                                  United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 97-3308.

            McDONALD'S CORPORATION, Plaintiff-Counter-defendant-Appellee,

                                                  v.

   Roger ROBERTSON, Marilyn Robertson, trading as McDonald's Restaurant, Defendants-
Counter-claimants-Appellants.

                                            July 28, 1998.

Appeal from the United States District Court for the Middle District of Florida. (No. 97-1189-CIV-J-
10C), Ralph W. Nimmons, Jr., Judge.

Before CARNES and MARCUS, Circuit Judges, and MILLS*, Senior District Judge.

       MARCUS, Circuit Judge:

       This appeal arises out of the district court's entry without an evidentiary hearing of a

preliminary injunction enjoining defendant-appellants Roger and Marilyn Robertson from

continuing to run a McDonald's restaurant previously franchised to them by plaintiff-appellee

McDonald's Corporation. On appeal the Robertsons challenge the district court's denial of their

motion for an evidentiary hearing on McDonald's motion for preliminary injunction. Additionally,

the defendants argue that the district court erred in entering the preliminary injunction because,

according to the Robertsons, McDonald's did not demonstrate that it had the right to terminate the

Robertsons' franchise agreement, and thus, McDonald's is not likely to succeed on the merits of its

case. Because no issues of material fact were in controversy when the district court ruled on the

motion for preliminary injunction, we find that the district court acted well within its discretion and



   *
     Honorable Richard Mills, Senior U.S. District Judge for the Central District of Illinois,
sitting by designation.
did not err in declining to hold an evidentiary hearing. We also conclude that, based on this record,

the district court properly found that McDonald's established all of the prerequisites necessary for

a preliminary injunction. Consequently, we affirm.

                                                 I.

       A detailed recitation of the operative facts is necessary to understanding our holding.

McDonald's operates a well-known worldwide fast food business. Although it owns several of its

own stores, McDonald's also sells franchises. By contract, all of McDonald's franchisees must

operate their McDonald's restaurants in compliance with the "McDonald's System," a series of

business practices and procedures employed, in part, to ensure uniform restaurant and food quality

at all McDonald's locations.

                                                 A.

       On September 1, 1971, the Robertsons acquired the McDonald's franchise restaurant located

at 4227 Blanding Boulevard in Jacksonville, Florida. The Robertsons operated the Blanding

Boulevard restaurant without incident for many years, and, on July 23, 1989, shortly before the

parties' original franchise agreement was due to expire, the parties entered into a new twenty-year

franchise agreement, consisting of a franchise letter agreement, a license agreement, and an

operator's lease to the real property upon which the restaurant is located. Among other provisions,

the 1989 license agreement required the Robertsons to operate their franchise in accordance with

quality, safety, and cleanliness ("QSC") standards prescribed by the agreement and by McDonald's

business and policy manuals. McDonald's QSC standards govern a wide array of its franchisees'

business affairs, including, and of particular relevance to this case, the procedures to be followed




                                                 2
in preparing, cooking, storing, and serving food, and the cleanliness and maintenance of the physical

structure.

       The franchise agreement plainly gave McDonald's the right to inspect the Robertsons'

franchise "at all reasonable times" for compliance with McDonald's QSC standards. Additionally,

it allowed McDonald's to terminate the contract if, among other contingencies, the Robertsons failed

to operate the restaurant in compliance with McDonald's QSC standards. The franchise agreement

and the lease contained cross-termination provisions under which, if the franchise agreement were

terminated, the lease likewise would be terminated and McDonald's would receive a right to

possession. Finally, the documents provided that the Robertsons would not acquire any interest in

a restaurant business similar to that of McDonald's and within ten miles of the Robertsons' franchise

for eighteen months after termination of the agreement.

                                                 B.

       On October 3, 1997, McDonald's filed an amended complaint against the Robertsons,

alleging claims for trademark infringement, dilution and false designation of origin in violation of

the Lanham Act, misappropriation of trade secrets, and breach of the covenant not to compete. The

amended complaint also sought a declaratory judgment terminating the franchise agreement and

ejecting the Robertsons from the disputed premises. With its amended complaint McDonald's

contemporaneously filed an application for a preliminary injunction. McDonald's supported this

application, which sought preliminary injunctive relief on McDonald's trademark infringement and

non-competition covenant claims, with the thirteen-page affidavit of Kathy Grass, a McDonald's

Business Consultant in McDonald's Tampa Bay Region. Upon receiving McDonald's motion for

preliminary injunction, the district court entered an order on October 6 scheduling the motion for


                                                 3
a hearing on October 17 limited to oral argument. Additionally, the October 6 order stated, "Any

materials the Defendants wish to submit in opposition to the Plaintiff's application must be filed with

the Court by 5:00 p.m. on Thursday, October 16, 1997." The Robertsons filed a motion for

expedited discovery and sought an evidentiary hearing on McDonald's motion for preliminary

injunction. By order dated October 14, 1997, the district court denied both motions but ordered

McDonald's to produce certain business manuals incorporated into the franchise agreement. On

October 16,1997, the Robertsons filed their opposition to McDonald's motion for preliminary

injunction. They opposed McDonald's motion with, among other materials, the affidavit of Roger

Robertson ("Robertson").

                                                  C.

       Based on the affidavits of Grass and Robertson, as well as other relevant evidence, the record

reveals the following undisputed facts. As a Business Consultant, Grass serves as the liaison

between certain McDonald's franchisees and McDonald's and ensures that the franchisees

consistently comply with McDonald's QSC standards. In her capacity as a McDonald's Business

Consultant, Grass had conducted several QSC audits on the Robertsons' restaurant. Through 1994,

McDonald's had rated the Robertsons' restaurant generally satisfactory in terms of QSC compliance.

       On February 24, 1995, McDonald's conducted an unannounced food safety audit of the

Robertsons' franchise. Notably, the audit disclosed that the Robertsons' restaurant was producing

undercooked meat patties, meat patties showing pink or red interiors, and meat patties with an

average internal temperature nine degrees below the internal temperature required by McDonald's

to reduce the risk of bacteria. Additionally, the audit revealed that the Robertsons' restaurant had

failed to complete and maintain daily food safety checklists in accordance with McDonald's


                                                  4
standards, and it had failed to maintain the shake machine refrigeration temperature at 38 degrees

or lower. McDonald's reviewed the findings of the inspection with Mr. Robertson and sent him a

written summary of the results, advising him of the deficiencies and recommending corrective

action.

