author: EDMONDSON, Circuit Judge:

text:
    Henry F. HAYS, Petitioner-Appellant, v. STATE OF ALABAMA, C.E. Jones, Respondents-Appellees.
    No. 95-6378.
    United States Court of Appeals, Eleventh Circuit.
    June 6, 1996.

      Richard M. Kerger, Marshall & Melhorn, Toledo, Ohio, Dominick J. Graziano, Hearne Graziano & Nader, P.A, Tampa, Florida, for petitioner-appellant.
    Jeff Sessions, Attorney General for the State of Alabama, Montgomery, Alabama, Joseph G.L. Marston, III, Asst. Atty. General, Montgomery, Alabama, for respondents-appellees.
    Before KRAVITCH, EDMONDSON and BIRCH, Circuit Judges.
   EDMONDSON, Circuit Judge:

Henry Hays petitioned for a writ of habeas corpus, alleging constitutional errors in the state court proceedings surrounding his conviction for murder and sentence of death. The district court denied relief. We affirm.

FACTS AND BACKGROUND

In 1981, the defendant Henry Hays (“Hays”), his father Bennie Hays, and Henry’s friend and later accomplice James “Tiger” Knowles were following developments in the trial of a black man accused of killing a white man. The three men, all members of the Ku Klux Klan, discussed the likely public reaction to the hanging of a black man. Perhaps worried about property values, Bennie Hays told his son and Knowles to do nothing until Bennie had sold some apartments on Herndon Avenue.

Shortly thereafter, according to Knowles’s testimony, the property sale closed. Hays and Knowles got a rope, which they tied into a hangman’s noose, and a gun from fellow Klansmen. The two then set out to look for a black man. They randomly found Michael Donald, pulled alongside him in their car, and asked for directions. They forced him into the car at gunpoint. Knowles made Donald empty his pockets; Knowles’s trial testimony indicates he wanted to be sure the victim was unarmed.

Hays found a desolate area and parked; all three men got out of the car. Facing Hays and Knowles (who was holding the gun), Donald jumped Knowles in an attempt to escape. After a struggle, Hays and Knowles forced Donald to the ground. Hays retrieved the noose, and the two of them put it around Donald’s neck. Hays dragged Donald while Knowles beat him with a tree limb; and when Hays’s hands began to hurt, they switched. When Donald collapsed, the two men dragged him, face first, across the ground. Autopsy reports showed Donald probably died from asphyxiation during this time. Nevertheless, Henry Hays slashed Donald’s throat. Donald’s body was found later that morning, hanging from a tree on Herndon Avenue.

Hays was charged after a two year investigation. The prosecution — after requesting a continuance, ostensibly because it had not received some evidence — returned a new indictment one day before trial. At trial, Hays was convicted; the jury recommended life without parole; but the trial judge overrode the recommendation and sentenced Hays to death by electrocution.

On direct appeal, the intermediate appellate court reversed, holding the trial judge lacked the power to override the jury’s decision. Hays v. State, 518 So.2d 749, 767-68 (Ala.Crim.App.1985). The Alabama Supreme Court reversed the appellate court and reinstated the death sentence. Ex parte Hays, 518 So.2d 768, 777 (Ala.1986). The U.S. Supreme Court denied the petition for certiorari. Hays v. Alabama, 485 U.S. 929, 108 S.Ct. 1099, 99 L.Ed.2d 262 (1988). Petitions for post-conviction relief were denied by the Alabama state courts, and the U.S. Supreme Court again denied certiorari. The present petition for habeas relief was denied by the district court in a comprehensive opinion.

DISCUSSION

I. Trial Counsel’s Strategic Decisions

Hays argues his trial counsel was ineffective within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because he (1) failed to interview Knowles early enough; (2) never spoke to several defense witnesses before putting them on the stand; (3) failed to examine physical evidence early enough; (4) failed to request funds for an investigator; (5) failed to attempt to show cause why Hays was entitled to grand jury materials; (6) failed to use the testimony of Hays’s father; (7) failed to object to the introduction of uncharged criminal offenses; (8) failed to object to the trial court’s failure to find mitigating circumstances; (9) failed to argue Hays’s sentence was disproportionate to Knowles’s; (10) failed to object to the court’s failure to give a lesser included offense charge; and (11) failed to object to the trial judge’s override of the jury’s sentence recommendation.

The district court accepted Petitioner’s assertions that these acts constituted deficient performance. The court held, however, that because the petitioner “completely omits any discussion of the prejudice prong” of the Strickland formulation, and because the “evidence against the petitioner at trial was such that even a flawless performance by counsel would have had little effect on the outcome,” there was no denial of effective assistance.

Petitioner’s brief in this court also includes no discussion of how better performance by trial counsel would have changed the likely outcome of the trial or sentence; and we agree with the district court that absent such a showing, Petitioner’s Strickland claims fail. See, e.g., Strickland, 466 U.S. at 693-94, 104 S.Ct. at 2068 (petitioner arguing ineffective assistance “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”). To allege prejudice successfully, Hays must “show that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993) (citations and internal quotation marks omitted).

For those factors dealing with trial counsel’s preparation of witnesses and development of the facts (the claims numbered 1-6 above), Hays provides no explanation of how better preparation might have changed the course of the trial. Thus, the alleged errors cannot support reversal. See, e.g., Devier v. Zant, 3 F.3d 1445, 1452 (11th Cir.1993) (declining to grant relief where petitioner “has not carried his burden of showing how the testimony of these witnesses would have changed if they had been better prepared”).

For factors 7-11, Petitioner again fails to show with particularity how the decision not to make the listed objections was constitutionally unreasonable or prejudicial. For example, Hays nowhere argues that the evidence of uncharged offenses was actually inadmissible or that that evidence probably swayed the jury. See Strickland, 466 U.S. at 693-94, 104 S.Ct. at 2068 (requiring prejudice to be shown). Nor does he succeed in demonstrating that mitigating circumstances could have been proved under Alabama law. In view of the overwhelming evidence supporting the verdict, we conclude there has been no showing, under Strickland, that Hays’s counsel’s allegedly unreasonable errors affected the outcome of the guilt or penalty phases of the trial.

11. Refusal to Grant a Continuance

Hays also argues he was denied effective assistance of counsel by the trial court’s refusal of his request for a continuance after the prosecution returned a new indictment, alleging different facts, less than one day before trial was to begin. The new indictment charged robbery-murder; the old indictment had charged kidnapping-murder. Kidnapping-murder was not punishable by death under the statute effective on the date of Donald’s murder. The original indictment did give notice of the state’s intent to seek the death penalty, but did not mention robbery or the use of a gun.

As the Court noted in an analogous situation, the Constitution “nowhere specifies any period which must intervene between the required appointment of counsel and trial.” Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940). Thus, in this context, the courts must “respect ... the States’ determination of local social policy.” 308 U.S. at 447, 60 S.Ct. at 322. “[Bjroad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983) (citations and internal quotation marks omitted).

This instance is not one where circumstances conspired to create a “presumption” that ineffective assistance changed the likely outcome of the trial. In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the Court.carved a narrow exception to the general rule that those persons claiming ineffective assistance must show prejudice. 466 U.S. at 658-59, 104 S.Ct. at 2046-47; see also Stano v. Dugger, 921 F.2d 1125, 1152 (11th Cir.1991) (en banc). Prejudice is presumed when counsel was either totally absent or prevented from assisting the accused during a critical stage of the proceedings, Cronic, 466 U.S. at 662, 104 S.Ct. at 2049, or if counsel entirely failed to subject the prosecution’s case to meaningful adversarial testing. Id. But, this case is not one of those situations. Therefore, Hays must show prejudice. Because he cannot, his ineffective assistance claim fails.

From the start, the strategy followed by Hays’s trial counsel was to contend that Knowles acted alone and later implicated Hays to increase his chances of a reduced sentence. The decision to present an alibi defense was not undermined by the prosecution’s change in its theory of the underlying felony. Hays was simply not present during the murder, according to the defense; and therefore the presence or absence of a gun should not have significantly impacted the defense’s preparation of witnesses and arguments for trial.

Because the denial of the continuance had no substantial impact on the orderly preparation for trial, the circumstances of the denial of the continuance are similar to (but, far less egregious than) the facts of Avery, supra. There Justice Black, writing for a unanimous Court, held that no Sixth Amendment violation occurred when the petitioner’s lawyers were appointed on Monday for a trial scheduled to begin Wednesday and a continuance was denied. Nothing concrete indicated that extra time could have changed the trial’s outcome.

For one thing, Avery’s trial took place in “a County largely rural,” where access to witnesses is easier than elsewhere. Avery, 308 U.S. at 452, 60 S.Ct. at 324-25. Here, Hays’s attorney had access to the only two witnesses to the murder. And, the record at Avery’s trial showed an “absence of any indication ... that [counsel] could have done more had additional time been granted.” Id. Hays’s habeas counsel claims that interviews and tests pertaining to the gun were necessary; but in the years since the trial, no evidence has emerged to show that such a course would have changed the evidentiary balance at trial. In addition, we also conclude, as discussed above, that Hays has failed to make out a compelling case for ineffective assistance based on trial counsel’s strategic decisions. Thus, the facts in Avery, where counsel was found not to be ineffective, closely parallel those here. And, the substantial evidence supporting the fact of the robbery suggests that even with more time, the verdict would have been the same. Thus, Hays was not deprived of “a trial whose result is reliable.” Lockhart, 506 U.S. at 369, 113 S.Ct. at 842.

III. Suppression of Witness Testimony

Hays argues the state violated its obligation to turn over exculpatory evidence in its possession by withholding some 20 statements made by Knowles, the state’s main witness, which Hays alleges could have been used to impeach. The District Court held that the state suppressed the statements, and the defense had no other source. Thus, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requires a new trial if the petitioner has shown, in addition to the above two factors, that the information was favorable to the defendant and that, “had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.” See United States v. Meros, 866 F.2d 1304, 1308 (11th Cir.1989) (setting out four-factor test for determining whether evidence is Brady material).

