Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 9:10-cv-81106-KLR.
For Bersin Bagel Group, Llc, Interested Party - Appellant: Samantha Tesser Haimo, Kopelowitz Ostrow Ferguson Weiselberg Keechl, Fort Lauderdale, FL.
For THE ORIGINAL BROOKLYN WATER BAGEL CO., INC., a Florida corporation, Defendant - Appellee: Eric Lee, Lee & Amtzis, PL, Boca Raton, FL; Ira Marcus, Law Office of Ira Marcus, Fort Lauderdale, FL.
For MAMMA MIA'A TRATTORIA, INC., a Florida corporation, Plaintiff: John P. Kelly, The Kelly Law Firm, Fort Lauderdale, FL.
Before MARCUS, Circuit Judge, and PROCTOR[*] and EVANS,[**] District Judges. EVANS, Judge, dissenting.
MARCUS, Circuit Judge:
When the Original Brooklyn Water Bagel Company (" OBWB" ) settled a qui tam false marking suit, the district court entered a final judgment that barred future lawsuits against OBWB related to certain
false patent marking or advertising. Thereafter, Bersin Bagel Group, LLC (" Bersin" ) sued OBWB in state court for damages tied to Bersin's investment in an OBWB franchise. OBWB sought, and the district court issued, an order that purported to enforce the federal judgment by enjoining Bersin's state court suit. Bersin appeals that order, but we lack jurisdiction to hear its challenge. The order was not final under 28 U.S.C. § 1291 because it was not the proper tool for enforcing an injunction: it did not hold a noncompliant party in contempt or impose sanctions. See Thomas v. Blue Cross & Blue Shield Ass'n (Thomas II), 594 F.3d 823, 829-30 (11th Cir. 2010). Nor was the district court's order an appealable interlocutory decision for purposes of § 1292(a)(1). Instead of granting or modifying an injunction, it merely clarified the existing injunction found in the district court's judgment.
See id. at 831-32. Without jurisdiction, we must dismiss this appeal.
Appellee OBWB is a Florida corporation and the parent company of Brooklyn Water Bagel Franchise Co., Inc. (" BWB" ), which franchises a quick service restaurant concept featuring the sale of bagels, coffee, bottled water, beverages, and related products. Steven M. Fassberg is OBWB's and BWB's CEO and former president. Appellant Bersin is a Florida limited liability company that entered a franchise agreement with BWB in August 2010 for a restaurant on Alton Road in Miami-Dade County, Florida. Bersin alleges in its state court suit that it suffered damages from the deal because of misrepresentations by Fassberg and his companies. However, OBWB believes that Bersin's claims were released as part of a settlement in a federal qui tam action involving alleged false patent marking by OBWB.
First came the qui tam action. On September 17, 2010, Mamma Mia's Trattoria, Inc. (" Mamma Mia's" ), a Florida corporation that owns and operates an Italian restaurant, sued OBWB in federal district court on behalf of itself and as qui tam relator representing the United States of America and the general public. Mamma Mia's cited violations of 35 U.S.C. § 292, which at that time provided, inter alia:
(a) . . . Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article, the word " patent" or any word or number importing that the same is patented, for the purpose of deceiving the public . . . [s]hall be fined not more than $500 for every such offense.
(b) Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States.
35 U.S.C. § 292 (2006).
In its amended complaint, Mamma Mia's alleged that " OBWB falsely claims to the public and advertises in interstate commerce that it makes, uses and sells bagels and other food products, including bottled water, which are unique and exclusive to any other manufacturer or seller" because the products " derive from a 'patented 14 stage water treatment process' or 'patented 14 stage water treatment system' that replicates Brooklyn, New York water, allegedly
creating bagels, bottled water, and water for other products identical to those made, used and sold in Brooklyn, New York." Mamma Mia's claimed that OBWB made numerous misrepresentations in advertising in connection with its products: on its website, YouTube, and Twitter; on a sign on restaurant equipment; on OBWB's menus and Menu Board; and in " dozens of press releases and other advertising." Mamma Mia's further alleged that " [t]he false claims are knowingly, purposefully and willfully being asserted and condoned by OBWB to support and give credence to OBWB's claim that it alone has the exclusive capability to make Brooklyn water at locations outside New York," even though " OBWB neither owns nor holds any patents whatsoever as recognized by the official records of the United States Patent and Trademark Office."
On March 16, 2011, Mamma Mia's, with the consent of the United States Department of Justice, entered into a Settlement Agreement with OBWB. On March 28, the district court entered a Final Consent Judgment, finding that Mamma Mia's had standing to pursue and dispose of the claims on behalf of the United States and the general public pursuant to 35 U.S.C. § 292. In dismissing the action, the district court also
ORDER[ED] and ADJUDGE[D] that any future litigation alleging violations of 35 U.S.C. § 292 or any other statute or law related to false marking or false advertising, with regard to any past or existing product, advertising regarding patented process, water treatment system, technology, water, ice cubes, or " Cubsta machine", covered by this Stipulation of Dismissal, that has been marked, manufactured, sold, distributed, advertised or promoted by OBWB prior to entry of this Final Judgment, is barred.
