*2 MARCUS, Before CARNES and Circuit *, Judges, Judge. and MILLS Senior District MARCUS, Judge: Circuit appeal arises out of the district This entry court’s without an injunction enjoining defen- dant-appellants Roger Marilyn Robert- continuing son from to run a McDonald’s previously restaurant franchised to them plaintiff-appellee Corporation. appeal challenge the dis- On trict court’s denial of their motion for evidentiary hearing on McDonald’s motion injunction. Additionally, argue defendants the district court entering erred in because, Robertsons, according to the Mc- did not that it demonstrate had right to terminate the Robertsons’ franchise thus, agreement, and McDonald’s is not like- ly to succeed on the merits of its case. Be- cause no issues of material fact were con- troversy when the district court ruled on the preliminary injunction, motion for we find its that the district court acted well within declining not err in to hold discretion did evidentiary hearing. conclude We also that, record, based on this the district court * Mills, by designation. District Honorable Richard Senior U.S. Illinois, Judge sitting for the Central District of lease established and the contained cross-termination properly found that McDonald’s pre- which, prerequisites provisions if all under the franchise Consequently, af- liminary injunction. terminated, lease like- firm. would be and McDonald’s wise terminated *3 possession. Finally, a right would receive to
I. provided that the the documents operative facts acquire any recitation of the A detailed would not interest in a restau- similar, understanding holding. to our that of rant business McDonald’s operates a well-known McDonald’s worldwide ten fran- and within miles of the Robertsons’ Although business. it owns several fast food eighteen chise for months after termination stores, also fran- McDonald’s sells its own agreement. contract, By all of McDonald’s fran- chises. operate res- must their McDonald’s chisees B. compliance taurants in “McDonald’s with 3, 1997,' filed an On October McDonald’s System,” practices a series of business and Robertsons, complaint against amended procedures employed, part, in uni- ensure alleging infringement, claims for trademark quality Mc- restaurant and food at all form designation origin in dilution and false Donald’s locations. Act, misappropria- of the Lanham violation secrets, tion of trade and breach of the cove- A. compete. nant not to com- amended 1, 1971, ac- September the Robertsons On plaint sought declaratory judgment also quired the McDonald’s franchise restaurant terminating agreement the franchise and Blanding at 4227 Boulevard in Jack- located ejecting disputed Robertsons' sonville, operated Florida. The Robertsons premises. complaint Mc- With its amended Blanding restaurant without Boulevard contemporaneously applica- filed an Donald’s and, many years, July on incident for n injunction. preliminary Mc- tion for fran- shortly parties’ before the original application, this supported Donald’s which agreement expire, par- chise due preliminary injunctive Mc- sought relief on twenty-year into a franchise ties entered new trademark and non- Donald’s agreement, consisting of a letter franchise claims, competition covenant with the thir- agreement, agreement, oper- an license and Grass, Kathy teen-page affidavit of a Mc- property upon lease to the real ator’s in Donald’s Business Consultant McDonald’s Among pro- the restaurant located. other Region. Upon Tampa Bay receiving Mc- visions, agreement required the 1989 license injunction, motion Donald’s operate their franchise the Robertsons court on Octo- the district entered order safety, cleanli- quality, accordance with and scheduling motion for on ber (“QSC”) prescribed, by the standards ness argument. oral Addi- October limited to agreement and and McDonald’s business stated, “Any 6 order tionally, the October QSC policy manuals. standards McDonald’s the Defendants wish to submit materials govern array a wide of its franchisees’ busi- application to the Plaintiffs must opposition affairs, including, particular rele- ness and p.m. on be filed with the Court 5:00 case, procedures to be vance to Thursday, 1997.” The Robert- October cooking, storing, and preparing, followed discovery food, expedited mainte- sons filed motion for serving and the cleanliness and Mc- physical sought structure. nance of injunction. motion for Donald’s plainly Mc- agreement gave The franchise By dated October the district order right inspect the Donald’s the but Mc- denied both motions ordered “at all for com- franchise reasonable times” produce manuals certain business Donald’s QSC pliance with McDonald’s standards. agreement. incorporated into the franchise Additionally, it termi- allowed McDonald’s to 16,1997, filed the Robertsons On October if, among contingen- other the contract nate motion for opposition. to McDonald’s cies, operate the Robertsons failed their. injunction. They opposed Mc- compliance with McDonald’s restaurant materials, with, among motion other QSC franchise Donald’s standards. The (“Robert- (2) Roger tively, raising growth; the affidavit of Robertson risk of bacteria son”). cabinet, equipment, including staging a meat clean, opera- good,
was not maintained in C. repair compliance ble condition and (3) standards; towels Based on the affidavits of Grass and Rob- being were not sanitized. ertson, evidence, relevant as well as other following undisputed the record reveals the 12, 1995, September On Consultant, facts. As a Business Grass safety failed still another food audit.1 The serves as the liaison between certain Mc- auditors found several sanitation and food- and McDonald’s and en- franchisees violations, handling including following: consistently sures that the franchisees com- refrigeration temper- the sundae machine *4 ply QSC with In her McDonald’s standards. degrees ature was maintained twelve above capacity as a McDonald’s Business Consul- the maximum McDonald’s recommended tant, QSC Grass had conducted several au- temperature, increasing the risk of bacteria Through dits the Robertsons’ restaurant. (2) growth; equipment kept was not 1994, McDonald’s had rated the Robertsons’ clean, operable good, and condition and re- generally satisfactory restaurant in terms of (the it); pair bugs sundae machine had QSC compliance. (3) staff and failed to maintain and use area, grill clean and sanitized towels 24, 1995, February On McDonald’s con- thereby increasing potential for cross- safety ducted unannounced food audit of contamination. The Robertsons’ restaurant Notably, the Robertsons’ franchise. the au- also failed an audit for similar reasons on dit disclosed that the Robertsons’ restaurant deficiencies, Among March 1996. other producing patties, undercooked meat this audit cited the for failure to Robertsons interiors, patties showing pink meat or red fish, vegetable, prod- store raw and cheese patties average and meat with an internal properly, equipment ucts failure maintain temperature degrees nine below the internal clean, good, operable a condition and temperature required by re- McDonald’s to repair, prop- failure to maintain and monitor Additionally, duce the risk of bacteria. holding product, improper er times sani- audit revealed that the Robertsons’ restau- which, found, practices, tation McDonald’s complete rant had failed to and maintain posed concerns,” public “serious health fail- daily safety food checklists in accordance aspects ure to maintain various of the restau- standards, with McDonald’s had failed condition, acceptable rant in an failure to refrigeration maintain shake machine grill integrity, maintain failure to maintain temperature degrees at 38 or lower. Mc- clean, grill and use sanitized towels in the findings inspec- Donald’s of the reviewed areas, lobby failure to meet finished tion Mr. him with Robertson and sent standards, product provide and failure to results, summary advising written him timely customer service. recommending deficiencies and correc- tive action. later, days Twelve on March two representatives McDonald’s visited the Rob- later, Approximately one month on March ertsons and advised them that McDonald’s 21, 1995, McDonald’s conducted an an- purchased property approximately had one follow-up nounced audit. The Robertsons away block from their restaurant for the remedy had failed to some of the deficiencies purpose building a new restaurant. Mc- February safety identified in the 24 food Donald’s told the Robertsons that the new inspection audit. The also disclosed addi- location would be “much better” terms of others, problems. Among tional the audit visibility, physical ease of access and condi- following: revealed the cooked meat and tion. poultry products being staging held in 3, 1996, eight degrees cabinets at and three below On McDonald’s conducted October prescribed temperatures, respec- McDonald’s to the “short restaurant visit” safety 1. Failure of food audit denotes failure to dards. operational meet McDonald's minimum stan- forming that their failure received their them continued The Robertsons
restaurant.^ comply QSC overall standards only passing grade since 1994—an constituted significant no agreement. revealed mark “C.” visit material breach of franchise QSC problems. provided The notice the Robertsons with days. period sixty Additionally, it cure 31, 1996, McDonald’s offered On October advised the Robertsons that McDonald’s close opportunity them comprehen- would conduct an unannounced and to take the franchise at the restaurant sixty-day period evaluation after the sive of the increased rent new location. Because had detérmine whether restaurant new applicable fees to the fran- and service satisfactory QSC ratings chise, achieved declined the offer. Robertsons concerns, safety. Finally, acceptable of food response to the Robertsons’ Mc- evaluation that if found guarantee provided offered Robert- the notice $100,- up income at the sons’ new location operating had raised the Robertsons per year. The also declined Robertsons mini- comply with McDonald’s standards to this offer. On December Mc- standards, mum would need to purchase Donald’s offered the Robertsons’ satisfactory operations to maintain levels $300,000. Again, franchise Robert- throughout following twenty-four month refused. sons period to the default. cure *5 19, 1997, February McDonald’s con- On During sixty-day period, cure Grass _ inspection still another unannounced ducted store on two addition- Robertsons’ visited This the Robertsons’ restaurant. audit of again al Both times she observed occasions. many of deficiencies un- disclosed the same safety numerous and food sanitation other audits, during including, earlier covered period on expired, violations. After the cure others, practices among improper sanitation 1997, 26, along August with other Mc- health posed public “serious concerns.” employees, Donald’s Grass visited the Rob- Additionally, found that the Rob- McDonald’s ertsons’ to conduct an unannounced store failed raw Canadian ertsons’ store to store comprehensive graded restaurant evaluation. Also, products properly. and biscuit bacon visit, During agents McDonald’s record- refriger- audit revealed that the walk-in others, ed, among following violations: expired with ator contained several items (1) patties pat- meat and meat undercooked codes that should have been re- freshness temperature thirteen ties an internal destroyed. March moved and On after