          Approximately one month later, on March 21, 1995, McDonald's conducted an announced

follow-up audit. The Robertsons had failed to remedy some of the deficiencies identified in the

February 24 food safety audit. The inspection also disclosed additional problems. Among others,

the audit revealed the following: (1) cooked meat and poultry products were being held in staging

cabinets at eight and three degrees below McDonald's prescribed temperatures, respectively, raising

the risk of bacteria growth; (2) equipment, including a meat staging cabinet, was not maintained in

good, clean, and operable condition and repair and in compliance with McDonald's standards; and

(3) towels were not being sanitized.

          On September 12, 1995, the Robertsons failed still another food safety audit.1 The auditors

found several sanitation and food-handling violations, including the following: (1) the sundae

machine refrigeration temperature was maintained twelve degrees above the maximum McDonald's

recommended temperature, increasing the risk of bacteria growth; (2) the equipment was not kept

in good, clean, and operable condition and repair (the sundae machine had bugs in it); and (3) the

staff failed to maintain and use clean and sanitized towels in the grill area, thereby increasing the

potential for cross-contamination. The Robertsons' restaurant also failed an audit for similar reasons

on March 7, 1996. Among other deficiencies, this audit cited the Robertsons for failure to store raw



   1
    Failure of a food safety audit denotes failure to meet McDonald's minimum operational
standards.

                                                   5
vegetable, fish, and cheese products properly, failure to maintain equipment in a good, clean, and

operable condition and repair, failure to maintain and monitor proper holding times for product,

improper sanitation practices, which, McDonald's found, posed "serious public health concerns,"

failure to maintain various aspects of the restaurant in an acceptable condition, failure to maintain

grill integrity, failure to maintain and use clean, sanitized towels in the grill and lobby areas, failure

to meet finished product standards, and failure to provide timely customer service.

        Twelve days later, on March 19, 1996, two McDonald's representatives visited the

Robertsons and advised them that McDonald's had purchased property approximately one block

away from their restaurant for the purpose of building a new restaurant. McDonald's told the

Robertsons that the new location would be "much better" in terms of visibility, ease of access and

physical condition.

        On October 3, 1996, McDonald's conducted a "short restaurant visit" to the Robertsons'

restaurant. The Robertsons received their only passing grade since 1994—an overall mark of "C."

The visit revealed no significant QSC problems.

        On October 31, 1996, McDonald's offered the Robertsons the opportunity to close their

restaurant and to take the franchise at the new location. Because of the increased rent and service

fees applicable to the new franchise, the Robertsons declined the offer. In response to the

Robertsons' concerns, McDonald's offered to guarantee the Robertsons' income at the new location

up to $100,000 per year. The Robertsons also declined this offer. On December 11, 1996,

McDonald's offered to purchase the Robertsons' franchise for $300,000. Again, the Robertsons

refused.




                                                    6
       On February 19, 1997, McDonald's conducted still another unannounced inspection of the

Robertsons' restaurant. This audit disclosed many of the same deficiencies uncovered during earlier

audits, including, among others, improper sanitation practices that posed "serious public health

concerns." Additionally, McDonald's found that the Robertsons' store failed to store raw Canadian

bacon and biscuit products properly. Also, the audit revealed that the walk-in refrigerator contained

several items with expired freshness codes that should have been removed and destroyed. On March

3, after several unsuccessful attempts to reach Mr. Robertson by telephone, McDonald's provided

Robertson with a written summary of the restaurant visit. Grass requested that the Robertsons

design an action plan for improving operations. On April 18, 1997, McDonald's again undertook

an unannounced visit of the Robertsons' restaurant. Once again McDonald's found numerous

sanitation, hygiene, food-handling, and QSC violations.         Indeed, Grass observed the same

deficiencies identified during the February 19 visit. Grass testified in her affidavit that she asked

Robertson whether he had created an action plan for improving operations, but he replied that he had

not. Grass also discussed the Robertsons' failure to have a manager certified in food safety through

successful completion of the McDonald's ServSafe (or equivalent) food safety course.

       On May 28, 1997, McDonald's delivered a "Notice of Default" to the Robertsons, informing

them that their continued failure to comply with QSC standards constituted a material breach of the

franchise agreement. The notice provided the Robertsons with a cure period of sixty days.

Additionally, it advised the Robertsons that McDonald's would conduct an unannounced

comprehensive evaluation after the sixty-day period to determine whether the restaurant had

achieved satisfactory QSC ratings and an acceptable evaluation of food safety. Finally, the notice

provided that if McDonald's found that the Robertsons had raised the operating standards to comply


                                                 7
with McDonald's minimum standards, the Robertsons would need to maintain satisfactory operations

levels throughout the following twenty-four month period to cure the default.

       During the sixty-day cure period, Grass visited the Robertsons' store on two additional

occasions. Both times she again observed numerous sanitation and other food safety violations.

After the cure period expired, on August 26, 1997, along with other McDonald's employees, Grass

visited the Robertsons' store to conduct an unannounced comprehensive graded restaurant

evaluation. During this visit, McDonald's agents recorded, among others, the following violations:

(1) undercooked meat patties and meat patties with an internal temperature thirteen degrees below

the required internal temperature for the safe cooking of raw meat, increasing the risk of bacteria

growth; (2) improper handling of raw eggs and the failure to sanitize utensils used in the preparation

of egg product, creating the risk of salmonella and cross-contamination; (3) failure to use separate

Hutzler color-coded spatulas for raw and cooked egg product, posing the risk of salmonella and

cross-contamination; (4) routine use of bare and unwashed hands instead of sanitized serving tools

to handle food products; (5) failure to supply clean and sanitized towels for use in the grill area;

(6) failure to follow sanitary procedures for washing, rinsing, and sanitizing utensils; (7) storage

of dishes in a rusted shopping cart; (8) failure to cover meat and chicken patties in the freezer,

increasing the risk of freezer burn and cross-contamination; (9) failure to maintain a McNugget

holding cabinet properly, which shut off without warning or notice, creating the risk that cooked

chicken would drop below its safe holding temperature; (10) failure to maintain the grill used in

cooking meat patties, which shut off without warning or notice, posing the risk that meat patties

would be undercooked; (11) failure to set the timer for the correct cooking time for meat patties,

resulting in the preparation of undercooked meat patties; (12) failure to have a manager certified


                                                  8
in the ServSafe food safety course; and (13) failure to meet other QSC standards, resulting in poor

food quality and service. During the August 26 audit, McDonald's also performed an annual

Playplace safety survey in which it reviewed the condition of the children's play area that was part

of the Robertsons' restaurant. This inspection revealed the existence of exposed play structure

piping that was not covered with padding, hard, sharp plastic tie-down strips on padding that were

protruding, "very dirty" plastic balls in the children's ball crawl area, loose and torn netting

throughout the structure, dirty and torn surface padding, and the presence of a free-standing

unguarded eight-foot high pole. McDonald's concluded that these deficiencies posed risks to

children of serious injury and strangulation.

