Test Masters Educational Svc v. Robin Singh Educat , 799 F.3d 437 ( 2015 )


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  •      Case: 13-20250   Document: 00513165585     Page: 1   Date Filed: 08/21/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 13-20250                         FILED
    August 21, 2015
    TEST MASTERS EDUCATIONAL SERVICES, INC.,
    Lyle W. Cayce
    Clerk
    Plaintiff - Appellant
    v.
    ROBIN SINGH EDUCATIONAL SERVICES, INC.; ROBIN SINGH,
    Defendants - Appellees
    _______________________________________________
    Cons w/ 13-20327
    ROBIN SINGH EDUCATIONAL SERVICES, INCORPORATED; ROBIN
    SINGH, doing business as Testmasters;
    Plaintiffs - Appellants
    v.
    TESTMASTERS EDUCATIONAL SERVICES, INCORPORATED,
    Defendant - Appellee
    v.
    DANIEL J SHEEHAN, JR.,
    Appellant
    _________________________
    Cons/W 14-20113
    TEST MASTERS EDUCATIONAL SERVICES, INCORPORATED,
    Case: 13-20250   Document: 00513165585     Page: 2   Date Filed: 08/21/2015
    Plaintiff - Appellee
    v.
    ROBIN SINGH EDUCATIONAL SERVICES, INCORPORATED; ROBIN
    SINGH,
    Defendants - Appellants
    Appeals from the United States District Court
    for the Southern District of Texas
    Before HIGGINBOTHAM, DAVIS, and SOUTHWICK, Circuit Judges.
    LESLIE H. SOUTHWICK, Circuit Judge:
    This consolidated appeal involves a dispute between two test preparation
    companies with competing claims to the TESTMASTERS trademark. The
    parties have been litigating the issue for over a decade. This is the fourth time
    one of the parties has appealed to this court. We are again asked to consider
    various issues related to their trademark dispute, mainly whether each party
    is entitled to federal registration of the mark. The district court granted both
    parties’ motions for summary judgment, denying nationwide registration to
    both. In addition, we have before us an appeal from a different district court’s
    order finding one of the parties and his attorney to be in contempt, and
    ordering the attorney to be briefly jailed. We VACATE the finding of contempt
    entered against Daniel Sheehan. We otherwise AFFIRM.
    FACTUAL AND PROCEDURAL BACKGROUND
    Both parties are in the test preparation business.       They each offer
    courses designed to help individuals pass or achieve higher scores on various
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    standardized tests. The problem, and the catalyst of this ongoing litigation, is
    that both parties offer these courses using the “TESTMASTERS” name. 1
    Test Masters Educational Services, Inc. (“TES”) operates under the
    name “Testmasters.” TES was founded by Haku Israni in 1991 and started
    offering test preparation courses for multiple entrance and licensing exams in
    1992. TES initially concentrated on engineering licensing exams, but has since
    expanded to offer courses for a variety of other exams, including the LSAT.
    Until 2002, TES offered live courses only in Texas, primarily in Houston; it has
    since expanded to offer courses outside of the state. Vivek (“Roger”) Israni,
    Haku Israni’s son, is the current owner and president of TES.
    Robin Singh Educational Services, Inc. and its owner, Robin Singh
    (collectively “Singh”), started offering test preparation courses under the name
    “TestMasters” in 1991. Singh initially offered only LSAT courses in California,
    but has since expanded to offer courses nationwide for a variety of exams.
    Singh applied for federal registration of TESTMASTERS in June 1995.
    The United States Patent and Trademark Office (“PTO”) initially denied his
    application, finding that there were three substantially similar marks already
    registered. In March 1999, after determining that none of the three marks
    were still in use, the PTO approved Singh’s application.
    Apparently, neither party knew of the other until that time. After the
    PTO granted Singh registration of the mark, he attempted to create a website.
    He discovered that TES already owned the domain name “testmasters.com.”
    Singh’s attorney sent TES a demand letter, claiming that TES’s use of the
    domain name infringed Singh’s trademark rights.
    1   The parties have, at various times described the trademark they seek as
    “Testmasters,” “TestMasters,” “Test Masters,” and “TESTMASTERS.” For consistency with
    this court’s prior opinions, we will refer to the mark as “TESTMASTERS” or “the mark.”
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    It was at this point that the first of the numerous lawsuits seeking
    recognition of a trademark was filed. We will give a brief summary of the state
    of the issues at the end of each respective decision by this court.
    The first suit was brought by TES against Singh in August 1999. In our
    decision we held that TESTMASTERS is descriptive, that TES’s rights to the
    mark were limited to Texas, and that Singh had failed to prove that the mark
    had acquired secondary meaning. See Test Masters Educ. Servs. v. Singh, 46
    F. App’x 227 (5th Cir. 2002) (“Testmasters I”).
    Two days after our Testmasters I decision, Singh filed a new lawsuit. At
    its conclusion, we again held that the mark was descriptive, TES had no rights
    to the mark outside of Texas, Singh was enjoined from interfering with TES’s
    use of the mark in Texas, and Singh could challenge TES’s claim to the mark
    outside of Texas. See Test Masters Educ. Servs., Inc. v. Singh, 
    428 F.3d 559
    (5th Cir. 2005) (“Testmasters II”).
    Singh filed the third suit in November 2003, before the second suit was
    resolved. We held that there had not been a significant intervening factual
    change to allow re-litigation of the secondary meaning issue. See Robin Singh
    Educ. Servs. Inc. v. Excel Test Prep Inc., 274 F. App’x 399, 406 (5th Cir. 2008)
    (“Testmasters III”).
    Today’s appeal earns the label Testmasters IV. The origins of part of the
    case are a series of three applications TES filed in 2001 with the PTO for
    nationwide registration of the TESTMASTERS mark. Singh filed oppositions
    to all three applications. The Trademark Trial and Appeal Board (“TTAB”)
    consolidated the three matters. In August 2007, the TTAB granted Singh leave
    to amend his notices of opposition to assert that TES’s mark lacked
    distinctiveness. In particular, Singh was allowed to amend his opposition to
    assert that TES was bound by the jury’s finding in 2001 that the mark is
    descriptive. In that same decision, the TTAB held that collateral estoppel did
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    not bar Singh from attempting to prove his claims regarding secondary
    meaning.
    Meanwhile, TES, in June 2008, filed a new suit against Singh in the
    United States District Court for the Southern District of Texas, alleging
    trademark infringement and other claims. TES sought an order from the
    district court directing the PTO to grant its pending applications for
    registration. Singh filed counterclaims, asserting trademark infringement and
    seeking an order directing the PTO to reinstate his prior registration of the
    mark for the District of Columbia and all states except Texas. This time, the
    case was assigned to Judge Atlas instead of Judge Gilmore, who had handled
    the three prior cases.
    In October 2008, on Singh’s motion, the district court stayed the case to
    allow the TTAB to complete its proceedings. The stay would be lifted in June
    2011. In March 2011, the TTAB denied TES’s applications for nationwide
    registration, holding that the mark was descriptive and that TES had failed to
    demonstrate “substantially exclusive use” of the descriptive mark. Following
    that ruling, TES filed an appeal of the TTAB decision in district court; that
    appeal was consolidated with the proceedings before Judge Atlas. In October
    2012, the PTO issued TES registration of the mark for the state of Texas.
    In April 2013, the district court affirmed the TTAB’s decision denying
    TES geographically unrestricted use of the mark, granting Singh’s motion
    requesting a declaration that the mark is descriptive rather than distinctive,
    granting Singh summary judgment on TES’s infringement claims, and
    dismissing Singh’s infringement counterclaims based on collateral estoppel.
    One month before Judge Atlas ruled on the parties’ motions for summary
    judgment, TES filed a motion to hold Singh in contempt of the long-standing
    injunction in the case pending before Judge Gilmore. Those proceedings went
    ahead separately. We discuss them in more detail later. Because of the
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    complexity of the parallel proceedings, TES filed a motion to alter or amend
    the judgment in order to ensure that the two proceedings would remain
    separate. The district court denied the motion and TES then filed its initial
    notice of appeal to this court.
    Singh filed for reconsideration. In February 2014, the district court
    denied the motion but clarified “that all issues related to Singh’s alleged
    violation of the Permanent Injunction issued by Judge Gilmore were not
    reached by this Court’s April 13 Memorandum and Order.” That ruling was in
    response to TES’s request that the court confirm it had not addressed Singh’s
    possible violations of the permanent injunction before Judge Gilmore.
    Separately, Singh moved to dismiss his state-law infringement claims
    against TES, which the district court granted without prejudice. The district
    court entered its final judgment on February 21, 2014. Both parties appealed.
    DISCUSSION
    “This court reviews a district court’s grant of summary judgment de
    novo, applying the same standards as the district court.” Barker v. Hercules
    Offshore, Inc., 
    713 F.3d 208
    , 212 (5th Cir. 2013) (citation and quotation marks
    omitted). Summary judgment is appropriate “if the movant shows that there
    is no genuine dispute as to any material fact and the movant is entitled to
    judgment as a matter of law.” FED. R. CIV. P. 56(a). “The applicability of
    collateral estoppel is a question of law,” also reviewed de novo. Kariuki v.
    Tarango, 
    709 F.3d 495
    , 506 (5th Cir. 2013).
    I. TES’s Trademark Appeal
    A. Standing
    TES argues Singh has no standing to oppose its trademark registration.
    It states that “whether the matter is viewed as a literal Article III injury and
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    redressability problem, a prudential ‘zone of interest’ analysis, or as the direct
    effects of estoppel and bar, Singh’s opposition to TES’s application based on his
    own asserted rights and use of the same mark should not have been
    entertained.” Thus, Singh’s opposition to TES’s registration should have been
    dismissed because he had previously lost on the secondary meaning issue.
    The district court rejected this argument: “The court notes specifically
    that Singh is not permanently enjoined from claiming the trademark, only
    from ‘pursuing registration’ of the trademark. There is no injunction in place
    that precludes Singh from claiming common law trademark protection . . . .”
    We agree. This court in Testmasters II vacated the injunction “insofar
    as it enjoins Singh from opposing or interfering with TES’s contention that it
    has rights to the TESTMASTERS mark outside of Texas . . . .” Testmasters II,
    
