USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1642
LAURA HICKEY,
Plaintiff, Appellant,
v.
WELLESLEY PUBLIC SCHOOLS, ET AL.,
Defendants, Appellees.
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No. 94-1965
LAURA HICKEY,
Plaintiff, Appellant,
v.
WELLESLEY SCHOOL COMMITTEE, ET AL.,
Defendants, Appellees.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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Boudin, Circuit Judge.
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Laura Hickey on briefs pro se.
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Albert S. Robinson on briefs for appellees.
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January 25, 1995
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Per Curiam. We have carefully reviewed the parties'
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briefs and the record on appeal. Insofar as appellant
contends that the district court was without jurisdiction to
issue its order of dismissal, dated April 29, 1994, she is
incorrect. Mandate in appellant's prior appeal issued on
February 18, 1994. "The effect of the mandate is to bring
the proceedings in a case on appeal in our Court to a close
and to remove it from the jurisdiction of this Court,
returning it to the forum whence it came." Ostrer v. United
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States, 584 F.2d 594, 598 (2d Cir. 1978); accord United
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States v. Rush, 738 F.2d 497, 509 (1st Cir. 1984) ("it is the
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date on which the mandate is issued which determines when the
district court reacquires jurisdiction for further
proceedings"), cert. denied, 470 U.S. 1004 (1985). Moreover,
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the mere filing of a petition for certiorari without also
timely asking for, and obtaining, a stay of mandate did not
prevent the district court from acting as it did. "[N]either
the right to petition for a writ of certiorari nor the actual
filing of such a petition stays enforcement of the judgment
sought to be reviewed by certiorari." 2 Fed Proc, L Ed
3:131 (1994).
Secondly, we do not find that the district court abused
its discretion in ordering dismissal in this case. See Link
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v. Wabash R.R., 370 U.S. 626, 633 (1962) (reciting that the
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proper standard is abuse of discretion). In Cosme Nieves v.
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Deshler, 826 F.2d 1, 2 (1st Cir. 1987), we said that "[i]n
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all the cases in which we have upheld a dismissal for want of
prosecution, we have found either extremely protracted
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inaction (measured in years), disobedience of court orders,
ignorance of warnings, contumacious conduct, or some other
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aggravating circumstance." Id. (Emphasis added.) We have
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defined "other aggravating circumstances" to include
"prejudice to the defendant, glaring weaknesses in the
plaintiff's case, and the wasteful expenditure of a
significant amount of the district court's time." Enlace
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Mercantil Internacional v. Senior Indus., 848 F.2d 315, 317
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(1st Cir. 1988) (footnotes omitted). Appellant's litigation
efforts in this matter are directed at dragging out claims of
dubious merit beyond any reasonable expectation of success.
We recite but a brief overview.
In 1988, the state Department of Education determined
that the defendants had fully complied with federal and state
law. Also in 1988, the district court, in denying successive
requests for preliminary injunctive relief, made a
determination that appellant's lawsuit was not likely to be
successful. After filing appeals from each of the denials of
preliminary injunctive relief, appellant's mother, who was
litigating on her then-minor daughter's behalf, moved for an
expedited trial, but then three times failed to attend her
scheduled deposition - in each instance, giving very short
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notice that she would not attend - and on the fourth
scheduled date, abruptly terminated the deposition. Two days
before the scheduled fifth date, she informed the court that
she and appellant had moved to Texas and asked to voluntarily
dismiss the lawsuit without prejudice.
Three years later, appellant sought to reinstitute
essentially the same lawsuit. Presumably, appellant
graduated in June 1989; yet there is no explanation for the
2+ years of inactivity from then until the attempted
reinstitution in September 1991. Although the district court
found that full payment of the defendants' fees and expenses
($6,598.50) in defending the aborted suit would be justified,
in recognition of the appellant's indigency, it required only
that appellant deposit $1,000 into the Court's Registry
pending the outcome of the new lawsuit and to file a
clarification of the basis for her new action. We affirmed
that order as a justifiable balance of appellant's right of
access to the court process with her responsibility to use
that process appropriately. After granting an extension of
time in which to file it, we denied appellant's petition for
rehearing. As noted, mandate issued on February 18, 1994.
The district court warned appellant, by order dated
March 9, 1994, that her suit would be dismissed for lack of
prosecution unless, by April 15, she deposited the $1,000 in
the Court Registry and filed the required written
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clarification. Appellant's response was tepid, at best. She
informed the district court of her "interest" in filing a
motion to recall mandate in the court of appeals and her
"intention" to timely seek certiorari in the Supreme Court.1
She did not seek a stay pending her attempts at further
review, offer to pay even part of the $1,000, file the
written clarification or suggest why even that filing would
be burdensome. Her response is best viewed for what it truly
represents - more delaying tactics, unlikely to succeed, and
not warranting the withholding of dismissal.
The "glaring weaknesses in the plaintiff's case" are
self-evident even from this summary recitation of the course
of this litigation. In 1988, the state Bureau of Special
Education Appeals determined that the defendants had fully
complied with state and federal law. Also in 1988, the
district court, in denying preliminary injunctive relief,
concluded that she was unlikely to prevail on the merits.
Nothing since that time suggests the contrary. And, the
defendants have had to endure appellant's "dodging and
weaving" tactics of litigation -- which consisted of pressing
for injunctive relief and expedited trial in 1988, only to
come to a screeching halt when prospects of success looked
dim, and then springing to life again three years later in
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1. Certiorari was, in fact, denied on October 3, 1994.
Hickey v. Wellesley Sch. Comm., 115 S. Ct. 112 (1994).
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1991, resulting in another three years of litigation. This
case has consumed more amount of the district court's time
than it warrants.
Finally, appellant has appealed from an order denying
her motion "to correct the record and request for accounting
from court of all handwritten notes, books, documents,
records, papers, tapes, etc. of the Court's Order of
Dismissal dated April 29, 1994." Appellant claims that she
did not receive a copy of the dismissal order until May 26,
and so, she further claims, dismissal must have actually
occurred on May 23 or 24, but was back-dated to April 29. We
have grave doubts about each of these allegations. Appellant
also has failed to support her claim that she is entitled to
"handwritten notes" and the like. In any event, the district
court gave appellant an extension of time to file a notice of
appeal from the order of dismissal. We have considered that
appeal and it is meritless.
The order of dismissal and the order denying the motion
to correct the record and for an accounting are affirmed.
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