       On September 24, 1997, McDonald's sent the Robertsons a Notice of Franchise Termination,

which advised the Robertsons that their franchise contract had been terminated, effective at the close

of the restaurant on September 24. The Robertsons refused to surrender possession of the premises

and continued to operate the restaurant as a McDonald's, using various trade names and trademarks

registered to McDonald's.

       Finally, in reviewing the uncontested facts, we note that in his affidavit, Robertson did not

in any way contest the accuracy of the inspection findings. Rather, he contended that the alleged

violations were not serious and that they served as a pretext for McDonald's real reason for ending

the franchise agreement—that McDonald's wanted the restaurant to occupy the different and better

space at the end of the block.

                                                 D.

       At the hearing on October 17, McDonald's withdrew its request for injunctive relief on its

claim for breach of the non-competition covenant. Instead, McDonald's focused on its trademark


                                                  9
infringement claim. The district court found that McDonald's was entitled to the relief sought and

entered a preliminary injunction enjoining the Robertsons from using any of McDonald's

trademarks, trade names, service marks, and trade dress, using any signs or printed goods bearing

McDonald's names and marks, occupying and operating the McDonald's restaurant premises located

at 4227 Blanding Boulevard, and using, duplicating, or disclosing any of McDonald's materials

received by operation of the franchise letter agreement. Additionally, the district court required the

Robertsons to return all materials received by operation of the franchise letter agreement. Finally,

the district court made the preliminary injunction effective upon the posting of a $300,000 bond by

McDonald's. McDonald's posted the required bond. The Robertsons then appealed the orders of

the district court.

                                                 II.

        We review a district court's order granting or denying a preliminary injunction for abuse of

discretion. See Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir.1988) (citing United

States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir.1983)).

                                                 A.

         A district court may grant injunctive relief if the movant shows the following: (1)

substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the

injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed

injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to

the public interest. See All Care Nursing Service, Inc. v. Bethesda Memorial Hospital, Inc., 887

F.2d 1535, 1537 (11th Cir.1989) (citing Baker, 856 F.2d at 169 (citing Jefferson County, 720 F.2d

at 1519)). In this Circuit, "[a] preliminary injunction is an extraordinary and drastic remedy not to


                                                 10
be granted unless the movant clearly established the "burden of persuasion' " as to the four

requisites.2 Id. (citations omitted). The Robertsons challenge the district court's findings only as

they relate to the likelihood of success on the merits and the threat of irreparable injury.3 We

therefore address each in turn.

1. Likelihood of Success on the Merits

        McDonald's probability of success on the merits at trial depends on the validity of its

trademark infringement claim. This Circuit has held that in order to prevail on a trademark

infringement claim, a plaintiff must show that its mark was used in commerce by the defendant

without the registrant's consent and that the unauthorized use was likely to deceive, cause confusion,

or result in mistake. See Burger King Corp. v. Mason, 710 F.2d 1480, 1491 (11th Cir.1983) (citing

15 U.S.C. § 1114(1)(a)), cert. denied, 465 U.S. 1102, 104 S.Ct. 1599, 80 L.Ed.2d 130 (1984). Our

research, however, has not revealed any case where this Court has addressed the appropriate


   2
    The Robertsons argue that the preliminary injunction entered in this case altered the status
quo and thus was a mandatory injunction. Appellants' Initial Br. at 15-16; Appellants' Reply Br.
at 1-4. They cite Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir.1976), for the proposition,
"Mandatory preliminary relief, which goes well beyond simply maintaining the status quo
pendente lite, is particularly disfavored, and should not be issued unless the facts and law clearly
favor the moving party." Appellants' Reply Br. at 3. The Robertsons' attempt to characterize as
mandatory the injunction at issue, which prohibits the Robertsons from operating the Blanding
Boulevard restaurant and from using McDonald's trademarks, is incorrect. Nor do any of the
cases the Robertsons cite tend to support their contention that the injunction is a mandatory one.
Rather, the preliminary injunction here falls into the category of prohibitory injunctions. See
Meghrig v. KFC Western, Inc., 516 U.S. 479, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996) (stating
that a mandatory injunction orders a party to "take action" and a prohibitory injunction
"restrains" a party from further action).
   3
    Citing the possibility of harm to the public resulting from the possible consumption of an
unsafe product, the district court found that the balance of harms and the public interest favored
entering the preliminary injunction. Although the Robertsons do not voice objections to these
conclusions, we nonetheless note in passing that the record amply supports the district court's
finding.

                                                 11
preliminary injunction standard for evaluating whether the defendant acted without the registrant's

authorization where the defendant is a franchisee who claims that the registrant unlawfully

terminated its franchise agreement.

        Other Circuits, as well as district courts in this Circuit, however, have considered the

question. In S & R Corp. v. Jiffy Lube International, Inc., 968 F.2d 371 (3d Cir.1992), for example,

the Third Circuit reviewed a district court's denial of a preliminary injunction against a Jiffy Lube

franchisee. Alleging that the franchisor had breached its contractual obligations to maintain the

quality of its other franchises in the area, the franchisee had stopped paying royalties to Jiffy Lube

but had continued to operate its stores under the name "Jiffy Lube." The franchisee filed suit against

Jiffy Lube, claiming breach of the franchise agreements. Concurrently, because of the franchisee's

failure to pay royalties, Jiffy Lube instituted franchise agreement termination proceedings against

the franchisee's three stores. Jiffy Lube then filed a motion for preliminary injunctive relief against

the franchisee, seeking to prevent the franchisee from further use of its trademark. The district court

denied Jiffy Lube's motion because it concluded that the termination dispute between the parties

precluded a determination of Jiffy Lube's likelihood of success on the merits. The Third Circuit

found that the district court erred in failing to address the termination dispute and held that a

franchisor's right to terminate a franchisee exists independently of any claims the franchisee might

have against the franchisor. Thus, the Third Circuit found, a franchisor is entitled to preliminary

injunctive relief "if it can adduce sufficient facts indicating that its termination of [the franchisee's]

franchises was proper." Id. at 375.

