     Case: 11-20417     Document: 00511838500         Page: 1     Date Filed: 04/30/2012




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

                                                                            FILED
                                                                           April 30, 2012
                                     No. 11-20417
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JAY NOLAN RENOBATO,

                                                  Plaintiff-Appellant
v.

COMPASS BANK CORPORATION,

                                                  Defendant-Appellee


JAY NOLAN RENOBATO,

                                                  Plaintiff-Appellant
v.

COMPASS BANCSHARES INCORPORATED, formerly known as Compass
Bank, also known as BBVA Compass,

                                                  Defendant-Appellee


                  Appeals from the United States District Court
                       for the Southern District of Texas
                         Nos. 4:07-cv-46 and 4:11-cv-111


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges,
PER CURIAM:*


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-20417       Document: 00511838500          Page: 2     Date Filed: 04/30/2012



                                       No. 11-20417

       Jay Renobato, pro se, appeals the judgment of the district court dismissing
his complaint in one of the cases in this consolidated action for failure to
prosecute. No. 4:11-cv-111.1 We AFFIRM.
                                               I
       In early 2006, Renobato purchased five Treasury bills (T-Bills) from the
federal government that each had a thirteen-week maturity and a par value of
$1,000. When the T-Bills matured, the government transferred the matured
corpus of the five bonds—$5,000—to Renobato’s personal checking account at
Compass. However, Renobato believed that the matured T-Bills were worth
$1,000,000 each and that Compass was responsible for the shortfall.
       He filed suit in January 2007 against Compass in the district court,
asserting a variety of causes of action aimed at recovering the $5,004,000 in
damages he believed that Compass had caused him. No. 4:07-cv-46. Compass
moved to compel arbitration of Renobato’s claims pursuant to an arbitration
clause contained in the deposit account agreement governing his account. The
district court granted Compass’s motion to compel arbitration and stayed the
case pending the outcome of the arbitration. Renobato filed two successive
motions for reconsideration, which were both denied.
       A year after the district court denied Renobato’s second motion for
reconsideration, Compass informed the district court that Renobato had failed
to pursue arbitration of his claims. In March 2010—over three years after the
court’s original order compelling arbitration—the district court dismissed the
case without prejudice for failure to prosecute, noting that Renobato had failed
to advise it of the progress of any arbitration.




       1
         Renobato did not file a notice of appeal from the district court’s order dismissing the
other of the two consolidated cases. No. 4:07-cv-46.

                                               2
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                                  No. 11-20417

      Renobato filed several post-dismissal motions, including a motion for
reconsideration. In May 2010, the district court denied Renobato’s motion for
reconsideration without prejudice. The order further directed Renobato that he
      ha[d] twenty (20) days from the date of this Order to initiate
      arbitration pursuant to the enforceable arbitration agreement
      between the parties. As the Court understands it, Plaintiff must
      initiate his claim with the American Arbitration Association [AAA]
      or the National Arbitration Forum [NAF].           Once Plaintiff
      commences his claim, he may refile a motion for reconsideration
      with this Court, and the Court will decide whether to reopen and
      stay the case pending the outcome of the arbitration.

      In June 2010, Renobato attempted to begin arbitration proceedings with
the NAF, but the NAF rejected his claim, stating that it was bound by a consent
judgment in an earlier case and could not accept consumer arbitration claims.
Rather than pursuing arbitration with the AAA or advising the district court of
its efforts to arbitrate with NAF, Renobato filed a second suit in the district
court. No. 4:11-cv-111. The second suit was virtually identical to the first suit
except that it involved five different T-Bills that had matured in 2009 and 2010
while the first suit was still pending. Again, Renobato alleged that the T-Bills
were worth $1,000,000 when they matured and that Compass had somehow
caused the funds not to be deposited in his account. The second suit was
originally assigned to a different district judge in the Southern District of Texas,
but, upon Compass’s motion, the two suits were consolidated.
      The district court notified the parties on April 4, 2011 that it would hold
a status conference in the consolidated action on April 11. Renobato contends
that he did not receive notice of the April 11 hearing, and he did not appear.
Thereafter, the district court dismissed the second suit with prejudice
      because of 1) Plaintiff’s refusal to arbitrate his disputes despite a
      controlling arbitration agreement and an order from this court to do
      so, 2) repeated filings of nearly identical pleadings in various


                                         3
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                                  No. 11-20417

      different state and federal courts, and 3) Plaintiff’s failure to attend
      a court hearing of which he had notice.

