Summary
finding no contempt based on conduct occurring after the arbitration award, but before the court confirmed that award, because the award was “not enforceable until it was confirmed by Court”
Summary of this case from Berland v. The Conclave, LLCOpinion
No. 92 CIV. 8377 (DLC).
September 26, 2001.
For Petitioner: Laurence S. Shtasel David S. Richan Dennis P. McCooe Blank Rome Comisky McCauley LLP One Logan Square Philadelphia, PA 19103.
For Respondent: Bernard Malina Malina Wolson 60 East 42nd Street New York, N Y 10165.
MEMORANDUM OPINION AND ORDER
Rabbi Don Yoel Levy and his brother, Eliezer Levy, doing business as Organized Kashruth Laboratories ("OK Labs"), brought this action in 1992, alleging infringement of OK Labs' kosher foods certification mark (the "Circle-K Mark") by respondent Kosher Overseers Association of America ("KOA"). In February 2000, this case was reassigned to this Court.
Following the Court's March 20, 2000 Opinion and Order denying KOA's motions for summary judgment and to amend its answer, the parties agreed to submit the case, which was on the Court's April 3, 2000 trial ready calendar, to binding arbitration. Accordingly, by Order dated March 30, 2000, the Court dismissed the trademark infringement case with prejudice based on the parties' agreement to submit their dispute to binding arbitration before the American Arbitration Association ("AAA"). on April 13, 2000, counsel for OK Labs filed a demand for arbitration with the AAA. On July 7, 2000, OK Labs filed an amended demand for arbitration in the name of the Donel Corporation ("Donel"), as successor in interest to the Circle-K Mark
On December 19, 2000, the arbitrator issued a decision in petitioner's favor. The decision, among other things, permanently enjoined KOA from using its Circle Crescent Mark, its Disc-K Mark, "or any other configuration or depiction of any letter K in any circle or circular disc, and from authorizing others to use such marks." On January 24, 2001, petitioner moved to confirm the arbitration award. In February 2001, while the motion to confirm was pending, petitioner discovered that The Kroger Co. was still marketing doughnuts that bore one of the KOA certification marks at issue in this case.
On March 8, 2001, petitioner's motion to confirm the arbitration award was granted. On March 29, 2001, petitioner moved to hold KOA in civil and criminal contempt for its alleged failure to comply with the arbitration award, based on Kroger's sale of goods bearing KOA's infringing certification marks in February 2001. On April 5, 2001, the Court referred this issue to Magistrate Judge Pitman. On August 9, 2001, Magistrate Judge Pitman issued his Report and Recommendation ("Report") recommending that petitioner's motion be denied. No objections to the Report have been received.
In reviewing the Report, I "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); see also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (noting that a court may accept a report if it is "not facially erroneous")
Having reviewed the Report, I find no facial errors in it. [T]he confirmation of an arbitration award . . . makes what is already a final arbitration award a judgment of the court." Yusuf Ahmed Alghanim Sons v. Toys "R" Us, Inc., 126 F.3d 15, 23 (2d Cir. 1997). The arbitration award entered in Donel's favor was therefore not enforceable until it was confirmed by this Court. See Hatzlachh Supply, Inc. v. Moishe's Elecs. Inc.. 848 F. Supp. 25, 28 (S.D.N.Y. 1994). Because the goods with the infringing certification marks were sold before the arbitration award was confirmed, KOA did not violate a court order and there is no basis for holding it in contempt. See Blue Sympathy Shipping Co. v. Serviocean Int'l S.A., No. 94 Civ. 2323 (55), 1994 WL 597144, at *2 (5.D.N.Y. July 6, 1994). Accordingly, it is hereby
ORDERED that petitioner's motion for an order of civil and criminal contempt is denied.
SO ORDERED: