08-5210-cv
`Scipar, Inc. v. Simses
`
`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`SUMMARY ORDER
`
`RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY
`ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED 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 WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A
`CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR
`BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).” A PARTY CITING A SUMMARY
`ORDER M UST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN
`WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
`UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
`PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
`HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
`OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE REFERENCE TO THAT
`DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS 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 day of December, two thousand nine.
`nd
`
`PRESENT: REENA RAGGI,
`PETER W. HALL,
`
`Circuit Judges.
`BRIAN M. COGAN,*
`District Judge.
`------------------------------------------------------------------
`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.
`--------------------------------------------------------------------
`
` District Judge Brian M. Cogan of the United States District Court for the Eastern
`*
`District of New York, sitting by designation.
`
`
`Scipar, Inc. v. Simses
`
`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`SUMMARY ORDER
`
`RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY
`ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED 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 WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A
`CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR
`BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).” A PARTY CITING A SUMMARY
`ORDER M UST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN
`WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
`UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
`PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
`HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
`OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE REFERENCE TO THAT
`DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS 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 day of December, two thousand nine.
`nd
`
`PRESENT: REENA RAGGI,
`PETER W. HALL,
`
`Circuit Judges.
`BRIAN M. COGAN,*
`District Judge.
`------------------------------------------------------------------
`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.
`--------------------------------------------------------------------
`
` District Judge Brian M. Cogan of the United States District Court for the Eastern
`*
`District of New York, sitting by designation.
`
`
`
`APPEARING FOR APPELLANT:
`
`APPEARING FOR APPELLEE:
`
`JOSEPH A. CAMARDO, JR., Camardo Law Firm,
`P.C., Auburn, New York.
`
`JOSEPH A. MATTELIANO, Augello &
`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. For these reasons, § 1292(a)(1) does
`2
`
`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
`
` Even assuming the district court misinterpreted the injunction, that misinterpretation
`2
`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. See Kensington Int’l Ltd. v. Republic of Congo, 461
`3
`
`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:
`
` In doing so, we are generally required to give the district judge notice and an
`3
`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
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