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Lawyers Called Out For Persuading Judge To Ignore Higher Court’s Remand Instructions

Posted on Wednesday, May 16, 2018

The 11th U.S. Circuit of Appeals recently took several defense lawyers to task in a published opinion, chastising them for persuading the federal district court to defy the 11th Circuit’s remand instructions in the case.

In Winn-Dixie Stores, Inc v Dolgencorp, LLC (Docket No. 15-12990), the plaintiff claimed the defendants had violated grocery exclusivity clauses in their lease agreements. The 11th Circuit remanded the matter in March 2014, with instructions for the federal district court to apply a 2002 Florida ruling, Winn-Dixie Stores Inc v 99 Cent Stuff-Trail Plaza LLC, to certain Florida stores that Winn-Dixie alleged had violated the exclusivity clauses.

The 11th Circuit instructed the federal district court, on remand, to apply the definitions of “groceries” and “sales area” set forth in the 99 Cent ruling to 41 stores in Florida. However, according to the 11th Circuit, the attorneys for two of the defendants in the case (Big Lots and Dollar Tree) somehow convinced the district court to ignore the 11th Circuit’s order and, instead, apply the definitions to only 14 stores in Florida with leases executed after the 99 Cent ruling was issued. 


While the federal district court followed the 11th Circuit’s directives regarding Alabama and Georgia stores, it did not do so for the Florida locations. Rather, defense lawyers in the case convinced the district court to stray from the 11th Circuit’s mandate, arguing their clients were not fully aware of the scope of the exclusivity clauses.

But the 11th Circuit didn’t buy the defense lawyers’ arguments and harshly criticized their actions. “After we have remanded a case with specific instructions, attorneys rarely attempt to have the district court defy our mandate,” the 11th Circuit wrote. “And even if they try it, a district court is seldom misled into that kind of error by them. This is one of those rare cases where the attorneys representing one side successfully urged the district court to act contrary to our mandate.”

The 11th Circuit continued, “Needless to say (or maybe not), a district court cannot amend, alter or refuse to apply an appellate court’s mandate simply because an attorney persuades the court that the decision giving rise to the mandate is wrong, misguided or unjust. A district court can, of course, wax eloquent about how wrong the appellate court is, but after the waxing wanes the mandate must be followed.”

In its opinion, the 11th Circuit said its instructions were clear the first time. “We don’t know what else we could have said other than, perhaps, ‘and we really mean it.’ … Well, we really did mean it. And we still do,” the 11th Circuit stated, again remanding the case for the federal district court to apply the definitions set forth in 99 Cent.

The 11th Circuit called out one attorney in particular for statements he made urging the district court not to follow the mandate. According to the 11th Circuit, it specifically named the attorney because it did not “want an unfair inference to be drawn that any of those statements and misstatements were made by other attorneys who represented [the defendants] in the district court.”
The dispute between Winn-Dixie and its competitors dates back to 2011 when Winn-Dixie sued nearly 100 stores in five states, claiming they violated agreements limiting the amount of space neighboring stores may devote to selling competing grocery products.

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