Winn-Dixie Stores, Inc. v. Dolgencorp, LLC ( 2014 )


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  •                Case: 12-14527    Date Filed: 03/05/2014   Page: 1 of 72
    
    
                                                                              [PUBLISH]
    
    
    
                     IN THE UNITED STATES COURT OF APPEALS
    
                              FOR THE ELEVENTH CIRCUIT
                                ________________________
    
             Nos. 12-14527; 12-14742; 12-14825; 13-10891; 13-12735; 13-12736
                               ________________________
    
                D.C. Docket Nos. 9:11-cv-80601-DMM, 9:11-cv-80638-DMM
    
    
    WINN-DIXIE STORES, INC.,
    WINN-DIXIE STORES LEASING, LLC, et al.,
    
                              Plaintiffs - Appellants,
    
    versus
    
    DOLGENCORP, LLC,
    f.k.a. Dolgencorp, Inc,
    a Kentucky corporation,
    
                              Defendant - Appellee.
    
    ____________________________________
    
                          D.C. Docket No. 9:11-cv-80638-DMM
    
    
    WINN-DIXIE STORES, INC.,
    WINN-DIXIE STORES LEASING, LLC, et al.,
    
                              Plaintiffs - Appellants
                              Cross Appellees,
    
    versus
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    DOLLAR TREE STORES, INC.,
    a Virginia corporation,
    
                             Defendant - Appellee
                             Cross Appellant.
    
    ____________________________________
    
                           D.C. Docket No. 9:11-cv-80641-DMM
    
    
    WINN-DIXIE STORES, INC.,
    WINN-DIXIE STORES LEASING, LLC, et al.,
    
                             Plaintiffs - Appellants
                             Cross Appellees,
    
    versus
    
    BIG LOTS, INC.,
    an Ohio corporation,
    
                            Defendant - Appellee
                            Cross Appellant.
    
    
                              ________________________
    
                      Appeals from the United States District Court
                          for the Southern District of Florida
                             ________________________
    
    
                                     (March 5, 2014)
    
    
    
    
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    Before MARCUS and FAY, Circuit Judges, and HODGES, * District Judge.
    
    MARCUS, Circuit Judge:
    
           When a Winn-Dixie supermarket signs on to anchor a shopping center, its
    
    lease often contains a restrictive covenant sharply limiting grocery sales by other
    
    tenants. In this complex lawsuit, Winn-Dixie claimed that, since 2005, it suffered
    
    more than $90 million in lost profits because Defendants Dollar General, Dollar
    
    Tree, and Big Lots violated, and continue to violate, these restrictive covenants.
    
    Trial involved ninety-seven of Defendants’ stores across five southeastern states.
    
    The district court handled this complicated case with thought and skill.
    
           For fifty-four stores, the district court reached the question of whether the
    
    Defendants violated the terms of the restrictive covenants, whose standard
    
    language for most stores limited the sale of “staple or fancy groceries” to a discrete
    
    “sales area.” Applying general principles of Florida law, the district court
    
    construed these terms narrowly, reading groceries as only food items and
    
    measuring sales area only by shelving space. As a result, the court refused to order
    
    injunctions for thirty-seven stores where it found no violation of the terms of the
    
    covenants. As for the seventeen other stores, the court issued injunctive relief that
    
    limited only the sale of food items measured by shelving space. Being Erie-bound
    
    
    *
      Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of Florida,
    sitting by designation.
    
    
    
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    to apply state rules of decision in this diversity jurisdiction case, we must reverse
    
    and remand as to the fifty-four stores. We do so for forty-one of these stores found
    
    in Florida, compelled by an intermediate appellate decision from that state
    
    interpreting a restrictive covenant materially identical to many of those at issue
    
    here. See Winn-Dixie Stores, Inc. v. 99 Cent Stuff-Trail Plaza, LLC, 
    811 So. 2d 719
     (Fla. 3d DCA 2002). As we read controlling Florida law, “groceries” broadly
    
    includes food and “many household supplies (as soap, matches, paper napkins),”
    
    and sales area “includes fixtures and their proportionate aisle space.” Id. at 722
    
    (emphasis added). Also, for eleven stores in Alabama and two found in Georgia,
    
    we are required to reverse and remand for interpretation of the covenant terms in
    
    accordance with the appropriate law of each of those states.
    
          For the remaining forty-three stores, the district court denied all relief for a
    
    variety of reasons, without deciding whether the Defendants had violated covenant
    
    terms. Finding no error, we affirm the judgment of the district court as to these
    
    forty-three stores. To begin with, the district court acted well within its
    
    considerable discretion in excluding the testimony of Dr. Pacey, Winn-Dixie’s
    
    expert on damages, based on twin findings that the expert opinion would not assist
    
    the trier of fact and was not grounded in reliable methodology. As a result, the
    
    court made no error in refusing to award compensatory damages as to any of the
    
    stores. Nor did the court err in finding that the restrictive covenants were
    
    
    
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    unenforceable under the laws of Louisiana and Mississippi, or in refusing to allow
    
    Winn-Dixie to enforce a covenant in a grocery store lease created after a
    
    Defendant’s lease had been signed. Moreover, the trial court made no error in
    
    refusing to recognize collateral estoppel because this case involves different stores
    
    with different leases signed at different times from the lease for the one store at
    
    issue in the prior Florida decision. And the district court did not abuse its
    
    discretion in denying punitive damages because a legitimate dispute about the
    
    meaning of the grocery exclusives indicated that the Defendants did not
    
    intentionally engage in misconduct or act in a grossly negligent manner.
    
          The cross-appeals lodged by Big Lots and Dollar Tree lack merit. As the
    
    district court concluded, Big Lots need not have signed the restrictive covenants to
    
    be bound by them because section 542.335 of the Florida Statutes does not apply to
    
    covenants running with the land. The district court also properly concluded that
    
    Big Lots’ landlords were not indispensable parties under Federal Rule of Civil
    
    Procedure 19(a)(1), and that Winn-Dixie was not required to make a pre-suit
    
    demand for compliance upon Big Lots under Florida law. Finally, the district court
    
    did not err in granting summary judgment against Dollar Tree’s statute of
    
    limitations affirmative defense; in Florida, a continuing violation principle applies
    
    because the Defendants’ stores engaged in ongoing grocery sales.
    
    
    
    
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          Thus, we affirm in part, reverse in part, and remand for further proceedings
    
    consistent with this opinion.
    
                                              I.
    
          Plaintiffs (“Winn-Dixie”) own or operate roughly 500 supermarkets or
    
    grocery stores on leased property throughout Alabama, Florida, Georgia,
    
    Louisiana, and Mississippi. Most of their stores are found in Florida. Defendants,
    
    in turn, run discount general merchandise stores, some of which are colocated in
    
    shopping centers featuring a Winn-Dixie supermarket as an anchor tenant.
    
    Dolgencorp, LLC (“Dollar General”) is a Kentucky limited liability company with
    
    over 9,600 stores in 36 states. Dollar Tree Stores, Inc. (“Dollar Tree”) is a Virginia
    
    corporation that operates more than 4,400 stores in 48 states. Big Lots Stores, Inc.
    
    (“Big Lots”) is an Ohio corporation that runs over 1,400 stores in 48 states.
    
          Winn-Dixie’s commercial leases often include a “grocery exclusive”
    
    provision that precludes landlords from renting to other tenants who operate
    
    grocery stores in the same shopping center. Many of the leases specify that these
    
    tenants may devote a limited “sales area” to certain restricted products, including
    
    “staple or fancy groceries.” Winn-Dixie argued that these grocery exclusives bind
    
    subsequent tenants as covenants running with the land. Based on reports of
    
    estimated sales activity compiled by its investigators, Winn-Dixie concluded that a
    
    number of colocated Dollar General, Dollar Tree, and Big Lots stores operate in
    
    
    
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    violation of the restrictive covenants created by the grocery exclusives. Not
    
    surprisingly, the parties vigorously dispute which products are restricted and how
    
    the permissible sales space is measured.
    
           On May 20, 2011, Winn-Dixie sued Dollar General in the United States
    
    District Court for the Southern District of Florida. Two weeks later, Winn-Dixie
    
    filed separate suits against Big Lots and Dollar Tree in the same court. Winn-
    
    Dixie initially identified 136 stores in all as being in violation of the restrictive
    
    covenants. Of these original claims, Winn-Dixie at trial pursued its rights as to
    
    only ninety-seven stores: fifty-one Dollar General, 1 thirty-two Dollar Tree,2 and
    
    
    
    
    1
     The stores at issue in this case are identified by the corporate numbers of the colocated stores.
    For example, Dollar General #246, colocated with Winn-Dixie #478, is signified as
    “DG246/WD478.” The fifty-one Dollar General stores at issue are: DG246/WD478;
    DG626/WD1537; DG770/WD1540; DG1026/WD1511; DG1056/WD489; DG1095/WD209;
    DG1322/WD612; DG1333/WD151; DG1382/WD30; DG1389/WD710; DG1402/WD2260;
    DG1413/WD631; DG1416/WD622; DG1420/WD611; DG1421/WD144; DG1451/WD723;
    DG1453/WD662; DG1456/WD331; DG1493/WD647; DG1513/WD2326; DG1522/WD2268;
    DG1524/WD566; DG1541/WD629; DG1649/WD2342; DG2363/WD411; DG2634/WD777;
    DG2685/WD1572; DG2762/WD652; DG2965/WD428; DG2969/WD681; DG3013/WD713;
    DG4008/WD553; DG4444/WD2213; DG4701/WD649; DG4821/WD3; DG4952/WD599;
    DG4981/WD221; DG7268/WD123; DG7376/WD737; DG7457/WD167; DG7539/WD577;
    DG7584/WD639; DG7824/WD1588; DG7883/WD305; DG8551/WD561; DG8665/WD579;
    DG9149/WD750; DG9263/WD705; DG10357/WD1431; DG10484/WD654; DG11814/WD574.
    2
     DT153/WD463; DT332/WD2311; DT582/WD166; DT723/WD254; DT807/WD657;
    DT892/WD2230; DT986/WD737; DT1135/WD116; DT1566/WD228; DT1805/WD705;
    DT2117/WD353; DT2159/WD309; DT2160/WD443; DT2161/WD1555; DT2395/WD461;
    DT2714/WD2205; DT2804/WD84; DT2838/WD412; DT2936/WD599; DT3382/WD514;
    DT4133/WD456; DT4181/WD678; DT4199/WD255; DT4230/WD656; DT4266/WD501;
    DT4339/WD632; DT4365/WD236; DT4497/WD378; DT4511/WD647; DT4550/WD658;
    DT4625/WD577; DT4637/WD471.
    
    
    
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    fourteen Big Lots.3 The ninety-seven stores were located predominantly in Florida
    
    (seventy-five stores), but also in Alabama (thirteen), Louisiana (six), Georgia
    
    (two), and Mississippi (one). Winn-Dixie sought damages or, in the alternative,
    
    injunctive relief. The Defendants in turn filed third-party complaints against a
    
    number of shopping center landlords seeking indemnification, but those third-party
    
    actions are not at issue in this appeal.
    
            For ninety-one of the ninety-seven locations at issue, a standard grocery
    
    exclusive in Winn-Dixie’s lease included the following critical terms:
    
          Landlord further covenants and agrees not to permit or suffer any
          property located within the shopping center to be used for or occupied
          by any business dealing in or which shall keep in stock or sell for off-
          premises consumption any staple or fancy groceries, meats, fish,
          vegetables, fruits, bakery goods, dairy products or frozen foods
          without written permission of the Tenant.
    
    Winn-Dixie Stores, Inc. v. Big Lots Stores, Inc., 
    886 F. Supp. 2d 1326
    , 1336 (S.D.
    
    Fla. 2012). Of these ninety-one standard grocery exclusives, seventy-eight contain
    
    the following exception:
    
          [E]xcept the sale of such items is not to exceed the lesser of 500
          square feet of sales area or 10% of the square foot area of any
          storeroom within the shopping center, as [an] incidental only to the
          conduct of another business . . . shall not be deemed a violation
          hereof.
    
    
    3
     BL505/WD506; BL512/WD2210; BL525/WD698; BL530/WD654; BL550/WD609;
    BL553/WD236; BL554/WD671; BL555/WD307; BL558/WD160; BL570/WD612;
    BL1519/WD306; BL1628/WD348; BL1711/WD302; BL4258/WD254. [DE 622.]
    
    
    
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    Id. (alterations in original). Of the remaining thirteen standard grocery exclusives,
    
    five include similar language that allows up to 1,000 square feet of restricted
    
    products; three allow up to 400 square feet; and five do not allow the sale of any
    
    such items.
    
            Winn-Dixie sought summary judgment against each of the Defendants,
    
    which the district court granted in part and denied in part. The court found that the
    
    grocery exclusives formed valid and enforceable covenants running with the land
    
    under Florida law, but that genuine issues of material fact remained as to the
    
    meaning of “groceries” and “sales area.” On February 1, 2012, the court
    
    consolidated Winn-Dixie’s actions against Dollar General, Dollar Tree, and Big
    
    Lots.
    
            After many more motions were filed, the district court entered a pretrial
    
    “Omnibus Order Concerning the Meaning of the Terms ‘Groceries’ and ‘Sales
    
    Area.’” The court found that both the terms “staple or fancy groceries” and “sales
    
    area” were ambiguous as used in the grocery exclusives. Ultimately, applying
    
    Florida principles of real covenant interpretation, the court construed the
    
    restrictions narrowly, determining that the parties intended “staple or fancy
    
    groceries” to mean only food items, including nonalcoholic beverages, and “sales
    
    area” to include only the footprint of the display unit, excluding aisle space. As a
    
    result, the evidence presented at trial was premised on these definitions, and the
    
    
    
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    court found covenant violations only when Defendants sold food items in excess of
    
    the allowable shelving space.
    
          Also before trial, the court excluded the testimony of Winn Dixie expert Dr.
    
    Patricia Pacey, an economist who intended to opine as to damages. The
    
    Defendants did not challenge Dr. Pacey’s qualifications, which included a Ph.D. in
    
    economics and extensive statistical experience. Based on data drawn from almost
    
    500 Winn-Dixie stores and over 12,000 potential nearby competitors, Dr. Pacey
    
    employed a multiple regression model to determine whether a competitor selling
    
    similar grocery products in proximity to a Winn-Dixie store has an effect on Winn-
    
    Dixie sales. Because the Defendants’ stores generally do not sell meat, Dr. Pacey
    
    calculated the effect of the Defendants’ presence on Winn-Dixie non-meat grocery
    
    sales. After equalizing other factors, Dr. Pacey claimed that the presence of a Big
    
    Lots, Dollar General, or Dollar Tree store within two-tenths of a mile of a Winn-
    
    Dixie was correlated with a reduction in non-meat grocery sales of 7.7%, 6.7%,
    
    and 5.0%, respectively. Dr. Pacey used these suppression numbers to calculate the
    
    monetary damages allegedly sustained by each Winn-Dixie store. However, the
    
    district court barred her testimony, finding its methodology was unreliable and that
    
    it would not assist the trier of fact. The court concluded that her analysis failed to
    
    reconcile that most of Defendants’ stores were permitted to sell a certain amount of
    
    restricted products and that it did not establish causation between a covenant
    
    
    
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    violation and decreased Winn-Dixie profits. The district court also took issue with
    
    the methods underlying her regression analysis, which calculated damages from
    
    2005 to 2008 based on recession-period sales data drawn from 2009 and 2010,
    
    measured Winn-Dixie foot traffic by assuming that consumers purchase their
    
    groceries and meat at the same store, imposed an arbitrary three-mile outer radius
    
    to measure competition, alleged damages for items that the Defendants do not sell,
    
    and had not been peer-reviewed.
    
          The district court conducted a bench trial from May 14 until May 22, 2012.
    
    On August 13, it issued detailed “Findings of Fact and Conclusions of Law.” The
    
    court determined that the leases created enforceable restrictive covenants under the
    
    laws of Florida, Georgia, and Alabama, but that the grocery exclusives could not
    
    be enforced in Louisiana, under that state’s civil law, or in Mississippi, because
    
    privity of estate was lacking. The district court refused to award any compensatory
    
    damages, however, because the evidence of harm presented by Winn-Dixie was
    
    “too general, vague, and speculative.” The court also denied punitive damages,
    
    finding no “intentional misconduct” or “gross negligence” because “[t]he grocery
    
    exclusives . . . are rife with ambiguities and the scope of their restrictions are
    
    uncertain at best,” and because Winn-Dixie did not make a formal demand on
    
    Defendants to comply prior to filing suit.
    
    
    
    
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            Turning to Winn-Dixie’s request for injunctive relief, the district court
    
    determined that, with Dr. Pacey’s testimony off the table, a remedy at law was
    
    inadequate because of its “skepticism that Plaintiffs could ever provide sufficient
    
    evidence to be entitled to an award of damages.” However, the court granted
    
    injunctive relief only if a Defendant’s store violated a narrowly construed
    
    restrictive covenant.
    
            For a number of reasons, the district court found that injunctive relief was
    
    unavailable at forty-three stores regardless of whether Defendants had violated the
    
    terms of the grocery exclusives. Thirty-one stores had closed, making an
    
    injunction unnecessary. 4 The court awarded no relief as to the six stores in
    
    Louisiana5 and one in Mississippi,6 where the covenants were unenforceable. For
    
    one store, Dollar General’s lease predated the restrictive covenant; thus, the court
    
    determined that the subsequent restrictive covenant was not enforceable. 7 For four
    
    
    4
     BL570/WD612; DG1095/WD209; DG1322/WD612; DG1333/WD151; DG1382/WD30;
    DG1389/WD710; DG1402/WD2260; DG1413/WD631; DG1421/WD144; DG1451/WD723;
    DG1456/WD331; DG1493/WD647; DG1513/WD2326; DG1522/WD2268; DG1524/WD566;
    DG1649/WD2342; DG2363/WD411; DG2762/WD652; DG3013/WD713; DG4008/WD553;
    DG4444/WD2213; DG4701/WD649; DG4821/WD3; DG4981/WD221; DG7457/WD167;
    DG7539/WD577; DG7584/WD639; DG7883/WD305; DG9149/WD750; DG10484/WD654;
    DT1135/WD116.
    5
     DG626/WD1537; DG770/WD1540; DG2685/WD1572; DG7824/WD1588;
    DG10357/WD1431; DT2161/WD1555.
    6
        DG1026/WD1511.
    7
        DG1420/WD611.
    
    
    
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    stores with nonstandard covenants, the court concluded it could not craft a specific,
    
    detailed injunction that satisfied the requirements found in Federal Rule of Civil
    
    Procedure 65(d).8 In relevant part, Rule 65(d)(1) requires that “[e]very order
    
    granting an injunction . . . must . . . (B) state its terms specifically; and (C) describe
    
    in reasonable detail . . . the act or acts restrained or required.” Fed. R. Civ. P.
    
    65(d)(1).
    
           At the remaining fifty-four stores, the district court reached the question of
    
    whether the Defendants had violated the narrowly construed covenants. The court
    
    checked for violations by looking to reports from Winn-Dixie investigators that
    
    estimated grocery sales areas for the stores at issue -- again, counting only food
    
    items and shelving space. For thirty-seven stores, these reports showed no
    
    violation and the court entered no injunction. 9 For six stores, the investigator
    
    reports indicated that restrictive covenants were violated by less than fifty square
    
    
    
    8
     BL554/WD671; DG7268/WD123; DG9263/WD705; DT 1805/WD705. For DG9263/WD705,
    the district court also concluded, alternatively, that it could not enforce a grocery exclusive
    contained in a nonstandard cross-easement.
    9
     BL505/WD506; DG246/WD478; DG1056/WD489; DG1416/WD622; DG1541/WD629;
    DG2965/WD428; DG2969/WD681; DG4952/WD599; DG7376/WD737; DG11814/WD574;
    DT153/WD463; DT332/WD2311; DT582/WD166; DT807/WD657; DT892/WD2230;
    DT986/WD737; DT1566/WD228; DT2117/WD353; DT2159/WD309; DT2160/WD443;
    DT2395/WD461; DT2714/WD2205; DT2804/WD84; DT2838/WD412; DT2936/WD599;
    DT3382/WD514; DT4133/WD456; DT4181/WD678; DT4199/WD255; DT4230/WD656;
    DT4266/WD501; DT4339/WD632; DT4497/WD378; DT4511/WD647; DT4550/WD658;
    DT4625/WD577; DT4637/WD471.
    
    
    
    
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    feet; the court ordered Defendants to ensure compliance within thirty days. 10 For
    
    seven stores in violation by more than fifty square feet, the district court ordered
    
    Defendants to comply with the covenants. 11 In addition, the district court directed
    
    three stores to comply with restrictive covenants that did not permit any sale of
    
    groceries.12 Finally, for one store, “gross inaccuracies” in the investigator report
    
    prevented Winn-Dixie from having a clear right to injunctive relief, but the court
    
    ordered Dollar Tree to measure the sales area and ensure compliance at that
    
    location within thirty days. 13
    
             In total, then, of the ninety-seven stores, the court found no violation of the
    
    grocery exclusives at thirty-seven stores; ordered some injunctive relief based on a
    
    narrow interpretation of “groceries” and “sales area” at seventeen; and granted no
    
    relief for an array of other reasons as to forty-three. The district court rejected
    
    Defendants’ affirmative defenses. After Winn-Dixie appealed, Big Lots and
    
    Dollar Tree filed separate cross-appeals. On September 10, 2012, Dollar General,
    
    
    
    
    10
     BL512/WD2210; BL530/WD654; BL555/WD307; BL558/WD160; DG8551/WD561;
    DG8665/WD579.
    11
     BL550/WD609; BL553/WD236; BL1519/WD306; BL1628/WD348; BL1711/WD302;
    DG1453/WD662; DG2634/WD777.
    12
         BL525/WD698; BL4258/WD254; DT723/WD254.
    13
         DT4365/WD236.
    
    
    
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    Big Lots, and Dollar Tree certified to the district court that all stores identified as
    
    having been in violation by the order were in compliance with the injunction.
    
                                               II.
    
                                               A.
    
          After we inquired of the parties about our jurisdiction, the district court
    
    entered a second amended final judgment. That order certified the judgment as
    
    final pursuant to Rule 54(b). See Nat’l Ass’n of Bds. of Pharmacy v. Bd. of
    
    Regents of the Univ. Sys. of Ga., 
    633 F.3d 1297
    , 1306 (11th Cir. 2011) (“[A]
    
    subsequent Rule 54(b) certification cures a premature notice of appeal from a non-
    
    final order dismissing claims or parties.”). It also addressed concerns about
    
    whether diversity jurisdiction had been properly pled. See 28 U.S.C. § 1653
    
    (“Defective allegations of jurisdiction may be amended, upon terms, in the trial or
    
    appellate courts.”); Mallory & Evans Contractors & Eng’rs, LLC v. Tuskegee
    
    Univ., 
    663 F.3d 1304
    , 1305 (11th Cir. 2011) (per curiam). Therefore, appellate
    
    and subject matter jurisdiction are proper. See 28 U.S.C. § 1291; id. § 1332.
    
                                               B.
    
          Erie Railroad Co. v. Tompkins, 
    304 U.S. 64
     (1938), commands that we
    
    apply the substantive law of Florida, the forum state, in this diversity action filed in
    
    the Southern District of Florida. See Nebula Glass Int’l, Inc. v. Reichold, Inc., 
    454 F.3d 1203
    , 1212 (11th Cir. 2006). Thus, for the stores located in Florida, we
    
    
    
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    interpret and enforce the restrictive covenants according to Florida law. As for the
    
    stores outside of Florida, we look to Florida’s choice of law rules. See Mazzoni
    
    Farms, Inc. v. E.I. Dupont De Nemours & Co., 
    166 F.3d 1162
    , 1164 (11th Cir.
    
    1999) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 
    313 U.S. 487
    , 496 (1941)). In
    
    interpreting Florida law, we look first for case precedent from the Florida Supreme
    
    Court. Where we find none, we are “bound to adhere to decisions of the state’s
    
    intermediate appellate courts absent some persuasive indication that the state’s
    
    highest court would decide the issue otherwise.” Provau v. State Farm Mut. Auto.
    
    Ins. Co., 
    772 F.2d 817
    , 820 (11th Cir. 1985) (per curiam).
    
          Winn-Dixie argues that the district court erred by awarding little or no
    
    injunctive relief at fifty-four stores where the grocery exclusives were binding and
    
    enforceable as restrictive covenants. At thirty-seven of these stores, the court
    
    found no violation, and thus refused to issue injunctions. Where it did order
    
    injunctive relief, at seventeen other stores, it did so on a limited basis, requiring
    
    only that Defendants ensure that their sale of food items did not exceed an
    
    allowable shelving area. Winn-Dixie claims that this relief was insufficient
    
    because the district court erred in interpreting the terms “staple or fancy groceries”
    
    and “sales area.” Despite the district court’s careful analysis of this difficult
    
    matter, we are compelled to reverse as to these fifty-four stores because the court
    
    
    
    
                                               16
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    interpreted the essential terms in the grocery exclusives based on a mistaken
    
    application of state law.
    
          Florida law applies to forty-one of these stores located in Florida, 14 where
    
    the district court either found no covenant violation (twenty-five stores) or entered
    
    injunctive relief limited to the narrowly construed grocery exclusive terms
    
    (sixteen). Winn-Dixie says that we are bound by a Florida appellate case that
    
    construed a materially identical Winn-Dixie grocery exclusive much more broadly
    
    than the district court did here. See 99 Cent, 
    811 So. 2d
     at 722. Because we agree
    
    as a matter of Florida law, and we are bound by Florida law, we reverse and
    
    remand as to these forty-one stores for a new trial based on an interpretation of the
    
    grocery exclusives terms consistent with the holding of the Florida Third District
    
    Court of Appeals in 99 Cent.
    
          We review de novo the district court’s interpretation of the language of the
    
    restrictive covenant. See Gibbs v. Air Canada, 
    810 F.2d 1529
    , 1532 (11th Cir.
    
    1987) (“Contract interpretation is generally a question of law subject to de novo
    
    
    14
     BL505/WD506; BL512/WD2210; BL525/WD698; BL530/WD654; BL550/WD609;
    BL555/WD307; BL558/WD160; BL553/WD236; BL1519/WD306; BL1628/WD348;
    BL1711/WD302; BL4258/WD254; DG1056/WD489; DG1416/WD622; DG1453/WD662;
    DG1541/WD629; DG2634/WD777; DG2969/WD681; DG7376/WD737; DG 8551/WD561;
    DT332/WD2311; DT723/WD254; DT807/WD657; DT892/WD2230; DT986/WD737;
    DT1566/WD228; DT2117/WD353; DT2159/WD309; DT2714/WD2205; DT2804/WD84;
    DT2838/WD412; DT4181/WD678; DT4199/WD255; DT4230/WD656; DT4266/WD501;
    DT4339/WD632; DT4365/WD236; DT4497/WD378; DT4511/WD647; DT4550/WD658;
    DT4625/WD577.
    
    
    
                                             17
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    review on appeal.”). However, if the language “is ambiguous and the district court
    
    must look to extrinsic evidence to determine the intent of the parties, the district
    
    court’s determination of such intent is a finding of fact and is reviewed using the
    
    clearly erroneous standard.” United Benefit Life Ins. Co. v. U.S. Life Ins. Co., 
    36 F.3d 1063
    , 1065 (11th Cir. 1994).
    
          The district court narrowly construed the covenant terms, confining “staple
    
    and fancy groceries” to food items and measuring “sales area” based only on
    
    shelving space. The court did so based on a long-standing general principle of
    
    Florida law: ambiguous restrictive covenants necessarily receive a narrow
    
    construction. The Florida Supreme Court has explained:
    
          Covenants restraining the free use of real property, although not
          favored, will nevertheless be enforced by courts of equity where the
          intention of the parties is clear in their creation, and the restrictions
          and limitations are confined to a lawful purpose and within reasonable
          bounds, unless the rights created by such covenants have been
          relinquished or otherwise lost. Such covenants are strictly construed
          in favor of the free and unrestricted use of real property, but effect
          will be given to the manifest intention of the parties as shown by the
          language of the entire instrument in which the covenant appears, when
          considered in connection with the circumstances surrounding the
          transaction. Due regard must be had for the purpose contemplated by
          the parties to the covenant, and words used must be given their
          ordinary, obvious meaning as commonly understood at the time the
          instrument containing the covenants was executed, unless they have
          acquired a peculiar meaning in the particular relation in which they
          appear, or in respect to the particular subject-matter involved, or
          unless it clearly appears from the context that the parties intended to
          use them in a different sense.
    
    
    
    
                                              18
                 Case: 12-14527     Date Filed: 03/05/2014    Page: 19 of 72
    
    
    Moore v. Stevens, 
    106 So. 901
    , 903 (Fla. 1925) (emphasis added). Florida law
    
    calls for a two-stage analysis. Courts first ask whether a restrictive covenant is
    
    ambiguous. And second, if it is, “substantial ambiguity or doubt must be resolved
    
    against the person claiming the right to enforce the covenant.” Id. at 904.
    
          First, then, we are required to determine whether the grocery exclusives are
    
    indeed ambiguous. In Florida, ambiguity exists when a restrictive covenant “is
    
    susceptible to two different interpretations, each one of which is reasonably
    
    inferred from [its] terms.” Commercial Capital Res., LLC v. Giovannetti, 
    955 So. 2d
     1151, 1153 (Fla. 3d DCA 2007); see also Cont’l Ins. Co. v. Roberts, 
    410 F.3d 1331
    , 1333 (11th Cir. 2005) (noting that a term is ambiguous under Florida law “if
    
    it is subject to two reasonable interpretations”). “In reviewing a document, a court
    
    must consider the document as a whole, rather than attempting to isolate certain
    
    portions of it. A court must look first to the plain language of a document and
    
    consider parol evidence only when the document is ambiguous on its face.”
    
    Lambert v. Berkley S. Condo. Ass’n, Inc., 
    680 So. 2d 588
    , 590 (Fla. 4th DCA
    
    1996) (citations omitted); see Rose v. M/V “Gulf Stream Falcon”, 
    186 F.3d 1345
    ,
    
    1350 (11th Cir. 1999) (“Contract interpretation principles under Florida law
    
    require us to look first at the words used on the face of the contract to determine
    
    whether that contract is ambiguous.”).
    
    
    
    
                                              19
                 Case: 12-14527     Date Filed: 03/05/2014   Page: 20 of 72
    
    
          If we were to assess the covenant terms using only this general analysis,
    
    both terms might appear ambiguous: “staple or fancy groceries” and “sales area”
    
    could be read as “susceptible to more than one reasonable interpretation.” Auto-
    
    Owners Ins. Co. v. Anderson, 
    756 So. 2d 29
    , 34 (Fla. 2000). Neither of the terms
    
    is defined in the document. Referencing the historical evolution of the
    
    supermarket, Winn-Dixie argues that “staple or fancy groceries” includes both
    
    food and nonfood items. Originally, the general store sold a variety of household
    
    items, food and nonfood. The supermarket incorporated the sale of perishables
    
    like meat, dairy, and produce alongside the traditional grocer’s wares. Winn-Dixie
    
    also cites to the Consumer Expenditure Study, an annual industry report of
    
    supermarket sales offered in evidence at trial that lists “Grocery-Non Food” as a
    
    category containing products like detergents, household supplies, and paper
    
    products. On the other hand, the Defendants have offered a reasonable food-only
    
    interpretation by pointing to the all-food examples listed immediately after “staple
    
    or fancy groceries”: “meats, fish, vegetables, fruits, bakery goods, dairy products
    
    or frozen foods.” Thus, groceries might mean only foods because “a word is
    
    known by the company it keeps (the doctrine of noscitur a sociis).” Gustafson v.
    
    Alloyd Co., 
    513 U.S. 561
    , 575 (1995); see, e.g., Beecham v. United States, 
    511 U.S. 368
    , 371 (1994) (“That several items in a list share an attribute counsels in
    
    
    
    
                                             20
                     Case: 12-14527        Date Filed: 03/05/2014      Page: 21 of 72
    
    
    favor of interpreting the other items as possessing that attribute as well.”). Thus
    
    the term “groceries” appears to admit at least two reasonable interpretations.
    
              At first blush, the same could be said of the term “sales area.” Winn-Dixie
    
    argues that “sales area” must include the aisle space in which shoppers stand when
    
    accessing shelves. “Shoppers do not arrive by chopper, sending ropes down to
    
    hoist up their purchases.” 99 Cent, 
    811 So. 2d
     at 722. But Defendants counter that
    
    “sales area” applies only to the physical space occupied by shelves displaying
    
    restricted products. A Dollar General official “testified that there are many ways
    
    to measure ‘sales area,’ including linear feet of the fixture shelves, linear feet of
    
    the fixture footprint, cubic feet, square feet of the fixture footprint, and square feet
    
    of the fixture footprint plus one-half of the adjacent aisle space.” Different
    
    readings of the grocery exclusive appear plausible.
    
              Still, we cannot assess ambiguity in this case without accounting for what a
    
    Florida intermediate appellate court has said before about these very terms. In a
    
    2002 decision, Winn-Dixie Stores, Inc. v. 99 Cent Stuff-Trail Plaza, LLC, 
    811 So. 2d
     719, Florida’s Third District Court of Appeals interpreted a standard grocery
    
    exclusive materially identical to many of those at issue in this case. 15 In that case,
    
    
    15
         The grocery exclusive in the Winn-Dixie lease in 99 Cent provided, in relevant part:
    
              Landlord further covenants and agrees not to permit or suffer any property located
              within the shopping center to be used for or occupied by any business dealing in
              or which shall keep in stock or sell for off-premises consumption any staple or
    
    
    
                                                      21
                   Case: 12-14527        Date Filed: 03/05/2014       Page: 22 of 72
    
    
    like here, the trial court based injunctive relief on a definition of the terms limited
    
    to only food items and shelving area, “the combined square footage of the store’s
    
    display racks, containing the items at issue.” Id. at 721. The Florida appellate
    
    court reversed, finding that a shopping center tenant was “bound by the clear
    
    words” of a Winn-Dixie restrictive covenant. Id. at 722. The court stated that,
    
    when a document does not define its terms, “to find the plain and ordinary meaning
    
    of words, one looks to the dictionary.” Id. Referring to Webster’s Third New
    
    International Dictionary (1986), the court interpreted “groceries” to include
    
    nonfood items like “many household supplies (as soap, matches, paper napkins).” 16
    
    Id. Further, the court determined that “[l]imiting the amount of sales area to just
    
    the ‘footprint’ of the actual fixtures is not a reasonable construction of the clause at
    
    issue” because “[s]hoppers make their choices while standing in aisles and the 500
    
    square feet provided for in the leases at issue obviously contemplated customers
    
    
    
           fancy groceries, meats, fish, vegetables, fruits, bakery goods, dairy products or
           frozen foods without written permission of the Tenant; except the sale of such
           items is not to exceed the lesser of 500 square feet of sales area or 10% of the
           square foot area of any storeroom within the shopping center, as an incidental
           only to the conduct of another business.
    
    99 Cent, 
    811 So. 2d
     at 720 (emphasis omitted).
    16
      In full, Webster’s Third New International Dictionary defines “groceries” as “articles of food
    and other goods sold by a grocer.” Webster’s Third New International Dictionary 1001 (2002).
    A “grocer” is “a dealer in staple foodstuffs (as coffee, sugar, flour) and usually meats and other
    foods (as fruits, vegetables, dairy products) and many household supplies (as soap, matches,
    paper napkins).” Id.
    
    
    
                                                     22
                 Case: 12-14527      Date Filed: 03/05/2014    Page: 23 of 72
    
    
    viewing and purchasing products from such aisles.” Id. Therefore, for a grocery
    
    exclusive that contained a materially identical restriction on the sale of “staple or
    
    fancy groceries” to those found in ninety-one of the ninety-seven stores at issue in
    
    this case, the Florida court remanded for a more extensive injunction that counted
    
    nonfood grocery items and sales area including aisles. Id.
    
          The district court avoided applying 99 Cent, nevertheless, by distinguishing
    
    its factual and legal context, even though it recognized that “the standard grocery
    
    exclusive considered in 99 Cent is identical to the standard grocery exclusives in
    
    these consolidated cases.” “[W]hether a decision is binding on another is
    
    dependent upon there being similar facts and legal issues. . . . [W]here the . . .
    
    underlying facts are different, then a previous decision should not be binding.”
    
    U.S. Fire Ins. Co. v. J.S.U.B., Inc., 
    979 So. 2d 871
    , 882-83 (Fla. 2007). The
    
    district court distinguished 99 Cent, which involved one lease signed in 1999, from
    
    the current case, which involved many stores and leases that had been signed in the
    
    1950s, 1960s, 1970s, 1980s, and 1990s, a fact deemed significant “in light of the
    
    changing definition of ‘groceries’ over the past sixty years.” The trial court
    
    concluded that “[i]t would be untenable . . . to apply 99 Cent’s definition of
    
    ‘groceries’ in 2002 to leases that were signed as much as forty-five years earlier in
    
    five different states” because “what 99 Cent considered to be ‘groceries’ in 2002 is
    
    
    
    
                                              23
                 Case: 12-14527      Date Filed: 03/05/2014    Page: 24 of 72
    
    
    likely more expansive than what . . . the parties to the leases at issue . . . considered
    
    to be groceries in previous years.”
    
          We do not find it so easy to distinguish 99 Cent from the present case. A
    
    Florida court considering the meaning of the same terms in a materially identical
    
    grocery exclusive sided with Winn-Dixie, finding these terms to be clear and
    
    unambiguous based on a dictionary definition. Thus, the 99 Cent court applied an
    
    alternate Florida rule of contract construction: “One looks to the dictionary for the
    
    plain and ordinary meaning of words.” Beans v. Chohonis, 
    740 So. 2d 65
    , 67 (Fla.
    
    3d DCA 1999); see Garcia v. Fed. Ins. Co., 
    969 So. 2d 288
    , 291-92 (Fla. 2007)
    
    (assessing ambiguity in an insurance contract by consulting a dictionary as a
    
    “reference[] commonly relied upon to supply the accepted meanings of words”);
    
    Citizens Prop. Ins. Corp. v. M.A. & F.H. Props., Ltd., 
    948 So. 2d 1017
    , 1020 (Fla.
    
    3d DCA 2007) (citing 99 Cent for the principle that, “[i]n the absence of a
    
    contractual definition, we must presume that [a] word was intended to be used in
    
    its plain and ordinary way as can be ascertained by reference to a dictionary”).
    
    The fact that a similar form contract was signed many times over five decades in
    
    the current case, but was signed only once in 99 Cent, does little to undermine the
    
    Florida court’s conclusions about the plain meaning of the same covenant terms.
    
    The appellate court in no way based its conclusions on the development of the
    
    
    
    
                                               24
                  Case: 12-14527    Date Filed: 03/05/2014   Page: 25 of 72
    
    
    terms over time. Nor, significantly do we see any material evolution of the
    
    dictionary definition of groceries over the period when the leases were signed.
    
            The Florida court in 99 Cent referenced Webster’s Third New International
    
    Dictionary, which was first published in 1961. Its definitions of “groceries” and
    
    “grocer” have remained unchanged since. Notably, just one lease in this case was
    
    signed before publication of Webster’s Third New International.17 And that lease,
    
    from 1958, included a nonstandard exclusive (with no mention of “staple or fancy
    
    groceries”) that the district court found unenforceable anyway on other grounds.
    
    Regardless, Webster’s Second New International Dictionary, published first in
    
    1934, also defined groceries to allow non-food items: a grocer is “a dealer in tea,
    
    sugar, spices, coffee, fruits, and various other commodities, chiefly foodstuffs.”
    
    Webster’s Second New International Dictionary 1105 (1958) (emphasis added).
    
    Indeed, a review of other dictionaries reveals no evidence of a contrary or
    
    changing definition. See, e.g., Oxford English Dictionary 862 (2d ed. 1991)
    
    (groceries are “goods sold by a grocer;” a grocer is “[a] trader who deals in spices,
    
    dried fruits, sugar, and, in general, all articles of domestic consumption except
    
    those that are considered the distinctive wares of some other class of tradesmen”
    
    (emphasis added)); Webster’s New Collegiate Dictionary 502 (1979) (“groceries”
    
    are “commodities sold by a grocer”; a “grocer” is “a dealer in staple foodstuffs,
    
    17
         BL554/WD671.
    
    
    
                                              25
                 Case: 12-14527     Date Filed: 03/05/2014   Page: 26 of 72
    
    
    household supplies, and usu. meats, produce, and dairy products” (emphasis
    
    added)).
    
          The district court also supported its interpretation of these terms by pointing
    
    to language in approximately twenty of the leases that referred to “groceries” as
    
    “food items.” More specifically, the standard grocery exclusives in these leases
    
    included additional carve outs for some drug stores, providing, for example, that
    
    “the permitted sale of the above listed food items shall be expanded to 1,500 sq. ft.
    
    of sales area.” The Defendants contend that, because the carve out refers to
    
    “groceries” as among “the above listed food items,” only food sales are restricted.
    
    This argument fails too because the very same type of carve out, including the
    
    same reference to “above listed food items,” was present in the lease at issue in 99
    
    Cent. In short, a Florida appellate court looking at identical language did not read
    
    “above listed food items” to restrict “groceries” to only food. This interpretation is
    
    consistent with the text: it is possible that the added carve-outs were meant only to
    
    restrict food grocery sales, whereas the original language retained broader
    
    meaning. Because the Florida court confronted the same added language, no such
    
    distinction can be wedged between this case and 99 Cent on that basis.
    
          Federal courts sitting in diversity are “bound to adhere to decisions of
    
    [Florida’s] intermediate appellate courts, absent some persuasive indication that
    
    the state’s highest court would decide the issue otherwise.” Studstill v. Borg
    
    
    
                                              26
                 Case: 12-14527     Date Filed: 03/05/2014    Page: 27 of 72
    
    
    Warner Leasing, 
    806 F.2d 1005
    , 1007 (11th Cir. 1986) (per curiam) (alteration in
    
    original) (quoting Provau, 772 F.2d at 820). We see no persuasive indication that
    
    the Florida Supreme Court would interpret the grocery exclusives in this case
    
    differently than the state appellate court did for the materially identical language
    
    found in 99 Cent. Indeed, the only other state intermediate appellate court to
    
    confront the interpretation of the Winn-Dixie grocery exclusives reached the same
    
    result in a nonprecedential order affirming without opinion when a trial court
    
    followed 99 Cent. See Winn-Dixie Stores, Inc. v. Noble Management Co. &
    
    Dolgencorp, Inc., No. CI 05-CI-1874, (Fla. 9th Jud. Cir. Aug. 31, 2007), aff’d sub
    
    nom. Dolgencorp, Inc. v. Winn-Dixie Stores, Inc., 
    988 So. 2d 1287
     (Fla. 5th DCA
    
    2008) (per curiam without opinion).
    
          We are Erie-bound to give effect to the state rules of decision on the
    
    meaning and application of restrictive covenants. Thus, we conclude that the
    
    district court erred in finding the terms ambiguous and proceeding to the second
    
    step to construe the terms narrowly. Instead, the court should have followed the
    
    holding in 99 Cent by looking to the dictionary definitions, which instruct that
    
    “groceries” includes food and “many household supplies (as soap, matches, paper
    
    napkins)” and that sales area “includes fixtures and their proportionate aisle
    
    
    
    
                                              27
                   Case: 12-14527        Date Filed: 03/05/2014       Page: 28 of 72
    
    
    space.” 
    811 So. 2d
     at 722 (emphasis added). 18 Because the district court erred in
    
    discerning and applying Florida’s law, for these forty-one Florida stores, we
    
    reverse the judgment of the district court and remand the case for a new trial based
    
    on the definition of the terms “staple or fancy groceries” and “sales area” under
    
    Florida law as pronounced by Florida’s Third District Court of Appeals in 99
    
    Cent. 19
    
                                                    C.
    
           Of course, the Florida court’s analysis in 99 Cent is binding only as a
    
    pronouncement of Florida law. But the district court applied Florida law to the
    
    interpretation of grocery exclusive terms found in all the leases at issue, including
    
    for eleven stores in Alabama 20 and two in Georgia.21 In this diversity case we must
    
    
    
    18
       As the Florida court did in 99 Cent, we note that “it may not be easy to pinpoint each item to
    be considered groceries.” Id. However, we have faith in the district court’s ability to apply both
    the specific holding and the general analytical framework drawn in that case.
    19
       This same analysis disposes of one of the issues on cross-appeal, at least as to the stores in
    Florida. Big Lots argues that the district court erred in defining beverages as “groceries” because
    they are not “food” items. But Big Lots’ basis for this argument drops out when 99 Cent is
    applied, because that case does not limit groceries to food. Moreover, Webster’s Third New
    International Dictionary lists among the products sold by a grocer “dairy products,” presumably
    including milk, a beverage. Webster’s Third New International Dictionary 1001 (2002). It also
    lists coffee, which, even if dry, suggests grocers sell some beverage products. Id. The district
    court did not err in counting beverages as groceries under Florida law.
    20
      DG246/WD478; DG2965/WD428; DG4952/WD599; DG8665/WD579; DG11814/WD574;
    DT153/WD463; DT2395/WD461; DT2936/WD599; DT3382/WD514; DT4133/WD456;
    DT4637/WD471. The district court found no covenant violation and thus issued no relief at any
    of these stores, except for DG8665/WD579, which was in violation by less than fifty square feet
    and was ordered to comply.
    
