Hickey v. Wellesley Public, 1st Cir. (1993)

USCA1 Opinion
December 21, 1993

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
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.
____________________
No. 92-2012
LAURA HICKEY, ET AL.,
Plaintiffs, Appellants,
v.
WELLESLEY PUBLIC SCHOOL, ET AL.,
Defendants, Appellees.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
___________________
____________________
Before
Cyr, Boudin and Stahl,

Circuit Judges.
______________
____________________
Mary Ann Hickey and Laura Hickey on brief pro se.
_______________
____________
Albert S. Robinson on brief for appellees.
__________________
____________________
____________________
Per Curiam.
__________
briefs
and
discretion
We
have carefully
the record
in the
requiring, as a
on
reviewed the
appeal.
district court
We
find
order of
condition of proceeding
91-12558-WD, plaintiff Laura Hickey (1)
parties'
no abuse
July 15,
of
1992,
with her action
in
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
of Laura Hickey's
claims in her new action
the complaint
is well-grounded in
existing
or a
law
good faith
the basis
and explains why
fact and is
argument for
warranted by
the extension,
modification, or reversal of existing law.

We
pending
conclude
that,
the outcome
justifiably balanced
in
requiring
of the new
the
action, the
Laura's right
of access
$1,000
deposit
district court
to the
court
process
with
her
appropriately.
responsibility
The
litigation
to
use
record
that
process
presented
by
the
plaintiffs' previous lawsuit shows that the balance was wellstruck.
Plaintiffs'
argument
that
this
requirement
inappropriate because the defendants were not

party in
court
the first lawsuit
ordered
plaintiffs
is off
the deposit
had
abused
supported by the
because
the
process
the prevailing
the mark.
The district
it determined
- a
record - and not because
is
that the
conclusion
amply
it had determined
that the
defendants were the
lawsuit.
An order directing Laura to deposit $1,000 into the
Court's
Registry as a
lawsuit is within the

of this case,
that
plaintiff
defendant as
condition to proceeding
the first
with her new
court's power, warranted by the
and not an abuse
TXO Prod. Corp.,

_______________
prevailing party in
of discretion.
738 F.2d 968, 972 (8th

should be
a condition
required
to
of maintaining
See
___
facts
Kern v.
____
Cir. 1984) (holding

make a
payment
a second
to
action).
The
district
indigency
court
by
$6,598.50
requiring
it
delineation
gave
of
sufficient
deference
a $1,000
deposit
determined
was
warranted.
factors
to support
the
to Laura's
rather
than the
No
$1,000
further
figure was
required.
Similarly, we conclude that the court
discretion
While
in
it
appears
prejudice
or issue
requiring
the
that
the
submission
voluntary
did not abuse its

described
dismissal
above.
without
renders inapplicable the doctrines of either claim

preclusion to
Passenger Corp.
________________
v.
lawsuit, see
___
National R.R.
_____________
International Assoc. of Machinists &

_______________________________________
Aerospace Workers, 915

__________________
condition,
the new
in effect,
F.2d 43,
merely
48 (1st
requires
Cir.
Laura
1990), this
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
good
for
faith
argument
the extension,
reversal of existing law."
-3-
modification,
or a
or
Finally,
we are not persuaded by plaintiffs' claim that
they were prejudiced

them
a copy of
initially,
court
on
16, 1989
record.
We note,
the plaintiffs claim
that they
the
basis
of
Plaintiffs, themselves,
motion on April
until January
On March
dismiss plaintiffs'
filed an
judgment,
they were
not
February
legally
is
the defendants
pending in
16th
opposition to
Moreover, even
plaintiffs did not timely receive
1992, that
27, 1989,
appeals then
the
10, 1989.
failure to send
judgment.
of that judgment
by the
moved to
its February
that, insofar as
were unaware
belied
by the court's alleged
this
judgment.
defendants'
assuming that the
notice of that February 16

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,

________
_____________________________________
956
F.2d 1017,
1021 (11th
Cir. 1992); Mortgage
Guar. Ins.
____________________
Corp. v.
_____
1990),
Richard Carlyon Co., 904 F.2d

____________________
a severe
circumscription of
298, 300
plaintiffs'
(5th Cir.
freedom to
bring a later suit, LeCompte v. Mr. Chip, Inc., 528 F.2d 601,
________
______________
604 (5th Cir.
1976), or "so
outrageous as to demand
a full
-4-
appellate review,"
Yoffe v.
_____
126, 131 (5th Cir. 1978).

appealed,
and
arising from
we have
Keller Indus., Inc., 580

____________________
F.2d
In any event, since the plaintiffs

affirmed,
the hearing forecast
the July
15,
in the February
1992 order
16, 1989
judgment, plaintiffs' complaint about that judgment is moot.

We have considered
plaintiffs' remaining arguments
find them to be without merit.1

Affirmed.
_________
and
____________________
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
______ ______
__________________________
Buffalo, 906 F.2d 59, 61 (2d Cir. 1990) (a non-attorney
_______
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
_______________
v. Sanchez-Rivera, 681 F.2d 41, 42 (1st Cir. 1982) ("By law
______________
an individual may appear in federal courts only pro se or
through legal counsel. 28 U.S.C.
1654.").
-5-

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USCA1 Opinion

December 21, 1993

Cyr, Boudin and Stahl,

91-12558-WD, plaintiff Laura Hickey (1)

with her action

the Registry of the

Court, and (2) to file a submission with

the presiding judge

in 91-12558-WD that clarifies

claims in her new action

and explains why

modification, or reversal of existing law.

plaintiffs' previous lawsuit shows that the balance was wellstruck.

inappropriate because the defendants were not

the first lawsuit

record - and not because

defendants were the

An order directing Laura to deposit $1,000 into the

lawsuit is within the

with her new

court's power, warranted by the

and not an abuse

TXO Prod. Corp.,

738 F.2d 968, 972 (8th

Cir. 1984) (holding

did not abuse its

renders inapplicable the doctrines of either claim

International Assoc. of Machinists &

Aerospace Workers, 915

affirmative and supported showing of

what Fed. R. Civ. P. 11

otherwise finds implicit by a party's

signature - i.e., that

... [a] party constitutes

by the signer ... that to the best of the signer's knowledge,

and is warranted by existing law

reversal of existing law."

we are not persuaded by plaintiffs' claim that

they were prejudiced

the plaintiffs claim

plaintiffs did not timely receive

by the court's alleged

assuming that the

notice of that February 16

February 16th judgment granted voluntary dismissal

voluntary dismissal without prejudice which provides for a

"onerous," McGregor v. Board of Commrs. of Palm Beach County,

Cir. 1992); Mortgage

Richard Carlyon Co., 904 F.2d

126, 131 (5th Cir. 1978).

Keller Indus., Inc., 580

In any event, since the plaintiffs

the hearing forecast

judgment, plaintiffs' complaint about that judgment is moot.

plaintiffs' remaining arguments

find them to be without merit.1

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