The issue is thus whether it is reasonably probable that the suppression of the statements caused a different outcome at trial. The Supreme Court recently decided Kyles v. Whitley, — U.S. -, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), which discussed the “reasonable probability” standard of Brady. Without announcing new rules, the Court cited four guideposts for determining materiality. First, “a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.” Kyles, — U.S. at -, 115 S.Ct. at 1566 (citing United States v. Bagley, 473 U.S. 667, 680-84, 105 S.Ct. 3375, 3383-84, 87 L.Ed.2d 481 (1985). Thus, undisclosed evidence can require a new trial even if it is more likely than not that a jury seeing the new evidence would still convict. A defendant must show simply that “the Government’s evidentiary suppression undermines confidence in the outcome of the trial.” Kyles, — U.S. at -, 115 S.Ct. at 1566 (citations and internal quotation marks omitted).

Second (and logically implicit in the first rule), a defendant need not show there was insufficient evidence to convict in view of the suppressed evidence. Id. Third, there is no harmless error review of Bagley errors. Id. Fourth, materiality is to be determined collectively, not “item-by-item.” Id. at -, 115 S.Ct. at 1567. The Supreme Court’s reiteration, in Kyles, of the prejudice standard of Brady is consistent with the threshold set by the district court.

Whether a reasonable probability existed that the suppressed evidence would have changed the outcome is a mixed question of law and fact, and this court’s review is de novo. United States v. Rivalta, 925 F.2d 596, 597-98 (2d Cir.1991).

The “statements” at issue are actually memos about statements made by Knowles, recording the recollections of federal and state agents. Hays asserts two theories to explain why suppression of the statements requires reversal: first, the suppressed statements, taken together, show Knowles to be so totally .unworthy of belief that a jury would have rejected his testimony entirely. Second, specific inconsistencies in the statements would have cast enough doubt on critical junctures in the prosecution’s version of the murder to undermine confidence in the verdict.

Hays argues first that the suppressed statements, in total, showed Knowles to be so inconsistent in his retelling of Donald’s murder that no rational juror could have credited Knowles’s testimony. The district court disagreed, writing that the suppressed statements show not a pathological dishonesty, but rather a consistent progression from obfuscation to truth-telling. That is, Knowles’s testimony, taken in the light of all of his statements, shows a pattern of first withholding and then divulging more and more of his ultimate version of the crime. Also, the withheld statements are almost uniformly consistent with Knowles’s trial (that is, later) testimony. That the statements would have helped, rather than hindered, Knowles’s overall credibility at trial is thus very possible. In any event, we agree with the district judge’s observation that trial counsel succeeded in compelling Knowles to admit to so many lies that the marginal impact of the suppressed statements would have been insignificant. Thus, we reject Hays’s suggestion that the withheld statements show such a pattern of inconsistency as to create a “reasonable probability” that a jury hearing them would have rejected Knowles’s testimony in toto.

In his brief to this court, Petitioner also enumerated several specific inconsistencies between Knowles’s earlier and later accounts of the crime, each of which ostensibly could have been highlighted only by reference to the suppressed statements. These are: (1) Knowles earlier said Donald voluntarily agreed to ride in the car; he later said he used the gun to force Donald into the car. (2) Knowles earlier said he and Hays picked Donald up without intending to kill him; later he said they did so intend. (3) Knowles earlier omitted any mention of the use of the gun; but he later admitted the gun was used. (4) Knowles earlier said the cross-burning that occurred the night of the murder was unrelated to the murder, and later contradicted this statement.

Taken together, these assertions do not undermine confidence in the verdict. The main reason for this is that most of the asserted uses of the suppressed statements would have been redundant, because Hays’s counsel in fact elicited testimony from Knowles on the witness stand acknowledging that he had been inconsistent on many of the listed points. And on others (particularly the relatedness of the murder and cross-burning), no obvious reason suggests that the jury would have regarded the inconsistency as particularly significant. Therefore, we conclude that Petitioner’s argument on the materiality of the alleged Brady statements fails.

IV. The State’s Use of Allegedly Perjured Testimony

Knowles testified at his plea hearing in federal court (pursuant to which he was sentenced to life in prison) that he and Hays did not intend to kill Donald when they picked him up or when they first got the rope with which Donald was hung. But at Hays’s trial, Knowles testified they set out that night with the intent to kill a black man.

Napue v. Illinois, 360 U.S. 264, 268-70, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959), dictates that knowing use by the prosecution of perjurious testimony violates a defendant’s right to due process. But, as the district court points out, there has been no showing that Knowles’s later, rather than earlier, testimony was false; and the circumstances of Knowles’s testimony (which show a progression toward greater revelation of the truth) indicate it is likely the former was untrue. Because Hays can cite no case holding that plea testimony must be consistent with later testimony, use of Knowles’s testimony did not violate due process.

Hays also contends the prosecution unconstitutionally refused to disclose that Knowles’s testimony was obtained in exchange for a plea bargain. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), requires such disclosure. Hays has inferred that because Alabama never prosecuted Knowles for the murder, there must have been an agreement; the state responds there was none. Hays has presented no evidence that there was an agreement between state agents and Knowles; and the jury was fully informed of Knowles’s plea agreement with the federal government. There was no Giglio violation.

V. The Sufficiency of the Evidence of Robbery-Murder

Hays argues the state did not present sufficient evidence at his trial to prove intent to rob. Intent to rob was an element of the underlying offense, and therefore proof beyond a reasonable doubt was required under In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970).

Donald was carrying money given to him by a relative when he was last seen, and his wallet was not with the body. The money was never found. Knowles testified he and Hays had Donald empty his pockets to ensure Donald had no weapons. The district court found this satisfied the intent requirement because Hays and Knowles intended to deprive Donald of weapons, but instead deprived him of cash: “The fact that Donald did not have the item Knowles and the petitioner were seeking does not render their intent illusory, any more than the intent present in a mugger’s ‘Your money or your life’ demand is negated when the victim hands over his watch in place of cash.” Hays contests the analogy, arguing there was no true intent to take weapons, only to ensure their absence.

The intent to rob under Alabama law is the intent to take and carry away the personal property of another by force or by putting the other in fear of the use of force. Davis v. State, 401 So.2d 187, 189 (Ala.Crim.App.1981). Applying this test, the intent to deprive someone of weapons provides the requisite intent, regardless of whether self-protection is the overriding motive. Taking a wallet with this goal in mind is robbery; and, therefore, Knowles’s testimony on his and his accessory’s state of mind is sufficient evidence to convict for robbery-murder.

Hays also asserts there was no intent to kill. He cites testimony by Knowles that the two set out to harass, not to kill, a black person. But as noted in the state post-conviction proceedings, under Alabama law “[premeditation and deliberation may be formed while the killer is pressing the trigger that fired the fatal shot.” See Hays v. State, 599 So.2d 1230, 1238 (Ala.Cr.App.1992) (citations and internal quotation marks omitted). Thus, in view of the extensive testimony about Donald’s ordeal (the beating with the tree limb, the dragging by the noose, and the slitting of his throat), that Hays might not initially have set out to kill Donald is of no consequence.

VI. The Trial Judge’s Override of the Jury Recommendation

After the jury recommended life without parole, the trial judge overrode the recommendation and sentenced Hays to death. At the time, Alabama law was unsettled on what weight the trial judge had to accord the jury recommendation. Hays challenges the trial judge’s decision to override on a number of theories that are grounded, in his view, in the Eighth and Fourteenth Amendments.

A Was Override of the Life Sentence Permitted Under Alabama Law?

Hays cites a passage from Beck v. State, 396 So.2d 645, 663 (Ala.1980), stating that “If the jury cannot agree on a sentence of death, the defendant shall be sentenced to life imprisonment without parole.” He argues that this language from Beck precluded the trial judge’s override of the jury’s life-without-parole recommendation, and he asserts that Alabama’s failure to follow its own law violated due process.

Petitioner is due no relief on the grounds that Alabama has misinterpreted its own law. See Pulley v. Harris, 465 U.S. 37, 41-43, 104 S.Ct. 871, 875, 79 L.Ed.2d 29 (1984) (“A federal court may not issue the writ on the basis of a perceived error of state law.”). See also Parker v. Dugger, 498 U.S. 308, 327, 111 S.Ct. 731, 742, 112 L.Ed.2d 812 (1991) (White, J., dissenting) (“It is axiomatic that ... the views of the State’s highest court with respect to state law are binding on the federal courts.”) (citing cases) (internal quotation marks omitted). And even if we, as did the Court in Pulley, assume for the sake of argument that some errors of state law might be so “egregious” as to offend the due process or equal protection clause, we conclude that the Alabama Supreme Court in Ex parte Hays committed no such error in reading the relevant language from Beck. A sufficient reason for our conclusion is that Beck decided nothing about whether a judge could impose death when the jury had voted for life imprisonment: that question was not presented in Beck. And to say the least, no egregious error glares out of Ex parte Hays’s ultimate conclusion that the death penalty law under which Hays was sentenced permitted upward override. Thus, the state courts’ alleged misinterpretation of Alabama law gives rise to no ground on which the writ might issue.

B.Was Hays Afforded the Minimum Notice Required By the Constitution That Death Was a Possible Sentence?

Petitioner’s claim that there was inadequate notice of the possibility of an override must likewise fail; and Lankford v. Idaho, 500 U.S. 110, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991), is not to the contrary. In Lank-ford, the Supreme Court held the petitioner was afforded inadequate notice where the prosecution stated, in response to a question from the trial judge, that the state would not seek the death penalty. The trial judge there had never announced before the sentencing hearing that death was a possible sentence. Here, however, the defendant got two days’ notice from the trial judge that he might override the jury. And, the prosecution here sought the death penalty from the beginning of trial, in contrast to Lankford. Because the prosecution’s tack gave Hays an incentive to build a case from the start for life imprisonment rather than death, two days is sufficient notice.

