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
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 tarn 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).
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
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
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
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:
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." Thomas II, 594 F.3d at 829 (quoting Delaney's Inc. v. Ill. Union Ins. Co., 894 F.2d 1300, 1304 (11th Cir. 1990)).
An order concerning the enforcement of a permanent injunction is not final unless it holds a party in contempt of court or imposes a sanction for violating the injunction. Id. at 830. In Thomas II, we dismissed an appeal similar to Bersin's for want of jurisdiction. Our language could not have been clearer:
Id. (emphasis added); see Thomas v. Blue Cross & Blue Shield Ass'n (Thomas I), 594 F.3d 814, 819 (11th Cir.2010) ("Although the order ruled that Kolbusz is enjoined from prosecuting his claim of breach of contract, the order did not completely dispose of the issue.... Because the order `did not hold [Kolbusz] in contempt or impose any sanction' for prosecuting a released claim in violation of the injunction, it is not appealable as a final order." (quoting Major v. Orthopedic Equip. Co., 561 F.2d 1112, 1115 (4th Cir. 1977))); Major, 561 F.2d at 1115 ("The order did no more than find Major had violated the prior injunction and the contract. Although it did not direct anything further to be done, it clearly anticipated that in order to dispose of the matter, OEC would take some further action before the court either to have Major held in
Similarly, we lack § 1292(a)(1) jurisdiction. That section permits interlocutory review of orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions." 28 U.S.C. § 1292(a)(1). We have explained that "§ 1292(a)(1) must be construed narrowly so as to limit the availability of interlocutory appeals in cases involving injunctions." Birmingham Fire Fighters, 280 F.3d at 1293; see Switz. Cheese Ass'n v. E. Horne's Mkt., Inc., 385 U.S. 23, 24, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966) ("[W]e approach this statute somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders."); United States v. City of Hialeah, 140 F.3d 968, 973 (11th Cir.1998) ("Congress did not intend for the injunction exception to open the floodgates to piecemeal appeals.").
We may review an order that modifies a previously entered injunction, but (and the caveat is critical here) an order clarifying or interpreting an existing injunction is not appealable. See Thomas II, 594 F.3d at 832. "A modification inquiry under section 1292(a)(1) has two facets: a reviewing court must examine whether there was an underlying decree of an injunctive character, and if so, whether the ruling appealed from can fairly be said to have changed the underlying decree in a jurisdictionally significant way." Sierra Club v. Marsh, 907 F.2d 210, 212 (1st Cir.1990). The first prong is met here because the Final Consent Judgment contained an injunction against "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 certain past or existing OBWB products or advertising.
In distinguishing between modifications and clarifications, our case law instructs us to apply a "functional approach, looking not to the form of the district court's order but to its actual effect." Birmingham Fire Fighters, 280 F.3d at 1293 (quoting Marsh, 907 F.2d at 213). Thus an order modifies, rather than clarifies, an existing injunction "when it actually changes the legal relationship of the parties." Id.; see Marsh, 907 F.2d at 213 ("Because the district court did not change the nature or scope of the judicially imposed prohibition, the court did not `modify' the injunction within the meaning of section 1292(a)(1)."). Notably, "[a]n order that interprets an injunction changes the legal relationship of the parties only when it blatantly misinterprets the injunction." Thomas II, 594 F.3d at 832. That is because our precedent forbids us from "analyz[ing] the injunction and the order in detail. To plunge into the details would collapse the jurisdictional inquiry into a decision on the merits, thwarting the purpose of § 1292(a)(1) ... [and] letting piecemeal appeals, cloaked in the guise of jurisdictional inquiries, come in through the back door." Birmingham Fire Fighters, 280 F.3d at 1293. As a result, "our inquiry is circumscribed. We ask not whether the district court's reading of the consent decree is in error, but whether it is a gross misinterpretation of the decree's original command." Id. (emphasis added).