    
    
    
                                                    28
                   Case: 12-14527       Date Filed: 03/05/2014      Page: 29 of 72
    
    
    follow the choice of law rules of the forum state, Florida. See Mazzoni Farms, 166
    
    F.3d at 1164. A Florida court adjudging a restriction on property in another state
    
    applies the substantive law of the home state (lex loci rei sitae). See Xanadu of
    
    Cocoa Beach, Inc. v. Zetley, 
    822 F.2d 982
    , 985 (11th Cir. 1987); Connor v. Elliott,
    
    
    85 So. 164
    , 165 (Fla. 1920) (“So far as real estate or immovable property is
    
    concerned, the laws of the state where it is situated furnish the rules which govern
    
    its descent, alienation, and transfer, the construction, validity, and effect of
    
    conveyances thereof, and the capacity of the parties to such contracts or
    
    conveyances, as well as their rights under the same.”). Therefore, Florida law
    
    requires that the laws of Alabama and Georgia be applied to interpret restrictive
    
    covenants running with property located in those states unless the parties validly
    
    consented to the application of Florida law. The record in no way indicates such
    
    consent. Therefore, we reverse and remand the judgment of the district court
    
    concerning the eleven Alabama stores and the two found in Georgia and direct the
    
    court to apply the appropriate state law rules of decision for those locations. 22
    
                                                  III.
    
    
    21
       DT582/WD166; DT2160/WD443. At both stores, the court found no violation and ordered no
    relief.
    22
       On appeal, none of the parties specifically argued for the application of Alabama and Georgia
    law to the restrictive covenants binding stores in those states. However, we do not deem this
    issue waived, since Winn-Dixie broadly challenged the district court as having failed “to follow
    controlling state law governing the enforcement and plain meaning of Winn-Dixie’s grocery
    exclusives.”
    
    
    
                                                   29
                 Case: 12-14527      Date Filed: 03/05/2014   Page: 30 of 72
    
    
          For the remaining forty-three stores, the district court denied all relief on
    
    other grounds, regardless of whether the stores violated Winn-Dixie’s grocery
    
    exclusives. Discerning no error as to these stores, we affirm.
    
                                              A.
    
          After barring testimony from Winn-Dixie’s expert on damages, Dr. Pacey,
    
    the district court refused to award compensatory damages for any store at issue.
    
    Winn-Dixie argues that the court erred in excluding Dr. Pacey, but we disagree.
    
    The district court acted within its considerable discretion when it concluded that
    
    Dr. Pacey’s testimony would not assist the trier of fact and that her methodology
    
    was not sufficiently reliable.
    
          We review for abuse of discretion a trial court’s decision to exclude an
    
    expert’s testimony. Kilpatrick v. Breg, Inc., 
    613 F.3d 1329
    , 1334 (11th Cir. 2010);
    
    see also Gen. Elec. Co. v. Joiner, 
    522 U.S. 136
    , 140 (1997). Exclusion of an expert
    
    amounts to an abuse of discretion if the court “applies the wrong law, follows the
    
    wrong procedure, bases its decision on clearly erroneous facts, or commits a clear
    
    error in judgment.” United States v. Brown, 
    415 F.3d 1257
    , 1266 (11th Cir. 2005).
    
    The district court enjoys “considerable leeway” in making such evidentiary
    
    decisions, and will be reversed only if “the ruling is manifestly erroneous.” United
    
    States v. Frazier, 
    387 F.3d 1244
    , 1258 (11th Cir. 2004) (en banc).
    
    
    
    
                                              30
                 Case: 12-14527      Date Filed: 03/05/2014   Page: 31 of 72
    
    
          Under Rule 702 of the Federal Rules of Civil Procedure, interpreted in
    
    Daubert v. Merrell Dow Pharmaceuticals, Inc., 
    509 U.S. 579
    , 593 (1993), the
    
    district courts perform an essential “gatekeeping” function in screening expert
    
    scientific and technical evidence. Frazier, 387 F.3d at 1260. To this end, trial
    
    courts conduct a rigorous three-part inquiry that asks: (1) if the expert is qualified
    
    by background, training, and expertise to testify competently regarding the matters
    
    he intends to address; (2) whether the methodology by which the expert reaches his
    
    conclusions is sufficiently reliable as determined by the sort of inquiry mandated in
    
    Daubert; and (3) if the expert testimony would assist the trier of fact, through the
    
    application of scientific, technical, or specialized expertise, to understand the
    
    evidence or to determine a fact in issue. Id.
    
          Here, the district court barred Dr. Pacey’s testimony based on the second
    
    and third prongs: her reports “would not assist the trier of fact in determining a fact
    
    in issue in this case” and “her methodology [wa]s not sufficiently reliable.” To
    
    begin with, the court criticized Dr. Pacey’s analysis because it measured merely
    
    the effect of the presence of a competing store, without reflecting that most of the
    
    Defendants’ stores were permitted to sell some grocery products. The district court
    
    found that, “[b]y measuring overall competition and consumer behavior instead of
    
    Winn-Dixie’s damages caused by Defendants’ violations of the grocery exclusives,
    
    . . . Dr. Pacey’s Reports are analyzing the wrong problem and therefore do not
    
    
    
                                              31
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    assist the trier of fact to determine a fact in issue in this case.” The district court
    
    also determined that, because Dr. Pacey’s economic model and regression analysis
    
    did not provide empirical evidence of causation, “the probative value of her
    
    evidence is substantially outweighed by the danger of misleading the jury under
    
    Fed. R. Evid. 403.” The court expressed a number of other concerns with the
    
    expert’s reports: they were not peer reviewed; they used Winn-Dixie sales data
    
    drawn from recession years in 2009 and 2010 to calculate damages during the pre-
    
    recession period from 2005 through 2008, when Winn-Dixie sales likely were
    
    higher; they presumed without sufficient support that customers purchased meat
    
    and other groceries at the same store; they considered only competitors within an
    
    arbitrary three mile radius of a Winn-Dixie store; and they alleged damages
    
    suffered by Winn-Dixie for products that Defendants’ stores do not sell.
    
          The district court acted within its broad discretion in determining that Dr.
    
    Pacey’s reports could not satisfy the second and third Daubert prongs. In this case,
    
    these two considerations are connected. Dr. Pacey’s testimony was not based upon
    
    a methodology that could reliably estimate Winn-Dixie damages caused by
    
    Defendants’ covenant violations. As a result, her testimony would not assist the
    
    trier of fact in determining a fact at issue.
    
          First, the trial court could fairly determine that the regression analysis
    
    employed by Dr. Pacey was not a reliable method of showing damages suffered by
    
    
    
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    Winn-Dixie as a result of grocery exclusive violations. Dr. Pacey’s model failed to
    
    recognize that nearly all of the restrictive covenants permitted some amount of
    
    grocery sales at Defendants’ stores. Winn-Dixie acknowledges this shortcoming,
    
    but argues that a finder of fact could calculate damages merely by applying a
    
    “credit” for “permitted” sales. The district court rejected this approach, however,
    
    because the analysis measured “overall competition and consumer behavior instead
    
    of Winn-Dixie’s damages caused by Defendants’ violations of the grocery
    
    exclusives.” Dr. Pacey measured for the effect of the wrong factor -- a dollar
    
    store’s proximity, not its prohibited grocery sales. The district court could
    
    determine, as it did, that “no tweaking can fix that problem.” Winn-Dixie also
    
    argues that Dr. Pacey believed that sales of grocery products up to a maximum of
    
    500 square feet of sales area have zero or negligible impact. But the district court
    
    reasonably rejected the unsupported assumption that, because Winn-Dixie permits
    
    some sales, those permitted sales must have no effect on supermarket revenue. In
    
    the end, Dr. Pacey’s regression model was not a reliable method for establishing
    
    the damages caused by Defendants’ violations of restrictive covenants. Dr. Pacey
    
    herself admitted to the district court, when asked why her regression analysis did
    
    not measure “the effect of the violation” instead of the more general presence of a
    
    competitor: “if you want to measure it that way, it’s not a regression measure.
    
    Then don’t use regression. Use some other avenue.”
    
    
    
                                              33
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          Second, because Dr. Pacey’s methodology did not reliably measure Winn-
    
    Dixie’s damages, and instead estimated the effect of a Defendant store’s presence
    
    on Winn-Dixie sales, the trial court could determine that her testimony would not
    
    have helped the trier of fact. In Daubert, the Supreme Court explained:
    
          Rule 702 further requires that the evidence or testimony “assist the
          trier of fact to understand the evidence or to determine a fact in issue.”
          This condition goes primarily to relevance. “Expert testimony which
          does not relate to any issue in the case is not relevant and, ergo, non-
          helpful.” 3 Weinstein & Berger ¶ 702[02], p. 702-18. The
          consideration has been aptly described by Judge Becker as one of
          “fit.” “Fit” is not always obvious, and scientific validity for one
          purpose is not necessarily scientific validity for other, unrelated
          purposes. The study of the phases of the moon, for example, may
          provide valid scientific “knowledge” about whether a certain night
          was dark, and if darkness is a fact in issue, the knowledge will assist
          the trier of fact. However (absent creditable grounds supporting such
          a link), evidence that the moon was full on a certain night will not
          assist the trier of fact in determining whether an individual was
          unusually likely to have behaved irrationally on that night. Rule 702’s
          “helpfulness” standard requires a valid scientific connection to the
          pertinent inquiry as a precondition to admissibility.
    
    509 U.S. at 591-92 (citations omitted).
    
          Here, the trial court could reasonably determine that “fit” is lacking. Dr.
    
    Pacey studied the correlation between Winn-Dixie non-meat grocery sales and the
    
    presence of a Defendant’s store nearby. But, to prove its claims, Winn-Dixie
    
    needed to make a far more precise showing: that Winn-Dixie suffered damages as
    
    a result of Defendants’ sale of groceries in a larger sales area than permitted by the
    
    restrictive covenants. Dr. Pacey’s analysis employed tools far too blunt to
    
    
    
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    illuminate this question. Winn-Dixie asks to bridge too broad a logical gap: the
    
    fact that Dr. Pacey found lower Winn-Dixie sales when a dollar store is nearby
    
    sheds little light on the amount of direct damages caused by a Defendant’s
    
    impermissible grocery sales. But admission of the evidence could mislead a jury
    
    into believing that the data speaks to a causal link. See Frazier, 387 F.3d at 1263
    
    (“[E]xpert testimony may be assigned talismanic significance in the eyes of lay
    
    jurors, and, therefore, the district courts must take care to weigh the value of such
    
    evidence against its potential to mislead or confuse.”). As the district court
    
    explained:
    
          [T]he issue in this case is not whether Defendants are competing with
          Winn-Dixie. The issue is what damages, if any, Defendants caused
          Plaintiffs by selling more groceries than allowed in the respective
          stores’ grocery exclusives. Since Dr. Pacey’s Reports do not provide
          any empirical evidence on this issue, I find that allowing her to testify
          may cause a jury to believe that Defendants are causing Plaintiffs’
          damages by selling more groceries than allowed, when her regression
          model and other empirical data is only focused on competition.
    