        In Computer Currents Publishing Corp. v. Jaye Communications, Inc., 968 F.Supp. 684

(N.D.Ga.1997), the district court considered a case where a magazine publisher brought a trademark


                                                   12
infringement action against a former licensee and sought a preliminary injunction enjoining the

former licensee from using the magazine publisher's trademarks. Citing Jiffy Lube, the court held,

"[I]n order to satisfy the first prerequisite for a preliminary injunction [likelihood of success on the

merits], plaintiffs must demonstrate that, under the terms of the Agreement, they were entitled to

terminate the Agreement immediately based on defendant's conduct." Id. at 688.

        In Burger King Corp. v. Hall, 770 F.Supp. 633 (S.D.Fla.1991), however, another district

court in this Circuit found the question of alleged wrongful franchise contract termination irrelevant

to a motion for preliminary injunction seeking to enjoin a former franchisee from continuing to use

the franchisor's trademarks. Rather, the court determined, "[A] terminated franchisee's remedy for

wrongful termination is an action for money damages, and not the continued unauthorized use of

its franchisor's trademarks." Id. at 638. For support, this opinion, which was issued prior to, and

thus, without the benefit of Jiffy Lube, relied on Burger King Corp. v. Austin, Case, 805 F.Supp.

1007 (S.D.Fla.1990), and Cle-Ware Rayco, Inc. v. Perlstein, 401 F.Supp. 1231, 1234

(S.D.N.Y.1975). Cle-Ware Rayco, in turn, simply found that the franchisee's argument that his

compliance with the franchise agreement was excused by the franchisor's prior alleged breach of the

franchise agreement "has little relevance on [sic] the immediate question of whether the defendant

can continue to use the [trademark]." Id. at 1234.

        In considering this issue for the first time, we find that the Lanham Act's requirement that

a franchisor demonstrate that unauthorized trademark use occurred to prevail on the merits of a

trademark infringement claim against a franchisee necessitates some type of showing that the

franchisor properly terminated the contract purporting to authorize the trademarks' use, thus

resulting in the unauthorized use of trademarks by the former franchisee. Consequently, we are


                                                  13
persuaded by the Third Circuit's analysis and conclude that the district court correctly required

McDonald's to make a showing that it properly terminated the franchise agreement.

        We further find that the district court correctly concluded on the record before it that

McDonald's had made a substantial showing of a likelihood of success on the merits of its claim.

The record reflects that the parties did not disagree that McDonald's had conducted numerous

inspections of the Robertsons' restaurant. And Robertson acknowledged that these evaluations

"questioned the procedures involving cleaning, sanitizing and procedural control," Robertson Aff.

¶ 5, and that he "had a few QSC Reports in 1995 that McDonald's alleged did not meet its

standards." Robertson Aff. ¶ 6. He further did not contest the fact that the audits in 1996 and 1997

turned up additional deficiencies. Indeed, nothing in Robertson's affidavit alleged that McDonald's

findings during these visits were not accurate.4 The closest Robertson's affidavit came to suggesting

that the inspection findings were fabricated or exaggerated was the statement, "I became

increasingly surprised by these findings, since I was operating my restaurant in the same manner and

according to the same high standards for food, safety, and service that I had maintained for the past

twenty six years as a McDonald's owner/operator." Robertson Affidavit at ¶ 17. Even this

statement, however, does not amount to a denial of McDonald's allegations that the Robertson's

restaurant failed to meet McDonald's QSC standards during numerous visits by McDonald's.

Moreover, the statement is contradicted by McDonald's food safety audit findings in 1995 and 1996,


   4
    During the oral argument on the motion for preliminary injunction, the district court asked
counsel for the Robertsons to cite the portion of the affidavit disagreeing with the accuracy of the
inspection reports. Counsel conceded, "We didn't make that crystal clear in the affidavit." He
attempted to save his case by continuing, "I mean we'll do so now.... I'll state unequivocally, the
Robertsons dispute the accuracy of those findings." Because attorneys' statements at oral
argument do not constitute record evidence, the only evidence in the record does not deny
McDonald's contentions that the Robertsons' restaurant experienced numerous deficiencies.

                                                 14
which the Robertsons do not dispute, that the Robertsons' restaurant had some serious food safety

problems well before McDonald's proposed moving the Robertsons' restaurant.

        Robertson instead focuses on the fact that McDonald's sought to secure his agreement to

move to a new location, and the Robertsons rejected the offer. Thus, Robertson suggests, although

the food safety issues identified by the numerous inspections and audits were really not that

important to McDonald's, McDonald's nonetheless used the Robertsons' alleged food safety

deficiencies as "an excuse" for terminating the Robertsons' franchise agreement because McDonald's

wanted to make more money by moving the Robertsons' McDonald's to another nearby location.

Even assuming, arguendo, that this allegation is correct, however, we find that the Robertsons'

failure to comply with McDonald's QSC and food safety standards constituted a material breach of

the franchise agreement sufficient to justify termination, and thus, it does not matter whether

McDonald's also possessed an ulterior, improper motive for terminating the Robertsons' franchise

agreement. See Original Great American Chocolate Chip Cookie Co., Inc. v. River Valley Cookies,

Ltd., 970 F.2d 273, 279 (7th Cir.1992) (citing Patton v. Mid-Continent Systems, Inc., 841 F.2d 742,

750 (7th Cir.1988)) ("The fact that the Cookie Company may ... have treated other franchisees more

leniently is no more a defense to a breach of contract than laxity in enforcing the speed limit is a

defense to a speeding ticket.... Liability for breach of contract is strict."). Indeed, "a franchisor's

right to terminate a franchisee exists independently of any claims the franchisee might have against

the franchisor. The franchisor has the power to terminate the relationship where the terms of the

franchise agreement are violated." Jiffy Lube, 968 F.2d at 375.

       In the instant case, the district court correctly found preliminarily that the repeated alleged

and unchallenged violations of McDonald's QSC and food safety standards resulted in a material


                                                  15
breach of the franchise agreement by the Robertsons. First, in the franchise contract, the Robertsons

agreed that "[t]he foundation of the McDonald's System and the essence of [the franchise contract]

is the adherence by [the Robertsons] to standards and policies of [McDonald's] providing for the

uniform operation of all McDonald's restaurants within the McDonald's System." They also

acknowledged the importance of uniformity of food specifications, preparation methods, quality and

appearance, facilities, and service. The QSC and food safety standards produced by McDonald's

constitute some of the "standards and policies" with which McDonald's franchisees must comply.

Thus, continued violation of these standards appears to constitute a material breach of the franchise

agreement. Moreover, as the district court noted, as a world-wide fast food chain, McDonald's has

a clear interest in securing a uniform product and service of high quality at all of its locations.

McDonald's also has a strong legal interest in avoiding disputes stemming from the cleanliness and

safety of its products. Accordingly, there can be no real doubt that repeated and continued serious

violations5 of the QSC and safety standards, such as those alleged by McDonald's and unchallenged

by the Robertsons, constituted material breaches of the franchise agreement warranting termination.

