Champlin v. Hallisey ( 1995 )

USCA1 Opinion

          October 19, 1995      [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT





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        No. 95-1030



                            NATHANIEL L. CHAMPLIN, ET AL.,



                                Plaintiffs, Appellees,



                                          v.



                                  JOHN D. HALLISEY,



                                Defendant, Appellant.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. Joseph L. Tauro, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                           Selya and Stahl, Circuit Judges.
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            John D. Hallisey on brief for appellant.
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            Nathaniel L. Champlin and Mildred I. Champlin on brief pro se.
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                      Per Curiam.   Attorney John  Hallisey appeals  from
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            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
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            Am.,  114 S. Ct.  1673, 1677 (1994).   We are  unable to tell
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            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.
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                      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
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            College,  613  F.2d  1200,  1202 (1st  Cir.  1980)  (assuming
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            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,
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            1220-22 (1st Cir. 1991) (citing AMF, Inc. v. Jewett, 711 F.2d
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            1096,  1100 (1st  Cir. 1983)).   The denial  of a  motion for



            contempt  is reviewed only for abuse of discretion.  Langton,
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            928  F.2d at  1220.   See  also  AMF, 711  F.2d  at 1100  ("a
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            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
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            sponte  while  his discovery  requests were  pending, without
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            1.  In the section of his brief setting forth our standard of

            review,  Hallisey says  that  we review  questions of  law de
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            novo,  but  fails to  follow up  this  truism with  the well-
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            settled standard of review in denial of contempt cases.



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            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.
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