degrees required tempera- internal below the attempts to reach Mr. unsuccessful several meat, cooking of in- for raw ture the safe provid- by telephone, Robertson McDonald’s (2) creasing growth; of bacteria the risk summary ed Robertson with written handling eggs raw and the fail- improper of requested visit. restaurant Grass prepara- used in the ure sanitize utensils design plan improv- an action Robertsons egg product, creating of the risk of tion April ing operations. On Mc- (3) cross-contamination; fail- salmonella and again an unannounced Donald’s undertook spat- separate ure to use Hutzler color-coded restaurant. Once Robertsons’ visit egg product, posing ulas for and cooked raw sanitation, again McDonald’s found numerous and cross-contamina- the risk of salmonella QSC hygiene, food-handling, and violations. (4) tion; use of bare and unwashed routine Indeed, the same deficiencies Grass observed February serving sanitized tools to during 19 visit. hands instead of identified (5) supply that she failure to products; testified her affidavit asked handle food Grass grill whether he had created action Robertson and towels for in the clean sanitized use improving operations, replied (6) he plan area; but sanitary proce- failure to follow ,and not. also discussed the that he had Grass washing, rinsing, sanitizing dures for manager failure have a certi- (7) utensils; storage in a rusted of dishes safety comple- through successful fied food (8) cart; shopping failure to meat and cover (or equiva- tion of the McDonald’s ServSafe 'freezer, patties increasing the chicken in the lent) safety food course. cross-contamination; and risk freezer burn (9) holding McNugget failure to maintain May delivered a On Robertsons, which shut off without properly, in- cabinet of Default” to the “Notice notice, non-competition warning creating the risk that its claim for breach of the or Instead, drop chicken would its safe McDonald’s focused on cooked below covenant. (10) holding temperature; failure to maintain claim. The dis- its trademark grill cooking patties, meat which used in enti- trict court found that McDonald’s was notice, warning posing shut off without or sought pre- the relief and entered a tled to undercooked; patties risk that meat would be liminary enjoining the Robertsons (11) trademarks, failure to set the timer for the correct using of McDonald’s cooking patties, resulting in names, marks, dress, time for meat trade and trade service patties; preparation of undercooked meat using any signs printed goods bearing or (12) manager marks, failure to have a certified in the occupying McDonald’s names course; safety food failure ServSafe operating premis- the McDonald’s restaurant QSC standards, resulting to meet other Boulevard, Blanding es located at 4227 poor quality During food and service. using, duplicating, disclosing any or of Mc- audit, August performed McDonald’s also by operation materials received Playplace safety survey an annual Additionally, agreement. the franchise letter play reviewed the condition of the children’s required part area that was of the Robertsons’ restau- by operation return all materials received inspection rant. This revealed the existence Finally, agreement. the franchise letter exposed play piping structure that was not injunc- district court made the hard, padding, sharp plastic covered with tie- $300,000 upon posting tion effective of a strips padding protruding, down that were posted bond McDonald’s. McDonald’s “very dirty” plastic balls in the children’s ball required appeal- bond. The Robertsons then area, netting throughout crawl loose and torn ed the orders of the district court. structure, dirty padding, and torn surface presence free-standing unguard- and the of a II. eight-foot high pole. ed McDonald’s conclud- *6 We review a district court’s order posed ed that these deficiencies risks to chil- granting denying preliminary injunction or a injury strangulation. dren of serious for abuse of discretion. See Baker v. Buck 24, 1997, September (11th On McDonald’s sent 167, eye Corp., Cellulose F.2d 169 856
the Robertsons a Notice of Franchise Termi- Cir.1988) (citing United States v. Jefferson nation, which advised the Robertsons that (11th Cir.1983)). 1511, County, 720 F.2d 1519 terminated, their franchise contract had been effective at the close of the restaurant on A. September 24. The Robertsons refused to may injunc- A grant district court possession premises surrender of the following: tive relief if the movant shows the operate continued to the restaurant as a Mc- (1) substantial likelihood of success on the Donald’s, using various trade names and (2) merits; injury irreparable will be suffered registered trademarks to McDonald’s. (3) issues; injunction unless the the threat facts, Finally, reviewing the uncontested injury outweighs ened the movant to whatev affidavit, we note that in his Robertson did damage injunction proposed may er any way accuracy not in contest the of the issued, opposing party; cause the if Rather, findings. inspection he contended injunction would not be adverse to the alleged that the violations not serious public Nursing interest. See All Care Ser they pretext and that served as a for Mc- vice, Inc. v. Hospital, Bethesda Memorial ending real reason for the franchise Inc., (11th Cir.1989) 887 F.2d 1537 agreement McDonald’s wanted res- Baker, (citing (citing 856 F.2d —that Jeffer occupy
taurant to the different and better 1519)). County, son 720 F.2d at In this space at the of the end block. Circuit, injunction is an “[a] ex traordinary remedy and drastic not to be D. granted clearly unless the movant estab ” persuasion’
At the
on October McDonald’s
lished the ‘burden of
as to the
(citations omitted).