    428 F.3d at 580
    . Singh has standing.
    B. Secondary Meaning Claim
    TES’s primary contention on appeal is that the district court erred in
    concluding that it had failed to demonstrate that its use of the mark has
    acquired secondary meaning in “unrestricted geographic and subject matter
    areas.”
    “In order to be registered as a trademark, a mark must be capable of
    distinguishing the applicant’s goods from those of others, or stated another
    way, a mark must be distinctive.” 
    Id. at 566
     (citation and internal quotation
    marks omitted). “A mark is inherently distinctive if by its intrinsic nature the
    mark serves to identify the particular source of the product.” 
    Id.
     “Descriptive
    marks are marks that denote a characteristic or quality of an article or service,
    such as its color, odor, function, dimensions, or ingredients.” 
    Id.
     (citation and
    internal quotation marks omitted). Descriptive marks cannot be protected
    unless they acquire distinctiveness through secondary meaning. 
    Id.
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    “Secondary meaning occurs when, in the minds of the public, the primary
    significance of a [mark] is to identify the source of the product rather than the
    product itself.” Bd. of Supervisors for La. State Univ. Agric. & Mech. Coll. v.
    Smack Apparel Co., 
    550 F.3d 465
    , 476 (5th Cir. 2008) (citation and internal
    quotation marks omitted). “A mark has acquired secondary meaning when it
    has come through use to be uniquely associated with a specific source.” 
    Id.
    (citation and quotation marks omitted). This court uses the following seven-
    factor test to determine whether a mark has acquired secondary meaning:
    (1) length and manner of use of the mark or trade dress, (2) volume
    of sales, (3) amount and manner of advertising, (4) nature of use of
    the mark or trade dress in newspapers and magazines, (5)
    consumer-survey evidence, (6) direct consumer testimony, and (7)
    the defendant’s intent in copying the [mark].
    
