12-2147 Marshak v. Reed



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 .**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 13 th** **day of December, two thousand twelve.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **RALPH K. WINTER,** 8 **SUSAN L. CARNEY,** 9 **Circuit Judges**

**.** 10 11 - - - - - - - - - - - - - - - - - - - -X 12 **LARRY MARSHAK, FLORIDA ENTERTAINMENT** 13 **MANAGEMENT, INC.,** 14 **Appellants ,**  15 16 **-v.- 12-2147** 17 18 **HERB REED, JOHN DOE NOS. 1-10,** 19 **Appellees**

**.** 20 - - - - - - - - - - - - - - - - - - - -X 21 22 **FOR APPELLANT:** CAMERON S. REUBER, Leason Ellis 23 LLP, New York, New York (Yuval 24 Marcus, Leason Ellis LLP, New 25 York, New York, on the brief ). 26 27

1**FOR APPELLEES:** ERIC M. SOMMERS, Sommers Law, 1 PLLC, Portsmouth, New Hampshire 2 (Robert J. Burns, Daniel I. 3 Small, Holland & Knight LLP, New 4 York, New York, on the brief ). 5 6 Appeal from a judgment of the United States District 7 Court for the Eastern District of New York (Gershon, J. ). 8 9 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 10 **AND DECREED**that the judgment of the district court be 11
**AFFIRMED**

. 12 13 Larry Marshak and Florida Entertainment Management, 14 Inc. (collectively, “Marshak”) appeal a March 12, 2012, 15 order of the district court denying Marshak’s motion for 16 contempt and granting Herb Reed’s motion to dismiss, as well 17 as an April 24, 2012, order of the district court denying 18 Marshak’s motion for reconsideration. We assume the 19 parties’ familiarity with the underlying facts, the 20 procedural history, and the issues presented for review. 21 22 We review the denial of a civil contempt motion for 23 abuse of discretion, OSRecovery, Inc. v. One Groupe Int’l, 24 Inc. , 462 F.3d 87, 93 (2d Cir. 2006), and a Rule 12(b)(6) 25 dismissal de novo , STSI Commc’ns v. Shaar Fund, Ltd. , 493 26 F.3d 87, 98 (2d Cir. 2007). 27 28 The allegations underlying Marshak’s contempt motion 29 mirror the substantive allegations in Marshak v. Reed , 11- 30 cv-02582-NG-RML (E.D.N.Y. 2012) (“Marshak II ”). Marshak 31 argues that Reed violated an injunction entered by the 32 district court in 2001 (“the 2001 Injunction”). That 33 injunction enforced the parties’ 1987 Stipulation of 34 Settlement, which allowed Reed to pursue his claim to the 35 “The Platters” trademark only “‘in the event that a court of 36 competent jurisdiction enters a final order with all appeals 37 being exhausted that provides that Five Platters, Inc. has 38 no right in the name “The Platters[.]”’” Marshak v. Reed
, 39 No. 96 CV 2292-NG-MLO, 2001 WL 92225, at *10 (E.D.N.Y. Feb. 40 1, 2002) (“Marshak I ”). 1Marshak cites Reed’s filing of a 41

1Marshak 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

2trademark infringement action against Five Platters, Inc. 1 (“FPI”) in the United States District Court for the District 2 of Nevada in 2010. Reed’s affirmative efforts to thus 3 trigger the “escape clause” are, according to Marshak, a 4 violation of the court order. 5 6 But neither the 2001 Injunction nor the 1987 7 Stipulation imposes such a restraint on Reed, in letter or 8 spirit. They simply provide restrictions on Reed’s use of 9 the name “The Platters,” to remain in effect until a court 10 enters a final order determining that FPI has no right to 11 the mark. The 2001 Injunction does not limit Reed’s ability 12 to trigger the escape clause, and the district court 13 therefore acted well within its discretion in determining 14 that Reed was not in contempt of its earlier order. 15 16 Marshak advanced these same allegations in Marshak II
, 17 which the district court dismissed under Fed. R. Civ. P. 18 12(b)(6). The district court’s principal error, Marshak 19 contends, is that it failed to conduct a separate Rule 20 12(b)(6) inquiry and improperly made findings of fact in 21 deciding the motion. But a review of the court’s opinion 22 indicates that the district court applied the appropriate 23 legal standard and independently considered Marshak’s claims 24 for damages. Application of the same underlying rationale 25 is not indicative of error; rather, it is a logical 26 consequence of the overlap between Marshak’s contempt motion 27 and his infringement action. Both initiatives rested on the 28 same flawed legal theories, and both were properly 29 dispatched without the need to engage in fact-finding. 30 Consistency is not error. 31 32 Finding no merit in Marshak’s remaining arguments, we 33 hereby **AFFIRM** the judgment of the district court. 34 35 36 FOR THE COURT: 37 CATHERINE O’HAGAN WOLFE, CLERK 38 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).

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