         12-0362-cv (L)
         WD Music v. Muller

                                 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
 4       New York, on the 20th day of December, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                PETER W. HALL,
 8                         Circuit Judges.
 9                RICHARD W. GOLDBERG,
10                         Judge.*
11
12
13
14       WD MUSIC PRODUCTS, INC.
15
16                                     Plaintiff-Appellant-Cross-Appellee,
17
18                       -v.-                                        Nos. 12-0362-cv (Lead)
19                                                                         12-519-cv (XAP)
20       ANTHONY MULLER and DDDDC, INC.,
21
22                                     Defendants-Appellees-Cross-Appellants.
23
24
25
26       FOR APPELLANT:                Randall S.D. Jacobs, PLLC, New York, NY.
27
28       FOR APPELLEES:                Michael A. Freeman, Greenberg Freeman
29                                     LLP, New York, NY.
30

                 *
                The Honorable Richard W. Goldberg, of the United States
         Court of International Trade, sitting by designation.
1         Appeal from the United States District Court for the
2    Eastern District of New York (Amon, C.J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the order be AFFIRMED.

6        WD Music Products, Inc. appeals from a December 29,

7    2011 judgment entered by the United States District Court

8    for the Eastern District of New York (Amon, C.J.) following

9    the court’s grant of defendants’ motion to dismiss the

10   complaint under the doctrine of res judicata.   WD Music

11   Prods., Inc. v. Muller, No. 11 CV 1588, 2011 WL 6838272

12   (E.D.N.Y. Dec. 29, 2011).   Defendants Anthony Muller and

13   DDDDC, Inc. cross-appeal from the court’s accompanying

14   denial of their motion for sanctions under Federal Rule of

15   Civil Procedure 11 and 28 U.S.C. § 1927.   We assume the

16   parties’ familiarity with the facts and procedural history

17   of the case.

18       We affirm the dismissal of WD Music’s complaint for

19   substantially the same reasons stated by the district court.

20   In sum, WD Music’s second state-court action was brought to

21   a final conclusion by the New York State Supreme Court’s

22   dismissal on res judicata grounds.   “This decision of the

23   New York State Supreme Court itself creates a preclusive


                                   2
1    effect.”     See Hameed v. Aldana, 296 Fed. Appx. 154, 155 (2d

2    Cir. 2008).    New York law provides that “once a claim is

3    brought to a final conclusion, all other claims arising out

4    of the same transaction or series of transactions are

5    barred, even if based upon different theories or if seeking

6    a different remedy.”     See id. (quoting O’Brien v. City of

7    Syracuse, 54 N.Y.2d 353, 357 (1981) (internal quotations

8    omitted)).    If WD Music believed that either of the state

9    court’s decisions was incorrect, its remedy was to appeal.

10       The district court did not abuse its discretion in

11   denying defendants’ motion for sanctions.     See Perez v.

12   Posse Comitatus, 373 F.3d 321, 325 (2d Cir. 2004) (“Even if

13   the district court concludes that the assertion of a given

14   claim violates Rule 11, . . . the decision whether or not to

15   impose sanctions is a matter for the court’s discretion.”);

16   In re 60 E. 80th St. Equities, Inc., 218 F.3d 109, 115 (2d

17   Cir. 2000) (“Sanctions [under 28 U.S.C. § 1927] may be

18   imposed . . . only when there is a finding of conduct

19   constituting or akin to bad faith.”) (internal quotations

20   omitted).

21

22

                                     3
1       We have considered the parties’ remaining arguments and

2   find them to be without merit.   For the reasons stated

3   above, the judgment of the district court is AFFIRMED.

4

5                              FOR THE COURT:
6                              Catherine O’Hagan Wolfe, Clerk
7
8




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