request
injunctive
requisites.2
withdrew its
relief on
four
Id.
argue
junction
2. The Robertsons
in-
entered in this
case altered
status
area,
challenge
stopped paying
the district court’s
the franchisee had
only
they
royalties
Jiffy
findings
relate
the likelihood
but had
as
Lube
continued
threat of operate
“Jiffy
on the merits
its
under the
of success
stores
name
irreparable injury.3 We therefore address Lube.” The
filed suit against
franchisee
Jif-
Lube,
fy
in turn.
claiming
each
breach
franchise
agreements. Concurrently, because of the
on the Merits
1. Likelihood
Success
pay -royalties, Jiffy
franchisee’s
failure to
instituted
Lube
franchise
termi-
probability of
on
success
proceedings against
nation
the franchisee’s
validity
depends
merits at
trial
Jiffy
three
then
stores.
Lube
a mo-
filed
infringement
trademark
claim. This Cir
its
preliminary injunctive
against
tion for
relief
a
prevail
cuit has held that in order
franchisee,
prevent
claim,
seeking
fran-
plaintiff
a
trademark
of its
chisee
further use
trademark.
mark
in com
must show that its
was used
Jiffy
The district court
mo-
denied
Lube’s
regis
merce
the defendant without the
tion because
concluded that
termi-
consent and that
the unauthorized
trant’s
dispute
parties
confusion,
preclud-
nation
between
deceive,
likely
cause
use was
Jiffy
ed a determination of
Lube’s likelihood
King
Burger
See
or result
mistake.
of success on the merits. The
Mason,
Third Circuit
Corp. v.
1983)
failing
found that the
court erred in
1114(1)(a)),
district
§
(citing 15 U.S.C.
Cir.
dispute
to address the termination
denied,
and held
465 U.S.
104 S.Ct.
cert.
right
a franchisor’s
(1984).
terminate a fran-
research,
L.Ed.2d 130
Our
how
independently
any
chisee exists
claims
ever,
has not
case where this
revealed
against
might
the franchisee
have
the fran-
appropriate prelim
has
Court
addressed
Thus,.
found,
chisor.
the Third Circuit
evaluating
inary
standard
injunc-
franchisor is entitled to
acted
the defendant
without
whether
“if it
tive relief
can adduce
facts
sufficient
registrant’s authorization where the defen
indicating
its
termination of
fran-
[the
franchisee who
dant
claims.
proper.”
franchises was
Id. at 375.
chisee’s]
unlawfully
fran
registrant
terminated its
agreement.
chise
Computer
Publishing Corp.
Currents
Inc.,
Communications,
Jaye
F.Supp.
Circuits, as well as district courts
Other
(N.D.Ga.1997),the
considered
however,
Circuit,
in this
have considered
magazine publisher brought
case where
Corp.
Jiffy
R
Lube
question.