    Id.
     (citation and quotation marks omitted). “These factors in combination may
    show that consumers consider a mark to be an indicator of source even if each
    factor alone would not prove secondary meaning.” 
    Id.
    TES does not appeal the district court’s determination that “TES is
    judicially estopped from asserting that the [m]ark is other than descriptive.”
    Therefore, the only issue is whether the district court erred in concluding that
    TES had failed to establish secondary meaning.
    TES begins by arguing that the district court “should not have afforded
    any weight to the TTAB’s holding” because the TTAB applied a “substantially
    exclusive use” standard to evaluate secondary meaning instead of this court’s
    seven-factor test. A review of the district court’s ruling reveals it did not rely
    on the TTAB decision, but instead conducted its own review. This preliminary
    argument is thus meritless.
    TES next argues that the issue of secondary meaning should not have
    been resolved on summary judgment because it presented overwhelming
    evidence on each of the seven secondary meaning factors. First, with regard to
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    length and manner of use of the mark, TES noted that it has consistently used
    the TESTMASTERS mark since it started doing business in 1991 in connection
    with a wide range of test preparation courses. The district court explained that
    the undisputed evidence showed that: (1) TES and Singh have both been in the
    test preparation business “for many years,” (2) Singh first started using the
    mark in California while TES first started using the mark in Texas, and (3)
    Singh is the prior user of the mark for LSAT courses and TES is the prior user
    of the mark for engineering exams.
    As to the second factor, TES presented the district court with evidence
    relating to its volume of sales, including evidence showing that it has: (1) held
    thousands of live courses in 22 states, (2) earned tens of millions of dollars in
    revenue between 2002 and 2011, and (3) enrolled students with home
    addresses in all 50 states. The district court concluded that the evidence
    showed that Singh’s company is larger and has significantly more business
    outside of Texas. TES’s revenue outside of Texas is primarily from engineering
    courses.     The court determined that TES’s evidence showing customer
    enrollment in all 50 states was unreliable because its figures were based on
    the student’s home address as opposed to where the courses were actually
    offered. The court found this to be an unpersuasive attempt by TES to claim
    use of the mark in states in which it actually offers no courses. We find no
    error.
    Next, TES contends that it put forth evidence showing that it has spent
    over $100,000 on advertising each year since 1999. The district court properly
    pointed out that the evidence showed that both parties advertised extensively;
    TES’s advertising is directed primarily at engineering students while Singh’s
    is directed primarily at students preparing for the LSAT.
    With regard to the fourth factor, use of the mark in newspapers and
    magazines, TES offered the following evidence: (1) TES has been the subject of
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    interviews on National Public Radio and the BusinessMakers Radio Show, (2)
    TES’s president received media coverage after being named “Entrepreneur of
    the Year” in 2012 by the Houston Asian Chamber of Commerce, (3) articles on
    TES have appeared in The Asian Business Journal, (4) TES has advertised in
    several newspapers, and (5) TES has a significant internet presence. The
    district court acknowledged that TES has made a “sizeable investment in
    website design” and uses the mark on its website. The court did not comment
    on TES’s other evidence.
    On the fifth factor, TES submitted evidence of a survey conducted by Dr.
    Isabella Cunningham, Chair of the Department of Advertising and Public
    Relations at the University of Texas. The survey polled 300 people who had
    recently taken or were planning on taking engineering exams. Half of the
    respondents were from Texas and the other half were from Arizona, Florida,
    and South Carolina.     Of those interviewed, 50.7 percent stated that they
    associated “Testmasters” with one company. The district court found TES’s
    survey evidence “unpersuasive” for two reasons. First, though the respondents
    stated that they identified “Testmasters” with one company, they did not
    identify which company. The district court concluded that the “one company”
    could have been Singh “or any company other than TES . . . .” Second, the
    court noted that the survey was flawed because it was directed only at people
    taking engineering exams and half of those polled were from Texas. The court
    explained that TES has exclusive use of the TESTMASTERS mark in Texas
    and it is, therefore, “not surprising that where half the survey respondents are
    in Texas, half the survey respondents would recognize the name ‘Testmasters’
    and associate it with ‘one company’. . . .”     These observations are valid
    characterizations of the survey.
    TES’s evidence on the sixth factor, direct consumer testimony, included:
    (1) thousands of letters and e-mails from satisfied customers, (2) statements
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    from individuals explaining that they identify TESTMASTERS solely with
    TES, (3) thousands of evaluation forms submitted by customers, and (4)
    evidence of referral fees paid to former students.          The district court
    acknowledged TES’s evidence of consumer views, but, as with the survey
    evidence, found it unpersuasive because it was primarily from engineering
    students.    Singh also presented consumer-testimony evidence showing
    “confusion by persons registering for TES’s LSAT preparation course believing
    they were registering for Singh’s course.” The court correctly concluded that
    “[e]ach party’s evidence shows that, in its strongest subject matter area, it is
    well-known and there may be some consumer confusion.”
    On the seventh and final factor, the defendant’s intent in copying the
    mark, TES contended that Singh has continued to use the mark in spite of
    repeated judicial determinations. TES also asserted that it has sought to avoid
    consumer confusion by having all customers enrolled in its LSAT course sign
    a form disclosing Singh’s existence, but Singh has made no similar effort. The
    district court concluded that there is no evidence of copying, as the record
    establishes that Singh was using the mark in California before TES began
    using it in Texas.
    TES contends that the district court’s “fundamental error was its failure
    to evaluate the evidence of secondary meaning introduced by TES
    independently of Singh’s competing and . . . entirely improper effort to show
    that the mark had instead developed secondary meaning as to his LSAT
    classes.” Thus, TES asserts that the district court should have analyzed the
    secondary meaning issue without considering any evidence introduced by
    Singh. To the extent this argument arises from the contention that Singh does
    not have standing to oppose its registration claim, we have already rejected
    that argument. TES provides no authority indicating that the district court
    was required to consider its evidence of secondary meaning in a vacuum. The
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    court’s role at the summary judgment stage was to determine whether there
    was a genuine dispute of material fact regarding the existence of secondary
    meaning. “In assessing a claim of secondary meaning, the major inquiry is the
    consumer’s attitude toward the mark.”           Zatarains, Inc. v. Oak Grove
    Smokehouse, Inc., 
    698 F.2d 786
    , 795 (5th Cir. 1983), abrogated on other
    grounds by KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 
    543 U.S. 111
     (2004). “The mark must denote to the consumer a single thing coming
    from a single source . . . .” 
    Id.
     (citations and quotation marks omitted). Given
    this fundamental inquiry, which required the court to determine whether TES
    had raised a dispute of fact as to whether consumers associate the mark with
    only its company, we find no error in the district court’s consideration of
    evidence presented by both parties in conducting its analysis.
    As to TES’s assertion that its evidence was more than sufficient to
    survive summary judgment, we disagree. What TES needed to show was that
    the mark had “secondary meaning on a nationwide basis for all test
    preparation courses.” Instead, the evidence indicated, at most, that the mark
    has acquired a secondary meaning for professional engineering examinations.
    It did not show that the mark had a secondary meaning for any other, much
    less all, test preparation services. We agree that TES’s evidence did not show
    that consumers associate the mark solely with TES with respect to all test
    preparation services.
    The district court conducted a thorough analysis of each of the seven
    factors and did not, as TES contends, assign inadequate weight to its evidence.
    TES has not raised a factual dispute regarding the existence of secondary
    meaning.
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    C. Singh’s State-Law Counterclaims
    TES urges that the district court erred in granting Singh’s motion to
    dismiss his state-law counterclaims without prejudice under Federal Rule of
    Civil Procedure 41(a)(2).
    Motions for voluntary dismissal generally “should be freely granted
    unless the non-moving party will suffer some plain legal prejudice other than
    the mere prospect of a second lawsuit.” Elbaor v. Tripath Imaging, Inc., 
    279 F.3d 314
    , 317 (5th Cir. 2002). “Therefore, faced with a Rule 41(a)(2) motion
    the district court should first ask whether an unconditional dismissal will
    cause the non-movant to suffer plain legal prejudice. If not, it should generally,
    absent some evidence of abuse by the movant, grant the motion.” 
    Id.
     In
    granting the motion, the district court explained that TES had not alleged any
    potential prejudice other than the prospect of additional litigation.
    We find no error in the district court’s grant of Singh’s Rule 41 motion
    for voluntary dismissal.
    II. Singh’s Trademark Cross-appeal
    A. Collateral Estoppel
    Singh contends that the district court erred in applying the doctrine of
    collateral estoppel.    In Testmasters I, this court held that Singh failed to
    establish that his mark had acquired secondary meaning. See 46 F. App’x at
    *5. In Testmasters II, Singh again tried to litigate the secondary meaning
    issue. See 
    428 F.3d at
    570–76. This court held that the second suit was barred
    by collateral estoppel. See 
    id. at 576
    . Singh tried once more in Testmasters III;
    this court again held that Singh’s claim was barred. See 274 F. App’x at 404.
    Now, Singh argues that he is no longer barred by collateral estoppel because
    there has been a “significant intervening factual change.”
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    “Collateral estoppel precludes a party from litigating an issue already
    raised in an earlier action between the parties only if: (1) the issue at stake is
    identical to the one involved in the earlier action; (2) the issue was actually
    litigated in the prior action; and (3) the determination of the issue in the prior
    action was a necessary part of the judgment in that action.” Testmasters II,
    