In this Circuit, then, we have refused to recognize an appealable modification unless the second order works an obvious change in the rights of the parties. Thomas II involved a class action brought by physicians who alleged that an insurer had "improperly delayed, denied, and reduced payments." 594 F.3d at 832. When the parties settled, the district court entered a judgment enjoining suit by class members. Id. at 827. A doctor later sued in state court, alleging that the insurer had "retaliated against him for complaining about the plans' improper reimbursement practices." Id. at 832. That doctor then sought an order from the district court declaring that his claims did not fall within the injunction. Id. at 827. When the district court denied
Other circuit courts have reached similar results, stressing that they will not seek "to uncover subtle rather than blatant misrepresentations," because to do so would be "too searching for a preliminary jurisdictional inquiry." Gautreaux v. Chi. Hous. Auth., 178 F.3d 951, 958 (7th Cir. 1999); see, e.g., United States v. Philip Morris USA Inc., 686 F.3d 839, 845 (D.C.Cir.2012) ("The district court's interpretation of the data-disclosure requirement does not change the terms or force of [the original injunction], and it is certainly not `obviously wrong.'"); Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 477 F.3d 1151, 1155 (10th Cir.2007) ("[T]he District Court did not change the legal relationship between the parties or impose new obligations on Danette, but instead clarified that under the existing 1989 injunction and Rule 65, she is prohibited from aiding Hector in violating the 1989 injunction."). On the other hand, courts have recognized modifications when new orders clearly changed the reach of an existing injunction. See, e.g., R.M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel, 286 F.3d 194, 201 (4th Cir.2002) (finding a modification when orders "extended the scope of the earlier injunctions to cover new circumstances" because "the court had earlier only prohibited the sale of individual artifacts but had never enjoined the sale of the artifacts as a collection"); United States v. Bd. of Sch. Comm'rs of City of Indianapolis, 128 F.3d 507, 509 (7th Cir.1997) ("There is no question that in adding compulsory [rather than optional] busing of kindergarten students to the original injunction, the district judge modified that injunction....").
Turning to our circumscribed inquiry, we conclude that the district court's Enforcement Order is an interpretation not appealable under § 1292(a)(1). Simply put, the Enforcement Order amounted to a clarification because we cannot say that it patently misinterpreted the language of the original injunction. Initially, the Final Consent Judgment ordered that "any future litigation alleging violations of ... any... statute or law related to false marking or advertising" tied to certain OBWB activities described therein "is barred." (emphasis added). Like in Thomas II, this original injunction was "extremely broad." 594 F.3d at 832. On round two, the district court adopted a reasonable interpretation of this expansive prohibition in concluding that Bersin's state court causes of
Nor did the district court commit a glaring misinterpretation by determining that Bersin was a party enjoined by the initial order. The paragraph of the Final Consent Judgment that barred "any future litigation" did not specify who was the object of this ban. Elsewhere in the order, though, the court noted that Mamma Mia's had "standing to act on behalf of the United States of America and the general public." It was not a blatant misinterpretation for the district court to conclude that the Final Consent Judgment enjoined Bersin — as a member of the general public — from certain future litigation. In addition, although we apply a functional approach, we find it instructive that the district court explained its own Enforcement Order as a direct application of the existing injunction, not an alteration of its sweep. By concluding that the "Final Consent Judgment ... specifically bar[s] Bersin's causes of action," the Enforcement Order did not change the legal relationship of the parties because it did not alter the nature of the existing equitable relief. See id. at 832 ("The order that denied Robertson's motion, at most, clarified that Robertson's complaint in a Florida court was released, but the order did not modify the permanent injunction.").
In the absence of appellate jurisdiction, we cannot consider merits questions. Nor can we tunnel a backdoor to the merits by straining the modification/clarification analysis, lest we undermine the gatekeeping function (and statutory command) of §§ 1291 and 1292.
We recognize that the peculiar nature of the underlying qui tam action, with Mamma Mia's (on behalf of the United States) representing the future litigation interests of Bersin, prevented Bersin from having a traditional opportunity to challenge the original injunction as a party to the suit. Nevertheless, Congress established the false marking qui tam action that permitted Mamma Mia's representative suit. Congress also "intended appeals from interlocutory orders to be strictly limited to the unusual situations wherein such appeals are expressly authorized." St. Louis Shipbuilding & Steel Co. v. Petroleum Barge Co., 249 F.2d 905, 907 (8th Cir. 1957). Moreover, adjudicating the merits of Bersin's challenge would provide it with no relief. Notably, Bersin does not ask us to overturn the imposition of contempt or sanctions. And even if we found fault with the Enforcement Order, our ruling would not disturb the unappealed underlying injunction. Because Bersin does not challenge a final decision or an interlocutory order that has "a final and irreparable effect on the rights of parties," we have no power to hear this case. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); see id. ("Appeal gives the upper court a power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal.").
