Larry MARSHAK, Florida Entertainment Management, Inc., Appellants, v. Herb REED, John Doe Nos. 1-10, Appellees, 505 F. App'x 70

SUMMARY ORDER Larry Marshak and Florida Entertainment Management, Inc. (collectively, “Marshak”) appeal a March 12, 2012, order of the district court denying Marshak’s motion for contempt and granting Herb Reed’s motion to dismiss, as well as an April 24, 2012, order of the district court denying Marshak’s motion for reconsideration. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. We review the denial of a civil contempt motion for abuse of discretion, OSRecovery, Inc. v.

One Groupe Int'l, Inc., 462 F.3d 87, 93 (2d Cir.2006), and a Rule 12(b)(6) dismissal de novo, ATSI Commc’ns v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). The allegations underlying Marshak’s contempt motion mirror the substantive allegations in Marshak v. Reed, 11-cv-02582-NG-RML (E.D.N.Y.2012) (“Marshak II ”).Marshak argues that Reed violated an injunction entered by the district court in 2001 (“the 2001 Injunction”).

That injunction enforced the parties’ 1987 Stipulation of Settlement, which allowed Reed to pursue his claim to the “The Platters” trademark only “ ‘in the event that a court of competent jurisdiction enters a final order with all appeals being exhausted that provides that Five Platters, Inc. has no right in the name “The Platters[.]’”” Marshak v. Reed, No. 96 CV 2292-NG-MLO, 2001 WL 92225, at *10 (E.D.N.Y. Feb. 1, 2002) (“Marshak I”). Marshak cites Reed’s filing of a trademark infringement action against Five Platters, Inc. (“FPI”) in the United States District Court for the District of Nevada in 2010.

Reed’s affirmative efforts to thus trigger the “escape clause” are, according to Marshak, a violation of the court order. But neither the 2001 Injunction nor the 1987 Stipulation imposes such a restraint on Reed, in letter or spirit. They simply provide restrictions on Reed’s use of the name “The Platters,” to remain in effect until a court enters a final order determining that FPI has no right to the mark.

The 2001 Injunction does not limit Reed’s ability to trigger the escape clause, and the district court therefore acted well within its discretion in determining that Reed was not in contempt of its earlier order. Marshak advanced these same allegations in Marshak II, which the district court dismissed under Fed.R.Civ.P. 12(b)(6). The district court’s principal error, Marshak contends, is that it failed to conduct a separate Rule 12(b)(6) inquiry and improperly made findings of fact in deciding the motion.

But a review of the court’s opinion indicates that the district court applied the appropriate legal standard and independently considered Mars-hak’s claims for damages. Application of the same underlying rationale is not indicative of error; rather, it is a logical consequence of the overlap between Marshak’s contempt motion and his infringement action. Both initiatives rested on the same flawed legal theories, and both were properly dispatched without the need to engage in fact-finding. Consistency is not error.

Finding no merit in Marshak’s remaining arguments, we hereby AFFIRM the judgment of the district court. . 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 reinstated, Marshak v. Reed, 229 F.Supp.2d 179 (E.D.N.Y.2002), and ultimately affirmed in 2004, Marshak v. Reed, 87 Fed.Appx. 208 (2d Cir.2004).