C. Did the Alabama Sentencing Scheme Sufficiently Channel the Discretion of the Judge and Jury?

Hays argues further that the Alabama sentencing scheme dividing the responsibilities of jury and trial judge at the time he was sentenced was standardless and failed to accord due deference to the jury’s sentence recommendation. The Supreme Court rejected this argument in Harris v. Alabama, — U.S. -, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995). In Harris, the court held there is no constitutional requirement that a judge assign any minimum degree of weight to a jury recommendation. The issue is simply whether “the scheme adequately channels the sentencer’s discretion so as to prevent arbitrary results.” Id. at -, 115 S.Ct. at 1035. Considering a sentencing scheme materially identical to the one here, the Harris Court held there was adequate channeling of discretion. Here, the trial judge was explicit about his reasons for overriding the jury sentence, and he noted that he considered the jury recommendation; there was therefore no violation of Hays’s right to due process.

D. Did the Trial Court’s ‘Upward Override’ Violate the Ban on Ex Post Facto Laws?

Petitioner next contends the Alabama Supreme Court’s decision in Ex parte Hays (holding application of the death penalty to be proper) functions as an ex post facto law. As the district court held, and as we have discussed earlier, however, the Alabama Supreme Court’s decision clarified, rather than altered, the meaning of the Alabama death penalty statute pursuant to which Hays was sentenced. In view of this conclusion, no need exists to address Petitioner’s argument that the change in the law was substantive, not procedural, under Dobbert v. Florida, 432 U.S. 282, 292-94, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977).

E. Did the Motive For the Override Violate the Equal Protection Clause?

Petitioner argues that the Alabama Supreme Court’s mention of the number of white defendants on death row in Alabama for the killing of blacks (zero) indicates an intention to “balance the books” by considering the petitioner’s race in determining sentence, in violation of his right to equal protection. But, this mention was only part of an extended discussion of elements favoring the imposition of the death penalty. These elements were Hays’s moral depravity, the shocking nature of the crime, and the inability to explain the jury’s sentence. And, even if the Alabama Supreme Court did look at historical statistics, it might just as well not have been to “balance the books” but to find some motivation to explain the jury’s failure to impose the death penalty. That is, the Alabama Supreme Court was attributing a racial motive to the jury’s decision, rather than setting out a racial motive for its own decision to reinstate the sentence imposed by the trial judge. See, e.g., Ex parte Hays, 518 So.2d at 776-77 (noting that “[t]he jury’s recommendation of life imprisonment in this case is unquestionably a bizarre result,” and recalling that in previous cases “the death penalty had likely been imposed in an arbitrary or capricious manner based upon racial discrimination”). By setting out this historical background, the Alabama court was merely suggesting a possible reason for a sentence that it would have reversed regardless of the jury’s underlying methodology. Because Hays has failed to meet his burden of showing a decision-maker acted with a discriminatory purpose, his equal protection argument fails. McCleskey v. Kemp, 481 U.S. 279, 296-97, 107 S.Ct. 1756, 1769, 95 L.Ed.2d 262 (1987).

In conclusion, Petitioner’s conviction did not violate constitutional rights. The decision of the district court is AFFIRMED. The petition for the writ of habeas coitus is DENIED.

      . Shortly before the release of this opinion the Antiterrorism and Effective Death Penalty Act of 1996 was signed into law; the Act aims to expedite the process of federal collateral review. Because we deny the petition according to preexisting standards, we have no occasion to consider whether the Act provides a basis for the denial of relief. We are confident the Act does not help Hays.

        . As a preliminary matter, the district judge held that knowledge of statements in the possession of federal agents could be imputed to the state. This conclusion was based on the level of cooperation between the state prosecutors and the F.B.I. See United States v. Antone, 603 F.2d 566, 570 (5th Cir.1979) (looking to the "extent of cooperation between the two governments” to determine whether possession should be imputed). Citing no cases, the state argues here that the district court’s holding was error. We decline to conclude that the district court erred in this case on the imputation issue.

      . Knowles contends he withheld some aspects of the crime at first because, though he wanted to confess, he was still uncomfortable revealing to authorities just how “gruesome” the details of the crime were.

      . For example, when asked successively about a number of inconsistencies, Knowles admitted lying about the fact that Donald got into the car voluntarily:
      Q. And you told [the investigating agent] in that same statement that you called Michael Donald over to the car and he got in voluntarily to show you the way to a club?
      A. Yes, sir.
      Q. That's another lie, huh?
      A. Yes, sir.
      Tr. Trans, at R-273.
      Knowles also admitted (more than once) that he had given numerous statements, in his early rendition of the murder, in which he omitted any mention of the use of a gun. For example:
      Q. Did you give [the previously read statement] to Mr. Tom Calhoun of the Mobile Police Department?
      A. Yes, I did.
      Q. Did you make any mention in that statement about any gun?
      A. No, sir, I did not.
      Tr. Trans, at R-209.
      Finally, Hays’s counsel did read a statement indicating an agent's recollection that Knowles said "they [he and Hays] did not intend to hurt" Donald when they picked him up. Tr. Trans, at R-208. This testimony was also contradicted by other statements Knowles made on the stand.
      Thus, at least three of what Petitioner regards as the most effective uses of the suppressed statements would in fact have added little or nothing to the defense case.

      . As Chief Justice Marshall wrote in Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 399, 5 L.Ed. 257 (1821):

        It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the veiy point is presented for decision. The reason for this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent.

      . After discounting the Beck dictum, Alabama’s Supreme Court persuasively explained why upward override is permitted. First, the court explained that the quoted language could be squared with Beck's holding — that ultimate sentencing authority lay with the judge — only by interpreting the quoted language to mean that if the jury cannot unanimously agree on death, the jury shall recommend a sentence of life imprisonment. Ex parte Hays, 518 So.2d 768, 775 (Ala.1986).
      Second, the court also explained why the 1975 Alabama death penalty act explicitly allows the judge to override in favor of life but not in favor of death. This seeming omission is because as initially drafted, the capital sentencing statute simply did not allow a jury to recommend life imprisonment without parole in the first place. Once the Beck decision permitted juries to recommend life, judges impliedly became permitted to override in favor of death. See id. at 775-76.
      As the district judge pointed out, there are other instances when Alabama law can most plausibly be read to afford the jury ultimate sentencing authority, but where such is not the case (because the judge can override). The instant circumstances present another one of those cases. Thus, we decline to hold that erroneous application of state law to the petitioner violated the Fourteenth Amendment.

      . Hays concedes in his brief that this argument is foreclosed by Harris but then goes on to make the argument anyway, apparently in an effort to preserve the issue for higher appellate review.


source: Caselaw Access Project

author: EDMONDSON, Circuit Judge: LOGAN, Senior Circuit Judge,

license: Public Domain

text:
    Enrique DIAZ, Plaintiff-Appellant, v. William J. SHEPPARD, Defendant-Appellee.
    No. 94-3308.
    United States Court of Appeals, Eleventh Circuit.
    June 25, 1996.

      Todd Pittenger, John A Reed, Jr., Lowndes, Drosdick, Doster, Kantor & Reed, PA Orlando, FL, for appellant.
    William J. Sheppard, Jacksonville, FL, pro se.
    D. Gray Thomas, Elizabeth White, Jacksonville, FL, for appellee.
    Before EDMONDSON and DUBINA Circuit Judges, and LOGAN , Senior Circuit Judge.

       Honorable James K. Logan, Senior U.S. Circuit Judge for the Tenth Circuit, sitting by designation.

   EDMONDSON, Circuit Judge:

This appeal is about a lawyer’s professional responsibility and about federal jurisdiction. Plaintiff Enrique Diaz, a Florida prisoner, appeals the district court’s denial of his motion for remand to state court and dismissal of his case for failure to state a claim. Because the federal court lacked jurisdiction to hear this case, we reverse and remand with instructions to the district court to remand this ease to state court.

Background,

For the facts we look to the complaint’s allegations. Diaz was a member of the class in a class action suit filed by inmates of the Florida Department of Corrections (“DOC”) in the United States District Court for the Middle District of Florida challenging the DOC’s physical and mental health care delivery system. The case was known as Celestineo and Costello v. Singletary, 147 F.R.D. 258 (M.D.Fla.1993) (“Costello”). The class was represented by Defendant William Sheppard.

In 1984, the Costello court ordered a committee of doctors and experts to review DOC’s health care system. The committee filed an “Interim Medical Team Report” recommending that all DOC inmates receive at least one hour per day of large muscle exercise outside of their cells. Three months later, the DOC decreased the amount of yard time for those on close management (“CM”) from four hours to two hours per week.

In 1992, the Costello court issued a notice of proposed stipulated final judgment which proposed closing the case based on findings that the DOC had a constitutionally adequate system of delivering physical and mental health care. The court ordered notification of the proposed judgment to class members and established a time for class members to file comments or objections. Diaz wrote Sheppard a letter “begging” him not to agree to the proposed final judgment because it did not provide for one hour of outdoor exercise per day; nor did it prevent CM inmates from being placed on the Yard Suspension List (“YSL”). Sheppard, however, did not contest the lack of outdoor exercise. After reviewing the objections during a hearing, the district court entered a final judgment closing the Costello case.

In 1994, Diaz sued Sheppard in Florida state court alleging (1) legal malpractice, (2) negligence, and (3) breach of contract. Diaz claims that in agreeing to the stipulated final judgment upholding just two hours per week of CM out-of-cell exercise, Sheppard, in effect, negligently settled too cheaply. Diaz says Sheppard ignored (1) a “large body of case law” that requires prison administrators to provide all CM inmates with at least one hour of out-of-cell exercise per day: a mistake about the legal strength of the prisoners’ claim and (2) the opinions in the Costello case of the district court’s “own appointed medical experts:” a mistake about the evidentiary strength of the prisoners’ claim.

Sheppard’s motion to remove Diaz’s case to federal court pursuant to 28 U.S.C. § 1441, on the ground that the district court had original jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. § 1331, was granted. Sheppard then moved to dismiss Diaz’s complaint under Rule 12(b)(6) for failure to state a claim. Diaz moved to remand the case to state court. The district court, stating that Diaz would have to establish the relief he seeks is required by the United States Constitution, denied the motion to remand. The district court then granted Sheppard’s motion to dismiss on the ground that class counsel owes no duty to individual class members.