In S &
*7
infringement
against
action
International,
(3d
trademark
a for
Inc.,
Moreover, trademark actions “are common they merely because were homeless. The als preliminary in venues for the issuance of question whether Court considered of Tees, Inc., junctions,” Foxworthy v. Custom had not been ar homeless individuals who (N.D.Ga.1995) (cita F.Supp. standing challenge rested or harassed had omitted), that tion and this Circuit has held context, alleged policy. In that sufficiently strong showing “a of likelihood quoted made the above. Court statement infringe [caused confusion trademark Quite simply, Church is not relevant here. may by showing itself constitute a ment] Mc There has never been doubt that irreparable ... substantial threat of [a] standing against Donald’s has to file suit Remy harm.”6 E. Martin & Co. v. Shaw- preliminary injunc Robertsons and to seek Imports, Ross Int’l 756 F.2d short, against them. we find that the tion (11th Cir.1985); Test Petrole see also Power district court did not abuse its discretion Gas, um Distributors v. Calcu 754 F.2d injunction against entering (2d Cir.1985) (Irreparable harm exists the Robertsons. moving party a trademark case when rep “shows it will lose control over B. trial.”); pending utation of its trademark (“When Foxworthy, F.Supp. at 1219 Nor do we find evidentiary plaintiff prima showing not to conduct an makes court’s decision facie preliminary injunc infringement, irreparable trademark harm is on the motion omitted). (citation previ ordinarily presumed.”) tion reversal.7 As we noted warrants brief, Indeed, denying 6. 14 order in a different section their Court preliminary injunction Robertsons concede "that once the District motion is not a final or- proven der, and, concluded that McDONALD'S'had that it separately as an order issued from the reasonably likely its to succeed on trade- entering injunction, order is dis- claim, Court mark the District preliminary injunction from the and not tinct irreparable injury presumed should have part thereof. We find reviewable as no merit Appellants' Initial Br. at 36 n. 6. existed.” First, argument. there can to this be no doubt jurisdiction appeal that the Court has over the jur- 7. contends that this Court lacks McDonald's entering preliminary injunction. of the order isdiction to review the district court's denial Indeed, even concedes that 28 request evidentiary for an argue hear- the Robertsons' 1292(a)(1) appeal. § such an U.S.C. authorizes *10 ing. Specifically, they that the October
13H
1113). Finally, they
fair
argue
the chal
that “a
district
entered
S.Ct.
ously,
the
injunction
oppose
first
the
preliminary
opportunity
application”
without
neces-
lenged
Rather,
evidentiary hearing.
evidentiary
the
hearing,
opposed to
holding an
an
as
sitates.
materi
court considered the written
type
“hearing”
district
the
the
of
district court held
argument
als
and conducted oral
submitted
Id. at
the instant case.
29.
65(a),
Citing Rule
Fed.R.Civ.
on the motion.
problems with
ar
Several
the Robertsons’
P.,
appeal
court’s
the district
the Robertsons
First,
gument
Granny
exist.
does not
Goose
evidentiary
an
hear
to conduct
decision not
opponents
the proposition
stand for
that all
they
the dis
ing. Specifically,
contend that
injunctions
of preliminary
are entitled to evi-
required to
an evidentia-
court was
hold
trict
Rather,
above,
dentiary hearings.
as stated
(1)
ry
independent
reasons:
hearing for two
Rule 65’s
purpose
requirement
the
of
notice
ex
“conflicting material
evidence
record
party
prelimi
provide
opposing
is to
the
the
isted],”
allegedly
the district court
injunction
nary
opportunity
with a '“fair
irreparable
presumption
that a
of
determined
application
prepare for
oppose the
and to
existed,
necessitating
thus
an eviden-
harm
Goose,
opposition.” Granny
such
415 U.S.
tiary hearing.
7,
long
goals
432
1113.
n.
94 S.Ct.
So
as these
making
argument,
them
met,
require
Rule 65 does not
an eviden-
are
Fed.R.Civ.P.,
65(a)(1),
Rule
first note that
Indeed,
tiary hearing.
if the Robertsons
provides,
part,
preliminary
in relevant
“No
correct,
preliminary injunction
no
could
injunction
issued
notice to
shall be
without
evidentiary hearing.
an
ever issue without
party.” They
then cite to-
adverse
plainly wrong.
Nursing
is
See All Care
This
Foods,
Granny
Inc. v.
footnote
Goose
Service,
Hospital,
Inc. v. Bethesda Memorial
Teamsters,
94
415 U.S.
Brotherhood of
(11th Cir.1989) (“An
Inc.,
1535, 1538
F.2d
887
(1974),
L.Ed.2d
S.Ct.
39
435
hearing
always required
evidentiary
is not
required
notice
proposition
“[t]he
injunction.”).
preliminary
of a
before issuance
65(a)
preliminary injunction
Rule
before
therefore,
consider,
the circumstances
We
implies
hearing
in which the
can issue
hearing
evidentiary
under
under which
op-
given a fair
opportunity
defendant
is
necessary.
Previously,
have
is
we
Rule 65
for such
pose
application
prepare
(cit-
stated,
injunction
turns on the
“Where
opposition.” Appellants’ Initial Br. at 29
facts,
Goose,
bitterly disputed
... an
ing Granny
at 432 n.
