     12-2147
     Marshak v. Reed

                          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 13th day of December, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RALPH K. WINTER,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       LARRY MARSHAK, FLORIDA ENTERTAINMENT
14       MANAGEMENT, INC.,
15                Appellants,
16
17                     -v.-                                                12-2147
18
19       HERB REED, JOHN DOE NOS. 1-10,
20                Appellees.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR APPELLANT:                        CAMERON S. REUBER, Leason Ellis
24                                             LLP, New York, New York (Yuval
25                                             Marcus, Leason Ellis LLP, New
26                                             York, New York, on the brief).
27


                                                  1
 1   FOR APPELLEES:             ERIC M. SOMMERS, Sommers Law,
 2                              PLLC, Portsmouth, New Hampshire
 3                              (Robert J. Burns, Daniel I.
 4                              Small, Holland & Knight LLP, New
 5                              York, New York, on the brief).
 6
 7        Appeal from a judgment of the United States District
 8   Court for the Eastern District of New York (Gershon, J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that the judgment of the district court be
12   AFFIRMED.
13
14        Larry Marshak and Florida Entertainment Management,
15   Inc. (collectively, “Marshak”) appeal a March 12, 2012,
16   order of the district court denying Marshak’s motion for
17   contempt and granting Herb Reed’s motion to dismiss, as well
18   as an April 24, 2012, order of the district court denying
19   Marshak’s motion for reconsideration. We assume the
20   parties’ familiarity with the underlying facts, the
21   procedural history, and the issues presented for review.
22
23        We review the denial of a civil contempt motion for
24   abuse of discretion, OSRecovery, Inc. v. One Groupe Int’l,
25   Inc., 462 F.3d 87, 93 (2d Cir. 2006), and a Rule 12(b)(6)
26   dismissal de novo, STSI Commc’ns v. Shaar Fund, Ltd., 493
27   F.3d 87, 98 (2d Cir. 2007).
28
29        The allegations underlying Marshak’s contempt motion
30   mirror the substantive allegations in Marshak v. Reed, 11-
31   cv-02582-NG-RML (E.D.N.Y. 2012) (“Marshak II”). Marshak
32   argues that Reed violated an injunction entered by the
33   district court in 2001 (“the 2001 Injunction”). That
34   injunction enforced the parties’ 1987 Stipulation of
35   Settlement, which allowed Reed to pursue his claim to the
36   “The Platters” trademark only “‘in the event that a court of
37   competent jurisdiction enters a final order with all appeals
38   being exhausted that provides that Five Platters, Inc. has
39   no right in the name “The Platters[.]”’” Marshak v. Reed,
40   No. 96 CV 2292-NG-MLO, 2001 WL 92225, at *10 (E.D.N.Y. Feb.
41   1, 2002) (“Marshak I”).1 Marshak cites Reed’s filing of a


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