      After the district court denied Renobato’s subsequent motion for
reconsideration, this appeal followed.
                                         II
      On appeal, Renobato asserts that the district court abused its discretion
by dismissing his second suit for failing to attend a court hearing. He contends
that because he did not receive notice of the April 11 hearing until after it had
already occurred, his failure to appear was (1) justified and (2) not motivated by
intentional conduct. He also asserts that the district court violated his rights to
due process by dismissing his complaint without notice and a hearing.
      We review dismissals for failure to prosecute for an abuse of discretion.
Stearman v. Comm’r, 436 F.3d 533, 535 (5th Cir. 2006) (per curiam). We affirm
dismissals with prejudice for failures to prosecute 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. (quoting Tello v. Comm’r, 410 F.3d 743, 744 (5th
Cir. 2005)). In general, “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.” Id. (citing Tello, 410 F.3d at 744).
      We hold that the district court did not abuse its discretion by dismissing
Renobato’s claims with prejudice for failure to prosecute.
      First, we conclude that Compass has established a clear record of
Renobato’s delay and contumacious conduct before the district court and that the
delay was caused by Renobato’s personal and intentional conduct. The district
court gave Renobato three years to comply with its order compelling him to

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                                  No. 11-20417

arbitrate before it dismissed his first suit without prejudice. After Renobato
filed a motion for reconsideration, the district court gave him another twenty
days to initiate arbitration and re-file a motion for reconsideration of the court’s
dismissal order. But instead of complying with the district court’s orders,
Renobato attempted to circumvent the district court’s order compelling
arbitration by filing a virtually identical second lawsuit. Renobato then failed
to appear at a status conference after the district court had consolidated the two
cases. Based on this record, it is “evident that [Renobato] engaged in a pattern
of delay and contumacious conduct before the [district court] and that the delay
was caused by his personal and intentional conduct.”           Id. at 537; see id.
(“Moreover, Stearman’s frivolous arguments, . . . failure to cooperate and other
dilatory practices wasted the Tax Court’s resources. Because Stearman was pro
se, he was also personally responsible for the delay.”).
      Second, the district court did not abuse its discretion by dismissing
Renobato’s claims with prejudice because the record shows that the district court
employed lesser sanctions that proved to be futile. Stearman, 436 F.3d at 535.
After staying Renobato’s first suit pending arbitration, the district court gave
him three years to initiate arbitration before it dismissed his suit without
prejudice. Renobato moved for reconsideration of that order, and the district
court then gave him additional time to arbitrate his claims and reopen his suit
pending arbitration. But Renobato rejected this leniency by filing a second suit,
which raised the same arbitrability arguments that the district court had
already rejected. Given Renobato’s repeated failures to institute arbitration
proceedings under the agreement when the district court employed lesser
sanctions, we conclude that the record establishes that the district court
employed lesser sanctions that proved to be futile. Id.
      Lastly, we reject Renobato’s contention that the district court violated his
rights to due process by dismissing his claims without notice or a hearing.

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                                         No. 11-20417

“[W]hen circumstances make such action appropriate, a District Court may
dismiss a complaint for failure to prosecute even without affording notice of its
intention to do so or providing an adversary hearing before acting.” Link v.
Wabash R.R. Co., 370 U.S. 626, 633 (1962). “The adequacy of notice and hearing
respecting proceedings that may affect a party’s rights turns, to a considerable
extent, on the knowledge which the circumstances show such party may be
taken to have of the consequences of his own conduct.” Id. at 632. Given
Renobato’s long-standing failure to comply with the district court’s orders, his
attempt to re-litigate arbitrability issues that had already been decided against
him, and his decision not to appear at the status hearing, the district court did
not abuse its discretion in “dispens[ing] with the necessity for advance notice
and hearing.”        Id. at 633; see id. (“Whether such an order [dismissing a
complaint for failure to prosecute without notice and a hearing] can stand on
appeal depends not on power but on whether it was within the permissible range
of the court’s discretion.”).2
                                                III
       We affirm the district court’s judgment dismissing Renobato’s claims with
prejudice. Renobato’s motion to strike Compass’s brief is DENIED. His motion
for sanctions to be imposed against Compass is also DENIED.




       2
         See also Windward Agency, Inc. v. Cologne Life Reinsurance Co., 123 F. App’x 481, 484
(3d Cir. 2005) (“Where, however, a party fails for many years to abide by a district court order
to initiate arbitration proceedings, it is an issue for the district court, and not the non-existent
arbitration panel. The authority to dismiss for lack of prosecution, both on a defendant’s
motion and sua sponte, is an inherent control necessarily vested in courts to manage their own
affairs so as to achieve the orderly and expeditious disposition of cases.”) (citation omitted).

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