    428 F.3d at 572
    . In Testmasters II, we recognized an exception for instances
    in which there has been a “significant intervening factual change.” See 
    id.
     at
    572–76.   We identified two cases in which we had allowed the issue of
    secondary meaning to be re-litigated. See 
    id.
     at 573 (citing Tex. Pig Stands,
    Inc. v. Hard Rock Café Int’l, Inc., 
    951 F.2d 684
     (5th Cir. 1992); Cont’l Motors
    Corp. v. Cont’l Aviation Corp., 
    375 F.2d 857
     (5th Cir. 1967)).
    Texas Pig Stands involved litigation between two restaurants, Texas Pig
    Sandwich and Hard Rock Café, over rights to the term “pig sandwich.” 
    951 F.2d at 687
    . Texas Pig, who had registered the term, sued Hard Rock for
    infringement. 
    Id. at 688
    . After a jury found Hard Rock guilty of deliberate
    infringement, it appealed to this court, claiming that Texas Pig was collaterally
    estopped from claiming that “pig sandwich” was a valid trademark. 
    Id. at 689
    .
    Hard Rock relied on a 1930 Texas state court decision involving Texas Pig’s
    predecessor, Pig Stands, Inc., in which the court held that “pig sandwich” had
    not acquired secondary meaning.        
    Id. at 690
    .    We rejected Hard Rock’s
    argument and allowed re-litigation of the issue.        
    Id.
        We explained that
    although the term did not have secondary meaning in 1930, it could eventually
    acquire secondary meaning. 
    Id.
     The Texas Pig Stands decision was based in
    part on this court’s earlier decision in Continental Motors, “which held that in
    the interim between initiation of [an] action and a prior decision on the same
    question, the mark at issue had acquired secondary meaning because of [a]
    ‘change in economic fact,’ which had created in the public an image of the mark
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    as associated with its source.”    Testmasters II, 
    428 F.3d at
    573 (citing
    Continental Motors, 
    375 F.2d at 862
    ).
    In Testmasters II, we explained that, unlike in Texas Pig Stands and
    Continental Motors, Singh had not alleged a “significant intervening factual
    change.” Id. at 576. We declined to hold that a specific number of years must
    pass before secondary meaning may be re-litigated, but we also held that Singh
    had failed to allege a “set of facts that would suggest that there has been a
    change in the minds of the public in the relevant geographic area such that
    they could immediately associate the ‘TESTMASTERS’ mark with his test
    preparation corporation.” Id.
    Singh now argues that, after 13 more years, his “allegations and evidence
    show dramatic changes in every factor relevant to the secondary meaning
    analysis” and he has thus met his burden of demonstrating an intervening
    factual change to justify re-litigation of secondary meaning. In particular,
    Singh notes that his annual revenues have increased from just over $3 million
    in 2001 to an average of $14 million between 2008 and 2010. Singh also notes
    that he has greatly expanded his advertising and has received “extensive
    media exposure.” Furthermore, in 2009, Singh’s expert conducted a survey,
    which showed that 58.1 percent of all students taking an LSAT course were
    aware of Singh’s TESTMASTERS mark. Singh also suggests that the growth
    of the internet since 2001 is “dramatic” and “significant” and customer
    confusion between TES and Singh has since “become epidemic.” Finally, Singh
    argues that the district court erred in holding that there are no special
    circumstances that warrant reconsideration of the secondary meaning issue.
    The district court concluded that Singh’s “business-growth” argument
    was insufficient.   The court also rejected Singh’s argument regarding his
    increased internet presence. Finally, the court held that a sufficient amount
    of time had not yet passed.
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    We find no error in the district court’s application of collateral estoppel.
    A “significant intervening factual change” must be shown.            Evidence of
    increased business success alone is insufficient to show a significant
    intervening change. Id. Instead, Singh must provide evidence showing “a
    change in the minds of the public . . . such that they could immediately
    associate the ‘TESTMASTERS’ mark with his [business].” Id. He has again
    provided no such evidence. He also has not shown any special circumstances
    warranting re-litigation.
    B. Related Goods and Services
    Singh next argues that the district court ignored the “doctrine of related
    goods and services.”        In applying collateral estoppel, the district court
    concluded that “Singh’s infringement counterclaims are based on Singh’s
    position that its use of the [m]ark has acquired secondary meaning nationwide
    (except Texas) for all preparation courses for all standardized tests in all
    subject matter areas.” Singh argues that this characterization of the pleadings
    is incorrect. Instead, he argues that his pleadings, fairly interpreted, included
    claims that he had “protectable rights” in the mark nationwide and had
    established secondary meaning by virtue of his dominance in the LSAT
    preparation market. According to him, “[b]y requesting protection for test
    preparation goods and services generally, [he] did not become obligated to
    separately prove secondary meaning in each division of the industry.”
    It is true that if a party has a valid trademark, infringement occurs when
    someone else uses the same mark for related goods and services when such use
    could lead to confusion in either of two ways: “(1) likelihood of confusion as to
    the ‘affiliation, connection or association’ of one person or entity with another
    or (2) likelihood of confusion as to the ‘origin, sponsorship or approval’ of one
    entity’s goods or services with those of another.” 4 J. THOMAS MCCARTHY,
    16
    Case: 13-20250      Document: 00513165585    Page: 17   Date Filed: 08/21/2015
    No. 13-20250 c/w 13-20327; 14-20113
    MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 24.6 (2014) (citations
    omitted). The two users of the mark do not even need to be competitors as to
    the specific product so long as the possibility of confusion in one of these ways
    would arise. Id.; see also Elvis Presley Enters., Inc. v. Capece, 
    141 F.3d 188
    ,
    202 (5th Cir. 1998).
    Regardless of whether the district court’s characterization of this part of
    Singh’s pleadings was correct, collateral estoppel still applies. Because Singh
    has not shown the necessary association by the public of the mark with his
    business, the doctrine of related goods and services does not offer Singh a way
    to escape the preclusive effects of the prior judgment.
    C. Limited Trademark
    Finally, Singh argues that the district court erred in failing to hold, sua
    sponte, that the mark has acquired secondary meaning with respect to LSAT
    courses. The district court noted that “[i]t is conceivable that Singh would not
    be collaterally estopped from asserting and presenting evidence on the
    different, more narrow, issue that its use has acquired secondary meaning for
    LSAT preparation courses. Singh has not indicated any interest, however, in
    pursuing a more narrow claim.” According to Singh, even though he had not
    “indicated any interest . . . in pursuing” the more narrow claim, the court
    should have sua sponte ruled on the issue.
    In his motion for reconsideration, Singh argued that the issue had been
    tried by implied consent, and regardless, he should be allowed to amend his
    pleadings to allege this claim.     The district court denied the motion for
    reconsideration, providing detailed reasons.      On appeal, Singh makes a
    conclusory argument without addressing any aspects of the district court’s
    opinion. He has therefore waived review of this argument. See United States
    v. Scroggins, 
    599 F.3d 433
    , 446–47 (5th Cir. 2010).
    17
    Case: 13-20250      Document: 00513165585     Page: 18   Date Filed: 08/21/2015
    No. 13-20250 c/w 13-20327; 14-20113
    III. Contempt Appeal
    This consolidated case also includes an appeal of several contempt orders
    entered by the district court, in the proceeding before Judge Gilmore, against
    Singh and his lawyer, Daniel Sheehan.
    The contempt orders stem from the permanent injunctions entered by
    the district court in 2003 and 2004.        In 2003, the court issued an order
    permanently enjoining Singh from: (1) pursuing federal registration of the
    TESTMASTERS mark in the PTO, (2) interfering with or opposing TES’s
    application for federal registration of the TESTMASTERS mark, and (3) using
    the mark within or directing use of the mark at the state of Texas. In 2004, in
    response to TES’s claims that Singh had engaged in repeated harassment, the
    district court issued a new injunction, which largely reiterated the first but
    also “enjoined Singh from communicating directly with, threatening, or
    harassing [TES], its employees, its staff, or TES’s counsel, counsel’s employees,
    or counsel’s staff.” The district court warned Singh that he should abide by the
    injunction “this time to avoid the future risk of sanctions by this Court against
    him and his counsel.”
    Singh challenged the injunction before this court in Testmasters II. We
    reversed the injunction insofar as it enjoined Singh from directly
    communicating with TES, but affirmed insofar as it barred Singh from
    threatening or harassing TES and its employees. See 
    428 F.3d at 580
    .
    According to TES, Singh was undeterred by the injunction and continued
    his “campaign of terror.” TES provides examples of alleged violations. Among
    these, Singh: continued to advertise in Texas, instructed employees to post
    negative comments about TES on various websites, and aided in the posting of
    defamatory videos online. One posting referenced a state-court paternity suit
    involving TES’s founder, Haku Israni; the posting labeled Israni a “deadbeat
    dad” and mentioned the minor child involved in the suit by name.
    18
    Case: 13-20250     Document: 00513165585     Page: 19   Date Filed: 08/21/2015
    No. 13-20250 c/w 13-20327; 14-20113
    In March 2013, TES filed a motion for order to show cause, arguing that
    Singh’s actions constituted harassment in violation of the injunction.         A
    contempt hearing was held on May 16 and 17. Singh was not required to
    attend the hearing. On May 16, Sheehan appeared on Singh’s behalf. Sheehan
    argued that: (1) the postings were protected by the First Amendment, and
    regardless, (2) the injunction did not prohibit such postings. The court asked
    Sheehan whether he had ever discussed removing the postings with Singh.
    Sheehan responded that he could not answer that because of the attorney-
    client privilege. In response, the court informed Sheehan that he would be
    incarcerated in an effort to coerce Singh to remove the postings. Sheehan was
    handcuffed by the United States Marshals and escorted to a federal detention
    center in Houston. Later that day, Sheehan’s associate began working with
    Singh to remove the postings. After being informed of these efforts, the court
    had Sheehan released from custody. The court ordered Sheehan to appear the
    next day. At the May 17 hearing, the court acknowledged Singh’s progress
    toward remedying the contempt. The court then issued a series of orders
    instructing Singh to remove the harassing publications. The court ordered
    that Sheehan not be re-incarcerated but reserved the right to continue
    monitoring Singh’s efforts.
    On May 24, TES filed a motion requesting additional contempt sanctions
    against Singh. The district court granted the motion in part and ordered Singh
    to publish a “remedial posting” on “ripoffreport.com” in response to the
    “deadbeat dad” post he had previously made. The order required Singh to post,
    in part, that he “would now like to retract his prior complaint.”
    Along with its March 2013 contempt motion, TES filed a motion to file
    under seal. TES claimed the conduct giving rise to the contempt motion
    included willful violations of a Texas state court sealing order. The district
    court ordered the record of the contempt proceedings sealed, but gave no
    19
    Case: 13-20250    Document: 00513165585      Page: 20    Date Filed: 08/21/2015
    No. 13-20250 c/w 13-20327; 14-20113
    written reasons. On May 31, Singh filed a motion to unseal the records. Singh
    later discovered the state-court records were not actually sealed as TES had
    claimed; he amended the motion to unseal to disclose that fact. In May 2014,
    Judge Gilmore “unequivocally denied” the motion, noting that it was
    “scurrilous” and that she “fe[lt] inclined to impose sanctions.”
    We review a finding of contempt for abuse of discretion but not in a
    perfunctory way. Hornbeck Offshore Servs., L.L.C. v. Salazar, 
    713 F.3d 787
    ,
    792 (5th Cir. 2013). “Facts found by the district court will be accepted as true
    unless clearly erroneous, but the interpretation of the scope of the injunctive
    order[ ] is a question of law to be determined by the independent judgment of
    this Court.” 
    Id.
     (citation and internal quotation marks omitted). We review a
    district court’s decision to seal a judicial record for abuse of discretion. United
    States v. Holy Land Found. For Relief & Dev., 
    624 F.3d 685
    , 689 (5th Cir. 2010).
    “Whether an alleged contemnor was afforded due process is a question of law
    we review de novo.” Waste Mgmt. of Wash., Inc. v. Kattler, 
    776 F.3d 336
    , 339
    (5th Cir. 2015).
    Singh and Sheehan have filed separate briefs, raising distinct issues.
    A. Singh’s Appeal
    1. First Amendment Claims
    Singh argues that the district court erred by holding him in contempt for
    exercising his First Amendment rights. He contends that the district court
    erred both by: (1) finding him in contempt for posting truthful information
    online intended to alert consumers to “a scam perpetrated by TES” and (2)
    ordering him to post a remedial statement.
    20
    Case: 13-20250      Document: 00513165585   Page: 21   Date Filed: 08/21/2015
    No. 13-20250 c/w 13-20327; 14-20113
    a. Internet Postings
    First, Singh argues that the internet postings are protected by the First
    Amendment. This is the second time Singh has challenged the injunction on
    First Amendment grounds before this court. In Testmasters II, we rejected
    Singh’s argument that the injunction’s prohibition on harassment violated the
    First Amendment, explaining:
    Courts have made a distinction between communication and
    harassment. The difference is one between free speech and
    conduct that may be proscribed. Although restrictions based upon
    conduct may incidentally restrict speech, the courts have found
    that such a restriction poses only a minimal burden on speech.
    Thus the courts do have the power to enjoin harassing
    communications. Courts also have the power to enjoin repeated
    invasions of privacy.
    
