Mamma Mia's Trattoria, Inc. v. Original Brooklyn Water Bagel Co., 13–12798.
Decision Date | 30 September 2014 |
Docket Number | No. 13–12798.,13–12798. |
Citation | 768 F.3d 1320 |
Parties | MAMMA MIA'S TRATTORIA, INC., a Florida corporation, Plaintiff, Bersin Bagel Group, LLC, Interested Party–Appellant, v. The ORIGINAL BROOKLYN WATER BAGEL CO., INC., a Florida corporation, Defendant–Appellee. |
Court | U.S. Court of Appeals — Eleventh Circuit |
John P. Kelly, The Kelly Law Firm, Fort Lauderdale, FL, for Plaintiff.
Samantha Tesser Haimo, Kopelowitz Ostrow Ferguson Weiselberg Keechl, Fort Lauderdale, FL, for Interested Party–Appellant.
Eric Lee, Lee & Amtzis, PL, Boca Raton, FL, Ira Marcus, Law Office of Ira Marcus, Fort Lauderdale, FL, for Defendant–Appellee.
Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 9:10–cv–81106–KLR.
Before MARCUS, Circuit Judge, and PROCTOR* and EVANS,** District Judges.
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:
35 U.S.C. § 292 (2006).
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.”2 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) ( ); Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1334 (11th Cir.1999) (). 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 ( ). 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...
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