Donato v. McCarthy

2001 DNH 183

Opinion

Donato v . McCarthy CV-00-039-M 10/09/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Sandra C . Donato, Plaintiff

v. Civil N o . 00-039-M Opinion N o . 2001 DNH 183 Sheilah F. McCarthy, Defendant

O R D E R

Defendant moves for an order requiring plaintiff to post a

security bond in the amount of $15,000 to ensure payment of

“costs and fees on appeal,” including an anticipated award of

attorney’s fees based on the asserted frivolous nature of

plaintiff’s appeal. Document N o . 54 See also Fed. R. App. P. 7

(“[T]he district court may require an appellant to file a bond or

provide other security in any form and amount necessary to ensure

payment of costs on appeal.”).

There appears to be some disagreement among the circuits as

to whether the “costs” referenced in Appellate Rule 7 are limited

to those taxable on appeal under Appellate Rules 38 and 3 9 , or whether they also include attorney’s fees specifically

recoverable by statute “as part of costs,” o r , indeed, whether

they even include attorney’s fees that might be awarded by the

court of appeals upon a determination that the appeal was

frivolous. A recent and thorough discussion of various competing

approaches may be found in the Second Circuit’s opinion in Adsani

v . Miller, 139 F.3d 67 (2d Cir. 1998).

The Court of Appeals for this circuit seems to have adopted,

by implication at any rate, a fairly liberal construction of Rule

7. In Sckolnick v . Harlow, 820 F.2d 13 (1st Cir. 1987) (per

curiam), the court affirmed a district court order requiring a

bond that included an amount to secure attorney’s fees that might

be awarded on appeal as a sanction for filing a frivolous appeal.

“The decision [in Sckolnick] demonstrates . . . that the First

Circuit interprets Rule 7 to permit a bond which [seeks] security

for a possible sanction in the form of attorney’s fees upon

appeal. By implication, ‘costs’ under Rule 7 would not exclude

attorney’s fees as a blanket rule for that court.” Adsani, 139

F.3d at 7 3 .

2 Given the precedent in this circuit, then, this court likely

has discretion to require plaintiff to post a bond to secure

appellate “costs” that include a possible award of attorney’s

fees as a sanction against plaintiff for having taken a frivolous

appeal. However, I decline to exercise that discretion in this

case, for several reasons.

First, pro se plaintiff’s appeal of this court’s immunity

finding, while unlikely to succeed, cannot be fairly condemned as

frivolous or objectively unreasonable. The facts upon which

plaintiff relies in arguing that an actionable and independent

attorney-client relationship existed between her and Attorney

McCarthy are, of course, unique to this case. One can certainly

postulate circumstances under which an attorney handling union

grievance cases might enter into a discrete professional

relationship with the grieving union member such that malpractice

claims could later be brought by the union member for substandard

work. This, in my judgment, is not such a case. But, pro se

plaintiff’s argument is not so far removed from the arena of

rational discourse that her appellate rights should be

3 unnecessarily encumbered by a significant (and perhaps

prohibitive) bond requirement.

Second, it is not at all clear that the court of appeals

would impose a sanction requiring a pro se appellant to pay

attorney’s fees rather than, say, double costs – assuming the

court finds the appeal to be frivolous. Third, the court of

appeals can easily assess the merits of plaintiff’s appeal and,

if appropriate, summarily affirm the judgment or dismiss the

appeal outright at a very early stage, on motion or sua sponte,

before any substantial expense is incurred by defendant. Fourth,

defendant’s allegations suggest that plaintiff owns a home and is

employed and, therefore, likely has sufficient financial

resources to pay the comparatively modest costs usually imposed

on appeal (even if such costs were to include defendant’s

attorney’s fees). Fifth, defendant has not made any effort to

quantify the anticipated costs she expects will be awarded if she

prevails, beyond simply declaring a $15,000 bond adequate to

cover them. Finally, imposing a substantial bond would probably

have a significant adverse effect on plaintiff’s ability to

4 obtain appellate review. While Rule 7 serves a legitimate

purpose, it should be applied carefully to avoid depriving a

plaintiff who might have a legitimate claim, but limited

financial resources, of the opportunity to have that claim

finally resolved on the merits. C f . Murphy v . Ginorio, 989 F.2d

566, 568 (1st Cir. 1993)(considering an analogous bond

requirement and concluding that, “The rule is a scalpel, to be

used with surgical precision as an aid to the even-handed

administration of justice, not a bludgeon to be employed as an

instrument of oppression.”) (quoting Aggarwal v . Ponce Sch. of

Medicine, 745 F.2d 723, 728 (1st Cir. 1984)).

Accordingly, the defendant’s motion to require plaintiff to

post an appellate security bond (document n o . 54) is denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge October 9, 2001

cc: Sandra C . Donato, pro se R. Matthew Cairns, Esq.