Joey Kimbrough v. American Express National Bank

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 9, 2025*
Decided July 9, 2025
Before
THOMAS L. KIRSCH II, Circuit Judge
JOHN Z. LEE, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 24-2971
JOEY KIMBROUGH,
Plaintiff-Appellant,
v.
AMERICAN EXPRESS NATIONAL
BANK,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of Indiana,
Indianapolis Division.
No. 1:22-cv-01993-TWP-MJD
Tanya Walton Pratt,
Chief Judge.
O R D E R
Joey Kimbrough appeals the dismissal of his lawsuit under the Fair Credit
Reporting Act for failure to prosecute. The district court dismissed his suit after he
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-2971 Page 2
failed to comply with the court’s directive to proceed with arbitration. Because the court
appropriately exercised its discretion to dismiss the case, we affirm.
In 2022, Kimbrough sued American Express National Bank and TransUnion for
violating the Fair Credit Reporting Act. See 15 U.S.C. §§ 1681e(b), 1681i(a), 1681s-2(b).
He alleged that he was a customer of American Express, that American Express had
reported inaccurate information about his credit history to TransUnion, and that neither
company had rectified the inaccuracies even after he pointed them out. He soon agreed
to dismiss TransUnion from the case.
American Express then moved to compel arbitration based on its cardholder
agreements with Kimbrough. The district court granted the motion, ordered
Kimbrough to initiate arbitration, and stayed the proceedings.
Kimbrough appealed the order to arbitrate, but we dismissed the appeal for lack
of jurisdiction because proceedings were still pending in the district court. Kimbrough
then refused to arbitrate for over a year, despite the district court’s warning that
inaction could result in the dismissal of his case.
In 2024, the district court dismissed the case for failure to prosecute. See F ED. R.
C IV. P. 41(b). The court cited Kimbrough’s continued and explicit refusal to comply with
its directive to initiate arbitration.
On appeal, Kimbrough mainly challenges the district court’s order to compel
arbitration. But we lack jurisdiction to review this interlocutory order. Interlocutory
orders typically do not “merge” into the final judgment when the final order is one
dismissing the case under Rule 41(b) for failure to prosecute. See R&C Oilfield Servs. LLC
v. Am. Wind Transp. Grp. LLC, 45 F.4th 655, 659-60 (3d Cir. 2022) (citing cases);
see also Sere v. Bd. of Trs., 852 F.2d 285, 288 (7th Cir. 1988) (refusing to review
interlocutory orders to avoid rewarding “dilatory and bad faith tactics” after case
dismissed as a discovery sanction). As the Third Circuit explained in a factual scenario
nearly identical to Kimbrough’s, an interlocutory order compelling arbitration could not
be reviewed where the appellant “sat on its rights for a year and a half and told the
District Court that it did not intend to comply with the order, leaving the Court no
choice but to involuntarily dismiss the complaint.” R&C Oilfield Servs., 45 F.4th at 661.
So too, here. We lack jurisdiction to review the district court’s order compelling
arbitration when it dismissed the case based on Kimbrough’s refusal to abide by its
order.

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No. 24-2971 Page 3
That leaves for review only the district court’s decision to dismiss for failure to
prosecute, and we discern no abuse of discretion there. A district court has “inherent
power” to dismiss a case for failure to prosecute when the plaintiff refuses to comply
with its orders, Next Millennium Telecom Co. v. Am. Signal Corp., 112 F.4th 481, 486 (7th
Cir. 2024) (internal quotation omitted), including orders to arbitrate. See McMahan v.
Deutsche Bank AG, 892 F.3d 926, 932 (7th Cir. 2018). Here, the court acted well within its
discretion to dismiss the case where Kimbrough, despite being notified of the possible
consequences of noncompliance, see Shaffer v. Lashbrook, 962 F.3d 313, 316 (7th Cir. 2020),
steadfastly refused to comply with the order to arbitrate.
AFFIRMED

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