October 19, 1995 [NOT FOR PUBLICATION]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.
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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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