We underscore, however, that nothing prevents this Court from hearing a future appeal from an order in this case that imposes sanctions or holds Bersin in contempt. We hold only that at this stage in the proceedings this matter is not fit for our appellate review.
EVANS, Judge, dissenting:
I respectfully dissent from the majority's determination that we have no jurisdiction to hear this appeal. We have jurisdiction under 28 U.S.C. § 1291 because the district court's postjudgment Enforcement
We also have jurisdiction under 28 U.S.C. § 1292(a)(1) to hear Bersin's appeal because the district court's Enforcement Order significantly changed the scope of the alleged injunction in the Final Consent Judgment issued by the district court. Bersin was not a party in this case in 2011 when the Final Consent Judgment was entered. The Final Consent Judgment did not mention Bersin and Bersin has never been represented by a party
Further, I do not agree that the Final Consent Judgment contained an injunction against anyone, either in form or in function. It was an agreed upon consent judgment between Mamma Mia's and OBWB only based on their privately negotiated, confidential settlement agreement. It did say "... any future litigation alleging violations of 35 U.S.C. § 292 or any other statute or law related to false marking or false advertising
The majority errs in failing to recognize that Bersin's state court suit is not a qui tam action. It errs in failing to recognize
Even if we were to assume that the Enforcement Order against Bersin is interlocutory instead of final, we would have jurisdiction to hear this appeal. The district court relied on the All Writs Act, 28 U.S.C. § 1651, to justify enjoining the state court causes of action, where it had no jurisdiction to do so under the Anti-Injunction Act, 28 U.S.C. § 2283. We have jurisdiction to hear an appeal complaining of the entry of such an injunction. See Estate of Brennan v. Church of Scientology Flag Serv. Org., Inc., 645 F.3d 1267 (11th Cir.2011); Bayshore Ford Trucks Sales, Inc. v. Ford Motor Co., 471 F.3d 1233 (11th Cir.2006); Burr & Forman v. Blair, 470 F.3d 1019, 1023 (11th Cir.2006); Klay v. United Healthgroup, Inc., 376 F.3d 1092 (11th Cir.2004); Peterson v. BMI Refractories, 124 F.3d 1386, 1390 (11th Cir.1997); see also In re BankAmerica Corp. Secs. Litig., 263 F.3d 795, 800 (8th Cir.2001).
Before turning to discussion of the merits of the appeal, it is helpful to note the particular nature of former 35 U.S.C. § 292, under which this suit was brought. This version of the Patent False Marking statute was a qui tam
We should reverse and vacate the district court's Enforcement Order against Bersin for three reasons. First, the Anti-Injunction Act, 28 U.S.C. § 2283, precludes the district court's jurisdiction over Bersin's state court damages suit against BWB and Fassberg. No independent federal jurisdiction exists as to the state law damages claims in the state court suit. Also, the state court damages suit is not a qui tam action and does not involve the same parties as this qui tam suit. Resolution of the qui tam action had no res judicata effect as to the state court action. Second, the district court's Enforcement Order purports to state, but significantly misstates, the bar language of the Final Consent Judgment, broadening it to include "litigation that either alleges violations of 35 U.S.C. § 292 OR any claims related to false marking or false advertising." (emphasis added). This is a very important distinction, because the state court litigation does not involve claims under 35 U.S.C. § 292 or claims under "any statute or law related to false marking or false advertising,"
The factual summary in the majority opinion is expanded as follows.
In August 2010 OBWB threatened to sue a large number of defendants, including Mamma Mia's, in state court over their use of some sort of "water system" which allegedly produced water tasting like water in Brooklyn, New York. OBWB prepared a complaint seeking damages and sent it to Mamma Mia's and other named defendants
In September 2010 Mamma Mia's responded by filing the instant qui tam action against OBWB seeking an award of the fine/penalty available under former § 292 for OBWB's false claims of patent protection for the water system/water. The United States did not seek to intervene.