          Thus, the district court acted within its discretion in excluding Dr. Pacey’s
    
    testimony when it found her conclusions about damages were not based on reliable
    
    methodology and her analysis did not assist the trier of fact (here, the district court)
    
    with any issue in the case. See Goodman v. Highlands Ins. Co., 
    607 F.2d 665
    , 668
    
    (5th Cir. 1979) (“[A] trial judge sitting without a jury is entitled to even greater
    
    
    
    
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    latitude concerning the admission or exclusion of evidence.”); 23 see also In re
    
    Unisys Sav. Plan Litig., 
    173 F.3d 145
    , 158 (3d Cir. 1999). While the court
    
    expressed a number of additional concerns with Dr. Pacey’s analysis, particularly
    
    with the variables underlying her regression calculations, we need not address
    
    them to affirm the court’s exclusion of her testimony.
    
                                                  B.
    
           Winn-Dixie’s unsuccessful Daubert argument is the only challenge it makes
    
    to the court’s conclusion that Winn-Dixie could not prove damages. See Winn-
    
    Dixie, 886 F. Supp. 2d at 1346 (explaining that, after Dr. Pacey was excluded,
    
    evidence as to damages “was hopelessly speculative,” and “Winn-Dixie effectively
    
    conceded that it could not prove damages”). Thus, we see no error in the district
    
    court’s determination that Winn-Dixie cannot prove compensatory damages. With
    
    damages off the table, then, we affirm the denial of all relief as to thirty-one stores
    
    that had closed by the time of trial, necessarily making injunctions ineffective.24
    
    For the same reason, we affirm as to four stores for which Winn-Dixie does not
    
    23
       In Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en banc), we adopted as
    binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
    24
       BL570/WD612; DG1095/WD209; DG1322/WD612; DG1333/WD151; DG1382/WD30;
    DG1389/DG710; DG1402/WD2260; DG1413/WD631; DG1421/WD144; DG1451/WD723;
    DG1456/WD331; DG1493/WD647; DG1513/WD2326; DG1522/WD2268; DG1524/WD566;
    DG1649/WD2342; DG2363/WD411; DG2762/WD652; DG3013/WD713; DG4008/WD553;
    DG4444/WD2213; DG4701/WD649; DG4821/WD3; DG4981/WD221; DG7457/WD167;
    DG7539/WD577; DG7584/WD639; DG7883/WD305; DG9149/WD750; DG10484/WD654;
    DT1135/WD116.
    
    
    
    
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    challenge the district court’s determination that injunctive relief was unavailable
    
    because of Rule 65(d). 25
    
                                               C.
    
            We also affirm the district court’s refusal to enforce the grocery exclusives
    
    at six stores in Louisiana26 and one store Mississippi27 pursuant to the laws of those
    
    states. We review the district court’s interpretation of state law in a diversity case
    
    de novo. Jones v. United Space Alliance, L.L.C., 
    494 F.3d 1306
    , 1309 (11th Cir.
    
    2007).
    
                                               1.
    
            The district court refused to enforce the restrictive covenants under
    
    Louisiana law, concluding that state law required more than “a clearly expressed
    
    intention” that a covenant run with the land. We agree. In Louisiana, “[m]erely
    
    stating that a contract is to ‘run with the land’ does not create immoveable rights.”
    
    U-Serve Petroleum & Invs., Inc. v. Cambre, 
    486 So. 2d 821
    , 824 (La. Ct. App.
    
    1986). Instead, for a covenant to run with the land -- to be a “real obligation” -- it
    
    “can be established only by a title. . . . [T]he real obligation must be clearly
    
    apparent from the title documents themselves.” Leonard v. Lavigne, 
    162 So. 2d 25
         BL554/WD671; DG7268/WD123; DG9263/WD705; DT1805/WD705.
    26
     DG626/WD1537; DG770/WD1540; DG2685/WD1572; DG7824/WD1588;
    DG10357/WD1431; DT2161/WD1555.
    27
         DG1026/WD1511.
    
    
    
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                 Case: 12-14527     Date Filed: 03/05/2014    Page: 38 of 72
    
    
    341, 343 (La. 1964). The district court refused to enforce Winn-Dixie’s grocery
    
    exclusives at the six Louisiana locations at issue because the grocery exclusives
    
    were not a “real obligation” clearly apparent from the “title documents.”
    
          Winn-Dixie’s effort to squeeze a common law rule into the civil law fails
    
    because, in Louisiana, a lease contract is not a title document that can give rise to a
    
    real obligation. See Leonard, 162 So. 2d at 343. “Under the civil law concept, a
    
    lease does not convey any real right or title to the property leased, but only a
    
    personal right.” Richard v. Hall, 
    874 So. 2d 131
    , 145 (La. 2004). Winn-Dixie thus
    
    cannot enforce its grocery exclusives under Louisiana law because the leases
    
    established only personal, not real property rights -- the leases containing the
    
    grocery exclusives are not title documents that can create a real obligation. See
    
    Leonard, 162 So. 2d at 343 (refusing to find a covenant running with the land when
    
    a lease provision restricted operation of a competing filling station on adjoining
    
    property); Wolfe v. N. Shreveport Dev. Co., 
    228 So. 2d 148
    , 149-51 (La. Ct. App.
    
    1969) (refusing to find a covenant running with the land when a lease provision
    
    prohibited the operation of other shoe stores in a shopping center); see also U-
    
    Serve, 486 So. 2d at 824 (“Although the contract in question stated that it was to
    
    ‘run with the land,’ it was in fact a personal contract between Cambre and U-Serve
    
    because it favored the person of U-Serve and not a dominant estate.”). In short, the
    
    
    
    
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    district court did not err in concluding that Louisiana law does not recognize Winn-
    
    Dixie’s grocery exclusives as real obligations running with the land.
    
                                              2.
    
          Likewise, the district court declined to enforce a grocery exclusive against
    
    one Dollar General store at issue in Mississippi because of a lack of privity of
    
    estate. Again, we find no error. The Mississippi Supreme Court requires that
    
    “privity of estate must exist between the person claiming right to enforce the
    
    covenant and the person upon whom burden of covenant is to be imposed.” Hearn
    
    v. Autumn Woods Office Park Prop. Owners Ass’n, 
    757 So. 2d 155
    , 158 (Miss.
    
    1999); see Vulcan Materials Co. v. Miller, 
    691 So. 2d 908
    , 913 (Miss. 1997). In
    
    Mississippi, privity of estate exists between “those who stand in mutual or
    
    successive relationship to the same rights of property,” Lipscomb v. Postell, 
    38 Miss. 476
    , 489 (1860). In other words, privity of estate is “that which exists
    
    between lessor and lessee, tenant for life and remainderman or reversioner, etc.,
    
    and their respective assignees, and between joint tenants and coparceners.” Hearn,
    
    757 So. 2d at 158 (quoting Black’s Law Dictionary 1080 (5th ed. 1979)).
    
          Mississippi case precedent does little to elaborate on this privity
    
    requirement. Traditionally, however, privity of estate is satisfied when a party
    
    shows both horizontal and vertical privity. See 9 Powell on Real Property
    
    § 60.04(3)(c)(v) (Michael Allan Wolf ed., 2001 & Supp. 2013). Horizontal privity
    
    
    
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                 Case: 12-14527      Date Filed: 03/05/2014    Page: 40 of 72
    
    
    requires that a covenant is created as part of a simultaneous conveyance of an
    
    estate between the parties. 20 Am. Jur. 2d Covenants, Conditions, and Restrictions
    
    § 26 (2014). Here, such a relationship did exist. The shopping center landlord
    
    shared a lessor-lessee relationship with tenant Winn-Dixie when the grocery
    
    exclusive was included in the lease agreement.
    
          Vertical privity, by contrast, refers to the relationship between a covenanting
    
    party and her successor(s) in interest: here, between the landlord and Dollar
    
    General. Id. Vertical privity comes in two flavors, strict and relaxed:
    
          To establish vertical privity, a chain of title must be established
          between the original covenantor or covenantee and the person claimed
          to be bound by the covenant or entitled to its benefit. For “strict”
          vertical privity, the successor must hold the same estate (in durational,
          not geographical, terms) as the original party to the servitude; for
          “relaxed” vertical privity, the successor may hold a lesser estate
          carved out of the estate held by the original party. Lessees of the
          person holding the same estate as an original party to the covenant and
          life tenants of property in which the remainder or reversion is the
          same estate as that of an original party to the covenant are not in strict
          vertical privity, but meet the requirement for relaxed vertical privity.
    
    Restatement (Third) of Prop.: Servitudes § 5.2 cmt. b. (2000). In the present case,
    
    relaxed vertical privity exists, but strict vertical privity does not. Because Dollar
    
    General took only part of the landlord’s estate (a leasehold), and was not an
    
    assignee of its entire interest, there is no strict vertical privity. However, because
    
    Dollar General took a part of the estate, relaxed privity is satisfied. Thus, Winn-
    
    
    
    
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                  Case: 12-14527        Date Filed: 03/05/2014   Page: 41 of 72
    
    
    Dixie cannot enforce its grocery exclusive for the Mississippi store if that state
    
    requires strict vertical privity.
    
           Mississippi case law does not address the appropriate vertical privity
    
    standard. The modern trend, exemplified in the Third Restatement of Property, is
    
    to eliminate the vertical privity requirement. Instead of following this trend,
    
    Mississippi courts have retained a general privity rule in recent cases without
    
    specifying what type of vertical privity they require. See, e.g., Journeay v. Berry,
    
    
    953 So. 2d 1145
    , 1154 (Miss. Ct. App. 2007). Therefore, to determine the vertical
    
    privity rule in Mississippi, we look to earlier authorities that reflect the traditional
    
    privity principles from which Mississippi drew its doctrine. “The first Restatement
    
    of Property took the position that relaxed vertical privity is required for the benefit
    
    of covenants to run either at law or in equity, and that strict vertical privity is
    
    required for the burdens of covenants to run at law.” Restatement (Third) of Prop.:
    
    Servitudes § 5.2 cmt. b. Indeed, the First Restatement of Property explained:
    
           The successors in title to land respecting the use of which the owner
           has made a promise are not bound as promisors upon the promise
           unless by their succession they hold
    
                  (a) the estate or interest held by the promisor at the time
                  promise was made, or
    
                  (b) an estate or interest corresponding in duration to the
                  estate or interest held by the promisor at that time.
    
    Restatement (First) of Prop. § 535 (1944). The Restatement authors commented:
    
    
    
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                  Case: 12-14527     Date Filed: 03/05/2014    Page: 42 of 72
    
    
           The restriction of liability to cases where this formal identification
           exists rests in modern times upon the feeling that the imposition of an
           obligation as a promisor, upon one who has not promised, by virtue of
           succession to another who has should be kept within relatively narrow
           even though formal limits.
    
    Id. cmt. a.
    
           Though courts and commentators do not universally agree about the wisdom
    
    of a strict vertical privity requirement, courts in a number of states have cited the
    
    First Restatement in requiring strict vertical privity for a burden to run. See, e.g.,
    
    Marathon Fin. Co. v. HHC Liquidation Corp., 
    483 S.E.2d 757
    , 765 (S.C. Ct. App.
    
