Bruce Munro, et al. v. Fairchild Tropical Botanic Garden, Inc., et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10450
____________________
BRUCE MUNRO,
BRUCE MUNRO, LTD.,
Plaintiffs-Appellants,
versus
FAIRCHILD TROPICAL BOTANIC GARDEN, INC.,
NIGHT GARDEN, LLC,
KILBURN LIVE, LLC,
ZHONGSHAN G-LIGHTS LIGHTING CO., LTD.,
NANNETTE M. ZAPATA, et al.,
Defendants-Appellees.
USCA11 Case: 22-10450 Document: 73-1 Date Filed: 08/23/2023 Page: 1 of 7

-- 1 of 7 --

2 Opinion of the Court 22-10450
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-20079-AHS
____________________
Before B RANCH and L UCK , Circuit Judges, and B ERGER ,* District
Judge.
PER C URIAM :
Bruce Munro creates large-scale, light-based art installations.
Fairchild Tropical Botanic Garden in Coral Gables, Florida, hosted
NightGarden—a large-scale, light-based art installation—over two
winter seasons from November 2018 to January 2020. Munro be-
lieves that NightGarden copied his art installations. So he and his
studio, Bruce Munro, Ltd., sued the entities who designed and
hosted NightGarden and their officers (we’ll call them the NightGar-
den defendants)—as well as Chinese light manufacturer and seller
Zhongshan G-Lights Lighting Co., Ltd.—for copyright infringe-
ment and for violations of the Digital Millennium Copyright Act.
The NightGarden defendants appeared and answered. G-
Lights didn’t, however. The clerk of court entered a default against
G-Lights, but Munro never moved for entry of default judgment.
* The Honorable Wendy Berger, United States District Judge for the Middle
District of Florida, sitting by designation.
USCA11 Case: 22-10450 Document: 73-1 Date Filed: 08/23/2023 Page: 2 of 7

-- 2 of 7 --

22-10450 Opinion of the Court 3
Munro’s claims against the NightGarden defendants were
then resolved against him at summary judgment. Both the district
court’s summary-judgment order and its entry of judgment in the
NightGarden defendants’ favor expressly excluded G-Lights. This is
Munro’s appeal of the summary-judgment order.
“As a court of limited jurisdiction, we may exercise appellate
jurisdiction only where ‘authorized by Constitution and statute.’”
Jenkins v. Prime Ins., 32 F.4th 1343, 1345 (11th Cir. 2022) (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
“By statute, Congress has authorized us to review ‘final decisions
of the district courts.’” Id. (quoting 28 U.S.C. § 1291). But Federal
Rule of Civil Procedure 54 is clear that a judgment that “adjudi-
cates . . . the rights and liabilities of fewer than all the parties” to an
action isn’t final unless the district court directs entry of final judg-
ment after “expressly determin[ing] that there is no just reason for
delay.” Fed. R. Civ. P. 54(b); see also Arango v. Guzman Travel Advi-
sors, 761 F.2d 1527, 1530 (11th Cir. 1985) (“Without the presence of
a certificate under [f]ederal [r]ule 54(b), the final decision rule ordi-
narily operates to permit an appeal only from a judgment that fi-
nally determines all claims as to all parties.” (citations omitted)).
Here, because Munro never moved for—and the district
court never entered—a default judgment, Munro’s claims against
G-Lights remain pending. The district court didn’t “adjudi-
cate[] . . . the rights and liabilities of . . . all the parties” to the ac-
tion. See R. 54(b). Nor did the district court “expressly determine[]
that there [wa]s no just reason for delay[ing]” entry of final
USCA11 Case: 22-10450 Document: 73-1 Date Filed: 08/23/2023 Page: 3 of 7

-- 3 of 7 --

4 Opinion of the Court 22-10450
judgment. See id. The judgment in favor of the NightGarden de-
fendants thus wasn’t final—and, as a result, we lack appellate juris-
diction.
Munro conceded this at oral argument. But the NightGarden
defendants argued that we can still entertain Munro’s appeal for
two reasons.
First, as to Munro’s claims against G-Lights that were “inter-
twined” with his claims against them, the NightGarden defendants
asserted at oral argument that the district court had to refrain from
entering judgment against G-Lights under Gulf Coast Fans, Inc. v.
Midwest Electronics Importers, Inc., 740 F.2d 1499 (11th Cir. 1984). In
Gulf Coast Fans, we held that the district court abused its discretion
in refusing to set aside a default judgment in part because, where
defendants either are alleged to be jointly liable or are “similarly
situated” with respect to available defenses, “judgment should not
be entered against a defaulting defendant if the other defendant
prevails on the merits.” Id. at 1512 (first citing Frow v. De La Vega,
82 U.S. (15 Wall.) 552 (1872); and then citing C. Wright & A. Miller,
Fed. Prac. & Proc., § 2690 (additional citations omitted)). The mo-
tivating concern is for “incongruous and unfair” judgments against
different defendants on intertwined claims. Id.; see also Drill S., Inc.
v. Int’l Fid. Ins., 234 F.3d 1232, 1237 n.8 (11th Cir. 2000) (“Frow held
that where multiple defendants are jointly liable, it would be ‘in-
congruous’ for judgment to be entered against a defaulting defend-
ant prior to the decision on the merits as to the remaining
USCA11 Case: 22-10450 Document: 73-1 Date Filed: 08/23/2023 Page: 4 of 7

