09-4451-cv (L), 09-4759-cv (xap)
U tica C oll. v. G ordon



                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 11 th day of August, two thousand ten.

PRESENT:             REENA RAGGI,
                     GERARD E. LYNCH,
                     DENNY CHIN,
                               Circuit Judges.

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UTICA COLLEGE,
         Plaintiff-Appellee-Cross-Appellant,

                               v.                                                      Nos.   09-4451-cv (L)
                                                                                              09-4759-cv (xap)
GARY R. GORDON,
          Defendant-Appellant-Cross-Appellee,

JUDITH GORDON,
          Defendant.*
------------------------------------------------------------------------------------




          *
        As Gary Gordon was the only party held in contempt by the district court and the
only party named in the notice of appeal as appealing the district court’s judgment, he is the
only appellant in this matter. Accordingly, the clerk of court is directed to amend the official
caption to read as shown above.
APPEARING FOR APPELLANT-                  MATTHEW BRYANT (Paul Kemnitzer, on the
CROSS-APPELLEE:                           brief), Ohrenstein & Brown, LLP, Garden City,
                                          New York.

APPEARING FOR APPELLEE-                   DANIEL BURGESS (J.K. Hage III, on the brief),
CROSS-APPELLANT:                          Hage & Hage, LLC, Utica, New York.

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

(David N. Hurd, Judge).

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

DECREED that the judgment entered on October 16, 2009, is AFFIRMED.

       Plaintiff Utica College and defendant Gary Gordon resolved litigation arising from

the termination of Gordon’s employment as a visiting professor of economic crime

management and executive director of the Center for Identity Management and Information

Protection (“CIMIP”) by entering into a consent judgment that, inter alia, prohibited Gordon

from possessing a range of materials created, produced, received, or maintained by him in

the course of his employment. When Gordon thereafter publicly presented the findings of

a report he had worked on during his Utica College employment, the college moved pursuant

to Fed. R. Civ. P. 70 to hold him in contempt. Both parties now appeal from different parts

of the district court’s contempt judgment, which we review for abuse of discretion. See

United States v. Chusid, 372 F.3d 113, 117 (2d Cir. 2004). We assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.




                                               2
       1.     Gordon’s Appeal

              a.     Gordon’s Challenge to the Contempt Finding

       “A party may be held in civil contempt for failure to comply with a court order if ‘(1)

the order the contemnor failed to comply with is clear and unambiguous, (2) the proof of

noncompliance is clear and convincing, and (3) the contemnor has not diligently attempted

to comply in a reasonable manner.’” Paramedics Electromedicina Comercial, Ltda. v. GE

Med. Sys. Info. Techs., Inc., 369 F.3d 645, 655 (2d Cir. 2004) (quoting King v. Allied

Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir. 1995)).

       Gordon submits that the May 9, 2008 consent judgment did not clearly and

unambiguously preclude him from receiving copies of the October 2007 Identity Fraud

Trends and Patterns report and related PowerPoint slides and presenting them at a meeting

hosted by the Department of Homeland Security. See King v. Allied Vision, Ltd., 65 F.3d

at 1058 (“A clear and unambiguous order is one that leaves no uncertainty in the minds of

those to whom it is addressed.” (internal quotation marks omitted)). Gordon does not dispute

that the consent judgment clearly required him to deliver to Utica College “all documents,”

including the report and slides, which “were created, produced, received, or maintained by”

him or his wife in the course of their employment “without retaining any copies of the

Items.” Consent Judgment ¶ 2. Nor does Gordon dispute that the judgment clearly enjoined

him “from otherwise transferring, assigning, maintaining, damaging, possessing, or otherwise

doing anything” with such items “that is inconsistent with this Order.” Id. Rather, Gordon


                                              3
maintains that the consent judgment simply did not address copies of the documents he

produced that were possessed by CIMIP’s former partners, including LexisNexis Special

Services, Inc., the entity from whom Gordon received the challenged report; much less did

it expressly bar him from “receiving” or “using” any such copies. See generally Perez v.