Discussion

Sheppard claims that jurisdiction is proper in the district court because Diaz is attempting to relitigate matters determined in Costello. Sheppard claims that Diaz had the opportunity to object to the proposed final judgment in Costello and that the malpractice action is just an untimely objection to the settlement in Costello. In addition, Sheppard says this ease arises under federal law because resolution of Diaz’s claims necessarily turns on the construction of federal law, that is, the Eighth Amendment to the United States Constitution. See Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 8-10, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983).

Diaz says he is seeking not outdoor exercise or declaration of some constitutional right, but only money damages for Sheppard’s malpractice. Diaz contends that even if a court must, in deciding a case, interpret federal law, that fact does not necessarily mean the claim is sufficient to confer federal jurisdiction. See generally Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 813-14 & n. 11, 106 S.Ct. 3229, 3234-35 & n. 11, 92 L.Ed.2d 650 (1986). Then Diaz stresses that, to the extent federal law is mentioned in his complaint, it is only to point out a way that Sheppard neglected his legal duty of care (an essential element of Diaz’s state law malpractice claim): to establish that the federal law at issue in Costello— exercise requirements under the Eighth Amendment — was settled, was favorable to prisoners like Diaz, and should have been known by Sheppard.

Diaz basically argues that no interpretation of federal law is necessary to adjudicate his state law claims: the fundamental legal standards are substantially undisputed. He says that, in the light of well-settled federal case law, Sheppard ignored the Costello court’s appointed experts who recommended one hour of exercise per day. Briefly stated, Diaz charges that Sheppard unreasonably underestimated the strength of the prisoners’ case and, as a result, stipulated to a judgment that was too unfavorable.

On a motion to remand, the removing party bears the burden of establishing jurisdiction. See Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir.1996). The removal statute should be construed narrowly with doubt construed against removal. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). We look at the complaint. As a general rule, a case arises under federal law only if it is federal law that creates the cause of action. See Franchise Tax Board, 463 U.S. at 8-10, 103 S.Ct. at 2846. The case, however, may arise under federal law “if a well-pleaded complaint established that [the] right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties.” Id. at 13, 103 S.Ct. at 2848. But, the “mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction.” Merrell Dow, 478 U.S. at 813, 106 S.Ct. at 3234. See also Moore v. Chesapeake & Ohio Ry. Co., 291 U.S. 205, 212-15, 54 S.Ct. 402, 405-06, 78 L.Ed. 755 (1934) (that part of state statutory scheme requires some analysis of federal law is insufficient to invoke federal jurisdiction).

The district court erred in denying Diaz’s motion to remand. The nature of Diaz’s complaint is that Sheppard is guilty of malpractice, negligence and breach of contract under Florida law. (We do not hint that Diaz’s claim has merit or even that he has stated a claim upon which relief can be granted under Florida law). No substantial question of federal law must be answered to determine plaintiffs claims, and federal jurisdiction is lacking. See Ray v. Tennessee Valley Authority, 677 F.2d 818, 825-26 (11th Cir.1982) (holding, pre-Franchise Tax Board, that district court had no federal jurisdiction to hear malpractice case arising from defendant attorney’s representation, per appointment by court, of plaintiff in 42 U.S.C. § 1983 action).

Whether Sheppard in Costello misread or disregarded federal law in such an unreasonable way so as to constitute legal malpractice in Florida is ultimately a question of state law. In the complaint, the Eighth Amendment is mentioned only to support an element of Diaz’s state law claim. Cf. Hill v. Marston, 13 F.3d 1548, 1550 (11th Cir.1994) (complaint alleging violations by defendant lawyer of state securities registration statutes did not arise under federal law for purposes of federal question jurisdiction, even though elements of state law claim included alleged knowledge of, and failure to comply with, federal securities laws); Berg v. Leason, 32 F.3d 422, 426 (9th Cir.1994) (malicious prosecution action does not arise under federal law because one element requires proof that underlying federal action was legally untenable).

If the pertinent Eighth Amendment law was debatable, to decide whether Sheppard’s understanding of the applicable law in Costello was within the range of the reasonable will require no precise determination of what the pertinent federal law was in reality; so no substantial question of federal law needs to be decided. If the pertinent Eighth Amendment law truly was clearly settled before the stipulated judgment was entered in Costello, no substantial question of federal law is presented: the question has already been answered. We have no doubt that a state court can, if need be, resolve matters of federal constitutional law to the point necessary to determine whether Sheppard’s understanding of the law was unreasonable.

More important, because Diaz contends that Sheppard wrongfully ignored the opinion evidence of the court-appointed experts, the professional responsibility claims in the complaint do not hinge on the substance of the Eighth Amendment (whatever it may be exactly and about which there may be no controversy). Instead, they hinge on his lawyer’s alleged negligence in evaluating the prisoners’ ease and in basically agreeing to an inadequate settlement given all the circumstances in the Costello case — including the expert opinions supporting the need for more exercise and the status, in fact, of the law (uncertain or debatable or settled) at the time. See Hudson Ins. Co. v. American Elec. Corp., 957 F.2d 826, 829 (11th Cir.1992) (no federal jurisdiction in declaratory judgment action to determine insurer’s liability because right to relief did not depend on resolution of CERCLA).

The district court lacked subject-matter jurisdiction over Diaz’s complaint. We vacate and remand to the district court with instructions to remand the case to state court.

VACATED AND REMANDED.

LOGAN, Senior Circuit Judge,

dissenting:

If I could view this as simply a case of a client suing his lawyer, a resident of the same state, for malpractice I would concur in the majority opinion. But the malpractice action here is by a member of a class certified under Federal Rule of Civil Procedure 23 in a federal court suit alleging unconstitutional prison conditions; the alleged malpractice is that class counsel did not secure more out-of-cell exercise time in negotiating a settlement approved by the district court.

Only one court has held that a Rule 23 class member can bring a malpractice action against class counsel. Zimmer Paper Products, Inc. v. Berger and Montague, P.C., 758 F.2d 86 (3d Cir.), cert. denied, 474 U.S. 902, 106 S.Ct. 228, 88 L.Ed.2d 227 (1985). That case involved an alleged negligent failure to give notice to a class member; the court denied relief after finding that counsel had complied with court orders. In dicta the D.C. Circuit has indicated that it might recognize such a claim, citing Zimmer Paper Products. Peters v. National R.R. Passenger Corp., 966 F.2d 1483, 1487 n. 3 (D.C.Cir.1992). No ease, however, has ever held class counsel liable for malpractice. See Susan B. Koniak, Through the Looking Glass of Ethics and the Wrong mth Rights We Find There, 9 Geo.J.Legal Ethics 1, 14 (1995) (hereinafter Koniak).

In contrast, Laskey v. UAW, 638 F.2d 954 (6th Cir.1981), rejected a legal malpractice claim against the UAW, which represented plaintiffs in a federal class action, in the following words:

Since appellants had the opportunity to object to the legal representation at the prior settlement hearing and since a finding that the class was adequately represented is necessary for finding the settlement was fair and reasonable, which in turn was essential to approving the settlement, appellants are collaterally estopped from now asserting that the legal representation was not adequate and that the UAW committed legal malpractice.

Id. at 957 (citation omitted). In McNeil v. Guthrie, 945 F.2d 1163 (10th Cir.1991), the court held that a plaintiff prisoner dissatisfied with actions of class counsel has two options: to “seek to intervene in the class action” or to “file a collateral suit alleging that class counsel is not adequately representing the class.” Id. at 1167. These were regarded as the only available remedies because of the potential for abuse of class counsel. “Class counsel is entitled to be free from harassment by class members.” Id.

Although no Eleventh Circuit cases have involved a suit against class counsel, Eleventh Circuit precedent is consistent with McNeil. In fact, McNeil cited Guthrie v. Evans, 815 F.2d 626 (11th Cir.1987), in which a dissatisfied class member sought to appeal a district court’s judgment in a prison conditions class action. The court ruled that the class member lacked standing, stating that “[t]he procedures for class actions are carefully set forth in Fed.R.Civ.P. 23.” Id. at 628. It held the class member (who could not opt out of the class) had only two available avenues of relief: a motion to intervene or a collateral proceeding to challenge the adequacy of the representation. Nonrecognition of a malpractice action against class counsel would also seem compelled by the following oft-cited comments of the Fifth Circuit, binding in the Eleventh Circuit, in Adams Extract Co. v. Pleasure Hours, Inc. (In re Corrugated Container Antitrust Litigation), 643 F.2d 195, 212 (5th Cir.1981):

It is, ultimately, in the settlement terms that the class representatives’ judgment and the adequacy of their representation is either vindicated or found wanting. If the terms themselves are fair, reasonable and adequate, the district court may fairly assume that they were negotiated by competent and adequate counsel; in such cases, whether another team of negotiators might have accomplished a better settlement is a matter equally comprised of conjecture and irrelevance.

Despite the general rule that federal rules of procedure do not create causes of action, clearly whether a class member may sue class counsel for malpractice arising out of a federal court-approved settlement is a federal question. The one court that has explicitly recognized the possibility of a malpractice suit against class counsel indicates that “the bounds of a class counsel’s fiduciary duty with respect to notice are determined in large part by due process and Rule 23 requirements.” Zimmer Paper Products, 758 F.2d at 91. One commentator who favors such an action states that “the class action court’s responsibility under Federal Rule of Civil Procedure 23 to assess the adequacy of class counsel makes it unlikely that the court will use malpractice actions as a means of enforcing class counsels’ obligations.” Koniak at 15. In arguing for recognition that author indicates a malpractice action must be based upon an interpretation of the requirements of Rule 23. Id. Thus, if the courts are to recognize the existence of a malpractice action on behalf of class members against class counsel, it must be grounded on federal law. The federal courts administering Rule 23 class actions could not tolerate different views on recognition of such an action from different state courts.

Thus, I would hold that the complaint in the instant ease is a claim derived from federal law and that the case was properly removed to federal court. I would affirm the district court’s dismissal of the action for the reason that we would not recognize a malpractice claim against class counsel.

For these reasons I respectfully dissent.

      . Diaz is on close management ("CM”), that is, long term, single-cell confinement apart from the general population. He receives a maximum of two hours of outdoor exercise per week. CM inmates are often denied all outdoor exercise when placed on the Yard Suspension List (YSL). The amount of outdoor exercise was an issue in the Costello suit. Before the Costello suit was initiated, CM inmates were entitled to receive four hours of outdoor exercise per week.