A year after the Final Consent Judgment, Bersin sued Fassberg and BWB in Florida circuit court in Miami-Dade County, alleging that Bersin had been induced into investing more than $350,000 in the Alton Road BWB franchise through fraud and misrepresentations, some of which concerned OBWB's advertising of patented technology. Bersin claimed that Fassberg also stated the Alton Road shopping center was a perfect location for a " flagship" restaurant that would gross at least $1,500,000 in annual sales, and that Bersin could sit back and collect a check, with Fassberg handling operations. In its June 19, 2012, second amended complaint, Bersin alleged that Fassberg induced Bersin's investment in the Alton Road restaurant by conveying " false and misleading information regarding Defendants' advertising and marketing claims" concerning a " patented 14 stage water treatment process" or " patented technology." Bersin brought three state law causes of action: (I) fraud in the inducement; (II) negligent misrepresentation and omission; and (III) violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), Fla. Stat. § § 501.201-.213.
To stop Bersin's state suit, OBWB turned to the federal district court that had issued the qui tam Final Consent Judgment. On March 8, 2013, OBWB filed a motion to enforce that judgment, arguing that Bersin's claims were barred. On May 22, 2013, the district court entered an Enforcement Order granting that motion. The district court concluded that Bersin was in fact " asserting barred claims" in its state court action because " the main underlying basis for all of these claims are false marking and advertising, which were released and barred by the Settlement Agreement and Final Consent Judgment." As a result, the district court order " enjoined" each Bersin state cause
of action -- Counts I, II, and III -- because they " relate[d] to patents and product advertising."  Bersin appeals, arguing that the district court erred in granting OBWB's motion because Bersin's claims were not barred by the Final Consent Judgment, the district court lacked jurisdiction over Bersin's case, and, in any event, the Anti-Injunction Act prohibited the court from enjoining Bersin's state court suit.
We are obliged to first address our power to review Bersin's claims. See, e.g., Holloman v. Mail-Well Corp., 443 F.3d 832, 844 (11th Cir. 2006) ( " The federal courts of appeals are courts of limited jurisdiction." ); Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1334 (11th Cir. 1999) ( " As an initial matter, we must address our jurisdiction to review Appellants' claims." ). OBWB moved to dismiss Bersin's appeal on the ground that this Court lacks appellate jurisdiction. Bersin responded that we have jurisdiction to review the district court's decision either as a final order pursuant to 28 U.S.C. § 1291, or as an order modifying and expanding a prior injunction under § 1292(a)(1). We do not agree. In the absence of any discernible basis for exercising appellate jurisdiction, we are compelled to dismiss Bersin's appeal.
Congress has constrained our appellate jurisdiction to only a few, well-defined types of actions. Thomas II, 594 F.3d at 828 (noting that " our jurisdiction is limited to a narrow class of decisions" ). As relevant here, we may hear appeals " from all final decisions of the district courts of the United States." 28 U.S.C. § 1291; see World Fuel Corp. v. Geithner, 568 F.3d 1345, 1348 (11th Cir. 2009). We also may entertain challenges to " [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." 28 U.S.C. § 1292(a)(1);
see Birmingham Fire Fighters Ass'n 117 v. Jefferson Cnty., 280 F.3d 1289, 1292 (11th Cir. 2002).
We lack appellate jurisdiction to hear this case under either section. As for the requirement of a final district court order, we begin by reiterating what by now is almost hornbook law about the proper method by which permanent injunctions may be enforced against noncompliant parties:
[Injunctions] are enforced through the trial court's civil contempt power. If the plaintiff (the party obtaining the writ) believes that the defendant (the enjoined party) is failing to comply with the decree's mandate, the plaintiff moves the court to issue an order to show cause why the defendant should not be adjudged in civil contempt and sanctioned. The plaintiff's motion cites the injunctive provision at issue and alleges that the defendant has refused to obey its mandate. If satisfied that the plaintiff's motion states a case of non-compliance, the court orders the defendant to show cause why he should not be held in contempt and schedules a hearing for
that purpose. At the hearing, if the plaintiff proves what he has alleged in his motion for an order to show cause, the court hears from the defendant. At the end of the day, the court determines whether the defendant has complied with the injunctive provision at issue and, if not, the sanction(s) necessary to ensure compliance.
Reynolds v. Roberts, 207 F.3d 1288, 1298 (11th Cir. 2000) (citations and footnote omitted); see Faught v. Am. Home Shield Corp., 660 F.3d 1289, 1293 (11th Cir. 2011) (per curiam) (" If the prosecution of the Edlesons' class action in California would interfere with the settlement approved by the district court, then American Home Shield should have moved the district court for an order to show cause why the Edlesons should not be held in contempt for violating the injunction against the prosecution of released claims. American Home Shield should not have moved the district court to enter another injunction, and the district court should not have entered a second injunction to enforce its judgment." (citation omitted)).
Under § 1291, the district court's postjudgment Enforcement Order is not final because it did not involve contempt or sanctions. " A final order is one that 'ends the litigation on the merits and leaves nothing for the court to do but execute its judgment.'" Crawford & Co. v. Apfel, 235 F.3d 1298, 1302 (11th Cir. 2000) (quoting Huie v. Bowen, 788 F.2d 698, 701 (11th Cir. 1986)). Though postjudgment decisions necessarily follow a final judgment, such orders " are themselves subject to the test of finality." ...