson’s filings in the district court indicate that
he did not consider it sufficiently worthwhile to travel to Houston for a hearing
that he believed should be conducted by phone. For example, in an objection to
the magistrate judge’s show-cause order requiring him to appear in person,
Robinson stated that he could not “afford to make a trip to Houston, Texas for
a hearing that can be, and usually is, conducted telephonically.” The district
court was therefore justified in concluding that Robinson willfully disregarded
court orders.
      Accepting the district court’s factual findings, the court did not abuse its
discretion in dismissing Robinson’s case with prejudice. Even assuming that he
was not at fault for missing the March 29 telephonic hearing, Robinson
intentionally failed to attend court-ordered hearings, gave either disingenuous
or irrational excuses for his absences, exhibited a disregard for the authority of
the court, and displayed a clear intention never to appear in Houston, despite
what the court might order. As the magistrate judge concluded in the
Recommendation:
      [Robinson’s] refusal to come to [Houston] means that he will be
      unable to take the deposition of any Defendant or of any other
      witness to the alleged events, because he will need to travel to
      Houston to conduct such discovery. Further, [Robinson] would be
      unable to attend trial in Houston should the case proceed to that
      stage. Thus, [Robinson] has not only shown that he is unwilling to
      comply with court orders, but, by his standing refusal to come to
      Houston, he has also shown that he will be unable to prosecute his
      case in the future.
      The district court was justified in concluding that two of the “aggravating
factors” were met: Robinson himself caused delay, and he did so by intentional
conduct. Finally, the district court explicitly found that “any lesser sanction than




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dismissal would be wholly ineffectual.” The district court did not abuse its
discretion.
2. Other Issues on Appeal
      Robinson raises a number of additional issues, but all lack merit.
      a. First, Robinson alleges that while the case was still in the Southern
District of Florida, Hasley submitted purportedly pro se motions that were
actually drafted by Halsey’s attorney. At the relevant time, Halsey’s attorney
was awaiting a ruling on a motion to appear pro hac vice, which was
subsequently granted. Robinson argues that these “ghostwritten” filings should
be stricken, which would result in the entry of a default judgment against
Hasley. Even assuming that the filings were in fact “ghostwritten,” Robinson is
not entitled to the claimed relief. He cites no authority indicating that a
ghostwritten pleading must be stricken, and he has not demonstrated that
Hasley gained an unfair advantage from the alleged ghostwriting. Moreover,
Robinson failed to object to the magistrate judge’s memorandum recommending
that the default judgment be set aside, meaning that he failed to preserve his
objections for appeal.
      b. Robinson also argues that the district court abused its discretion by
transferring the case to the Southern District of Texas. Robinson bases his
argument on the contention that various influential persons in Houston are
involved in a conspiracy against him and will prevent him from receiving a fair
trial in Houston. Robinson’s allegations are implausible, and they fail to address
the fact that under the venue statute, 28 U.S.C § 1391, venue was clearly
improper in the Southern District of Florida, where none of the Defendants
reside and none of the events giving rise to the action took place. The district
court did not abuse its discretion in transferring the case.
      c. Robinson further challenges the magistrate judge’s refusal to impose
sanctions on Home Depot for misstatements made in motion filed below. The

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denial of a motion for sanctions under Rule 11 is reviewed for an abuse of
discretion. Friends for Am. Free Enterprise Ass’n v. Wal-Mart Stores, Inc., 284
F.3d 575, 577–78 (5th Cir. 2002). Robinson cannot prevail on this issue. A motion
for Rule 11 sanctions must be served on the opposing party at least 21 days
before the motion is filed in the district court. FED. R. CIV. P. 11(c)(2). “The plain
language of the rule indicates that this notice and opportunity prior to filing is
mandatory.” Eliott v. Tilton, 64 F.3d 213, 216 (5th Cir. 1995) (vacating a
sanctions order where this procedural prerequisite was not met). It is clear from
the record that Robinson did not comply with Rule 11(c)(2). He moved for
sanctions less than 21 days after the conduct he claimed to be sanctionable. The
magistrate judge did not therefore abuse her discretion in denying the sanctions
motion.
      d. Robinson argues that the district court abused its discretion by ordering
him to appear, in person, for a hearing in Houston. A district court “may order
the attorneys and any unrepresented parties to appear for one or more pretrial
conferences.” FED. R. CIV. P. 16(a). No provision of the Rules prohibits the district
court from requiring that the attorneys or unrepresented parties appear in
person for a pretrial conference, and as a general matter district courts have
broad discretion in managing the cases before them. Robinson cannot
demonstrate that the district court abused its discretion by ordering him to
appear.
      e. Robinson finally contends that the district court abused its discretion by
failing to grant his request for a preliminary injunction against Hasley. The
district court never explicitly addressed Robinson’s motion for a preliminary
injunction, but it implicitly denied the motion by dismissing Robinson’s case. The
district court’s decision to deny a preliminary injunction is reviewed for abuse
of discretion. Anderson v. Jackson, 556 F.3d 351, 355 (5th Cir. 2009). “Only
under extraordinary circumstances will [this court] reverse the denial of a

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                                  No. 11-20428

preliminary injunction.” Id. at 355–56 (internal quotation marks and citation
omitted). To secure a preliminary injunction, a party must establish, among
other things, that he faces a substantial threat of irreparable injury if the
injunction is not issued. See Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011).
The harm that Robinson fears from Hasley amounts to nothing more than mere
speculation based on Robinson’s broad and unsubstantiated allegations that
Houston police officers and other city officials have a vendetta against him. The
supposed harm is thus insufficient to support the grant of a preliminary
injunction. See id. at 601.
                                CONCLUSION
      For the reasons stated above, the judgment of the district court is
AFFIRMED.




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