      . Res judicata, collateral estoppel and estoppel defenses are affirmative defenses in both Florida and federal courts. See Palmer v. McCallion, 645 So.2d 131, 133 (Fla.Dist.Ct.App.1994); Troxler v. Owens-Illinois, Inc., 717 F.2d 530, 533 n. 2 (11th Cir.1983). These potential defenses have no impact on the question of whether the action set out in the complaint arises from federal law for jurisdictional purposes. See Caterpillar Inc. v. Williams, 482 U.S. 386, 393-94, 107 S.Ct. 2425, 2430, 96 L.Ed.2d 318 (1987) (case may not be removed on the basis of a federal defense).

      . The Costello litigation was a class action suit certified under Federal Rule of Civil Procedure 23. We note that the Federal Rules of Civil Procedure do not create an independent basis for federal subject matter jurisdiction. See Fed.R.Civ.P. 82. See also Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 70 (2nd Cir.1990) (Federal Rules do not create independent basis for federal question jurisdiction); Pineville Real Estate Operation Corp. v. Michael, 32 F.3d 88, 90 (4th Cir.1994) (same). Diaz does not allege that Ms lawyer’s error was one of failing to comply with the mechanisms set out in Rule 23 or some other rule of federal procedure. Cf. Zimmer Paper Products, Inc. v. Berger and Montague, P.C., 758 F.2d 86 (3d Cir.1985) (considering, without discussing basis for federal subject matter jurisdiction, whether class counsel breached duty, not by misunderstanding substantive issues about the merits, but by failmg to follow procedures of Rule 23 in class action).

      . For a case describing a court's decree as more analogous to a settlement, see Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1168-75 (5th Cir.1978). By the way, whether the stipulated final judgment in Costello is in the nature of a consent settlement or the Costello court’s own judgment is not, itself, a substantial federal question that might give the district court jurisdiction. (No one has made this argument anyway.) The core allegation advanced in the pro se complaint is that Sheppard agreed to (or perhaps acquiesced in) the judgment because he negligently failed to evaluate properly and to pursue the prisoners’ exercise claim. In either event, the cause of action arises from state law.

      . We have read the dissent and personally would not be sorry if the law compelled the result Judge Logan advocates for this case. But, we think the cases he cites — none of which we contend reached the wrong result — are too different from this case to be of much help. Most important, none involve the removal from state court of a case in which a complaint for legal malpractice has been plead invoking state law. See Laskey v. UAW, 638 F.2d 954 (6th Cir.1981) (direct appeal by class of summary judgment granted to defendants in federal class action); McNeil v. Guthrie, 945 F.2d 1163 (10th Cir.1991) (mandamus action to require clerk of federal court to file pro se papers to enforce consent decree in federal class action); Guthrie v. Evans, 815 F.2d 626 (11th Cir.1987) (attempted pro se direct appeal by unnamed class member of settled federal class action); Adams Extract Co. v. Pleasure Hours, Inc. (In re Corrugated Container Antitrust Litigation), 643 F.2d 195 (5th Cir.1981) (direct appeal by objectors to settlements in federal class action). And we are unprepared to declare as a matter of law that counsel in a class action suit has no professional obligations except those set out by Rule 23. None of the cases cited to us has gone that far.
      We do also stress that we do not today hold Mr. Sheppard liable for malpractice.


author: CARNES, Circuit Judge:

text:
    John D. PURCELL, et al., Plaintiffs-Appellees, v. BANKATLANTIC FINANCIAL CORPORATION, a Florida corporation, et al., Defendants-Appellees. William A. SMITH, et al., Plaintiffs-Appellees, v. BANKATLANTIC FINANCIAL CORPORATION, a Florida corporation, et al., Defendants-Appellees. Timothy J. CHELLING, Plaintiff-Appellee, v. BANKATLANTIC FINANCIAL CORPORATION, a Florida corporation, et al., Defendants-Appellees. American Broadcasting Companies, Inc., William H. Wilson, Appellants.
    Nos. 94-4831, 94-5079.
    United States Court of Appeals, Eleventh Circuit.
    June 25, 1996.

      Raymond V. Miller, Jr., Kaufman, Miller, Dickstein & Grunspan, P.A., Miami, FL, Floyd Abrams, Susan Buckley, Anne B. Carroll, Cahill Gordon & Reindel, New York City, for appellants.
    Alan H. Fein, Eugene E. Stearns, Stearns, Weaver, Miller, Weissler, Alhadeff & Sitter-son, PA, Miami, FL, (Grothe, Wall, Clayton, Helton, Kennedy, Smith, Hermann, Hagedom, Chelling, LaMar), Ray Siderius, C.R. Lonergan, Jr., Siderius Lonergan, Seattle, WA for BankAtlantic Financial Corp.
    Before CARNES and BARKETT, Circuit Judges, and DYER, Senior Circuit Judge.
   CARNES, Circuit Judge:

This appeal arises from the district court’s denial of American Broadcasting Companies, Inc. (“ABC”)’s motion to intervene and from the district court’s entry of a stipulated judgment vacating the jury verdict in a class action in which ABC sought to intervene. ABC argues that due to the potential collateral estoppel effect that the jury verdict could have in a separate libel action between it and certain defendants in the class action, ABC should be permitted to intervene to argue against the vacatur of that verdict. For the reasons discussed below, we hold that ABC lacks sufficient interest in the class action to permit intervention as of right, and that the district court did not abuse its discretion in denying ABC’s motion for permissive intervention.

I. FACTS AND PROCEDURAL HISTORY

In 1989, the plaintiffs, limited partners in various real estate limited partnerships, filed three class actions in the United States District Court for the Southern District of Florida against, among others, fellow limited partners Alan B. Levan and BankAtlantic Financial Corporation (“BFC”). The actions were thereafter consolidated into one class action, which involved exchange transactions proposed by Levan and BFC in which the plaintiffs’ interests in the limited partnerships were exchanged for twenty-year, unsecured, BFC subordinated debentures. The plaintiffs alleged that the exchange transactions violated federal- securities laws, and sought damages and rescission of the debentures.

In November 1991, ABC aired a story on the television program “20/20” about the BFC exchange transactions. The program stated that Levan and BFC knew the transactions were unfair to the plaintiffs, but that they endorsed them anyway. In February 1992, Levan and BFC filed a libel action in the United States District Court for the Southern District of Florida against ABC.

A jury trial was held in the class action suit in December 1992, which resulted in a verdict in favor of the plaintiffs and an award of $8 million in damages. In the course of reaching its verdict, the jury was asked to answer the following special interrogatories:

1. Have the plaintiffs proved, by the greater weight of the evidence, that the exchange transaction proposed by BankAtlantic Financial Corporation was “unfair” to the limited partners ... ?
2. Have the plaintiffs proved, by the greater weight of the evidence, that the managing general partners, or the company or Alan Levan falsely stated in the prospectus and the transmittal letter that they believed that the exchange transaction was “fair” when they knowingly believed otherwise?

The jury answered both questions in the affirmative. The district court entered final judgment on the verdict on December 18, 1992. At that time, the plaintiffs’ claim for equitable rescission had not yet been resolved.

In January 1993, Levan and BFC filed motions for remittitur and for judgment notwithstanding the verdict or for a new trial, which the district court denied. After motions related to prejudgment interest were resolved, Levan and BFC filed an appeal in July 1993. This Court dismissed the appeal in February 1994, holding that the district court’s judgment was not final because it had not yet disposed of the plaintiffs’ claim for equitable rescission.

In February 1993, ABC moved for summary judgment in the libel lawsuit, arguing that the collateral estoppel effect of the December 1992 jury verdict in the class action case precluded a judgment against ABC in the libel lawsuit. The magistrate judge in the libel lawsuit recommended that summary judgment be granted in favor of ABC because the jury’s verdict in the class action case preclusively established the substantial truth of the “20/20” broadcast. However, the district court in the libel lawsuit stayed the proceedings until the equitable rescission claim could be disposed of in the class action ease.

After the magistrate judge recommended summary judgment for ABC in the libel lawsuit, Levan and BFC began working on a settlement with the plaintiffs in the class action case. They reached an agreement in which the defendants would pay the plaintiffs the full amount of the damages that the jury had awarded them, plus interest, in exchange for a stipulated motion to vacate the jury verdict and resulting judgment. Levan informed the district court in the libel lawsuit of the impending settlement in the class action, with the result that the district court rejected the magistrate’s recommendation of summary judgment in favor of ABC, and referred the case back to the magistrate for further consideration in light of the impending class action settlement.

Learning of the class action settlement agreement, ABC was understandably unhappy about the provision for vacatur of the jury verdict and judgment, upon which it was relying in the libel lawsuit. ABC moved to intervene in the class action for the purpose of opposing the vacatur of the jury verdict and judgment. For obvious reasons, Levan and BFC, two defendants in the class action, opposed ABC’s motion to intervene. The plaintiffs in the class action also opposed it, because their certain and relatively prompt receipt of the $8 million payment, plus interest, through the settlement agreement was expressly conditioned upon the vacatur. The district court denied ABC’s motion to intervene. After a hearing on the proposed settlement, the district court approved the class action settlement agreement and entered a final judgment vacating the jury verdict and the final judgment entered thereon.

Thereafter, in April 1995, the magistrate judge in the libel lawsuit recommended that ABC’s motion for summary judgment be denied in light of the vacatur of the jury verdict in the class action.

This is ABC’s appeal from the denial of its motion to intervene and from the district court’s final judgment approving the settlement and vacating the verdict and judgment in the class action case. The plaintiffs have moved in this Court to dismiss this appeal arguing that the appeal is moot because the settlement, extinguished the “case or controversy” that was before the court, and that ABC lacks standing to challenge the settlement agreement. We ordered that the motion to dismiss be carried'with the case, and we now deny it.

