18‐2527 
Broker Genius Inc. v. Seat Scouts LLC 

                                                       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.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 1st day of March, two thousand and nineteen.

Present:
                             PETER W. HALL,
                             GERARD E. LYNCH,
                                 Circuit Judges,
                             PAUL A. ENGELMAYER,*
                                 District Judge.

Broker Genius Inc.,

                            Plaintiff-Counter-Defendant-Appellee,
v.
                                                                                        18-2527-cv
Drew Gainor, Seat Scouts LLC,

                           Defendants-Counter-Claimants-Appellants,

Guinio Volpone, Event Ticket Sales LLC, Ray Volpone,
4311 N 161st St Omaha, NE 68116, Stuart Gainor, 69 Yates
Rd Manalapan, NJ 07726, Volpone Software LLC, 7202
Giles Road Suite 4 #330 La Vista, NE 68128, Gainor
Software LLC, 5706 Belmont Valley Ct. Raleigh, NC 27602

                             Defendants.


                                                            
*
     Paul A. Engelmayer, United States District Judge for the Southern District of New York, sitting by
     designation. 
For Appellee:                    VERONICA MULLALLY MUNOZ (Daniel J. Melman, on the
                                 brief), Pearl Cohen Zedek Latzer Baratz LLP, New York,
                                 New York.

For Appellant:                   CHRISTOPH C. HEISENBERG (Andrew Miltenberg, on the
                                 brief), Hinckley & Heisenberg LLP, New York, New York.




      Appeal from May 14 and August 24, 2018 orders of the United States District Court

for the Southern District of New York (Stein, J.).


      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the portion of the appeal challenging the district court’s order of May

14, 2018 entering a preliminary injunction against appellants is DISMISSED as moot and

that the portion of the appeal challenging the order of August 24, 2018 finding appellants

in contempt is DISMISSED for lack of jurisdiction.

      Appellants Drew Gainor and Seat Scouts, LLC (collectively, “Seat Scouts”) appeal the

district court’s order preliminarily enjoining Seat Scouts from making its product Command

Center available to the public. Seat Scouts also appeals from the district court’s order

finding it in contempt based on Seat Scouts’s launch of its Event Watcher application. On

February 7, 2019, the district court entered a permanent injunction, precluding Seat Scouts

from making and distributing any application derived from Broker Genius’s product

AutoPricer. We assume the parties’ familiarity with the underlying facts, the procedural

history, and the arguments presented on appeal, which we recite only as necessary to

explain our decision.




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              A. Preliminary Injunction

              Due to the district court’s entry of a permanent injunction, Broker Genius asks us to

dismiss Seat Scouts’s appeal as moot. We agree. When a district court enters a permanent

injunction, it renders an appeal from a preliminary injunction moot. See, e.g., Webb v. GAF

Corp., 78 F.3d 53, 56 (2d Cir. 1996) (holding entry of a permanent injunction moots an

appeal from a preliminary injunction), Town of W. Hartford v. Operation Rescue, 991 F.3d

1039, 1043 (2d Cir. 1993) (dismissing appeal from preliminary injunction upon entry of

permanent injunction), Rosado v. Wyman, 437 F.2d 619, 624-25 (2d Cir. 1970) (concluding

that the entry of a permanent injunction left the preliminary injunction “technically no

longer operative” such that an appeal from the preliminary injunction was moot). The

district court’s February 7 entry of a permanent injunction has mooted Seat Scouts’s appeal

of the preliminary injunction.1

              B. Order of Contempt

              Seat Scouts argues that the district court improperly extended the preliminary

injunction in finding that the use of Event Watcher was barred by the injunction and, as a

result, holding Seat Scouts in contempt. We do not have jurisdiction to review this argument

because the order holding Seat Scouts in contempt, without also imposing sanctions, is not

a final order. See Forschner Grp., Inc. v. Arrow Trading Co., Inc., 124 F.3d 402, 410 (2d Cir.

1997) (holding that “an order adjudging a party in contempt unaccompanied by sanctions is

not final and therefore is not appealable”); see also In re Tronox Inc., 855 F.3d 84, 96-97 (2d


                                                            
1 Broker Genius also seeks a limited remand to the district court for the purpose of requesting that the district
court reduce the security posted by Broker Genius in compliance with the district court’s preliminary
injunction. That motion is denied as moot, essentially for the same reasons that the appeal of the injunction
is dismissed.

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Cir. 2017) (holding that an order entered by the district court in connection with a pending

contempt motion but that made no contempt finding and awarded no contempt sanctions

was not an appealable final order); cf. SEC v. Smith, 710 F.3d 87, 94 (2d Cir. 2013)

(explaining that appellate courts have jurisdiction to review unappealable issues only when

they are “inextricably bound up with” a preliminary injunction such that “review of the

otherwise unappealable issue is necessary to ensure meaningful review of the appealable

one” (internal quotation marks omitted)).

      Here, the district court stated:

      [t]his Court has no evidence with respect to what damages Broker Genius has
      suffered as a result of defendants’ contempt. The parties may make additional
      submissions on that subject within 31 days or if they’re able [to] reach an
      agreed-upon amount themselves, subject to approval by the Court obviously.

App. 105. The district court’s statement clearly contemplates an assessment of damages

that has yet to be made. We are therefore without jurisdiction to review the contempt order

as it currently stands.

      The appeal from the order dated May 14, 2018, entering the preliminary injunction,

is DISMISSED as moot. We DISMISS for lack of jurisdiction the appeal from the order

dated August 24, 2018 holding Seat Scouts in contempt.

                                         FOR THE COURT:
                                         Catherine O’Hagan Wolfe, Clerk of Court




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