Pierno v. Fidelity Brokerage Servs., LLC, 20-3711-cv

Pro se plaintiff Rinaldo Pierno sued Fidelity Brokerage, challenging Fidelity’s freezing of his brokerage accounts after transfers from an account where he served as trustee and seeking declarations that Fidelity could not interfere and that his claims were not subject to arbitration.
District court concluded the customer agreement’s arbitration clause governed and stayed the lawsuit pending arbitration.
Pierno repeatedly refused to initiate arbitration and instead filed motions requesting a jury trial and other filings in district court.
After more than a year and a half of intentional delay, and despite notice that dismissal was possible, the district court dismissed the action for failure to prosecute.
Pierno appealed and moved in this Court for a writ of mandamus or prohibition and to supplement the appellate record; the Second Circuit affirmed and denied the motions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Arbitrability / FAA applicability	FAA is unconstitutional; New York law should control arbitration clauses	FAA is constitutional and governs arbitrability under the parties’ agreement	FAA is constitutional; arbitration clause governs; Pierno waived other arguments raised only on appeal
Who must initiate arbitration / responsibility for delay	Fidelity should have initiated arbitration or designated forum	Under the customer agreement and practice, the party with the grievance (Pierno) must commence arbitration	Pierno was required to initiate arbitration; his failure to do so caused the delay
Dismissal for failure to prosecute	Dismissal was improper; Fidelity’s delay or actions caused issues	Dismissal appropriate after intentional, prolonged refusal to arbitrate and prior notice of dismissal	Dismissal affirmed as not an abuse of discretion under the Drake factors given lengthy intentional delay and prior notice
Extraordinary writs and supplementation of record	Requests for mandamus/prohibition and supplementation present exceptional circumstances	No exceptional circumstances; Rule 10(e)(2) not for new evidence on appeal	Motions for mandamus, prohibition, and to supplement record denied

Perry v. Thomas, 482 U.S. 483 (FAA embodies Congress’ Commerce Clause enforcement of arbitration agreements)
Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (FAA is valid under the Commerce Clause)
Lewis v. Rawson, 564 F.3d 569 (2d Cir.) (review standard for dismissal for failure to prosecute)
United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248 (2d Cir.) (five-factor test for dismissal for failure to prosecute)
Steele v. L.F. Rothschild & Co., 864 F.2d 1 (2d Cir.) (mandamus considerations in arbitration-clause disputes)
In re United States, 680 F.2d 9 (2d Cir.) (mandamus available only for exceptional circumstances)
Ex parte Republic of Peru, 318 U.S. 578 (writ of prohibition limited to exceptional cases)