II. DISCUSSION

Before the class action parties began negotiating their settlement agreement, the magistrate judge in the libel lawsuit had recommended summary judgment in favor of ABC because the class action jury verdict preclusively established the substantial truth of the “20/20” broadcast. ABC argues that this recommendation gave it a sufficient interest in the settlement agreement to entitle it to intervene in the class action. On the merits, ABC argues that the district court’s approval of the settlement agreement providing for the vacatur of the jury verdict was an abuse of discretion because that agreement was designed to manipulate the judicial system, and the Supreme Court’s decision in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, — U.S. -, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994), disapproves of such settlement agreements.

We do not reach ABC’s argument regarding the propriety of the district court’s approval of the settlement agreement, because, as we explain below, we are persuaded that the district court properly denied ABC’s motion to intervene. See, e.g., Chiles v. Thornburgh, 865 F.2d 1197, 1212 (11th Cir.1989) (“If we find that the district court’s disposition of the motions to intervene was correct, then our jurisdiction evaporates----” (citation and quotation marks omitted)).

A. Intervention as of Right

In this circuit, a movant must establish the following requirements to intervene as of right under Federal Rule of Civil Procedure 24(a)(2):

(1) his application to intervene is timely;
(2) he has an interest relating to the property or transaction which is the subject of the action; (3) he is so situated that disposition of the action, as a practical matter, may impede or impair his ability to protect that interest; and (4) his interest is represented inadequately by the existing parties to the suit.

Chiles, 865 F.2d at 1213. We review the district court’s denial of ABC’s motion to intervene as of right de novo. See Federal Sav. & Loan Ins. Corp. v. Falls Chase Special Taxing Dist., 983 F.2d 211, 214-15 (11th Cir.1993). “Once a party establishes all the prerequisites to intervention, the district, court has no discretion to deny the motion.” United States v. State of Ga., 19 F.3d 1388, 1393 (11th Cir.1994).

The plaintiffs and the defendants in the class action focus primarily on ABC’s failure to establish the second requirement for intervention—that ABC have “an interest relating to the property or transaction which is the subject of the action.” Chiles, 865 F.2d at 1213. “In determining sufficiency of interest, this circuit requires that the intervenor must be at least a real party in interest in the transaction which is the subject of the proceeding. This interest has also been described as a direct, substantial, legally protectable interest in the proceedings.” Worlds v. Department of Health and Rehabilitative Serv., 929 F.2d 591, 594 (11th Cir.1991) (per curiam) (footnotes, citations, and quotation marks omitted).

The transactions that were the subject of the class action proceeding are the debenture exchange transactions. ABC admits that it is not a real party in interest as to those exchange transactions. Instead, ABC argues that preventing the vacatur of a judgment that has been deemed by a magistrate judge to be preclusive in another lawsuit in which it is a party is sufficient for ABC to meet the interest requirement for intervening as of right. ABC has not cited any binding authority to support its position, and we are not convinced by the authority ABC has cited: a Ninth Circuit case, National Union Fire Ins. Co. v. Seafirst Corp., 891 F.2d 762 (9th Cir.1989), and Justice Stevens’s dissenting opinion from the Supreme Court’s dismissal of certiorari in Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, -, 114 S.Ct. 425, 429, 126 L.Ed.2d 396 (1993).

In National Union, the issue was whether the district court abused its discretion in denying a motion to vacate its judgment as part of a settlement agreement. Intervention was not an issue on appeal. The district court in that ease had permitted third parties to intervene in an action between an insurance company and an insured for the limited purpose of objecting to the vacatur of the court’s judgment as part of a settlement agreement. 891 F.2d at 764. It is not apparent from the opinion in National Union whether the intervenors had been allowed to intervene as of right or permissively. What is apparent is that the intervenors in National Union had a more direct interest in the transaction that was the subject of that case, because those intervenors were defending a separate lawsuit brought by the National Union plaintiffs arising out of the very same insurance contract transaction at issue in the that case. Id. at 763.

This case is distinguishable from National Union, because the libel lawsuit ABC is defending against Levan and BFC did not arise out of the same transactions at issue in this class action. Instead, the libel lawsuit arose out of a separate incident — a “20/20” broadcast — that reported about the transactions at issue in the class action. In other words, the intervenors in National Union were real parties in interest as to the transactions that were the subject of that case; by contrast, ABC is not a real party in interest as to the transactions that are the subject of the class action lawsuit in this ease. Therefore, even if National Union were binding precedent, it does not support the proposition that ABC has a sufficient interest for intervention as of right in this case.

As for ABC’s reliance on Justice Stevens’s dissent in Izumi, a dissenting Supreme Court opinion is not binding precedent. E.g., United States v. Goodrich, 871 F.2d 1011, 1013 (11th Cir.1989). Justice Stevens’s opinion dissenting from the Court’s order dismissing the writ of certiorari as improvidently granted in Izumi does not tell us how a majority of the Court would decide this ease.

We conclude that, measured against the Rule 24 requirement that it be “a direct, substantial, legally protectable interest,” Worlds, 929 F.2d at 594, ABC’s interest in the collateral estoppel effect of the jury’s verdict in this case is too collateral, indirect, and insubstantial to support intervention as of right. Broadening the right of intervention to cover the circumstances of this case would not only be unprecedented, it would also run counter to the public policy values that are furthered by permitting parties to settle a case without the interference of interlopers. The district court did not err in denying ABC’s motion to intervene as of right.

B. Permissive Intervention

This Court has previously explained that: If there is no right to intervene under Rule 24(a), it is wholly discretionary with the court whether to allow intervention under Rule 24(b) and even though there is a common question of law or fact, or the requirements of Rule 24(b) are otherwise satisfied, the court may refuse to allow intervention. Worlds, 929 F.2d at 595 (quoting 7C Charles A Wright, et al., Federal Practice and Procedure § 1913, at 376-77 (2d ed. 1986) (footnotes omitted)). “[O]ur task is not to determine whether the factors of Rule 24(b) were present, but is rather to determine whether the trial court committed a clear abuse of discretion in denying the motion.” Id. (citations and quotation marks omitted).

We must affirm under the abuse of discretion standard “unless we at least determine that the district court has made a clear error of judgment, or has applied an incorrect legal standard.” SunAmerica Corp. v. Sun Life Assurance Co. of Canada, 77 F.3d 1325, 1333 (11th Cir.1996) (citations and quotation marks omitted).

By definition, ... under the abuse of discretion standard of review there will be occasions in which we affirm the district court even though we would have gone the other way had it been our call. That is how an abuse of discretion standard differs from a de novo standard of review. As we have stated previously, the abuse of discretion standard allows a range of choice for the district court, so long as that choice does not constitute a clear error of judgment.

Macklin v. Singletary, 24 F.3d 1307, 1311 (11th Cir.1994) (citations and quotation marks omitted), cert. denied, — U.S. -, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995).

ABC’s arguments related to permissive intervention are primarily aimed at establishing that it met both requirements for permissive intervention: (1) the application to intervene was timely; and (2) the intervenor’s claim or defense and the main action have a question of law or fact in common. E.g., Chiles, 865 F.2d at 1213. However, that is not really the focus of our inquiry, because we do not address the matter in the first instance. As a reviewing court, we are concerned only with “clear error[s] of judgment” that the district court may have made, or with “incorrect legal standard[s]” that it may have applied. SunAmerica, 77 F.3d at 1333. ABC has not argued that the district court did either, except to the extent that it contends that the parties in the class action ease could not be prejudiced by allowing ABC’s intervention, and that ABC must be permitted to intervene because it is unable to challenge by any other means the vacatur’s impact on the preclusive effect of the class action jury verdict in the libel lawsuit.

ABC’s argument that its intervention will not prejudice the parties in the class action lawsuit is premised upon its assertion that preventing the parties in that action from vacating the jury verdict and judgment will not prejudice them. Of course, that assertion is woefully unconvincing insofar as it concerns Levan and BFC, whose interest in the vacatur is the converse of ABC’s interest. Permitting ABC to intervene for the purpose of blocking the vacatur would substantially prejudice Levan and BFC, because unless vacated, the jury verdict and judgment in the class action will preclude their libel claim against ABC. Moreover, permitting ABC to intervene in the class action would also substantially prejudice the plaintiffs, because the result ABC seeks would effectively vitiate the settlement agreement through which the plaintiffs are receiving payments from the damage award.

As for ABC’s assertion that without intervention it will have no way to preserve the preclusive effect of the jury verdict and judgment in the class action, that is true. But a nonparty is not necessarily entitled to preserve the beneficial effects of a jury verdict and judgment, however much the nonparty may cherish those effects. Moreover, ABC will have its day in court. In the trial of the libel lawsuit, ABC will have an opportunity to establish in the old-fashioned way the defense that it sought to preclusively establish with the class action jury verdict and judgment. Under these circumstances, it was certainly not a clear abuse of discretion for the district court to deny ABC’s motion for permissive intervention.

III. CONCLUSION

The plaintiffs’ motion to dismiss this appeal as moot is DENIED. The district court’s denial of ABC’s motion to intervene, both as of right and permissively, is AFFIRMED. The remaining issues raised in this appeal are DISMISSED for lack of jurisdiction.

      . The settlement agreement provided that $4 million would be paid into an escrow account by the date of the settlement agreement approval hearing before the district court, and the other $4 million would be paid into the escrow account within thirty months of the execution of the settlement agreement. The agreement further provided that Levan and BFC would pay an annual interest rate of 7% on the second $4 million installment, to be calculated from the date of the execution of the settlement agreement.

      . ABC filed two notices of appeal. The first notice was filed within thirty days of the district court's denial of its motion to intervene as of right. The denial of a motion to intervene as of right is a final appealable order, e.g., Meek v. Metropolitan Dade County, Fla., 985 F.2d 1471, 1476 (11th Cir.1993), and thus, even though the class action had not yet resulted in a final judgment, ABC’s first notice of appeal was properly filed. After the district court entered final judgment on the settlement, ABC filed a second notice of appeal within thirty days with respect to its motion for permissive intervention, and with respect to the settlement itself. ABC then filed a motion to consolidate the two appeals, which this Court granted.