94
resolution of
U.S.
the,
Second,
granting
ing
except
as
in
case
to review
Appellee's Br. at ix.
the order
reviewing
obviously
junction
preliminary injunction
It is true that in
inter
inextri
....
locutory injunctions
may
denying
evi-
we
look to otherwise
cably
with the
intertwined
order
order,
aspects
hearing
injunction.
nonappealable
of
... but we
dentiary
preliminary
on the
summary
the-
of the
fully
question
address the
of whether
cannot examine
merits
cannot
We
Plainly,
granting
prelimi
judgments at
time....”
this foot
this
the district court erred
considering
considering
bar the Court from
nary injunction without
whether the
note does not
along
evidentiary hearing
bound to
an eviden-
the denial
court was
conduct
injunc
entry
tiary hearing.
review of the
That the district court delivered
its
not,
Indeed,
language
itself
rulings
of the footnote
in two different documents does
tion.
its
ruling
proposition
suggests, necessarily
supports the
that the
on
render the
McDonald's
as
Indeed,
may
along
con
be considered
unrelated.
it is difficult to
orders
entry
preliminary injunction.
period
More
with the
what other
would constitute
ceive of
stated,
over,
plainly
scope
denying
appeal
”[T]he
Court has
the order
appropriate time
jurisdiction
appeal
pre
of a
evidentiary
[on
in
of the court’s
liminary injunction]
direct
during
is limited to matters
junction
appeal
of the order
if not
[grant]
injunctive
ly
relief.”
granting
preliminary injunction.
does
to the
Nor
related
Orlando,
(11th
(5th
Corp.,
F.3d
Laser
evidentiary hearing
normally required
appellants
this
of a fair
case
credibility
Nursing
appel-
issues.” All Care
meaningful opportunity
oppose
decide
Service,
(citing
F.2d at 1538
Forts v.
887
lees’ motion.” Id. at 1538.
(2d Cir.1977)).
Ward,
849,
F.2d
851
566
Conversely, in
v. Or
Kaimowitz
Service,
Nursing
the plaintiffs,
All
sev
Care
lando,
(11th Cir.1997), amended,
122
41
F.3d
nursing
temporary
agencies,
eral
filed suit
(11th Cir.1997),
131
950
we held that the
F.3d
against
hospitals and other
the defendant
in declining
district court did not err
to hold
providers.
parties agreed
The
health care
plaintiffs
evidentiary hearing
an
mo
shortage
of
a nationwide
nurses existed
injunction
tion
for
where the
Thus,
the time.
defendants decided
preliminary injunction sought bore no rela
under
of
develop
program
which certain
tionship
underlying
to the
whatsoever
action.
agencies
temporary
service
would be des
effectively
Because this recital
exhausts
ignated “preferred agencies.”
partici
Each
jurisprudence
question
Court’s
of
give
pating hospital agreed to
consider
first
evidentiary
an
when
to hold
preferred agencies
staffing
ation
to the
hearing
preliminary injunc
on a motion for
temporary
Among
of
nurses.
other bases
tion,
have considered cases from other
we
determining
agencies
be
which
would
guidance.
Circuits for additional
Based on
“preferred,”
strongly
hospitals
the defendant
cases,
principles
review of these
certain
are
price. Additionally,
agencies
considered
First,
apparent.
in All
as noted
Care Nurs
agree
had
a percentage
to rebate
of then-
Service,
ing
bitterly
gross
where facts are
contest
yearly income to the
defendants
credibility
not
compete
hospitals
with the
in the
ed
determinations must be
plaintiff
hiring
nursing agen
injunctive
nurses. The
of
made
whether
relief
to decide
alleged
cies
issue,
sued
violations of the Sher
should
must be
sought
man
prelimi
Act and
received
Service,
Nursing
held. See All Care
887
nary
enjoining
injunction
defendants
Ward,
849,
1535;
F.2d
566
Forts
F.2d
851
price
establishing
maximum
standards
(2d Cir.1977) (quoting Dopp v.
Na
Franklin
adhere,
agencies
which
must
from sub
(2d
873,
Cir.1972)
Bank,
tional
F.2d
879
461
stantially interfering
management
with the
(3d
Greene,
(quoting
87,
161
Sims v.
F.2d
88
agencies
or
manner
individual
Cir.1947)))
course,
(“‘Generally,
judge
of
nurses,
employ
requiring
their
and from
dispute
should
resolve a factual
on affida
not
any portion
them
in
to contribute
of their
depositions,
merely
vits or
for then he is
providers
come in order to be considered as
showing
piece
preference
paper
for “one
of
’
temporary
entering
of
nurses.