-- 4 of 7 --

22-10450 Opinion of the Court 5
defendants. Nevertheless, Frow has been interpreted to apply only
when there is a risk of inconsistent adjudications.” (citations omit-
ted)).
But Gulf Coast Fans didn’t address the jurisdictional issue we
have here regarding the impact of pending claims against a default-
ing defendant on a judgment’s finality—and so Gulf Coast Fans isn’t
precedent on our jurisdictional issue. See, e.g., Kondrat’yev v. City of
Pensacola, 949 F.3d 1319, 1325 n.2 (11th Cir. 2020) (“[T]he Supreme
Court has rejected the suggestion that . . . implicit ‘drive-by juris-
dictional rulings’”—when a court reaches a case’s merits without
first considering its jurisdiction—“carry any ‘precedential effect.’”
(quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998))).
Plus, not all of Munro’s claims against G-Lights were “intertwined”
with his claims against the NightGarden defendants. Munro alleged
infringement of two art installations (Brass Monkeys and Water-Tow-
ers) only by G-Lights. And he alleged that G-Lights violated the
Digital Millennium Copyright Act by using, on its sales websites,
images of numerous installations not implicated in his claims
against the NightGarden defendants. So, even if Gulf Coast Fans ap-
plies to some of Munro’s claims against G-Lights, it doesn’t apply
to all of them—meaning Gulf Coast Fans cannot fully cure the juris-
dictional problem here.
The NightGarden defendants admitted, at oral argument,
that Munro alleged these “separate” (that is, not “intertwined”)
claims against G-Lights. But they argued, second, that although
“the district court erred by not formally tying up the loose end of
USCA11 Case: 22-10450 Document: 73-1 Date Filed: 08/23/2023 Page: 5 of 7

-- 5 of 7 --

6 Opinion of the Court 22-10450
entering final judgment” as to these claims, that error didn’t impact
our jurisdiction because “[t]he case law is clear that the appropriate
remedy . . . is not vacatur[] but remand solely on the narrow issue
of entering final judgment regarding the default[ing] party.” The
NightGarden defendants point to Arango and to Coquina Investments
v. TD Bank, N.A., 760 F.3d 1300 (11th Cir. 2014). But those cases
involved exceptional circumstances in which the district court had
already quantified damages owed by a defaulting defendant, leav-
ing only the ministerial task of entering judgment in that amount.
See Arango, 761 F.2d at 1531 (“The extent of damages now being
determined, we see no obstacle preventing entry of default judg-
ment. . . . The only missing item is an entry of judgment against
two parties who have never entered an appearance in this lawsuit
from the time it was removed to federal court in 1978. . . . [U]nder
the circumstances of this case, the absence of the default judgment
does not require dismissal.”); Coquina Invs., 760 F.3d at 1306–08 &
n.6 (concluding the same, “under the circumstances of this case” in
which a jury had already awarded damages for claims arising from
the same fraud scheme against the non-defaulting codefendant).
Those exceptional circumstances aren’t present here. The
district court hasn’t yet determined damages against G-Lights, and
so remand wouldn’t be “on the narrow issue of entering final judg-
ment”; it would involve adjudication of damages and then entry of
judgment against G-Lights. That cuts against the very purpose of
the final judgment rule: “prohibit[ing] piecemeal disposition of lit-
igation” potentially requiring us to revisit overlapping issues in
staggered appeals. Vann v. Citicorp Sav. of Ill., 891 F.2d 1507, 1509–
USCA11 Case: 22-10450 Document: 73-1 Date Filed: 08/23/2023 Page: 6 of 7

-- 6 of 7 --

22-10450 Opinion of the Court 7
10, 1512 (11th Cir. 1990) (citation omitted). We therefore conclude
that the finality exception invoked in Arango and Coquina Invest-
ments doesn’t apply. Cf. id. at 1511–12 (citing Bache & Co. v. Taylor,
458 F.2d 395, 395 (5th Cir. 1972), parenthetically for the proposition
that the “absence of [a r]ule 54(b) certificate prevents [a] default
judgment from becoming [a] final judgment when [the] district
court ha[s] yet to set damages”).
In sum, the district court’s judgment in favor of the
NightGarden defendants wasn’t final because Munro’s claims
against G-Lights remain pending. And neither of the NightGarden
defendants’ asserted finality exceptions cures the jurisdictional de-
ficiency. We therefore dismiss Munro’s appeal for lack of appellate
jurisdiction. We accordingly DENY AS MOOT Munro’s pending
motion to dismiss G-Lights as a party to the appeal, which we ear-
lier carried with the case.
APPEAL DISMISSED.
USCA11 Case: 22-10450 Document: 73-1 Date Filed: 08/23/2023 Page: 7 of 7

-- 7 of 7 --