Thus, the district court correctly found that McDonald's had a substantial likelihood of succeeding

on the merits of its trademark infringement claim, as there was no dispute that the Robertsons

continued to use the McDonald's trademarks, and that such use was unauthorized and was likely to

have resulted in confusion.

2. Irreparable Injury


   5
    While the Robertsons argue that the alleged violations were not "serious," it is difficult for
the Court to conceive of substantially more serious violations than those that could jeopardize
the health of the Robertsons' patrons, such as the cited undercooking of meat patties, practices
resulting in possible cross-contamination of food products, and the presence of bugs in the food
preparation equipment.

                                                 16
         The Robertsons also contend that the district court erred in finding irreparable injury

because, in other types of actions, district courts in this Circuit have held that loss of goodwill does

not constitute irreparable injury. The Robertsons also argue that any harm considered by the district

court was speculative, and thus, not sufficiently concrete to warrant entry of a preliminary

injunction. Again, we disagree.

       First, the cases the Robertsons cite from the district courts in this Circuit do not compel the

conclusion the Robertsons propound. In Salsbury Lab., Inc. v. Merieux Lab., Inc., 735 F.Supp. 1537

(M.D.Ga.1987), for example, a former lab employee allegedly improved upon the plaintiff lab's

vaccine formula, which was a trade secret. The plaintiff lab sought to enjoin the defendant lab from

continuing to use the improved vaccine, alleging that it would suffer lost profits and damage to its

reputation. The district court found that these contentions did not state irreparable harm. The instant

case is substantially different. Whereas the plaintiff in Salsbury stood to suffer injury as a result of

competition from another lab that allegedly misappropriated trade secrets, an injury that could be

compensated fully by looking to the defendant lab's profits, McDonald's faces damage to its own

reputation and loss of customers caused by the Robertsons' distribution of an allegedly inferior (and

possibly dangerous) product held out to be McDonald's. Customers would believe that they were

eating McDonald's sanctioned products when they consumed improperly cooked and unsanitarily

maintained food products from the Robertsons' store. We can conceive of no realistic way to

determine the damages under these circumstances.

       Moreover, trademark actions "are common venues for the issuance of preliminary

injunctions," Foxworthy v. Custom Tees, Inc., 879 F.Supp. 1200, 1219 (N.D.Ga.1995) (citation

omitted), and this Circuit has held that "a sufficiently strong showing of likelihood of confusion


                                                  17
[caused by trademark infringement] may by itself constitute a showing of ... [a] substantial threat

of irreparable harm."6 E. Remy Martin & Co. v. Shaw-Ross Int'l Imports, 756 F.2d 1525, 1530 (11th

Cir.1985); see also Power Test Petroleum Distributors v. Calcu Gas, 754 F.2d 91, 95 (2d Cir.1985)

(Irreparable harm exists in a trademark case when the moving party "shows that it will lose control

over the reputation of its trademark pending trial."); Foxworthy, 879 F.Supp. at 1219 ("When a

plaintiff makes a prima facie showing of trademark infringement, irreparable harm is ordinarily

presumed.") (citation omitted).     Obviously, in this case, such a substantial likelihood of

confusion—indeed, a certainty of confusion—of the Robertsons' substandard products with

McDonald's certified products exists. Consequently, the district court correctly concluded that

McDonald's made a sufficient showing of irreparable injury to justify entry of the preliminary

injunction.

       Finally, the Robertsons' citation of a laundry list of cases purportedly supporting their

contention that McDonald's claimed harm was speculative and thus insufficient to constitute

irreparable injury, is inapposite. For example, the Robertsons cite Church v. City of Huntsville, 30

F.3d 1332, 1337 (11th Cir.1994), for the proposition that "a party has standing to seek injunctive

relief only if the party alleges, and ultimately proves, a real and immediate—as opposed to a merely

conjectural or hypothetical—threat of future injury." Church involved a challenge by Huntsville's

homeless population to certain alleged policies of the city resulting in the arrest and harassment of

homeless individuals merely because they were homeless. The Court considered the question of



   6
    Indeed, in a different section of their brief, the Robertsons concede "that once the District
Court concluded that McDONALD'S had proven that it was reasonably likely to succeed on its
trademark infringement claim, the District Court should have presumed that irreparable injury
existed." Appellants' Initial Br. at 36 n. 6.

                                                 18
whether homeless individuals who had not been arrested or harassed had standing to challenge the

alleged policy. In that context, the Court made the statement quoted above. Quite simply, Church

is not relevant here. There has never been any doubt that McDonald's has standing to file suit

against the Robertsons and to seek a preliminary injunction against them. In short, we find that the

district court did not abuse its discretion in entering the preliminary injunction against the

Robertsons.

                                                 B.

        Nor do we find that the district court's decision not to conduct an evidentiary hearing on the

motion for preliminary injunction warrants reversal.7 As we noted previously, the district court


   7
     McDonald's contends that this Court lacks jurisdiction to review the district court's denial of
the Robertsons' request for an evidentiary hearing. Specifically, they argue that the October 14
order denying the evidentiary hearing on the preliminary injunction motion is not a final order,
and, as an order issued separately from the order entering the preliminary injunction, is distinct
from the preliminary injunction and not reviewable as a part thereof. We find no merit to this
argument. First, there can be no doubt that the Court has jurisdiction over the appeal of the order
entering the preliminary injunction. Indeed, even McDonald's concedes that 28 U.S.C. §
1292(a)(1) authorizes such an appeal. Appellee's Br. at ix. Second, the order granting the
preliminary injunction is obviously inextricably intertwined with the order denying an
evidentiary hearing on the preliminary injunction. We cannot fully address the question of
whether the district court erred in granting the preliminary injunction without considering
whether the district court was bound to conduct an evidentiary hearing. That the district court
delivered its rulings in two different documents does not, as McDonald's suggests, necessarily
render the orders unrelated. Indeed, it is difficult to conceive of what other period would
constitute the appropriate time to appeal the order denying the evidentiary hearing on the
preliminary injunction if not during the appeal of the order granting the preliminary injunction.
Nor does Gould v. Control Laser Corp., 650 F.2d 617 (5th Cir. Unit B 1981), the case
McDonald's cites in support of the proposition that the Court does not have jurisdiction over the
October 14 order, prevent the Court from exercising jurisdiction over the denial of the
evidentiary hearing. Specifically, McDonald's cites to footnote 7 of that case, which states, in
relevant part, "A litigant's right to appeal interlocutory injunctions only goes to the injunction
itself, and he cannot force consideration of the merits of the underlying case except as necessary
to review the injunction.... It is true that in reviewing interlocutory injunctions we may look to
otherwise nonappealable aspects of the order, ... but we cannot examine the merits of the
summary judgments at this time...." Plainly, this footnote does not bar the Court from

                                                 19
entered the challenged preliminary injunction without first holding an evidentiary hearing. Rather,

the district court considered the written materials submitted and conducted oral argument on the

motion. Citing Rule 65(a), Fed.R.Civ.P., the Robertsons appeal the district court's decision not to

conduct an evidentiary hearing. Specifically, they contend that the district court was required to

hold an evidentiary hearing for two independent reasons: (1) "conflicting material record evidence

exist[ed]," and (2) the district court allegedly determined that a presumption of irreparable harm

existed, thus necessitating an evidentiary hearing.