      . ABC has standing to appeal the district court’s denial of its motion to intervene. If we conclude that ABC is entitled to intervene as of right, then ABC has standing as a party to appeal the district court's judgment based on the approved settlement agreement, and we would review that judgment. If we determined that the district court abused its discretion in approving the settlement agreement, then we would reverse the judgment, which included vacatur of the jury verdict, and ABC would be granted the relief it seeks. Because we can potentially grant ABC effective relief, this appeal is not moot. See, e.g., In re Club Assoc., 956 F.2d 1065, 1069 (11th Cir.1992) (“Central to a finding of mootness is a determination by an appellate court that it cannot grant effective judicial relief.”).

      . Although some courts have held that the requirements for intervention are equivalent to the requirements for Article III standing, e.g., Southern Christian Leadership Conference, (SCLC) v. Kelley, 747 F.2d 777, 779 (D.C.Cir.1984), this Court has held that "a party seeking to intervene need not demonstrate that he has standing in addition to meeting the requirements of Rule 24 as long as there exists a justiciable case and controversy between the parties already in the lawsuit.” Chiles, 865 F.2d at 1213.


author: HATCHETT, Circuit Judge:

text:
    FLORIDA POWER & LIGHT CO., Plaintiff-Appellant, v. ALLIS CHALMERS CORP., Central Moloney, Inc., General Electric Co., Kuhlman Electric Co., McGraw Edison, Inc., et al., Defendants-Appellees.
    No. 94-4834.
    United States Court of Appeals, Eleventh Circuit.
    June 25, 1996.

      R. Hugh Lumpkin, Keith, Mack, Lewis, Cohen & Lumpkin, Miami, FL, William M. Martin, Peterson, Bernard, Vandenberg, Zei, Geisler & Martin, Fort Lauderdale, FL, for Pepper’s Steel and Alloys, Inc. and Norton Bloom.

      Norman A. Coll, Harris C. Siskind, Coll, Davidson, Carter, Smith, Salter & Barkett, Miami, FL, for Florida Power & Light Co.
    R. Benjamine Reid, Paul L. Nettleton, Popham, Haik, Sehnobrich & Kaufman, Ltd., Miami, FL, for Westinghouse Electric.
    Jay M. Levy, Jay M. Levy, P.A., Miami, FL, for Allis Chalmers Corporation.
    Herbert G. Sparrow, III, Detroit, MI, Maxine M. Long, Richard M. Lesile, Miami, FL, for Kuhlman Electric.
    Thomas M. Burke, Chris N. Kolos, Lavinia K. Dierking, Edward L. White, III, Orlando, FL, for General Electric.
    James M. Porter, Miami, FL, for McGraw Edison, Inc.
    Richard Fred Lewis, Miami, FL, for RTE Corporation.
    Andrew V. Showen, Christopher C. Skambis, Foley & Lardner, Orlando, FL, for Central Moloney.
    Before HATCHETT and BLACK, Circuit Judges, and CLARK, Senior Circuit Judge.
   HATCHETT, Circuit Judge:

In this ease involving the liability of companies handling electrical transformers contaminated with a hazardous substance, under the Comprehensive Environmental Response Compensation and Liability Act of 1990 (CERCLA), we affirm the district court.

FACTS

For more than forty years, Westinghouse Electric Corporation, General Electric Company, Allis-Chalmers Corporation, Central Moloney, Inc., Kuhlman Electric Company, McGraw Edison, Inc., and Wagner Electric Corporation (hereinafter “the manufacturers”) sold Florida Power and Light (FP & L) oil-filled electrical transformers for use in its utility business. Unbeknownst to FP & L, the mineral oil contained in these transformers became contaminated with a hazardous substance known as polychlorinated biphenyls (PCBs) during the manufacturing process. FP & L, at the end of the transformers’ useful life, resold these transformers to Pepper’s Steel and Alloys, Inc. (Pepper’s Steel) as scrap metal. During the salvaging process, Pepper’s Steel released significant quantities of the mineral oil from the transformers onto the ground. As a result, the Pepper’s Steel site and surrounding environment became contaminated with PCBs.

On November 22, 1976, Westinghouse sent FP & L a letter informing FP & L that some of the transformers it purchased possibly contained PCBs in the mineral oil. Approximately six months later, General Electric sent FP & L a letter also informing FP & L that the transformers it purchased could contain PCB-contaminated mineral oil. Both letters warned FP & L that PCBs accumulate in the environment and that FP & L should take the appropriate environmental precautions when disposing of the transformers. Despite the receipt of both letters, FP & L failed to inform Pepper’s Steel of the potential contamination problem. FP & L, however, continued to sell transformers to Pepper’s Steel as scrap metal.

On May 10, 1977, Pepper’s Steel learned that its site contained PCBs and other hazardous substances. On October 4,1977, Pepper’s Steel sent FP & L a letter informing FP & L that it believed that some of the transformers it purchased from FP & L contained mineral oil contaminated with PCBs. FP & L, shortly thereafter, tested the mineral oil in its transformers and discovered the oil contained PCBs. For several months following the discovery of PCBs on the Pepper’s Steel site, Pepper’s Steel refused to accept transformers from FP & L. Pepper’s Steel subsequently resumed purchasing transformers from FP & L, but only after FP & L drained the mineral oil from the transformers. Despite this preventive measure, the contamination of the Pepper’s Steel site worsened.

In July 1993, the Environmental Protection Agency (EPA) and the Florida Department of Environmental Regulations (DER) brought emergency environmental cleanup actions against Pepper’s Steel, FP & L, and other owners of that site for unacceptable levels of PCBs, lead, arsenic, and antimony in violation of the Comprehensive Environmental Response Compensation and Liability Act of 1990 (CERCLA). In March 1985, the EPA filed another lawsuit 'against the same parties seeking to recover the response costs EPA incurred as a result of its investigation and removal of the hazardous substances. On May 26, 1987, FP & L entered into a consent decree with EPA agreeing to reimburse EPA and DER for response and oversight costs relating to the cleanup of the Pepper’s Steel site. In the consent decree, FP & L reserved its right to seek reimbursement from third persons also liable under CERCLA.

PROCEDURAL HISTORY

On July 18, 1986, FP & L filed this action against the manufacturers seeking reimbursement under 42 U.S.C. § 9607(a)(3) of CERCLA for costs it incurred in the Pepper’s Steel cleanup based on a claim of contribution. In its complaint, FP & L also asserted state law restitution, indemnity, negligence, breach of contract, breach of warranty, negligent misrepresentation, and strict liability claims. On March 21, 1988, the district court granted partial summary judgment in favor of the manufacturers on FP & L’s contribution claim. In a prior appeal filed pursuant to 28 U.S.C. § 1292(b), this court affirmed the district court’s grant of partial summary judgment holding that a mere sale of a useful product without additional evidence that the transaction included an arrangement for the disposal of the hazardous substance does not subject the manufacturers to liability under CERCLA.

On remand, the district court entered a second partial summary judgment in favor of the manufacturers on FP & L’s negligence, breach of contract, breach of warranty, negligent misrepresentation, and strict liability claims finding that the applicable Florida statute of limitations barred those claims. On April 9, 1990, the district court granted summary judgment in favor of the manufacturers on FP & L’s remaining claims of restitution and indemnity. FP & L thereafter filed a motion for leave to amend its complaint seeking to add a claim for contribution under a different provision of CERCLA than previously considered in the prior appeal. The district court on June 19, 1990, denied FP & L’s motion for leave to amend. FP & L also filed a motion for default judgment against Westinghouse alleging that it withheld evidence of an “arrangement of disposal” during discovery. On January 31, 1990, the district court adopted the magistrate judge’s report and recommendation denying FP & L’s motion for a default judgment.

FP & L filed this appeal seeking review of the district court’s grant of summary judgment in favor of the manufacturers on its restitution, indemnity, and state law claims. FP & L also appeals the district court’s denial of its motions for leave to amend and for default judgment.

CONTENTIONS

FP & L contends that the district court erred in ruling that the statute of limitations began to run on its state law tort and contract claims in 1977 when FP & L learned that its transformers contained PCB-contaminated mineral oil. Instead, FP & L asserts that the statute of limitations did not commence to run until 1983, the time it first incurred cleanup cost under CERCLA for PCB contamination resulting from the mineral oil in the transformers. FP & L also contends CERCLA imposes a legal duty on the manufacturers to pay for the cleanup at the Pepper’s Steel site. Specifically, FP & L asserts that the record, when considered in a light most favorable to FP & L, demonstrates that the manufacturers “otherwise arranged for disposal” of PCBs. FP & L further contends that the district court erred in finding that granting its motion for leave to amend its complaint to add an additional claim would have been futile. Finally, FP & L contends that the district court erred in failing to enter a default judgment against Westinghouse for withholding documents during discovery, asserting that only a default judgment could eliminate the severe prejudice it suffered from Westinghouse’s actions.

In response, the manufacturers contend that the statute of limitations commenced to run in 1977 on FP & L’s state law tort and contract claims when FP & L learned that its transformers contained PCB-contaminated oil and began incurring costs to test and drain the contaminated mineral oil from the transformers. The manufacturers also contend that they received no benefit from FP & L’s expenditures in the cleanup of the Pepper’s Steel site because they had no legal duty under CERCLA to pay for the cleanup. Finally, Westinghouse contends that the district court did not abuse-its discretion in denying FP & L’s motions for leave to amend or for default judgment.

ISSUES

We discuss the following issues: (1) whether the statute of limitations bars FP & L’s state law tort and contract claims; (2) whether CERCLA imposes a legal duty upon appellees to reimburse FP & L for costs it incurred in the cleanup of the Pepper’s Steel site; (3) whether the district court properly found that granting FP & L’s motion to amend its complaint to add an additional contribution claim under CERCLA would have been futile; and (4) whether the district court abused its discretion in denying FP & L’s motion for default judgment.

DISCUSSION

A. Summary Judgment

We review the district court’s grant of summary judgment de novo. Canadyne-Georgia Corp. v. Continental Ins. Co., 999 F.2d 1547, 1554 (11th Cir.1998). Where no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In this case, the district court granted summary judgment in favor of the manufacturers on FP & L’s state law tort, contract, restitution, and indemnity claims. We first address whether the statute of limitations bars FP & L’s state law tort and contract claims.