    428 F.3d at 580
     (internal citations omitted).      We determined that “[t]he
    cantankerous relationship between these parties is clearly evident from the
    record in this case,” and “[t]here is enough evidence presented in the record to
    justify an injunction order prohibiting Singh from threatening or harassing
    TES, its employees, its staff, TES’s counsel, counsel’s employees, or counsel’s
    staff.” 
    Id.
     We concluded that the injunction went too far by prohibiting all
    communications between the parties’ attorneys and employees, but upheld its
    restriction on harassing and threatening conduct. 
    Id.
    Singh acknowledges that this court recognized a “fundamental difference
    between harassing conduct and free speech” in Testmasters II. But Singh
    argues that the conduct described previously by this court involved direct
    interactions between parties, while the conduct here was merely published for
    third parties to view. Thus, Singh contends, the conduct at issue here does not
    fall outside the purview of the First Amendment.
    The district court correctly concluded that the relevant conduct is
    governed by the injunction.      Because this court has already upheld the
    21
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    No. 13-20250 c/w 13-20327; 14-20113
    injunction’s prohibition on harassing conduct, we need not reach Singh’s
    various constitutional arguments.      Under Singh’s interpretation of the
    injunction, he could post harassing comments about TES anywhere on the
    internet and it would not constitute harassment as long as he did not directly
    communicate with TES or its staff. Singh provides no law in support of this
    argument and his interpretation defeats the purpose of the injunction, which
    is to protect TES from harassment.
    b. Remedial Statement
    Singh also appeals the district court’s order requiring him to publish the
    following remedial statement online at ripoffreport.com:
    Robin Singh and Robin Singh Educational Services previously
    posted on March 25, 2010, a Complaint Review of Dr. Haku Israni
    and his website testmasters.com. Singh and Dr. Israni were
    involved in litigation at that time and Singh would now like to
    retract his prior complaint. No credence should be paid to that
    complaint or any of its contents.
    The district court ordered that this statement be posted in response to Singh’s
    original “deadbeat dad” posting, which discussed the state court paternity suit
    involving Israni.
    Singh contends that this order violates his First Amendment right “not
    to speak.” He explains that the district court required him to “say things that
    simply are not true” because he does not wish to retract his complaint about
    Israni and believes credence should be paid to his comments.
    We conclude that Singh’s statements constitute commercial speech.
    “Commercial speech is ‘expression related solely to the economic interests of
    the speaker and its audience.’” White Buffalo Ventures v. Univ. of Tex. at
    Austin, 
    420 F.3d 366
    , 374 (5th Cir. 2005) (quoting Cent. Hudson Gas & Elec.
    Corp. v. Pub. Serv. Comm’n, 
    447 U.S. 557
    , 561 (1980)). Though the posting
    22
    Case: 13-20250       Document: 00513165585   Page: 23    Date Filed: 08/21/2015
    No. 13-20250 c/w 13-20327; 14-20113
    focused solely on Israni’s personal life, Singh must have made it with the
    economic interest of harming TES.
    Having concluded that the speech was commercial, the question becomes
    whether the remedial statement was appropriate.            When regulations are
    directed at deceptive or misleading commercial speech and require a disclosure
    rather than a “flat prohibition[]” on speech, the Supreme has created a
    standard to gauge the regulation.      See Zauderer v. Office of Disciplinary
    Counsel of the Supreme Court of Ohio, 
    471 U.S. 626
    , 651 (1985).            Under
    Zauderer, a required disclosure need only be “reasonably related to the
    [government’s] interest in preventing deception of consumers.” 
    Id.
    This standard applies because Singh’s original posting was deceptive.
    The district court’s order was reasonably related to its interest in preventing
    consumer deception by correcting the misleading information. The analysis is
    complicated by Singh’s argument that the required disclosure was “false”
    because it says he would “like” to retract the statements. We see no relevant
    falsehood. Whether Singh enjoyed taking this medicine is an insignificant
    question of phrasing.
    2. Injunction’s Prohibitions
    Singh asserts that the injunction prohibiting harassment was too vague
    to put him on notice that he was prohibited from “speaking about matters of
    public concern.” A party may be held in civil contempt of an injunction order
    if there is clear and convincing evidence that: (1) the injunction was in effect
    at the time of the allegedly contemptuous conduct, (2) the injunction neither
    vaguely nor ambiguously required the party to perform or abstain from certain
    conduct, and (3) the party failed to comply with the injunction’s requirements.
    Oaks of Mid City Resident Council v. Sebelius, 
    723 F.3d 581
    , 585 (5th Cir.
    2013). A party can only be held in contempt for violating “a definite and specific
    23
    Case: 13-20250     Document: 00513165585     Page: 24    Date Filed: 08/21/2015
    No. 13-20250 c/w 13-20327; 14-20113
    order of the court requiring him to perform or refrain from performing a
    particular act . . . .” Hornbeck, 713 F.3d at 792 (citation and quotation marks
    omitted).
    The original injunction prohibiting harassment was a result of TES’s
    allegations that Singh, among other things, made harassing phone calls to TES
    dozens of times a day, confronted TES’s counsel outside a courtroom, and
    allowed his attorney and other employees to obtain billing and insurance
    information about TES under false pretenses. He contends that none of the
    alleged conduct that resulted in the injunction had anything to do with his
    internet postings, which were made to “combat consumer confusion.” Further,
    there was never any indication prior to the May hearing that the anti-
    harassment injunction limited his “right to free speech.” Moreover, according
    to Singh, this court’s reversal of part of the injunction in Testmasters II made
    it reasonable for him to believe “that his right to speak publicly about TES
    remained intact.”
    We disagree. A district court enjoys “a degree of flexibility in vindicating
    its authority against actions that, while not expressly prohibited, nonetheless
    violate the reasonably understood terms of the order.” Id. The district court
    was within its discretion in finding Singh’s actions were harassment in
    violation of the injunction. Singh’s argument is meritless.
    3. Sealed Records
    Singh next argues that the district court abused its discretion by sealing
    the record of the contempt proceedings. The public has a common-law right to
    inspect and copy judicial records. S.E.C. v. Van Waeyenberghe, 
    990 F.2d 845
    ,
    848 (5th Cir. 1993) (citations omitted). That right “is not absolute.” 
    Id.
     “Every
    court has supervisory power over its own records and files, and access has been
    denied where court files might have become a vehicle for improper purposes.”
    24
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    No. 13-20250 c/w 13-20327; 14-20113
    