On March 16, 2011 Mamma Mia's and OBWB signed a privately negotiated Confidential Settlement Agreement ("settlement agreement") to settle the instant qui tam action and OBWB's claims against Mamma Mia's in the state court case in Palm Beach County. The settlement agreement called for a mutual dismissal of claims and a payment of $5,000 by OBWB to Mamma Mia's and $5,000 to the U.S. government. Nothing in the record suggests that Bersin knew about the settlement discussions. Bersin was not involved in the Palm Beach case. The settlement agreement did not mention Bersin either directly or indirectly. It did state that Mamma Mia's agreed "to cooperate with BWB
Mamma Mia's and OBWB also prepared an agreed-upon Final Consent Judgment and Dismissal with Prejudice. On or about March 16, 2011, Mamma Mia's and OBWB sent the settlement agreement and proposed Final Consent Judgment to the Department of Justice. These documents are in the record. The motion filed by Mamma Mia's and OBWB with the district court states that the Justice Department "indicated it had no objection to the settlement agreement or the settlement documents," although there is no reply document from the Justice Department in the record. Because none of the documents sent to the Justice Department mentioned Bersin either directly or indirectly, there is no basis for an inference that the Justice Department approved OBWB's later-announced plan to cut off any non-qui tam claims Bersin might have against OBWB. Taking the documents at face value, they pertain only to transactions between Mamma Mia's and OBWB, plus their respective affiliates.
On March 23, 2011 and March 18, 2011 Mamma Mia's and OBWB respectively signed General Releases in favor of the other, broadly releasing all claims, including those which were made or which could have been made in the Palm Beach litigation or in this qui tam case.
Mamma Mia's and OBWB filed their Joint Motion for Entry of Consent Final Judgment of Dismissal on March 24, 2011. The Joint Motion attached a proposed Final Consent Judgment which the district court entered on March 28, 2011. The Final Consent Judgment contained this language:
(emphasis added).
Because it is difficult to envision other statutes or laws "related to false marking or false advertising" of patented products except for qui tam statutes, I interpret the foregoing to proscribe repetitive litigation under 35 U.S.C. § 292 or any other qui tam statute, perhaps the current version of § 292 which then was anticipated to take effect, and did take effect, in September of 2011.
The Final Consent Judgment also contained a statement that "[Mamma Mia's] has a valid statutory assignment of the rights of the United States of America to pursue and dispose of the claims resolved and dismissed in this Stipulation of Dismissal."
On February 24, 2012 Bersin filed a state court lawsuit in Miami-Dade County against BWB and its owner, Steven M. Fassberg. The Second Amended Complaint filed June 19, 2012 is the operative complaint here. The Second Amended Complaint recites events which occurred beginning in 2010 when Fassberg (alleged founder and chief executive of OBWB/ BWB) and Bersin discussed a business deal for a new location on Alton Road in Miami, Florida. The discussions culminated in an Operating Agreement between BWB, franchisor, and BWB Associates,
On March 18, 2013, OBWB filed a pleading in the instant qui tam action entitled Defendant's Second Motion to Enforce Final Consent Judgment of Dismissal with Prejudice. This pleading was actually OBWB's first pleading seeking to enforce the consent judgment against Bersin. The pleading labeled First Motion to Enforce was against Florida Bagels, an entirely separate company situated similarly to Bersin in relation to OBWB.
Having found jurisdiction to decide this appeal, I would vacate the district court's Enforcement Order against Bersin because (1) the Anti-Injunction Act, 28 U.S.C. § 2283, precludes the district court's jurisdiction over Bersin's state court damages suit; (2) the district court's Enforcement Order misstates and thereby improperly broadens the language of the Final Consent Judgment; and (3) the Releases executed by Mamma Mia's and OBWB did not release Bersin's claims against OBWB.