    1997); Grimes v. Walsh & Watts, Inc., 
    649 S.W.2d 724
    , 728 (Tex. App. 1983);
    
    Old Dominion Iron & Steel Corp. v. Va. Elec. & Power Co., 
    212 S.E.2d 715
    , 721
    
    (Va. 1975). We believe that, confronted with this question, Mississippi courts
    
    would follow this trend and require strict vertical privity to enforce the burden of a
    
    restrictive covenant. As a result, because strict vertical privity does not exist
    
    between Dollar General and the shopping center landlord in this case, Winn-Dixie
    
    cannot enforce a restrictive covenant against the Mississippi store.
    
                                              D.
    
           We also affirm the district court’s conclusion that Winn-Dixie could not
    
    enforce a covenant against one Dollar General store in Florida whose lease was
    
    
    
    
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                  Case: 12-14527    Date Filed: 03/05/2014    Page: 43 of 72
    
    
    signed before the Winn-Dixie lease that contained the restrictions. 28 Winn-Dixie
    
    argues that, under Florida law, subsequent modifications to the terms of Dollar
    
    General’s lease made the covenant enforceable. Reviewing de novo this question
    
    of state law, we find that the lease modifications here did not subject Dollar
    
    General to covenants created after its original lease.
    
             “Restrictive covenants are only enforceable against those who have notice
    
    of such restrictions . . . .” Hagan v. Sabal Palms, Inc., 
    186 So. 2d 302
    , 311 (Fla. 2d
    
    DCA 1966) (quoting Batman v. Creighton, 
    101 So. 2d 587
    , 593 (Fla. 2d DCA
    
    1966)). Therefore, a party who takes an interest in property before a restriction is
    
    created, and who thus lacks notice of that limitation, is not bound by a restrictive
    
    covenant. See Norwood Shopping Ctr., Inc. v. MKR Corp., 
    135 So. 2d 448
    , 450
    
    (Fla. 3d DCA 1961). One cannot know of what does not exist. However, after
    
    Winn-Dixie signed its lease, Dollar General agreed to lease modifications that
    
    “extended the term, added some common area maintenance charges that were not
    
    involved in the original lease, changed the property tax obligation, added some
    
    options to renew under specific terms, and altered the original percentage rent
    
    provisions.” Winn-Dixie argues that, because Dollar General executed these lease
    
    modifications, it formed a new lease subject to Winn-Dixie’s then-existing
    
    property rights.
    
    28
         DG1420/WD611.
    
    
    
                                              43
                 Case: 12-14527      Date Filed: 03/05/2014    Page: 44 of 72
    
    
          No Florida precedent, and little national case law, addresses whether a lease
    
    modification can subject a tenant to a restrictive covenant formed after creation of
    
    the original leases. A New York case cited by the district court provides the
    
    closest comparator. See L’Art de Jewel Ltd. v. Hudson Sheraton Corp., 
    46 A.D.3d 418
     (N.Y. App. Div. 2007). There, the dispute involved two jewelers who leased
    
    space in a hotel. The jeweler who signed the later lease sued the first based on a
    
    restrictive covenant, claiming that the first “was on notice of the terms of the
    
    restrictive covenant in plaintiff’s lease when [the first jeweler] commenced a ‘new’
    
    term of its license.” Id. at 420. The New York appellate court rejected this
    
    argument:
    
          Th[e] agreement between [the first jeweler] and the hotel merely
          amended the existing May 1999 license by extending its term and
          relocating [the jeweler’s] operation in a different part of the hotel’s
          lobby. As to all other particulars, the May 1999 agreement continued
          in effect, and governed the rights of the parties in regard to [the
          jeweler’s] operation in the hotel lobby.
    
    Id. Because the original lease remained in effect, albeit subject to modified terms
    
    concerning the length of the lease and location of the operation, the first jeweler’s
    
    original lease controlled for purposes of determining restrictive covenants. As a
    
    result, later lease modifications did not bind a first tenant to a restrictive covenant
    
    created by a second tenant’s lease. Subsequent New York cases cite and apply the
    
    rule found in L’Art. See Ernie Otto Corp. v. Inland Se. Thompson Monticello,
    
    LLC, 
    91 A.D.3d 1155
    , 1157 (N.Y. App. Div. 2012) (explaining that, for purposes
    
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                   Case: 12-14527    Date Filed: 03/05/2014    Page: 45 of 72
    
    
    of enforcing restrictive covenants, “[m]ere amendments to a preexisting tenant’s
    
    lease, that do not materially affect the rights of the parties under it or otherwise
    
    work to annul the prior agreement, do not constitute a new agreement”); Fratelli’s
    
    Pizza & Rest. Corp. v. Kayzee Realty Corp., 
    74 A.D.3d 481
    , 481 (N.Y. App. Div.
    
    2010) (“[T]he subject restrictive covenant cannot be enforced against a competing
    
    tenant whose lease predates the covenant’s execution, absent evidence that the
    
    competing tenant’s lease is falsely dated, or that the competing tenant, before
    
    entering into its lease, had notice of the landlord’s intention to enter into the
    
    covenant . . . .”).
    
           A Florida court likely would apply the same rule, particularly because in
    
    Florida “[r]estrictive covenants are not favored and are to be strictly construed in
    
    favor of the free and unrestricted use of real property.” Wilson v. Rex Quality
    
    Corp., 
    839 So. 2d 928
    , 930 (Fla. 2d DCA 2003) (citing Moore, 106 So. at 903); cf.
    
    Fratelli’s Pizza, 74 A.D.3d at 482 (“[G]uided by the principles that restrictive
    
    covenants in leases, such as use clauses, are ‘strictly construed against those
    
    seeking to enforce them’ . . . we find that the language of the subject restrictive
    
    covenant is consistent with its prospective application, and that the parties did not
    
    intend the covenant to apply to tenants with preexisting leases.” (citations
    
    omitted)). A lease modification that alters only such terms as the lease length and
    
    cost, and that otherwise demonstrates an intent to leave the remaining conditions of
    
    
    
                                               45
                 Case: 12-14527      Date Filed: 03/05/2014    Page: 46 of 72
    
    
    the underlying lease unchanged, does not automatically bind the modifying tenant
    
    to restrictive covenants executed after the date of the original lease.
    
          Nevertheless, Winn-Dixie cites to a number of cases drawn from other
    
    contexts in which Florida courts found that material alterations in lease
    
    modifications gave rise to new agreements. One court held that a landlord’s
    
    statutory lien was not entitled to priority when the “landlord and tenant terminated
    
    the original lease prior to any default of the tenant’s lease obligations and entered
    
    into a new lease after creditors’ security interest was perfected.” Robie v. Port
    
    Douglas (Fla.), Inc., 
    662 So. 2d 1389
    , 1390 (Fla. 4th DCA 1995); see Flowers v.
    
    Centrust Sav. Bank, 
    556 So. 2d 1123
    , 1125 (Fla. 3d DCA 1989) (“[W]hen the
    
    commencement of a tenancy, based upon a lease, creates a statutory landlord’s lien
    
    . . . such lien is viable only as long as the underlying lease exists.”). Other courts
    
    have ruled that a real estate broker’s entitlement to commissions “ends with the
    
    original lease term where an extension of that term involves new and different
    
    rights and responsibilities of the landlord and tenant so that in effect a ‘new’ lease
    
    has been negotiated.” Rauch v. Chama Invs., N.V., 
    641 So. 2d 501
    , 502 (Fla. 4th
    
    DCA 1994) (per curiam); see Strano v. Reisenger Real Estate, Inc., 
    534 So. 2d 1214
    , 1215 (Fla. 3d DCA 1988) (lease modification was not a “renewal” for
    
    purposes of a real estate broker’s entitlement to a commission). Finally, when a
    
    new arbitration statute was enacted between the signing of an original lease and a
    
    
    
                                               46
                   Case: 12-14527      Date Filed: 03/05/2014   Page: 47 of 72
    
    
    modification, a court held that the statute applied because the modification
    
    amounted to a new agreement. See Bartke’s, Inc. v. Hillsborough Cnty. Aviation
    
    Auth., 
    217 So. 2d 885
    , 887 (Fla. 2d DCA 1969).
    
             These cases represent Florida law for cases that involve statutory lien
    
    priority, real estate broker commissions, and the applicability of arbitration
    
    statutes. But they say precious little about the enforcement of a restrictive
    
    covenant, a disfavored device that involves far different policy considerations. We
    
    decline to extrapolate from these dissimilar cases when Florida law disfavors
    
    restrictive covenants as restraining the free use of land. The district court did not
    
    err in determining that Florida law bars enforcement of the restrictive covenant
    
    against the Dollar General store, whose lease was signed before Winn-Dixie’s,
    
    merely because Dollar General entered into later modifications of time and price
    
    terms.
    
                                                E.
    
             Winn-Dixie raises a number of other issues that lack merit, and thus do not
    
    alter the outcome at any stores.
    
                                                1.
    
             Winn-Dixie argues that the district court should have awarded punitive
    
    damages pursuant to Florida law. After a bench trial, we review a district court’s
    
    decision to award or deny punitive damages for abuse of discretion. See Claiborne
    
    
    
                                                47
                  Case: 12-14527     Date Filed: 03/05/2014    Page: 48 of 72
    
    
    v. Ill. Cent. R.R., 
    583 F.2d 143
    , 154 (5th Cir. 1978) (“Having determined that a
    
    punitive damages award under section 1981 is permissible, we also find no abuse
    
    of discretion in the grant of such an award in this case.”).
    
          Florida law allows punitive damages only “if the trier of fact, based on clear
    
    and convincing evidence, finds that the defendant was personally guilty of
    
    intentional misconduct or gross negligence.” Fla. Stat. § 768.72(2). “‘Intentional
    
    misconduct’ means that the defendant had actual knowledge of the wrongfulness of
    
    the conduct and the high probability that injury or damage to the claimant would
    
    result and, despite that knowledge, intentionally pursued that course of conduct,
    
    resulting in injury or damage.” Id. § 768.72(2)(a). “‘Gross negligence’ means that
    
    the defendant’s conduct was so reckless or wanting in care that it constituted a
    
    conscious disregard or indifference to the life, safety, or rights of persons exposed
    
    to such conduct.” Id. § 768.72(2)(b).
    
          The district court denied punitive damages because “[t]he grocery exclusives
    
    sought to be enforced against the Defendants are rife with ambiguities and the
    
    scope of their restrictions are uncertain at best,” and, “[m]oreover, Plaintiffs did
    
    not make a formal demand on Defendants to comply with their grocery exclusives
    
    prior to filing this lawsuit.” The district court did not abuse its discretion in
    
    determining that Winn-Dixie failed to prove, by clear and convincing evidence,
    
    that the Defendants committed the requisite intentional misconduct or gross
    
    
    
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    negligence. The proper construction of the grocery exclusives presents a difficult
    
    question of Florida law upon which reasonable observers surely can differ. Winn-
    
    Dixie provided no evidence indicating actual intent, nor that Defendants acted in a
    
    grossly negligent manner. Instead, the evidence presented indicated that
    
    Defendants conducted themselves in accordance with a reasonable interpretation of
    
    the grocery exclusives. The district court did not err in denying punitive damages
    
    when it found Winn-Dixie failed to meet its burden under Florida law. Cf. Mee
    
    Indus. v. Dow Chem. Co., 
    608 F.3d 1202
    , 1221 (11th Cir. 2010) (“Although
    
    sufficient evidence was presented to place the issues of probable cause and advice
    
    of counsel before the jury, the closeness of those issues confirms that the evidence
    
    is insufficient to allow a reasonable juror to find by the clear and convincing
    
    standard that Dow could be liable for punitive damages.”).
    