    Id.
     (citation and quotation marks omitted). Examples of an improper purpose
    recognized by the Supreme Court include using records “to gratify private spite
    or promote public scandal . . . .” Nixon v. Warner Commc’ns., Inc., 
    435 U.S. 589
    , 598 (1978) (citations and quotation marks omitted).
    In exercising its discretion, a district court must “balance the public’s
    common law right of access against the interests favoring nondisclosure.” Van
    Waeyenberghe, 
    990 F.2d at 848
    . In Van Waeyenberghe, we held that a district
    court abused its discretion by sealing judicial records. 
    Id. at 849
    . We reversed
    based on a lack of “evidence in the record that the district court balanced the
    competing interests prior to sealing the final order.” 
    Id.
     TES wanted the
    records sealed in anticipation of Singh’s “republish[ing] the descriptions of his
    harassing conduct and the evidence attached thereto, invoking the public’s
    common law right to inspect and copy court records in an attempt to avoid
    liability under the 2004 injunction and this Court’s judgments . . . .” TES
    claims the sealing was necessary to avoid further damage.
    Singh argues that, like in Van Waeyenberghe, the district court abused
    its discretion by failing to balance the competing interests prior to sealing the
    relevant records. The argument is unconvincing. Though the district court did
    not conduct an on-the-record analysis, we find it implicit in the record that
    such an analysis was made. The district court has an extensive history with
    these parties and is uniquely familiar with the facts of the case. We do not see
    that the district court abused its discretion in sealing records that might have
    been used for improper purposes.
    4. Reassignment
    Singh and Sheehan both argue that we should reassign the case being
    handled by Judge Gilmore to a different district judge for future proceedings.
    See 
    28 U.S.C. § 2106
    .   Ordering reassignment of a case is an “extraordinary
    25
    Case: 13-20250     Document: 00513165585     Page: 26    Date Filed: 08/21/2015
    No. 13-20250 c/w 13-20327; 14-20113
    power that is rarely invoked.” In re DaimlerChrysler Corp., 
    294 F.3d 697
    , 700
    (5th Cir. 2002) (citation and internal quotation marks omitted). Two tests help
    us resolve issues of reassignment.     See 
    id.
     at 700–01.     First, we consider
    whether the facts “might reasonably cause an objective observer to question
    [the judge’s] impartiality.” 
    Id. at 701
     (citations and quotation marks omitted).
    Second, we consider the following factors:
    (1) whether the original judge would reasonably be expected upon
    remand to have substantial difficulty in putting out of his or her
    mind previously-expressed views or findings determined to be
    erroneous or based on evidence that must be rejected, (2) whether
    reassignment is advisable to preserve the appearance of justice,
    and (3) whether reassignment would entail waste and duplication
    out of proportion to any gain in preserving the appearance of
    fairness.
    