Danbury Hosp., 347 F.3d 419, 424 (2d Cir. 2003) (stating that courts “may not impose

supplementary obligations on the parties” to consent judgment “even to fulfill the purposes

of the decree more effectively”).

       We are not persuaded. The consent judgment may not have altered the rights of

CIMIP’s former partners – who were not parties to the settled litigation – to possess and use

the report at issue. But that does not absolve Gordon from his clear agreement neither to

possess nor to retain any copies of the challenged report or PowerPoint slides. Gordon

submits that this obligation pertains only to those tangible copies of documents that he

possessed at the time of his termination. The plain language of the consent judgment is to

the contrary. It “permanently enjoin[s]” Gordon from “possessing” “all documents” created

by him in the course of his employment with plaintiff, not particular copies thereof. Consent

Judgment ¶ 2. Thus, we agree with the district court that however Gordon came to receive

the challenged report or PowerPoint slides, his possession was a violation of the clear terms

of the consent judgment. See, e.g., Webster’s Third New International Dictionary of the

English Language Unabridged 1894 (1986) (defining “receive” as “to take possession or

delivery of”). That Gordon was the principal investigator on the report and slides raises no


                                             4
“fair ground of doubt as to the wrongfulness of [his] conduct” in procuring a report that the

consent judgment permanently enjoined him from possessing. King v. Allied Vision, Ltd.,

65 F.3d at 1058 (internal quotation marks omitted).

       Gordon asserts that even if Utica College proved that he violated the consent

judgment, it failed to demonstrate that he did so willfully or in bad faith. No such showing

is required. See McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949) (“The

absence of wilfulness does not relieve from civil contempt.”); Paramedics Electromedicina

Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d at 655. Further, Gordon’s

argument that he “diligently attempted to comply in a reasonable manner” by returning

tangible copies of any documents to Utica College, Paramedics Electromedicina Comercial,

Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d at 655, establishes only that he complied

with the consent judgment’s delivery obligation, not with its separate prohibition on any

possession.

       To the extent Utica College argues that the consent judgment means Gordon can never

again use or possess a copy of a publicly available report that he wrote while employed by

Utica College, effectively preventing him from consulting the data in that report in his

ongoing academic research, we do not consider whether such an agreement raises public

policy concerns as Gordon makes no such challenge. In any event, Gordon was not held in

contempt for possessing only the report. Gordon also used and displayed a copyrighted

PowerPoint presentation that Utica College clearly may protect. Of course, if Gordon


                                             5
believes that there are policy or other grounds for modifying or voiding the consent

judgment, particularly as it pertains to a report available to the public, his remedy is to

present those grounds to the district court, not to defy the judgment. Cf. Barcia v. Sitkin, 367

F.3d 87, 98-99 (2d Cir. 2004) (discussing standard for applications to modify consent

judgments pursuant to Fed. R. Civ. P. 60).

       Accordingly, we cannot conclude that the district court abused its discretion in

holding Gordon in contempt of the consent judgment.

              b.      Gordon’s Cross-Motion for Attorney’s Fees

       Gordon contends that the district court abused its discretion in denying his cross-

motion for attorney’s fees under 17 U.S.C. § 505, which states that “[i]n any civil action

under this title, the court in its discretion may allow the recovery of full costs by or against

any party” and that “the court may also award a reasonable attorney’s fee to the prevailing

party as part of the costs.” Gordon points to no authority, however, permitting us to construe

a Fed. R. Civ. P. 70 contempt motion as a civil action under the Copyright Act simply

because, in support of its motion, Utica College submitted an affidavit from its president

referring to Gordon’s presentation of the 2007 report as copyright infringement.1 Even




       1
         The district court understood Gordon’s cross-motion for attorney’s fees to challenge
Utica College’s copyright registration, not any assertion of copyright damages in the
contempt motion. We need not decide whether this was error because, in any event, we
conclude that Gordon is not entitled to attorney’s fees under § 505. See Doninger v. Niehoff,
527 F.3d 41, 50 n.2 (2d Cir. 2008) (permitting affirmance on any ground appearing in
record).