Before
Giles,
”);
Soup
Campbell
to another.”
Co. v.
injunction,
provided
district court
(1st Cir.1995)
467,
(quoting
47 F.3d
470
SEC
days’
defendants
two
notice of the hear
(2d Cir.1968))
Frank,
491
388 F.2d
ing,
only
argument
permit
oral
in which
(“[W]hen
parties’ competing
versions of
Additionally,
permit
ted.
the district court
pertinent
sharp
events
factual
are
ted
parties
to file written affidavits and
dispute,
propriety
injunctive
such
support
respective
submissions
their
credibility,
relief hinges on determinations of
positions. We determined that
the trial
proceeding
‘the
inappropriateness
on affi
in failing
court
its discretion
to hold
abused
”);
davits
attains its maximum.’
El
[alone]
evidentiary
parties
because
Kiesewetter,
(3d
liott v.
98 F.3d
Cir.
conflicting
had submitted
affidavits that
1996) (citing
Plan Examiners
Professional
“placed
dispute
in serious
issues central to
Lefante,
Jersey,
New
Inc. v.
750 F.2d
appellees’
Nursing
claims.” All Care
Ser
(3d
(“A
Cir.1984))
district court cannot
vice,
Additionally,
F.2d at 1539.
in rec
depends
issue a
ognition
complexity
of the facts and
disputed
resolution of
of fact
upon the
issues
parties
before the
in All
number
court
evidentiary
unless
first holds an
the court
Service,
stated,
Nursing
two-day
Care
“A
Accessories,
hearing.”); Ty, Inc. v. GMA
notice,
thirty
coupled with
minutes for oral
Inc.,
Cir.1997) (cit
presentations
hardly be
can
said to constitute
Locks,
Swiderek,
ing
Security
Medeco
Inc. v.
meaningful opportunity
oppose appel-
(7th Cir.1981)) (“If
genuine
preliminary injunction.
lees’
680 F.2d
motion for
determines that under the facts of
issues of material fact are
thus
created
*12
did
preliminary
for
in
court held that the district court
not err
to a motion
response
declining
evidentiary hearing.
in
an
evidentiary hearing is indeed
to hold
junction, an
Second,
material facts
where
required.”).
We
based on the
here
find
record
in dispute
facts
dispute,
or where
are not
category
that this case falls into the second
injunction
preliminary
to the
are not material
is,
above—that
material
of cases identified
not
generally
courts
need
sought, district
dispute,
disputed
are not in
or the
facts
facts
Maryland
evidentiary hearing. See
hold an
injunction
the
are not material to
Realty Advisory
Casualty
Board on
Co. v.
sought.
controversy
In
case no real
this
(2d
Relations,
984
Cir.
107 F.3d
Labor
engaged
the
exists over
Robertsons
whether
Elliott,
1997);
(quoting
ing
plaintiff
as
in certain actions the
viewed
any type,
hearing of
retaliatory. Without a
III.
preliminary in-
the district court denied the
therefore conclude
We
plaintiff
junction
because
found
*13
denying
err in
the Robertsons’
court did not
showing
irreparable
had failed to make a
evidentiary hearing
grant-
and in
motion for
reversed,
finding that
injury. This Court
in-
ing
motion for
in Title
irreparable injury
presumed
VII
is
junction. Accordingly,
judgment
the
the
Although the
in this Circuit.
Court
eases
be,
is,
district court must
and AFFIRMED.
“[Wjhere
statement,
general
there
made the
harm,
irreparable
as in
presumption
a
CARNES,
concurring
Judge,
Circuit
case,
the
conduct
eviden-
this
court should
specially:
denying
tiary hearing
granting or
before
motion,”
opinion
nonetheless
id.
join
well written and
I
all of the Court’s
holding
limit
to the
an intent to
evinces
case,
persuasive opinion
except
in this
Indeed,
stating
of the case.
even after
facts
seeking
part about whether a
to
franchisor
irreparable
presumed
harm is
Title
that
enjoined
continuing
to
have a franchisee
cases,
stated,
“On the
VII
Court
facts of
terminated
use a trademark under a now
case,
that
the district court
this
we hold
agreement
that its termination of
must show
evidentiary
conducting
in not
hear-
erred
proper. Resolution of
was
ing
[the defendant]
to determine whether
impression in
circuit is
that issue of first
this
presumption
irrepa-
[the]
[of
could overcome
disposition
ap
to the
of this
not
injury],
plaintiff] had
[the
rable
or whether
holds,
peal.
franchisor has
As the Court
requirements----”8
Id. at
met the other
(or
showing,
which
shown made
substantial
added).
