
USCA1 Opinion

	




          October 19, 1995      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                             ____________________        No. 95-1030                            NATHANIEL L. CHAMPLIN, ET AL.,                                Plaintiffs, Appellees,                                          v.                                  JOHN D. HALLISEY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            John D. Hallisey on brief for appellant.            ________________            Nathaniel L. Champlin and Mildred I. Champlin on brief pro se.            _____________________     ___________________                                 ____________________                                 ____________________                      Per Curiam.   Attorney John  Hallisey appeals  from                      __________            the  district  court's  dismissal  of his  motion  for  civil            contempt.    Hallisey claims  that  his  former clients,  the            Champlins, should be held in contempt for not complying  with            a fee settlement that was approved and signed by the district            court in a case that has been closed.                      Hallisey  characterizes the  alleged breach  of the            fee settlement as a "refusal  to obey [the district  court's]            judgment."   The term "judgment," however,  begs the question            of  subject matter  jurisdiction:   absent  some  independent            basis    for   federal    jurisdiction,   dismissal-producing            settlement agreements  are not  enforceable in federal  court            unless  the   district  court  has  ensured   its  continuing            ancillary jurisdiction by making  "the parties' obligation to            comply with the settlement agreement . . . part of  the order            of dismissal."   See Kokkonen  v. Guardian Life  Ins. Co.  of                             ___ ________     ___________________________            Am.,  114 S. Ct.  1673, 1677 (1994).   We are  unable to tell            ___            from the  record presented to  us whether the  district court            preserved its  ancillary jurisdiction in this matter, "either            by  separate  provision  (such   as  a  provision  `retaining            jurisdiction'   over   the   settlement  agreement)   or   by            incorporating the  terms of  the settlement agreement  in the            order."  Id.                     ___                      In any  event, because the  merits of the  case are            easily resolved  in favor  of the  parties who would  benefit            from an objection  to jurisdiction, we  need not resolve  the            jurisdictional  issue.   See  Manning  v.  Trustees of  Tufts                                     ___  _______      __________________            College,  613  F.2d  1200,  1202 (1st  Cir.  1980)  (assuming            _______            district court had  subject matter jurisdiction  to entertain            motion for a preliminary  injunction; upholding the denial of            the  motion).    The  complainant in  a  contempt  proceeding            carries  the "heavy burden" of  proving contempt by clear and            convincing  evidence.   Langton v.  Johnston, 928  F.2d 1206,                                    _______     ________            1220-22 (1st Cir. 1991) (citing AMF, Inc. v. Jewett, 711 F.2d                                            _________    ______            1096,  1100 (1st  Cir. 1983)).   The denial  of a  motion for            contempt  is reviewed only for abuse of discretion.  Langton,                                                                 _______            928  F.2d at  1220.   See  also  AMF, 711  F.2d  at 1100  ("a                                  ___  ____  ___            district  court's  refusal to  find  contempt  should not  be            overturned lightly").1                      The  district   court  dismissed  the   motion  for            contempt because "[n]o factual basis" had been proffered.  We            think  it meant  that Hallisey's  allegations, even  if true,            fell  short of  clear  and convincing  evidence of  contempt.            There was no abuse of discretion in this determination.                      Hallisey  argues that  the district  court deprived            him  of due process by dismissing the motion for contempt sua                                                                      ___            sponte  while  his discovery  requests were  pending, without            ______                                            ____________________            1.  In the section of his brief setting forth our standard of            review,  Hallisey says  that  we review  questions of  law de                                                                       __            novo,  but  fails to  follow up  this  truism with  the well-            ____            settled standard of review in denial of contempt cases.                                         -3-            giving  him an opportunity to plead the factual basis for his            claims.   We think that Hallisey had an adequate opportunity,            if not in his  motion for contempt, certainly in  his related            motion for summary judgment, to present the factual basis for            his  claims.  The district court did not abuse its discretion            by denying the motion for contempt.                      Affirmed.                      ________                                         -4-