1. Statute of Limitations

Under Florida law, the statutes of limitations begin to run at the time the cause of action accrues. Fla.Stat.Ann. § 95.031 (West 1982). A cause of action accrues when the last element constituting the cause of action occurs and-the plaintiff knew or should have discovered the injury. City of Miami v. Brooks, 70 So.2d 306, 309 (Fla.1954). In its complaint, FP & L asserted state tort and contract claims. Florida law imposes a four-year statute of limitations on tort claims and a five-year statute of limitations on contract claims based on a written contract. See Fla.Stat.Ann. §§ 95.11(2)(b) and (2)(a), (f), (j), (k), (p) (West 1982). In this case, the district court found that FP & L knew or should have known that it had viable tort and contract claims against the manufacturers in 1977 when it received Westinghouse’s and General Electric’s letters warning it of the PCB contamination problem and the test results revealing the presence of PCBs in its transformers.

FP & L argues that a question of material fact exists as to whether Westinghouse’s and General Electric’s letters and its knowledge that some of its transformers tested positive for PCBs gave it sufficient notice that the reselling of the transformers as scrap metal would subject it to response and cleanup costs for the cleanup of the Pepper’s Steel site under CERCLA. Specifically, FP & L asserts that it could not have commenced an action in 1977 seeking to recover response costs and remedial expenses for the cleanup because Congress did not enact CERCLA until 1980 and because it did not begin to sustain such damages until 1983. In response, the manufacturers argue that the fact that FP & L did not know the full extent of its injury at the time it learned of its PCB contamination problem or that the most substantial damages did not occur until a later date does not postpone the running of the statute of limitations on its state law claims. We agree.

A cause of action accrues under Florida law the moment the injured party or a reasonable person in the injured party’s situation knew or should have known that the acts complained of caused damage. Penthouse North Ass’n v. Lombardi, 461 So.2d 1350, 1352 (Fla.1985). In this case, FP & L asserts tort and contract claims against the manufacturers based on the presence of PCBs in its transformers. FP & L, however, had actual knowledge in 1977 that its transformers contained PCBs and that PCBs accumulate in the environment. Also in 1977, FP & L sustained at least nominal damages due to the testing and draining of the contaminated mineral oil from its transformers. Based on these facts, FP & L could have filed state tort and contract claims against the manufacturers at that time. Florida law subjects FP & L’s state law claims either to a four- or five-year statute of limitations. FP & L, however, filed its state law claim in 1986 nine years after it became legally damaged. Once the appropriate statute of limitations period has passed, manufacturers, like individuals, “have the right to conduct their affairs without fear of liability for their [past] actions.” Penthouse North Ass’n, 461 So.2d at 1352. Because FP & L filed its state law claims after the running of the statute of limitations, we affirm the district court’s grant of summary judgment on FP & L’s tort and contract claims.

2. State Law Restitution and Indemnity Claims

We now turn to FP & L’s state law claims of restitution and indemnity based on the manufacturers’ alleged duty under CERCLA. See Tipper v. Great Lakes Chemical Co., 281 So.2d 10, 12-13 (Fla.1973) (plaintiff entitled to restitution when benefit conferred on another was necessary for the protection of the interests of third persons); see also Mortgage Guarantee Ins. Corp. v. Stewart, 427 So.2d 776, 778-79 (Fla.3d D.C.A.1983) (plaintiff entitled to indemnity when plaintiff discharges a duty he owes but should have been paid by another).

This court previously noted that one of the, if not the, “essential purpose of CERCLA is to place the ultimate responsibility for the cleanup of hazardous waste on ‘those responsible for problems caused by the disposal of chemical poison.’ ” Florida Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1317 (11th Cir.1990) (quoting United States v. Aceto Agric. Chemicals Corp., 872 F.2d 1373, 1377 (8th Cir.1989)). CERCLA, for example, imposes liability on

(1) the owners and operators of a facility at which a release or threatened release of hazardous substances exists; (2) the owners or operators of such a facility any time in the past when hazardous substances were disposed of; (3) any person or entity who “arranged for” the treatment or disposal of a hazardous substance at the facility; and (4) any persons who transport hazardous substances to the facility.

Florida Power & Light Co., 893 F.2d at 1317.

In this case, FP & L argues that the manufacturers “arranged for” the disposal of hazardous substances on the Pepper’s Steel site and therefore CERCLA imposes a duty on the manufacturers. Specifically, CERCLA places such a duty on

any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances....

42 U.S.C.A. § 9607(a)(3) (West 1995). FP & L, however, has presented no evidence that the manufacturers had any involvement with FP & L’s decision to resell the used transformers as scrap metal to Pepper’s Steel or that the manufacturers otherwise arranged for FP & L’s disposal of the contaminated transformer oil. This court in FP & L’s prior appeal held that a mere sale of a useful product without more could not subject manufacturers to liability under CERCLA for “arranging disposal.” Florida Power & Light, 893 F.2d at 1318. Because FP & L has not met its burden of demonstrating that the manufacturers’ transactions with FP & L involved anything more than mere sales, the manufacturers owe no duty under CERCLA to clean up the Pepper’s Steel site.

Although this court rendered its decision in the prior appeal based upon the district court’s grant of summary judgment on FP & L’s CERCLA contribution claim, our holding in the prior appeal equally applies to FP & L’s state law restitution and indemnity claims because contribution, indemnity, and restitution require the plaintiff to first demonstrate that the defendant received a benefit from the plaintiff’s actions — i.e., that plaintiff paid more than his fair share, or that the plaintiff discharged a duty the defendant owed, or that the plaintiffs actions unjustly enriched the defendant. In this case, FP & L cannot demonstrate that it conferred a benefit on the manufacturers when it paid for cleanup cost of the Pepper’s Steel site because the manufacturers had no duty under CERCLA to assist in the cleanup. Consequently, FP & L’s state law restitution and indemnity claims fail as a matter of law. Accordingly, we affirm the district court’s grant of summary judgment on the restitution and indemnity claims.

B. Motion to Amend

We review the district court’s denial of FP & L’s motion for leave to amend its complaint for abuse of discretion. Shipner v. Eastern Air Lines, Inc., 868 F.2d 401, 406 (11th Cir.1989). Federal Rule of Civil Procedure 15(a) mandates that the district court freely grant plaintiffs motion for leave when justice so requires. Fed.R.Civ.P. 15(a). “[U]nless a substantial reason exists to deny leave to amend, the discretion of the district court is not broad enough to permit denial.” Shipner, 868 F.2d at 407.

In this ease, FP & L filed a motion for leave to amend its complaint seeking to add an additional claim for contribution under section 9607(a)(1) and (a)(2) asserting that the manufacturers are liable under CERCLA as “owners of a ‘facility.’” The district court denied FP & L’s motion for leave to amend as futile finding that the contribution claim would not withstand a motion to dismiss. On appeal, FP & L contends that the district court’s denial of its motion to amend constitutes an abuse of discretion. FP & L argues that a contribution claim under section 9607(a)(1) and (a)(2) states a valid claim upon which relief could be granted. FP & L further argues that CERCLA imposes liability on the manufacturers because they owned the transformers — the “facility” — when they filled the transformers with the PCB-contaminated mineral oil.

CERCLA defines a “facility” as follows: The term “facility” means (A) any building, structure, installation, equipment, pipe or pipeline ..., well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardoús substance has been deposited, stored, disposed of, or placed, or otherwise come to be located____

42 U.S.C.A. § 9601(9) (West 1995). Even accepting FP & L’s argument that the electrical transformer constitutes a “facility” for purposes of CERCLA, FP & L’s contribution claim fails because Pepper’s Steel and not the manufacturers owned the transformers at the time the PCB-contaminated oil was released from the “facility.” Because the manufacturers retained no property interest in the transformers at the time the transformer oil contaminated the Pepper’s Steel site, CERCLA does not subject the manufaeturers to liability under section 9067(a)(1) and (a)(2). Accordingly, we affirm the district court’s decision to deny FP & L’s motion for leave to amend as futile.

C. Motion for Default Judgment

Finally, FP & L contends that the district court erred in failing to enter a default judgment against Westinghouse for withholding documents for seventeen months during discovery. The district court entered a June 1988 order to compel directing Westinghouse to produce this discovery. The order, however, did not require production within any particular time period. As a result, Westinghouse produced the discovery in October and November 1989. After Westinghouse produced this discovery, FP & L filed a motion for default judgment. The district court denied FP & L’s motion finding that Westinghouse’s discovery delay was no more egregious than FP & L’s actions during discovery.

District courts have broad discretion under the Federal Rules of Civil Procedure to impose sanctions for failure to comply with court orders. Wouters v. Martin County, 9 F.3d 924, 933 (11th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 65, 130 L.Ed.2d 21 (1994). FP & L urges this court to reverse the district court’s decision arguing that only a default judgment could eliminate the prejudice it suffered from Westinghouse’s actions. With the documents in question, FP & L sought to prove that Westinghouse intentionally filled mineral oil transformers with mineral oil containing PCBs as a method for eliminating PCBs from its oil storage tanks. FP & L argues that Westinghouse’s action constitutes an arrangement for disposal under CERCLA. We note that only one of the documents produced during this period supports FP & L’s allegation that Westinghouse intentionally filled transformers with contaminated oil. This document is an unauthored draft containing a number of alternative plans for reducing the concentration of PCBs in mineral oil in the Westinghouse Sharon, Pennsylvania plant. It is undisputed that Westinghouse did not adopt or implement any of the alternative plans listed in that document. We therefore conclude that the district court did not abuse its discretion in denying FP & L’s motion for default judgment.

CONCLUSION

For the reasons stated above, we hold that the district court properly granted summary judgment in favor of the manufacturers on FP & L’s state law, restitution, and-,indemnity claims. We also hold that the district court did not abuse its discretion in denying FP & L’s motion for leave to amend and motion for default judgment. Accordingly, the judgment of the district court is affirmed.

AFFIRMED.

      We emphasize that our holding does not recognize implied claims of restitution and indemnity under CERCLA. FP & L’s claims of restitution and indemnity arose under state law and not CERCLA, although the alleged duty to clean up the Pepper's Steel site arose under CERCLA.