    Id.
     at 700–01 (citations omitted).
    Singh provides numerous examples that, according to him, show that
    Judge Gilmore has “anti-Singh” views and is unable to remain objective. Singh
    made a similar argument in Testmasters II, which we rejected. See 
    428 F.3d at
    581–82.    There, we stated that “‘judicial rulings alone almost never
    constitute a valid basis’ for finding bias or impartiality.” 
    Id. at 581
     (quoting
    Liteky v. United States, 
    510 U.S. 540
    , 555 (1994)).          We reviewed “the
    substantial record that has accumulated over the course of these parties’ long
    litigious relationship,” and concluded that “any district court might become
    exasperated with both parties”; we therefore denied Singh’s request for
    reassignment. 
    Id.
    We again decline to reassign this case to a different district judge.
    26
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    No. 13-20250 c/w 13-20327; 14-20113
    B. Sheehan’s Appeal
    1. Due Process
    Sheehan contends that the district court violated his right to due process
    by failing to provide him with proper notice and an adequate opportunity to
    respond. He argues that the show cause order, which named only Singh, was
    insufficient to provide him notice that he could potentially be held in contempt.
    “In general, due process requires that one charged with contempt of court be
    advised of the charges against him, have a reasonable opportunity to meet
    them by way of defense or explanation, have the right to be represented by
    counsel, and have a chance to testify and call other witnesses.”           Waste
    Management, 776 F.3d at 339–40 (citation and internal quotation marks
    omitted).
    Waste Management involved a due-process argument similar to that
    made by Sheehan here. See id. at 339–41. There, an attorney held in contempt
    argued that he had not been afforded adequate due process. Id. at 339. The
    motion to show cause listed the client “as the sole potential contemnor whose
    liability was to be addressed at the hearing.” Id. We vacated the contempt
    order, holding that the notice was insufficient: “This notice did not signal to
    [the attorney] that he could be found in contempt because it identified [the
    client] alone as the party whose contempt liability was to be adjudicated.” Id.
    at 340. “Adequate notice typically takes the form of a show-cause order and a
    notice of hearing identifying each litigant who might be held in contempt.” Id.
    at 340 & n.12 (citing McGuire v. Sigma Coatings, Inc., 
    48 F.3d 902
    , 907 (5th
    Cir. 1995) (explaining that show-cause notice must put the potential
    contemnor on notice that sanctions “were being considered against him
    personally”)).
    Sheehan, similarly, was not provided adequate due process. He had no
    notice that he may potentially be held in contempt. In Waste Management, we
    27
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    No. 13-20250 c/w 13-20327; 14-20113
    vacated the contempt order, but went on to examine the merits of the contempt
    finding. See 
    id.
     at 340–41. We do the same here.
    2. Contempt Finding
    Sheehan argues that the district court erred by finding him in contempt.
    A party may be held in civil contempt of an injunction order if there is clear
    and convincing evidence that: (1) the injunction was in effect at the time of the
    allegedly contemptuous conduct, (2) the injunction neither vaguely nor
    ambiguously required the party to perform or abstain from certain conduct,
    and (3) the party failed to comply with the injunction’s requirements. Oaks of
    Mid City, 723 F.3d at 585 (citations omitted).       In a contempt proceeding,
    evidence is clear and convincing if it “produces in the mind of the trier of fact
    a firm belief or conviction as to the truth of the allegations sought to be
    established . . . .” Id. (citation and quotation marks omitted).
    Sheehan argues that under this stringent standard, the evidence does
    not show clearly or convincingly that he “did anything that the injunction
    orders prohibited or failed to do something that the injunction orders required.”
    The relevant section of the injunction prohibited Singh from harassing TES.
    Sheehan concedes that this prohibition was also binding on him as Singh’s
    attorney, but he urges that there is no evidence that he engaged in any of the
    conduct at issue.
    Sheehan explains that the district court mentioned four bases for finding
    him in contempt: (1) for espousing positions unsupported by law, (2) for failing
    to tell his client that he might violate the injunction by posting materials
    online, (3) for assisting Singh by convincing him that he was entitled to First
    Amendment protection, and (4) because an attorney can be responsible for his
    client’s conduct. Sheehan argues that the first three bases cannot support a
    finding of contempt because there is still no evidence that he violated the
    28
    Case: 13-20250       Document: 00513165585          Page: 29     Date Filed: 08/21/2015
    No. 13-20250 c/w 13-20327; 14-20113
    injunction. The fourth basis fails because vicarious liability does not allow an
    agent to be held responsible for the actions of his principal.
    There was not clear and convincing evidence upon which to find that
    Sheehan violated the injunction’s requirements. We accept that the injunction
    was binding on Sheehan as Singh’s attorney, but there was insufficient
    evidence to find that he personally violated the injunction.                 We therefore
    conclude that the district court abused its discretion by finding Sheehan in
    contempt. 2
    This case demonstrates how open our courts are to litigants, so open as
    at times to lead to questionable litigation. This controversy has been before
    the district courts and this court four times. The parties are reminded that
    access to our courts is not unlimited. Litigation over a controversy must
    eventually come to an end. Further attempts to re-litigate issues related to
    this controversy without a substantial justification for renewing the quarrel
    may subject the litigants to sanctions. We VACATE the contempt findings as
    to Sheehan. We AFFIRM in all other respects. 3
    2 Sheehan also contends that “apart from whether [he] violated any aspect of the
    injunction orders, there remains the question whether the district court abused its discretion
    in ordering him to be incarcerated for up to five days or until Singh removed the [i]nternet
    postings.” Having concluded that the district court erred in holding Sheehan in contempt,
    we find it unnecessary to reach that issue.
    3 All pending motions are DENIED.
    29
    

