Nationalist v. City of Boston ( 1994 )

USCA1 Opinion

        December 19, 1994       [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

        No. 94-1827

                              THE NATIONALIST MOVEMENT,

                                Plaintiff, Appellant,

                                          v.

                            CITY OF BOSTON, MASSACHUSETTS,

                                 Defendant, Appellee.


                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
___________
                            Coffin, Senior Circuit Judge,
____________________
                              and Stahl, Circuit Judge.
_____________

                                 ____________________

            Richard Barrett on brief for appellant.
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            Albert  W. Wallis, Claudia Billings McKelway, Krisna Basu on brief
_________________  _________________________  ___________
        for appellee.


                                 ____________________


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               Per Curiam.   Pursuant to  Local Rule 83.5.3  of the  United

          States  District  Court for  the  District  of Massachusetts,  an

          application for  admission to the  court pro  hac vice  requires,
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          inter alia, that a member of the bar enter an appearance and move
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          the applicant's  admission.   Richard  Barrett, a  leader of  and

          attorney for the Nationalist Movement, failed to comply with this

          requirement  and  the  Movement  appeals  the  resulting  summary

          dismissal of its lawsuit.   Barrett asserted below and  on appeal

          that  his  diligent  efforts   to  secure  local  counsel  proved

          unsuccessful,  attributing  this   failure  to  the   Nationalist

          Movement's  controversial views.    He argues  that, under  these

          circumstances, dismissing his lawsuit  for failure to comply with

          Rule 83.5.3 violates several constitutional provisions.

               After careful consideration of  the briefs, we are uncertain

          whether appellant was, in fact, unable to locate local counsel to

          move  his admission  pro  hac  vice.   In  order  to protect  the
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          integrity  of  these  proceedings,  and  to  avoid  the  needless

          adjudication of serious questions of law based upon what might be

          an  inaccurate factual  premise, we  vacate the  district court's

          judgment  of dismissal  and  remand for  a  hearing to  determine

          whether appellant, after diligent effort, was unable to  find any

          local counsel, and whether any local counsel can now be located.

               If local  counsel  is found  the lawsuit  could proceed,  in

          which case we assume  the court would address the question of the

          continued viability of  appellant's claims in  light of the  fact

          that the  parade took  place, albeit in  an allegedly  restricted


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          form.  If the  district court determines that Barrett  engaged in

          diligent  but unavailing  efforts to  find local  counsel and  it

          again  dismisses the suit, appellant, of course, would be free to

          appeal  again.     If  the  district  court  finds  that  Barrett

          misrepresented  his efforts to  locate local counsel,  or that he

          declined  any offer by local  counsel to appear,  it may consider

          whatever sanctions, including those described by  Fed. R. Civ. P.

          11, it deems appropriate.  

               No costs.




































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