First, the Anti-Injunction Act, 28 U.S.C. § 2283, precludes the district court's jurisdiction to enjoin Bersin's state court damages suit against BWB. The Anti-Injunction Act serves as a check on the broad authority recognized by the All Writs Act, 28 U.S.C. § 1651, by expressly prohibiting a federal court from enjoining state court proceedings "except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." 28 U.S.C. § 2283. The Anti-Injunction Act and All Writs Act are closely related; "[i]f one of the three specific exceptions contained in the Anti-Injunction Act permits an injunction, the All Writs Act grants a federal court the power to issue it." Upper Chattahoochee Riverkeeper Fund, Inc. v. City
The third exception to the Anti-Injunction Act, a federal court granting an injunction "to protect or effectuate its judgments," is at issue here. Generally referred to as the "relitigation exception," this exception "is appropriate where the state law claims would be precluded by the doctrine of res judicata." Id. at 1029-30 (internal quotation marks and citations omitted). A party seeking an injunction of a state court proceeding under this exception must make a strong and unequivocal showing of relitigation. Delta Air Lines v. McCoy Rests., 708 F.2d 582, 586 (11th Cir.1983).
"Federal courts apply the law of the state in which they sit with respect to the doctrine of res judicata." NAACP v. Hunt, 891 F.2d 1555, 1560 (11th Cir.1990) (citation omitted). "Under Florida law, res judicata applies where there is: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; (4) identity of the quality [or capacity] of the persons for or against whom the claim is made; and (5) the original claim was disposed on the merits." Lozman v. City of Riviera Beach, 713 F.3d 1066, 1075 (11th Cir.2013) (internal quotation marks and citations omitted). As to the third element, "[r]es judicata applies only when the parties to the action, or their privies, are identical in the prior and subsequent action." Id. at 1075 n. 7.
Here, the second, third and fifth elements required for res judicata to apply are not met. The causes of action are not the same. The first action (the instant case) is a qui tam suit brought by Mamma Mia's on behalf of the United States pursuant to 35 U.S.C. § 292. The subsequent action, however, is not a qui tam action but a private cause of action brought by Bersin under Florida common law and statutory law.
Further, the parties to the prior and subsequent actions are not identical. This qui tam action involves Mamma Mia's as relator and OBWB as defendant. Neither of them is involved in the subsequent litigation between Bersin and BWB. Bersin was not involved in this qui tam action and is not in privity with any party that was. Therefore, res judicata is inapplicable here.
Because res judicata does not preclude Bersin's claims, the Bersin case does not fall within the specific relitigation exception of the Anti-Injunction Act. Therefore, the district court lacked jurisdiction under the Anti-Injunction Act to enjoin the state court proceedings.
Even assuming arguendo that the district court did have jurisdiction to enjoin the state court proceedings, I would vacate and reverse the Enforcement Order because
The Final Consent Judgment says:
(emphasis added). The district court's Enforcement Order, however, mistakenly says that the Final Consent Judgment "expressly states that any future litigation related to false marking or false advertising with regard to the OBWB's past or existing product, advertising regarding patented process, water treatment system, technology, water, ice cubes or `Cubsta machine' is covered by the Final Consent Judgment and is barred." (emphasis added).
This interpretation of the Final Consent Judgment as barring all litigation related to false marking or false advertising considerably broadens the actual language of the Final Consent Judgment, which barred only litigation alleging violations of any statute or law related to false marking or false advertising. While Bersin's claims for inducement,
Finally, Mamma Mia's as relator had no authority to "release" Bersin's right to pursue its state court damages claim against OBWB because the United States did not own this claim, and it could not have been the subject of a statutory assignment to the relator. The district court's Enforcement Order to the contrary is error as a matter of law.
In sum, I respectfully dissent from the majority's determination that we have no jurisdiction to hear this appeal, and having found jurisdiction, would reverse and vacate the district court's Enforcement Order against Bersin.
We think that the dissent has misapprehended the Final Consent Judgment. The dissent states that "the Final Consent Judgment does not order ... anyone ... to do or not do anything in particular." But, as we've explained, the Final Consent Judgment plainly "ORDER[ED] and ADJUDGE[D]" that certain types of litigation were "barred." The dissent also says that the only signatories to the settlement agreement were the parties, but the district court judge signed the Final Consent Judgment.
The dissent cites cases that took § 1292(a)(1) jurisdiction to review injunctions entered under the All Writs Act, 28 U.S.C. § 1651. As we see it, these cases are inapposite, however, because none involve an order that interpreted a previously entered injunction. We reiterate that the Enforcement Order interpreted an existing injunction; it did not modify an injunction or grant a new one.