       In making their argument, the Robertsons first note that Rule 65(a)(1), Fed.R.Civ.P.,

provides, in relevant part, "No preliminary injunction shall be issued without notice to the adverse

party." They then cite to a footnote in Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415

U.S. 423, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974), for the proposition that "[t]he notice required by

Rule 65(a) before a preliminary injunction can issue implies a hearing in which the defendant is

given a fair opportunity to oppose the application and to prepare for such opposition." Appellants'

Initial Br. at 29 (citing Granny Goose, 415 U.S. at 432 n. 7, 94 S.Ct. 1113). Finally, they argue that

"a fair opportunity to oppose the application" necessitates an evidentiary hearing, as opposed to the

type of "hearing" the district court held in the instant case. Id. at 29.



considering the denial of the evidentiary hearing along with its review of the entry of the
preliminary injunction. Indeed, the language of the footnote itself supports the proposition that
the ruling on the evidentiary hearing may be considered along with the entry of preliminary
injunction. Moreover, this Court has plainly stated, "[T]he scope of the court's jurisdiction [on
appeal of a preliminary injunction] is limited to matters directly related to the [grant] of
injunctive relief." Kaimowitz v. Orlando, 122 F.3d 41, 43 (11th Cir.), amended, 131 F.3d 950
(11th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 1842, 140 L.Ed.2d 1092 (1998). For the reasons
already noted, denial of the motion for evidentiary hearing on the motion for preliminary
injunction is "directly related to the [grant] of injunctive relief." Id. Consequently, we reject
McDonald's jurisdictional argument and proceed to the merits of the Robertsons' claim that they
were entitled to an evidentiary hearing.

                                                  20
       Several problems with the Robertsons' argument exist. First, Granny Goose does not stand

for the proposition that all opponents of preliminary injunctions are entitled to evidentiary hearings.

Rather, as stated above, the purpose of Rule 65's notice requirement is to provide the party opposing

the preliminary injunction with a "fair opportunity to oppose the application and to prepare for such

opposition." Granny Goose, 415 U.S. at 432 n. 7, 94 S.Ct. 1113. So long as these goals are met,

Rule 65 does not require an evidentiary hearing. Indeed, if the Robertsons were correct, no

preliminary injunction could ever issue without an evidentiary hearing. This is plainly wrong. See

All Care Nursing Service, Inc. v. Bethesda Memorial Hospital, Inc., 887 F.2d 1535, 1538 (11th

Cir.1989) ("An evidentiary hearing is not always required before issuance of a preliminary

injunction.").

       We consider, therefore, the circumstances under which an evidentiary hearing under Rule

65 is necessary. Previously, we have stated, "Where the injunction turns on the resolution of bitterly

disputed facts, ... an evidentiary hearing is normally required to decide credibility issues." All Care

Nursing Service, 887 F.2d at 1538 (citing Forts v. Ward, 566 F.2d 849, 851 (2d Cir.1977)). In All

Care Nursing Service, the plaintiffs, several temporary nursing agencies, filed suit against the

defendant hospitals and other health care providers. The parties agreed that a nationwide shortage

of nurses existed at the time. Thus, the defendants decided to develop a program under which

certain of the temporary service agencies would be designated "preferred agencies." Each

participating hospital agreed to give first consideration to the preferred agencies in the staffing of

temporary nurses. Among other bases for determining which agencies would be "preferred," the

defendant hospitals strongly considered price. Additionally, the agencies had to agree to rebate a

percentage of their gross yearly income to the defendants and not to compete with the hospitals in


                                                  21
the hiring of nurses. The plaintiff nursing agencies sued for alleged violations of the Sherman Act

and sought and received a preliminary injunction enjoining the defendants from establishing

maximum price standards to which agencies must adhere, from substantially interfering with the

management or manner in which the individual agencies employ their nurses, and from requiring

them to contribute any portion of their income in order to be considered as providers of temporary

nurses. Before entering the injunction, the district court provided the defendants with two days'

notice of the hearing, in which only oral argument was permitted. Additionally, the district court

permitted the parties to file written affidavits and submissions in support of their respective

positions. We determined that the trial court abused its discretion in failing to hold an evidentiary

hearing because the parties had submitted conflicting affidavits that "placed in serious dispute issues

central to appellees' claims." All Care Nursing Service, 887 F.2d at 1539. Additionally, in

recognition of the complexity of the facts and the number of parties before the court in All Care

Nursing Service, we stated, "A two-day notice, coupled with thirty minutes for oral presentations

can hardly be said to constitute a meaningful opportunity to oppose appellees' motion for

preliminary injunction. The court thus determines that under the facts of this case appellants were

deprived of a fair and meaningful opportunity to oppose appellees' motion." Id. at 1538.

        Conversely, in Kaimowitz v. Orlando, 122 F.3d 41 (11th Cir.1997), amended, 131 F.3d 950

(11th Cir.1997), we held that the district court did not err in declining to hold an evidentiary hearing

on the plaintiff's motion for preliminary injunction where the preliminary injunction sought bore no

relationship whatsoever to the underlying action. Because this recital effectively exhausts this

Court's jurisprudence on the question of when it is necessary to hold an evidentiary hearing on a

motion for preliminary injunction, we have considered cases from other Circuits for additional


                                                  22
guidance. Based on review of these cases, certain principles are apparent. First, as noted in All Care

Nursing Service, where facts are bitterly contested and credibility determinations must be made to

decide whether injunctive relief should issue, an evidentiary hearing must be held. See All Care

Nursing Service, 887 F.2d 1535; Forts v. Ward, 566 F.2d 849, 851 (2d Cir.1977) (quoting Dopp v.

