12-2147

Marshak v. Reed

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 13th 4 day of December, two thousand twelve.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 RALPH K. WINTER,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11

12 - - - - - - - - - - - - - - - - - - - -X

13 LARRY MARSHAK, FLORIDA ENTERTAINMENT

14 MANAGEMENT, INC., 

15 Appellants,

16

17 -v.- 12-2147

18

19 HERB REED, JOHN DOE NOS. 1-10, 

20 Appellees.

21 - - - - - - - - - - - - - - - - - - - -X

22

23 FOR APPELLANT: CAMERON S. REUBER, Leason Ellis

24 LLP, New York, New York (Yuval

25 Marcus, Leason Ellis LLP, New

26 York, New York, on the brief).

27

1
1 FOR APPELLEES: ERIC M. SOMMERS, Sommers Law,

2 PLLC, Portsmouth, New Hampshire

3 (Robert J. Burns, Daniel I.

4 Small, Holland & Knight LLP, New

5 York, New York, on the brief). 

6

7 Appeal from a judgment of the United States District

8 Court for the Eastern District of New York (Gershon, J.).

9

10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

11 AND DECREED that the judgment of the district court be

12 AFFIRMED. 

13

14 Larry Marshak and Florida Entertainment Management,

15 Inc. (collectively, “Marshak”) appeal a March 12, 2012,

16 order of the district court denying Marshak’s motion for

17 contempt and granting Herb Reed’s motion to dismiss, as well

18 as an April 24, 2012, order of the district court denying

19 Marshak’s motion for reconsideration. We assume the

20 parties’ familiarity with the underlying facts, the

21 procedural history, and the issues presented for review.

22

23 We review the denial of a civil contempt motion for

24 abuse of discretion, OSRecovery, Inc. v. One Groupe Int’l,

25 Inc., 462 F.3d 87, 93 (2d Cir. 2006), and a Rule 12(b)(6)

26 dismissal de novo, STSI Commc’ns v. Shaar Fund, Ltd., 493

27 F.3d 87, 98 (2d Cir. 2007). 

28

29 The allegations underlying Marshak’s contempt motion

30 mirror the substantive allegations in Marshak v. Reed, 11-

31 cv-02582-NG-RML (E.D.N.Y. 2012) (“Marshak II”). Marshak

32 argues that Reed violated an injunction entered by the

33 district court in 2001 (“the 2001 Injunction”). That

34 injunction enforced the parties’ 1987 Stipulation of

35 Settlement, which allowed Reed to pursue his claim to the

36 “The Platters” trademark only “‘in the event that a court of

37 competent jurisdiction enters a final order with all appeals

38 being exhausted that provides that Five Platters, Inc. has

39 no right in the name “The Platters[.]”’” Marshak v. Reed,

40 No. 96 CV 2292-NG-MLO, 2001 WL 92225, at *10 (E.D.N.Y. Feb.

1, 2002) (“Marshak I”).1 41 Marshak cites Reed’s filing of a

1 Marshak I was initially affirmed by this Court in

2001, Marshak v. Reed, 13 Fed. Appx. 19 (2d Cir. 2001),

subsequently vacated and remanded in 2002, Marshak v. Reed,

34 Fed. Appx. 8 (2d Cir. 2002), later reconsidered and

2
1 trademark infringement action against Five Platters, Inc.

2 (“FPI”) in the United States District Court for the District

3 of Nevada in 2010. Reed’s affirmative efforts to thus

4 trigger the “escape clause” are, according to Marshak, a

5 violation of the court order. 

6

7 But neither the 2001 Injunction nor the 1987

8 Stipulation imposes such a restraint on Reed, in letter or

9 spirit. They simply provide restrictions on Reed’s use of

10 the name “The Platters,” to remain in effect until a court

11 enters a final order determining that FPI has no right to

12 the mark. The 2001 Injunction does not limit Reed’s ability

13 to trigger the escape clause, and the district court

14 therefore acted well within its discretion in determining

15 that Reed was not in contempt of its earlier order.

16

17 Marshak advanced these same allegations in Marshak II,

18 which the district court dismissed under Fed. R. Civ. P.

19 12(b)(6). The district court’s principal error, Marshak

20 contends, is that it failed to conduct a separate Rule

21 12(b)(6) inquiry and improperly made findings of fact in

22 deciding the motion. But a review of the court’s opinion

23 indicates that the district court applied the appropriate

24 legal standard and independently considered Marshak’s claims

25 for damages. Application of the same underlying rationale

26 is not indicative of error; rather, it is a logical

27 consequence of the overlap between Marshak’s contempt motion

28 and his infringement action. Both initiatives rested on the

29 same flawed legal theories, and both were properly

30 dispatched without the need to engage in fact-finding. 

31 Consistency is not error.

32

33 Finding no merit in Marshak’s remaining arguments, we

34 hereby AFFIRM the judgment of the district court.

35

36

37 FOR THE COURT:

38 CATHERINE O’HAGAN WOLFE, CLERK

39

40

41

42

reinstated, Marshak v. Reed, 229 F. Supp. 179 (E.D.N.Y.

2002), and ultimately affirmed in 2004, Marshak v. Reed, 87

Fed. Appx. 208 (2d Cir. 2004).

3