Procedural Happenings

Last week, both David and South Florida Lawyers discussed the Eleventh Circuit’s trademark-infringement decision FIU v. FNU. The decision ought to be required reading for civil lawyers practicing in the Eleventh Circuit. It highlights an important consideration when filing and presenting cross motions for summary judgment in cases scheduled for a bench trial: How you go about it may affect whether the Eleventh Circuit reviews any appeal of a summary judgment de novo or only for clear error.

After the close of discovery, the parties filed cross motions for summary judgment. At a status conference, the lawyers largely agreed that the record was clear, and one lawyer suggested that the court “would not ‘learn anything new at trial that it had not already seen from both sides.’” Following these suggestions, the court scheduled a follow-up hearing on “cross motions for summary judgment slash bench trial,” where it heard further argument and “said that it understood the parties’ views of the record and did not see any ‘need for live testimony unless either party felt that it would like to add to or continue this proceeding.’” Three months later, the Court granted FNU’s motion for summary judgment and denied FIU’s motion for summary judgment.

In lengthy detail, the Eleventh Circuit analyzed whether it was reviewing “a summary judgment order or a final judgment entered after a bench trial.” The answer is important, because it determines whether review was de novo or for clear error, whereby any factfinding is given great deference, and obtaining reversal is next to impossible. “In the unique circumstances of this case,” the Eleventh Circuit concluded, “we think the district court’s decision is better understood as a judgment entered after a bench trial.” Affirmed.

(Of course, the Eleventh Circuit may have affirmed regardless of the standard of review it used. As summed up by South Florida Lawyers, "Did FIU seriously think there would be confusion?")

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In other quasi-procedural news, the prior-panel-precedent rule remains as strong as ever.

Yesterday, relying squarely on the holding of one of its decisions from 2004, the Eleventh Circuit affirmed the dismissal of a challenge by an adult bookstore and a woman with multiple sclerosis to the constitutionality of a municipal ordinance prohibiting the sale, rental, or lease of obscene material. Though “sympathetic” to the argument that the ordinance violated appellants’ due-process rights under the Fourteenth Amendment, the panel felt “constrained by [its] prior precedent” and “obligated to follow it even though convinced it is wrong.” In an unusual step, the panel informed the appellants that they “are free to petition the court to reconsider our decision en banc, and we encourage them to do so.”