08-5210-cv
Scipar, Inc. v. Simses
                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC D ATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A DATABASE, THE CITATIO N M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 2 nd day of December, two thousand nine.

PRESENT:                 REENA RAGGI,
                         PETER W. HALL,
                                          Circuit Judges.
                 BRIAN M. COGAN,*
                                          District Judge.
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SCIPAR, INC., a New York Corporation,

                                          Plaintiff-Appellant,
                              v.                                       No. 08-5210-cv

CAROLYN A. SIMSES, a Connecticut Resident,

                                          Defendant-Appellee,

KEVIN SIMSES, a Connecticut Resident,

                                          Defendant.
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           *
         District Judge Brian M. Cogan of the United States District Court for the Eastern
District of New York, sitting by designation.
APPEARING FOR APPELLANT:                     JOSEPH A. CAMARDO, JR., Camardo Law Firm,
                                             P.C., Auburn, New York.

APPEARING FOR APPELLEE:                      JO SE PH A . M A T T E L IA N O , A ugello &
                                             Matteliano, LLP, Buffalo, New York.


       Appeal from the United States District Court for the Western District of New York

(Richard J. Arcara, Chief Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the appeal of the district court’s September 29, 2008 order is DISMISSED

for lack of appellate jurisdiction, and DENIED to the extent it may be construed as a petition

for a writ of mandamus.

       Plaintiff Scipar, Inc. appeals from the district court’s denial of its motion for civil

contempt. It argues that the district court erred in concluding that (1) the parties’ stipulated

preliminary injunction and attachment, which the court approved on March 9, 2007, only

precluded Simses from disposing of property or funds in existence at the time of the

injunction, and not property or funds – including wages – that she might acquire in the future;

and (2) Simses had scrupulously complied with the terms of the injunction. We assume the

parties’ familiarity with the facts and the record of prior proceedings, which we reference

only as necessary to explain our decision.

       1.       Jurisdiction

       Because the denial of a motion for civil contempt is generally interlocutory rather than

final, see New York State Urban Dev. Corp. v. VSL Corp., 738 F.2d 61, 64 (2d Cir. 1984);

cf. International Bus. Machs. Corp. v. United States, 493 F.2d 112, 114-15 (2d Cir. 1973),1


       1
           We need not discuss the rare exceptions to this rule, as none applies in this case.

                                                2
our jurisdiction over this appeal depends on Scipar’s ability to show that it falls within one

or more of the narrow exceptions to the finality rule.

              a.      28 U.S.C. § 1292(a)(1)

       Scipar’s invocation of 28 U.S.C. § 1292(a)(1) to support jurisdiction is unconvincing.

Section 1292(a)(1) provides for appeals of “[i]nterlocutory orders of the district courts of the

United States . . . , granting, continuing, modifying, refusing or dissolving injunctions, or

refusing to dissolve or modify injunctions, except where a direct review may be had in the

Supreme Court.” It does not, however, provide for appeals of interlocutory orders merely

clarifying or interpreting injunctions. Jurisdiction in this case thus depends on whether the

“actual effect” of the district court’s September 29, 2008 order was to modify the March 9,

2007 preliminary injunction or simply to interpret it.        Weight Watchers Int’l, Inc. v.

Luigino’s, Inc., 423 F.3d 137, 141 (2d Cir. 2005).

       To answer this question, we consider the merits of Scipar’s claim, as an obvious

misinterpretation of the terms of an injunction constitutes a modification within the meaning

of § 1292(a)(1). See Equal Employment Opportunity Comm’n v. Local 40, Int’l Ass’n of

Bridge, Structural & Ornamental Iron Workers, 76 F.3d 76, 79 (2d Cir. 1996); Wilder v.

Bernstein, 49 F.3d 69, 72 (2d Cir. 1995); cf. United States v. O’Rourke, 943 F.2d 180, 186

(2d Cir. 1991) (noting when court “order[s] compliance with [a] misinterpretation” of

injunction, it modifies injunction). As our sister circuits have observed, this review is

necessarily limited, as “plung[ing] into the details [of a past injunction and the order on

appeal] would collapse the jurisdictional inquiry into a decision on the merits, thwarting the

purpose of § 1292(a)(1).” Birmingham Fire Fighters Ass’n v. Jefferson County, 280 F.3d

                                               3
1289, 1293 (11th Cir. 2002); see Southern Ute Indian Tribe v. Leavitt, 564 F.3d 1198, 1209

(10th Cir. 2009); Pimentel & Sons Guitar Makers v. Pimentel, 477 F.3d 1151, 1154-55 (10th

Cir. 2007); Gautreaux v. Chicago Hous. Auth., 178 F.3d 951, 957-58 (7th Cir. 1999).