Franklin National Bank, 461 F.2d 873, 879 (2d Cir.1972) (quoting Sims v. Greene, 161 F.2d 87, 88

(3d Cir.1947))) (" "Generally, of course, a judge should not resolve a factual dispute on affidavits

or depositions, for then he is merely showing a preference for "one piece of paper to another." ' ");

Campbell Soup Co. v. Giles, 47 F.3d 467, 470 (1st Cir.1995) (quoting SEC v. Frank, 388 F.2d 486,

491 (2d Cir.1968)) ("[W]hen the parties' competing versions of the pertinent factual events are in

sharp dispute, such that the propriety of injunctive relief hinges on determinations of credibility, "the

inappropriateness of proceeding on affidavits [alone] attains its maximum.' "); Elliott v. Kiesewetter,

98 F.3d 47, 53 (3d Cir.1996) (citing Professional Plan Examiners of New Jersey, Inc. v. Lefante, 750

F.2d 282, 288 (3d Cir.1984)) ("A district court cannot issue a preliminary injunction that depends

upon the resolution of disputed issues of fact unless the court first holds an evidentiary hearing.");

Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1171 (7th Cir.1997) (citing Medeco Security

Locks, Inc. v. Swiderek, 680 F.2d 37, 38 (7th Cir.1981)) ("If genuine issues of material fact are

created by the response to a motion for a preliminary injunction, an evidentiary hearing is indeed

required."). Second, where material facts are not in dispute, or where facts in dispute are not

material to the preliminary injunction sought, district courts generally need not hold an evidentiary

hearing. See Maryland Casualty Co. v. Realty Advisory Board on Labor Relations, 107 F.3d 979,

984 (2d Cir.1997); Elliott, 98 F.3d at 53-54 (quoting Bradley v. Pittsburgh Board of Ed., 910 F.2d

1172, 1175-76 (3d Cir.1990)) (" "[A] decision [to enter an order] may be based on affidavits and


                                                   23
other documentary evidence if the facts are undisputed and the relevant factual issues are resolved.'

"); Ty, Inc., 132 F.3d at 1171 ("[A]s in any case in which a party seeks an evidentiary hearing, he

must be able to persuade the court that the issue is indeed genuine and material and so a hearing

would be productive....").

       Between these extremes falls the category of cases where " "there is little dispute as to raw

facts but much as to the inferences to be drawn from them.' " Jackson v. Fair, 846 F.2d 811, 819

(1st Cir.1988) (quoting Frank, 388 F.2d at 490-91). Thus, the First Circuit has adopted an approach

to determine whether an evidentiary hearing is necessary that "leave[s] the balancing between speed

and practicality versus accuracy and fairness to the sound discretion of the district court." Id. In

Jackson, the plaintiff, a prisoner who had been released from a mental hospital to corrections

officials, filed a motion for a preliminary injunction requiring him to be sent back to the mental

hospital in which he had previously been incarcerated. The court noted that the parties did not

dispute the basic events; they agreed, for example, that the plaintiff had swallowed a bedspring after

his transfer from the mental hospital to the corrections facility. They characterized the degree of the

plaintiff's illness differently, however, and they disagreed over whether the corrections facility

offered adequate care. The court found that although these questions were factual, they could best

be answered by witnesses with medical expertise. Noting that the plaintiff had failed to identify at

the preliminary injunction stage what evidence he planned to offer that might dispute the defendants'

documentary evidence, the court held that the district court did not err in declining to hold an

evidentiary hearing.

        We find based on the record here that this case falls into the second category of cases

identified above—that is, material facts are not in dispute, or the disputed facts are not material to


                                                  24
the preliminary injunction sought. In this case no real controversy exists over whether the

Robertsons engaged in repeated QSC and food safety violations. Because these violations

constituted a material breach of the franchise agreement sufficient to justify termination, we

conclude that no evidentiary hearing was required in this matter. The Robertsons had ten days to

provide affidavits and other evidence showing a material issue of fact regarding whether the

Robertsons' restaurant actually had committed the infractions described by McDonald's. Thus, they

had sufficient and fair notice. Rather than contending that they had not engaged in unsanitary QSC

and food safety procedures, however, the Robertsons conceded the violations and argued that the

termination was instead motivated by McDonald's desire to open a new restaurant down the block.

Because any ulterior, improper motive McDonald's may have had to terminate the contract is

irrelevant where a legitimate reason for doing so exists under the contract, the Robertsons' filing

created no material issues of fact relating to the propriety of entering the injunction and was

therefore insufficient to warrant an evidentiary hearing.

       Additionally, the Robertsons contend that the district court presumed irreparable injury, so,

under this Court's precedent, it was therefore required to conduct an evidentiary hearing. We note

that the Robertsons did not raise this issue below. Consequently, their argument fails. See Royals

v. Tisch, 864 F.2d 1565, 1568 n. 6 (11th Cir.1989).

        Nevertheless, even if the Robertsons had timely raised this point, it would lack merit. First,

the holding in Baker v. Buckeye Cellulose Corp., 856 F.2d 167 (11th Cir.1988), the case on which

the Robertsons principally rely in making this argument, is, by its own language, limited to the facts

of that case. In Baker, the plaintiff, who alleged violations of Title VII against her employer, sought

a preliminary injunction against her employer barring the employer from engaging in certain actions


                                                  25
the plaintiff viewed as retaliatory. Without a hearing of any type, the district court denied the

preliminary injunction because it found that the plaintiff had failed to make a showing of irreparable

injury. This Court reversed, finding that irreparable injury is presumed in Title VII cases in this

Circuit. Although the Court made the general statement, "[W]here there is a presumption of

irreparable harm, as in this case, the court should conduct an evidentiary hearing before granting or

denying the motion," id. at 169, the opinion nonetheless evinces an intent to limit the holding to the

facts of the case. Indeed, even after stating that irreparable harm is presumed in Title VII cases, the

Court stated, "On the facts of this case, we hold that the district court erred in not conducting an

evidentiary hearing to determine whether [the defendant] could overcome [the] presumption [of

irreparable injury], or whether [the plaintiff] had met the other requirements...."8 Id. at 169

(emphasis added).

       Baker is also distinguishable from the case at hand. In Baker, the district court failed to enter

a preliminary injunction, apparently based solely on the plaintiff's failure to prove irreparable harm.