                                               6
assuming the possibility of such a construction, Gordon’s argument fails because he is not

a “prevailing party.” The district court entered judgment for Utica College and awarded it

$1 in compensatory damages. See Garcia v. Yonkers Sch. Dist., 561 F.3d 97, 102 (2d Cir.

2009) (“[A] ‘prevailing party’ is one who has favorably effected a ‘material alteration of the

legal relationship of the parties’ by court order.” (quoting Buckhannon Bd. & Care Home,

Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001))); Black’s Law

Dictionary 1232 (9th ed. 2009) (defining “prevailing party” as “[a] party in whose favor a

judgment is rendered, regardless of the amount of damages awarded”). Accordingly, we

identify no abuse of discretion in the district court’s denial of Gordon’s cross-motion.2

       2.     Utica College’s Cross-Appeal

       Utica College cross-appeals from the district court’s damages award, which the

college challenges as too low, and from its denial of the college’s motion for appointment

of a third-party monitor to ensure Gordon’s compliance with the consent judgment. “Judicial

sanctions in civil contempt proceedings may, in a proper case, be employed for either or both

of two purposes; to coerce the defendant into compliance with the court’s order, and to

compensate the complainant for losses sustained.” United States v. United Mine Workers

of Am., 330 U.S. 258, 303 (1947); accord FTC v. Verity Int’l, Ltd., 443 F.3d 48, 70 (2d Cir.

2006). The district court has “wide discretion” with respect to the former purpose. Vuitton


       2
        Like the district court, we express no view as to the validity of Utica College’s
copyright registration or of any argument that Gordon’s conduct might have infringed that
copyright.

                                              7
et Fils S.A. v. Carousel Handbags, 592 F.2d 126, 130 (2d Cir. 1979). But “some proof of

loss must be present to justify” the latter. New York State Nat’l Org. for Women v. Terry,

886 F.2d 1339, 1353 (2d Cir. 1989); see also Weitzman v. Stein, 98 F.3d 717, 719 (2d Cir.

1996) (“The compensatory goal, by contrast, can only be met by awarding to the plaintiff any

proven damages.” (emphasis added)). Our review of the record confirms that the district

court correctly awarded only nominal compensatory damages because the challenged report

was available to the public and subject to the federal government’s royalty-free, unlimited

license for any federal purpose.3 Moreover, the fact that Utica College has not been able to

articulate any legitimate rationale for the prohibition that was violated by Gordon further

supports the district court’s conclusion that Utica College is entitled to only nominal

monetary damages for Gordon’s breach. Further, even assuming that Fed. R. Civ. P. 70(a)

permitted the district court to appoint a third party not to perform any specific act mandated

by the consent judgment, but rather to investigate the extent of Gordon’s noncompliance, we

identify no abuse of discretion in the district court’s decision that such an appointment was

not warranted here. Accordingly, we decline the college’s invitation to remand the case for




       3
         Because Gordon does not challenge that part of the district court’s order directing
the entire sanction to be paid to Utica College, we need not decide how much of the
additional $2,500 awarded was intended to compensate for reasonable attorney’s fees and
how much was to coerce future obedience. See New York State Nat’l Org. for Women v.
Terry, 886 F.2d at 1353-54 (holding that coercive sanctions should be paid to court and
modifying contempt order accordingly); accord King v. Allied Vision, Ltd., 65 F.3d at 1062-
63.

                                              8
a further damages hearing.4

       We have considered the parties’ other arguments on appeal and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

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




       4
         Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d 126, compels no different
conclusion. There, the district court did not permit plaintiff to prove contempt damages
because the court incorrectly held that the injunction did not bind defendants in the absence
of service of process. See id. at 128-29. Thus, in remanding, we observed that plaintiff
“should be afforded an opportunity to prove its damages” if defendants were held in
contempt. Id. at 131. By contrast, in this case, the district court found contempt and afforded
Utica College an opportunity to prove damages, which it failed to do. Under these
circumstances, we need not remand to give Utica College a second chance to prove damages.

                                              9