       Applying these standards, we conclude that the September 29, 2008 order simply

interpreted the March 9, 2007 injunction. Far from negating the plain language of the

injunction, the order gave meaning to an undefined term (“property”) and thus clarified that

the injunction did not proscribe the conduct challenged by Scipar. The district court’s

definition of “property” plainly did not constitute an obvious misinterpretation of the

injunction. Rather, as the district court noted, it is the interpretation advocated by Scipar –

that the injunction precluded Simses from spending any of her wages, regardless of the nature

of the expense – that is the obvious misinterpretation.2 For these reasons, § 1292(a)(1) does

not provide jurisdiction over this appeal.

              b.     The Collateral Order Doctrine

       Scipar urges us to exercise jurisdiction pursuant to the collateral order doctrine, see

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), which applies only when an

order “[1] conclusively determine[s] the disputed question, [2] resolve[s] an important issue

completely separate from the merits of the action, and [3] [is] effectively unreviewable on




       2
         Even assuming the district court misinterpreted the injunction, that misinterpretation
would not support the conclusion that it erred in denying Scipar’s motion for contempt. It
is well-established that to be held in civil contempt for failure to comply with an order, the
order must be “clear and unambiguous.” Paramedics Electromedicina Comercial, Ltda. v.
GE Med. Sys. Info. Tech., Inc., 369 F.3d 645, 655 (2d Cir. 2004). Here, the very need to
define the term “property” indicates that the March 9, 2007 injunction did not satisfy that
standard.

                                              4
appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978);

accord Wabtec Corp. v. Faiveley Transp. Malmo AB, 525 F.3d 135, 138 (2d Cir. 2008).

       Assuming without deciding that the district court’s interpretation of the preliminary

injunction should be treated as an order denying security or denying or dissolving an

attachment, see Result Shipping Co. v. Ferruzzi Trading USA Inc., 56 F.3d 394, 398 (2d Cir.

1995) (recognizing orders denying security as “paradigms of final collateral orders that are

unreviewable on appeal from a final judgment” and thus often fall within scope of collateral

order doctrine), we have ruled that the interlocutory appeal of such an order is warranted only

where it “presents an important question of law whose resolution will guide courts in other

cases,” Banque Nordeurope S.A. v. Banker, 970 F.2d 1129, 1130-31 (2d Cir. 1992) (holding

that appeal involving mere “application of well-settled principles of law to particular facts”

should not be heard before final judgment); see also Kensington Int’l Ltd. v. Republic of

Congo, 461 F.3d 238, 241 (2d Cir. 2006) (“[E]ven if an order . . . satisfies Cohen, courts

have leeway to determine whether the issue on appeal is an important issue of law, the

resolution of which may have relevance for future cases.”); Result Shipping Co., Ltd. v.

Ferruzzi Trading USA Inc., 56 F.3d at 398-99 (exercising jurisdiction over appeal from

denial of security where Cohen requirements were met, appeal concerned “relatively

unexplored region of the law,” and “resolution of the[] issues [presented would] provide

necessary guidance to trial courts”). Because we discern no important question of law

presented by this appeal, we decline to assert jurisdiction under the collateral order doctrine.

The appeal is therefore dismissed for lack of jurisdiction.



                                               5
       2.     Construing the Appeal as a Petition for a Writ of Mandamus

       Where an appeal is dismissed for lack of jurisdiction, we may nevertheless treat it as

a petition for a writ of mandamus.3 See Kensington Int’l Ltd. v. Republic of Congo, 461

F.3d at 242; Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, 964 F.2d 159, 163 (2d

Cir. 1992). “Mandamus is not used simply to correct error,” Hong Mai Sa v. Doe, 406 F.3d

155, 158 (2d Cir. 2005) (internal quotation marks and citation omitted), but only to redress

“a judicial usurpation of power, or a clear abuse of discretion.” Cheney v. United States Dist.

Court for the Dist. of Columbia, 542 U.S. 367, 390 (2004) (internal quotation marks and

citations omitted). Because the district court’s interpretation of the preliminary injunction

and attachment was neither a “usurpation of power” nor a “clear abuse of discretion,” we

deny a writ of mandamus.

       3.     Conclusion

       For the foregoing reasons, this appeal is DISMISSED for lack of jurisdiction and, to

the extent it may be construed as a petition for a writ of mandamus, DENIED.




                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court

                                    By:




       3
        In doing so, we are generally required to give the district judge notice and an
opportunity to respond. See Fed. R. App. P. 21(b). In this case, however, because “the
inappropriateness of mandamus relief is clear on the face of the record,” such notice is
unnecessary. Kensington Int’l Ltd. v. Republic of Congo, 461 F.3d at 242.

                                              6