Document Info

Docket Number: 14-20113

Citation Numbers: 799 F.3d 437

Filed Date: 8/21/2015

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (18)

Securities and Exchange Commission v. Gary Van Waeyenberghe ... , 990 F.2d 845 ( 1993 )

Board of Supervisors for Louisiana State University ... , 550 F.3d 465 ( 2008 )

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Elbaor v. Tripath Imaging, Inc. , 279 F.3d 314 ( 2002 )

elvis-presley-enterprises-incorporated-v-barry-capece-a-united-states , 141 F.3d 188 ( 1998 )

In Re: Daimlerchrysler Corporation, Formerly Known as ... , 294 F.3d 697 ( 2002 )

Liteky v. United States , 114 S. Ct. 1147 ( 1994 )

White Buffalo Ventures, LLC v. University of Texas , 420 F.3d 366 ( 2005 )

Zatarains, Inc., Cross-Appellee v. Oak Grove Smokehouse, ... , 698 F.2d 786 ( 1983 )

Continental Motors Corporation and Continental Aviation and ... , 375 F.2d 857 ( 1967 )

United States v. Scroggins , 599 F.3d 433 ( 2010 )

texas-pig-stands-inc-plaintiff-appellant-cross-appellee-v-hard-rock , 951 F.2d 684 ( 1992 )

test-masters-educational-services-inc-vivek-israni-v-robin-singh-doing , 428 F.3d 559 ( 2005 )

Lorraine McGuire Wife Of/and Jack Valley v. Sigma Coatings, ... , 48 F.3d 902 ( 1995 )

Central Hudson Gas & Electric Corp. v. Public Service ... , 100 S. Ct. 2343 ( 1980 )

Nixon v. Warner Communications, Inc. , 98 S. Ct. 1306 ( 1978 )

Zauderer v. Office of Disciplinary Counsel of the Supreme ... , 105 S. Ct. 2265 ( 1985 )

KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc. , 125 S. Ct. 542 ( 2004 )

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