USCA1 Opinion
December 21, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2011
MARY ANN HICKEY, ON BEHALF OF
LAURA HICKEY, A MINOR, &
MARY ANN HICKEY, INDIVIDUALLY,
Plaintiffs, Appellants,
v.
WELLESLEY SCHOOL COMMITTEE, ET AL.,
Defendants, Appellees.
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No. 92-2012
LAURA HICKEY, ET AL.,
Plaintiffs, Appellants,
v.
WELLESLEY PUBLIC SCHOOL, ET AL.,
Defendants, Appellees.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Mary Ann Hickey and Laura Hickey on brief pro se.
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Albert S. Robinson on brief for appellees.
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Per Curiam. We have carefully reviewed the parties'
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briefs and the record on appeal. We find no abuse of
discretion in the district court order of July 15, 1992,
requiring, as a condition of proceeding with her action in
91-12558-WD, plaintiff Laura Hickey (1) to deposit $1,000 in
the Registry of the Court, and (2) to file a submission with
the presiding judge in 91-12558-WD that clarifies the basis
of Laura Hickey's claims in her new action and explains why
the complaint is well-grounded in fact and is warranted by
existing law or a good faith argument for the extension,
modification, or reversal of existing law.
We conclude that, in requiring the $1,000 deposit
pending the outcome of the new action, the district court
justifiably balanced Laura's right of access to the court
process with her responsibility to use that process
appropriately. The litigation record presented by the
plaintiffs' previous lawsuit shows that the balance was well-
struck. Plaintiffs' argument that this requirement is
inappropriate because the defendants were not the prevailing
party in the first lawsuit is off the mark. The district
court ordered the deposit because it determined that the
plaintiffs had abused the process - a conclusion amply
supported by the record - and not because it had determined
that the defendants were the prevailing party in the first
lawsuit. An order directing Laura to deposit $1,000 into the
Court's Registry as a condition to proceeding with her new
lawsuit is within the court's power, warranted by the facts
of this case, and not an abuse of discretion. See Kern v.
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TXO Prod. Corp., 738 F.2d 968, 972 (8th Cir. 1984) (holding
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that plaintiff should be required to make a payment to
defendant as a condition of maintaining a second action).
The district court gave sufficient deference to Laura's
indigency by requiring a $1,000 deposit rather than the
$6,598.50 it determined was warranted. No further
delineation of factors to support the $1,000 figure was
required.
Similarly, we conclude that the court did not abuse its
discretion in requiring the submission described above.
While it appears that the voluntary dismissal without
prejudice renders inapplicable the doctrines of either claim
or issue preclusion to the new lawsuit, see National R.R.
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Passenger Corp. v. International Assoc. of Machinists &
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Aerospace Workers, 915 F.2d 43, 48 (1st Cir. 1990), this
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condition, in effect, merely requires Laura to make an
affirmative and supported showing of what Fed. R. Civ. P. 11
otherwise finds implicit by a party's signature - i.e., that
"[t]he signature of ... [a] party constitutes a certificate
by the signer ... that to the best of the signer's knowledge,
information, and belief formed after reasonable inquiry it is
well grounded in fact and is warranted by existing law or a
good faith argument for the extension, modification, or
reversal of existing law."
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Finally, we are not persuaded by plaintiffs' claim that
they were prejudiced by the court's alleged failure to send
them a copy of its February 16, 1989 judgment. We note,
initially, that, insofar as the plaintiffs claim that they
were unaware of that judgment until January 1992, that is
belied by the record. On March 27, 1989, the defendants
moved to dismiss plaintiffs' appeals then pending in this
court on the basis of the February 16th judgment.
Plaintiffs, themselves, filed an opposition to defendants'
motion on April 10, 1989. Moreover, even assuming that the
plaintiffs did not timely receive notice of that February 16
judgment, they were not legally prejudiced by it. The
February 16th judgment granted voluntary dismissal
on condition that, if and when plaintiffs
(or either of them) seek to refile any
claim asserted in this case, defendants
will be allowed a hearing on their
request for an order that the plaintiffs
pay the costs and expenses incurred by
defendants in the present action before
proceeding with the new action.
A voluntary dismissal without prejudice which provides for a
future hearing in the event of a future lawsuit is neither
"onerous," McGregor v. Board of Commrs. of Palm Beach County,
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956 F.2d 1017, 1021 (11th Cir. 1992); Mortgage Guar. Ins.
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Corp. v. Richard Carlyon Co., 904 F.2d 298, 300 (5th Cir.
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1990), a severe circumscription of plaintiffs' freedom to
bring a later suit, LeCompte v. Mr. Chip, Inc., 528 F.2d 601,
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604 (5th Cir. 1976), or "so outrageous as to demand a full
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appellate review," Yoffe v. Keller Indus., Inc., 580 F.2d
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126, 131 (5th Cir. 1978). In any event, since the plaintiffs
appealed, and we have affirmed, the July 15, 1992 order
arising from the hearing forecast in the February 16, 1989
judgment, plaintiffs' complaint about that judgment is moot.
We have considered plaintiffs' remaining arguments and
find them to be without merit.1
Affirmed.
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1. We note that, in plaintiffs' previous lawsuit, plaintiff
Mary Ann Hickey represented herself pro se during most of the
proceedings therein. This is permissible with respect to her
own claims. It appears, however, that Mary Ann was also
permitted to represent her daughter, Laura, who was at that
time, a minor. Contra Cheung v. Youth Orchestra Found. of
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Buffalo, 906 F.2d 59, 61 (2d Cir. 1990) (a non-attorney
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parent must be represented by counsel in bringing an action
on behalf of his or her child).
In any event, Laura, who is now an adult, is the sole
plaintiff in 91-12558-WD. In this, and any future
proceeding, Laura must either be represented by counsel or
she may represent herself, pro se. Mary Ann Hickey may not
file pleadings or appear on Laura's behalf. Herrera-Venegas
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v. Sanchez-Rivera, 681 F.2d 41, 42 (1st Cir. 1982) ("By law
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an individual may appear in federal courts only pro se or
through legal counsel. 28 U.S.C. 1654.").
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