Baker, 856 F.2d at 170. In the instant case, however, the district court did not presume irreparable

injury; rather, it actually found irreparable harm, noting, "There is no present dispute concerning

the probability that consumers will confuse the Plaintiff's products with those presently served by



   8
    The Robertsons also cite to Kaimowitz v. Orlando, 122 F.3d 41, amended, 131 F.3d 950
(11th Cir.1997). It likewise fails to support the Robertsons' contention that the district court was
required to hold an evidentiary hearing where the district court had presumed irreparable injury.
The Court recently amended the original opinion in Kaimowitz to delete the sentence on which
the Robertsons rely. Specifically, the sentence in question previously read, "Generally,
evidentiary hearings are required prior to the issuance or denial of a motion for preliminary
injunction only where there is a presumption of irreparable harm, as in a Title VII employment
discrimination case." The sole authority relied upon for this deleted statement was Baker.
Consequently, we disagree with the Robertsons' contention that this Circuit has held that in all
cases where irreparable harm is to be presumed, an evidentiary hearing must be held.

                                                  26
the Defendants—the parties are using identical trademarks. Where, as here, the likelihood of

confusion is particularly strong, the loss of reputation, trade and goodwill potentially flowing from

the continued infringement justifies a finding of irreparable injury." District Court Order at 10

(emphasis added). Thus, the district court was not required to hold an evidentiary hearing.

                                                  III.

        We therefore conclude that the district court did not err in denying the Robertsons' motion

for evidentiary hearing and in granting McDonald's motion for preliminary injunction. Accordingly,

the judgment of the district court must be, and is, AFFIRMED.

        CARNES, Circuit Judge, concurring specially:

        I join all of the Court's well written and persuasive opinion in this case, except the part about

whether a franchisor seeking to have a franchisee enjoined from continuing to use a trademark under

a now terminated agreement must show that its termination of the agreement was proper. Resolution

of that issue of first impression in this circuit is not necessary to the disposition of this appeal. As

the Court holds, this franchisor has shown (or made a substantial showing, which is the applicable

standard at this stage) that it was within its rights to terminate the agreement. Given that holding,

it matters not at all to the disposition of this appeal whether a franchisor must show proper

termination in order to be entitled to stop the franchisee's continuing use of a trademark, i.e., we

need not decide what we might have done if the termination had been improper. Accordingly, all

of the Court's comments about that issue are dicta. See, e.g., United States v. Eggersdorf, 126 F.3d

1318, 1322 n. 4 (11th Cir.1997); United States v. Maza, 983 F.2d 1004, 1008 n. 8 (11th Cir.1993).

        Dicta has its place and serves some purposes. See, e.g., Combs v. Plantation Patterns, 106

F.3d 1519, 1524, 1527, 1532—38 (11th Cir.1997) (using dicta in an attempt to clarify confusion


                                                   27
caused by dicta in another opinion, but leaving it up to the reader to decide if the attempt was

successful), cert. denied, --- U.S. ----, 118 S.Ct. 685, 139 L.Ed.2d 632 (1998). Somewhat like

statements in a law review article written by a judge, or a judge's comments in a lecture, dicta can

be used as a vehicle for offering to the bench and bar that judge's views on an issue, for whatever

those views are worth. The persuasiveness of the rationale given can increase the weight accorded

those views, but the fact that the views are formed and put forward in a context of a case in which

they do not matter will always subtract from the weight given them.

        It is the nature of judges, like most human beings, to be more cautious, deliberative, and

judicious—characteristics that should be brought to bear in deciding important issues—when what

they say makes a difference to someone before them. It is one thing to offer a view on an abstract

or hypothetical question, to put forward a speculative comment, but quite another to decide an issue

that will affect and allocate the competing interests of the parties in an actual case before the court.

Deciding real issues presented by real parties in real time focuses judicial decision making in ways

that making speculative pronouncements about hypothetical questions cannot.

        Views expressed in dicta are less reliable than those embodied in holdings for another reason.

Unlike judicial holdings, dicta does not carry with it the added assurance of having survived what

for the judiciary amounts to a kind of peer review. Dicta in a panel decision may be subject to

comment, criticism, or disapproval by another member of that same panel, but it is effectively

insulated from en banc or Supreme Court review. No matter how strongly other members of the

Court are convinced that a panel's dicta is wrong, any suggestion that the whole Court grant

rehearing to correct it will be met, quite properly, with the response that it is only dicta, that the issue

addressed is not actually presented, and so it would be an improper use of en banc resources to


                                                    28
examine and comment upon it. See Fed. R.App. P. 35(a) (en banc rehearing is not favored and

should not be ordered except when necessary for uniformity of decisions or when a question of

exceptional importance is involved). Much the same is true of review by the Supreme Court, which

grants certiorari only to review lower court holdings that are essential to the judgment in a case. See,

e.g., Rogers v. United States, --- U.S. ----, 118 S.Ct. 673, 677, 139 L.Ed.2d 686 (1998) (dismissing

as improvidently granted a writ of certiorari because the issue upon which it was granted was not

fairly presented by the record); Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 121, 114 S.Ct. 1359,

1361-62, 128 L.Ed.2d 33 (1994) (dismissing writ as improvidently granted where "it is not clear that

our resolution of the constitutional question will make any difference even to these litigants").

        For these reasons, among others, dicta in our judicial opinions is not binding on anyone for

any purpose. Because of considerations having to do with the first word in that court's name,

Supreme Court dicta may be a different matter insofar as "inferior courts" such as our own and the

district courts are concerned. See, e.g., United States v. City of Hialeah, 140 F.3d 968, 974 (11th

Cir.1998); Peterson v. BMI Refractories, 124 F.3d 1386, 1392 (11th Cir.1997) ("Dicta from the

Supreme Court is not something to be lightly cast aside."). But dicta in our opinions cannot

establish either the law of the circuit, or even the law of the case. See, e.g., United States v. Dayton,

981 F.2d 1200, 1202 (11th Cir.1993); Great Lakes Dredge & Dock Co. v. Tanker Robert Watt

Miller, 957 F.2d 1575, 1578 (11th Cir.1992).

        As the Court's opinion in this case points out, the two district courts in this circuit that have

addressed (in published opinions) the issue in question have reached opposite conclusions

concerning it. That might tempt us to express our views on the subject in order to "provide

guidance," but we cannot decide in this appeal which district court's view is the correct one. We can


                                                   29
decide nothing more than that which is necessary to decide this appeal. Moreover, that two district

court judges have differed over the question establishes it is one which is sufficiently difficult to

cause reasonable jurists to disagree, and that argues in favor of withholding our views until the issue

is squarely presented in an appeal which depends upon resolution of the issue.

       Whether to include in an opinion dicta on related but unnecessary issues is a matter soundly

within the discretion of each judge, to be exercised on a case by case basis, and I intend no criticism

of my two colleagues in this instance. Instead, I have written separately only to explain why I have

chosen not to join their dicta.




                                                  30