(emphasis
169
stage)
applicable
standard at this
that
distinguishable
Baker is also
from the case
rights
it
within
to terminate the
was
its
Baker,
at hand.
the district court failed
holding, it matters
agreement. Given that
injunction,
apparently
enter a
to
disposition
appeal
of this
not at all
solely
plaintiffs
prove
failure
based
proper
a franchisor must show
ter
whether
Baker,
irreparable harm.
1315 volved). Much is true of review leaving up to the reader to the same opinion, but successful), attempt cert. Court, grants if was Supreme decide certiorari — denied, -, 118 S.Ct. U.S. only holdings review are lower (1998). L.Ed.2d Somewhat like state- See, e.g., judgment to the in a case. essential — article written ments in a law review States, U.S. -, Rogers v. United lecture, comments judge, judge’s or a (dis 673, 677, L.Ed.2d 686 S.Ct. offering can as vehicle dicta be used missing improvidently granted as' a writ of judge’s on an the bench and bar views upon the issue which it certiorari because issue, views those are worth. whatever granted fairly presented by was not persuasiveness given rationale can Brown, record); Ticor Title Ins. Co. v. views, those weight increase accorded but 117, 121, 1359, 1361-62, U.S. S.Ct. put are formed the fact that the views (1994) (dismissing improv as L.Ed.2d 33 writ they forward in of a case which a context idently granted “it is not clear where *14 always not subtract from the do matter will question our resolution of the constitutional weight given them. any will make difference even to these liti judges, like It is nature of most human gants”). cautious, deliberative, beings, more to be judicious that should be others, reasons, among dicta in —characteristics For these important brought deciding in is- to bear opinions binding anyone for our is not on they say makes a differ- sues—when what purpose. having Because of considerations to before them. It is one ence someone name, in court’s to do with first word that thing hypo- to on an abstract offer a view or may Supreme Court be a different mat dicta put question, specula- thetical to forward ter insofar as courts” such as our “inferior comment, to quite tive another decide but and the are own district courts concerned. competing issue that will affect the interests See, Hialeah, e.g., City United States v. parties in an actual case before the (11th Cir.1998); F.3d Peterson presented by Deciding court. real issues Refractories, 124 v. F.3d BMI judicial parties focuses real 'in real time deci- (11th Cir.1997) (“Dicta Supreme from the speculative ways making making sion that something lightly is not to be cast Court pronouncements hypothetical questions about aside.”). opinions But in our dicta cannot cannot. circuit, or establish either the law even are expressed dicta less reliable Views See, e.g., the law of the case. United States holdings for another than those embodied Dayton, 981 Cir. v. F.2d judicial holdings, reason. dicta does Unlike 1993); Dredge Dock Co. Great Lakes & carry it the added assurance of not Miller, Robert Tanker Watt judiciary having what survived (11th Cir.1992). in a peer amounts a kind of review. Dicta comment, subject may panel decision be points opinion in this ease As the Court’s criticism, disapproval or member another out, in this circuit that the two district courts effectively it is insu- panel, of that same but (in published opinions) the addressed have Supreme lated from banc or Court review. en question opposite con- have reached issue strongly other members of No matter how might tempt concerning it. That us clusions panel’s that a the Court are convinced dicta subject in express our order views wrong, any suggestion that the whole is guidance,” “provide but we decide cannot grant rehearing to correct it will be Court appeal court’s view is in this which district met, response it quite properly, with the that nothing can decide the correct one. We dicta, only the issue is not is addressed more than which is decide actually presented, and so would be an Moreover, appeal. two district resources exam- improper use of en bane judges question differed over have upon R.App. it. ine and See Fed. comment sufficiently diffi- it is establishes one which 35(a) (en rehearing is not favored P. bane disagree, jurists to to cause cult reasonable except ordered when nec- and should not be withholding argues our and that in favor of essary uniformity or of decisions when presented squarely until the importance in- views issue is question exceptional depends upon resolution appeal issue. opinion in an dicta to include
Whether unnecessary a matter issues is
related but judge, to of each
within the sound discretion basis, I case exercised on case
be my colleagues in no criticism of two
intend Instead, sepa- I have written
this instance. not to
rately explain why I have chosen
join them dicta. America, Plaintiff-
UNITED STATES Cross-Appellant,
Appellee, STEELE, Defendant- O.
William *15 Cross-Appellee.
Appellant,
No. 94-3139. Appeals, States Court of
United
Eleventh Circuit.
July 1998.