
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          December 21, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.   We  have carefully  reviewed the  parties'                 __________            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.                                                             ___  ____            TXO Prod. Corp.,  738 F.2d 968, 972 (8th  Cir. 1984) (holding            _______________            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.                                                       ___  _____________            Passenger  Corp.  v.  International Assoc.  of  Machinists  &            ________________      _______________________________________            Aerospace  Workers, 915  F.2d 43,  48 (1st  Cir.  1990), this            __________________            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."                                         -3-                 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,                       ________    _____________________________________            956  F.2d 1017,  1021 (11th  Cir. 1992); Mortgage  Guar. Ins.                                                     ____________________            Corp. v.  Richard Carlyon  Co., 904 F.2d  298, 300  (5th Cir.            _____     ____________________            1990),  a severe  circumscription of  plaintiffs'  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.  Keller Indus.,  Inc., 580  F.2d                                _____     ____________________            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.                 _________                                            ____________________            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-