                                              2.
    
          Winn-Dixie also argues that collateral estoppel precluded Dollar General
    
    from relitigating the enforcement, scope, and meaning of the grocery exclusives in
    
    force at any of its stores at issue. Winn-Dixie claims that the district court should
    
    have given preclusive effect to a Florida decision in which Winn-Dixie obtained a
    
    final judgment granting injunctive relief for a single Dollar General store not at
    
    issue in this case. See Noble, No. CI 05-CI-1874 (Fla. 9th Jud. Cir. Aug. 31,
    
    2007). The district court refused to apply collateral estoppel because “the issues in
    
    
    
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    these cases are not identical to Noble and thus issue preclusion cannot be granted.”
    
    We review de novo whether Florida law allowed the district court to give
    
    preclusive effect to the state court judgment. Aldana v. Del Monte Fresh Produce
    
    N.A., 
    578 F.3d 1283
    , 1288 (11th Cir. 2009) (“The question whether to give
    
    preclusive effect to a state court’s judgment is a question of law, and thus also is
    
    reviewed de novo.”).
    
          “Under the Full Faith and Credit Act, 28 U.S.C. § 1738, a federal court must
    
    ‘give preclusive effect to a state court judgment to the same extent as would courts
    
    of the state in which the judgment was entered.’” Brown v. R.J. Reynolds Tobacco
    
    Co., 
    611 F.3d 1324
    , 1331 (11th Cir. 2010) (quoting Kahn v. Smith Barney
    
    Shearson Inc., 
    115 F.3d 930
    , 933 (11th Cir. 1997)). Therefore, we give preclusive
    
    effect to a state court judgment if: “(1) the courts of the state from which the
    
    judgment emerged would do so themselves; and (2) the litigants had a full and fair
    
    opportunity to litigate their claims and the prior state proceedings otherwise
    
    satisfied the applicable requirements of due process.” Quinn v. Monroe Cnty., 
    330 F.3d 1320
    , 1329 (11th Cir. 2003). In Florida, “collateral estoppel applies if (1) an
    
    identical issue, (2) has been fully litigated, (3) by the same parties or their privies,
    
    and (4) a final decision has been rendered by a court of competent jurisdiction.”
    
    Id.; see Essenson v. Polo Club Assocs., 
    688 So. 2d 981
    , 983 (Fla. 2d DCA 1997).
    
    
    
    
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          Here, the result turns on the appropriate Florida rule for assessing whether
    
    issues are identical. Florida case law does not discuss in any great detail the
    
    standard for measuring the identity of issues. However, the authors of the Second
    
    Restatement of Judgments, which Florida courts have cited in otherwise applying
    
    collateral estoppel, see, e.g., Cook v. State, 
    921 So. 2d 631
    , 634 (Fla. 2d DCA
    
    2005), commented:
    
          When there is a lack of total identity between the particular matter
          presented in the second action and that presented in the first, there are
          several factors that should be considered in deciding whether for
          purposes of the rule of this Section the “issue” in the two proceedings
          is the same, for example: Is there a substantial overlap between the
          evidence or argument to be advanced in the second proceeding and
          that advanced in the first? Does the new evidence or argument
          involve application of the same rule of law as that involved in the
          prior proceeding? Could pretrial preparation and discovery relating to
          the matter presented in the first action reasonably be expected to have
          embraced the matter sought to be presented in the second? . . .
    
          Sometimes, there is a lack of total identity between the matters
          involved in the two proceedings because the events in suit took place
          at different times. In some such instances, the overlap is so
          substantial that preclusion is plainly appropriate. . . . Preclusion
          ordinarily is proper if the question is one of the legal effect of a
          document identical in all relevant respects to another document whose
          effect was adjudicated in a prior action.
    
    Restatement (Second) of Judgments § 27 cmt. c (1982). We believe that Florida
    
    courts would consider factors like those elaborated in the Restatement comments
    
    when determining the identity of issues.
    
    
    
    
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          Here, identity of issues is lacking because of differences in the time,
    
    location, and terms of the leases. These differences made pretrial preparation and
    
    discovery necessarily broader than that required for Noble. Unlike the lease in
    
    Noble, created in 1985 for a single store in Osceola County, Florida, leases for the
    
    fifty-one Dollar General stores at issue in this case were signed across three
    
    decades throughout four states. Interpretation of the leases in this case has not
    
    “previously been decided between” Winn-Dixie and Dollar General. Mobil Oil
    
    Corp. v. Shevin, 
    354 So. 2d 372
    , 374 (Fla. 1977); cf. Rufenacht v. Iowa Beef
    
    Processors, Inc., 
    656 F.2d 198
    , 203 (5th Cir. Sept. 1981) (refusing to apply
    
    collateral estoppel due to non-identical issues when “each claim is referable to a
    
    separate and distinct cattle transaction”); id. at 204 n.2 (“[E]stoppel applies [when]
    
    there is an actual identity of issues . . . as opposed to the cases at bar which involve
    
    separate albeit similar sales of cattle.”). Without identity of issues, Winn-Dixie
    
    cannot invoke offensive issue preclusion as to the interpretation of the leases
    
    involved in this action.
    
          Arguing for collateral estoppel, Winn-Dixie cites only Provau v. State Farm
    
    Mutual Automobile Insurance Co., 772 F.2d at 821, in which a panel of this Court
    
    interpreted substantive state law by looking to a previous state decision when “the
    
    language in the two policies at issue [were] substantially similar.” But Provau did
    
    not use this analysis in the context of collateral estoppel. Moreover, Provau
    
    
    
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    highlighted “particular judicial concerns” with offensive collateral estoppel that
    
    counsel against its broad application. Id.; see Johnson v. United States, 
    576 F.2d 606
    , 614 (5th Cir. 1978) (“[T]he offensive use of collateral estoppel calls for the
    
    courts to use special care in examining the circumstances to ascertain that the
    
    defendant has in fact had a full and fair opportunity to litigate and that preclusion
    
    will not lead to unjust results.”). The district court made no error in refusing to
    
    recognize collateral estoppel under Florida law.
    
                                               3.
    
          Finally, Winn-Dixie challenged the district court’s application of the Florida
    
    standard for injunctive relief, arguing that the court improperly required that Winn-
    
    Dixie show that a remedy at law was inadequate. Compare Autozone Stores, Inc.
    
    v. Ne. Plaza Venture, LLC, 
    934 So. 2d 670
    , 673 (Fla. 2d DCA 2006) (“Injunctive
    
    relief is normally available to redress violations of . . . restrictive covenants
    
    [affecting real property] without proof of irreparable injury or a showing that a
    
    judgment for damages would be inadequate. The value of a restrictive covenant
    
    . . . is often difficult to quantify and may be impossible to replace.” (alterations in
    
    original) (quoting Restatement (Third) of Prop.: Servitudes § 8.3 cmt. b), with Liza
    
    Danielle, Inc. v. Jamko, Inc., 
    408 So. 2d 735
    , 738 (Fla. 3d DCA 1982) (requiring
    
    that a plaintiff seeking to enforce an “exclusivity” clause as a restrictive covenant
    
    barring retail competition “prove two interrelated requirements necessary to
    
    
    
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    establish its right to injunctive relief: (1) that it was without an adequate remedy at
    
    law, or (2) that it would suffer irreparable harm if the injunction were denied”).
    
          Though it required such a showing, the district court concluded that no legal
    
    remedy was adequate because Winn-Dixie could not prove damages. Winn-Dixie,
    
    886 F.Supp. 2d at 1348 (“Having rejected Plaintiffs’ claim for damages as too
    
    speculative and considering my skepticism that Plaintiffs could ever provide
    
    sufficient evidence to be entitled to an award of damages, I find that a remedy at
    
    law is inadequate.”). In this appeal, aside from the challenge to the exclusion of
    
    Dr. Pacey’s testimony, no party contests the district court’s conclusion that a
    
    remedy at law was inadequate. Given this finding, Winn-Dixie satisfied the
    
    district court’s standard. That inadequate remedy at law requirement does not in
    
    any way affect the availability of injunctive relief in this case, and Winn-Dixie’s
    
    argument for a less-stringent test has no effect on the outcome at any store. We
    
    thus have no occasion to consider whether the court erred in its application of the
    
    Florida injunction standard.
    
          Ultimately, then, we affirm as to the forty-three stores for which the district
    
    court denied all relief without reaching the question of whether Defendants
    
    violated the grocery exclusives. Because the district court made no error when, for
    
    a variety of other reasons, it found it unnecessary to examine whether covenants
    
    
    
    
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    had been broken at these locations, we do not disturb its denial of all relief as to
    
    these stores.
    
                                              IV.
    
          Big Lots and Dollar Tree separately raise a number of issues on cross-
    
    appeal. We review the district court’s interpretation of state law de novo. Jones,
    
    494 F.3d at 1309. None of the cross-appeals have merit.
    
                                              A.
    
          First, Big Lots argues that a Florida statute requires that Big Lots have
    
    signed the restrictive covenant to be bound by it. We find no error in the district
    
    court’s determination that Florida law permits enforcement of the covenants.
    
          Section 542.335 of the Florida Statutes concerns “[v]alid restraints of trade
    
    or commerce” -- typically, non-compete agreements. It provides that “[a] court
    
    shall not enforce a restrictive covenant unless it is set forth in a writing signed by
    
    the person against whom enforcement is sought.” Fla. Stat. § 542.335(1)(a)
    
    (2011). Big Lots contends that the district court erred in allowing Winn-Dixie to
    
    enforce a restrictive covenant against non-signatory stores. But this argument is
    
    foreclosed by Winn-Dixie Stores, Inc. v. Dolgencorp, Inc., 
    964 So. 2d 261
     (Fla. 4th
    
    DCA 2007), in which a Florida intermediate appellate court held that, with respect
    
    to § 542.335(1)(a), “‘a restrictive covenant’ does not include real property
    
    covenants running with the land. Rather, the section is directed at personal service
    
    
    
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    contracts not to compete.” Id. at 268. The Florida court in Winn-Dixie
    
    distinguished a case now relied upon by Big Lots, Tusa v. Roffe, 
    791 So. 2d 512
    
    (Fla. 4th DCA 2001), because “there was no claim in Tusa that the . . . use
    
    restriction was a real property covenant running with the land.” Winn-Dixie, 964
    
    So. 2d at 269; see id. (“There is no indication in Tusa that any of the leases were
    
    recorded or that the parties intended to create covenants running with the land.”).
    
    But the covenants here ran with the land and section 542.335 does not apply.
    
    Florida law does not require that Winn-Dixie have signed a contract with Big Lots
    
    to enforce its real covenant.
    
          Big Lots argues “that the holding in Winn-Dixie contradicts the clear
    
    mandate of Section 542.335.” Big Lots’ Reply Br. 3. It urges that the Florida
    
    Supreme Court would read section 542.335 as applying to the restrictive covenant
    
    in this case, or that this Court should certify the question. We disagree. The
    
    holding of the Florida appellate court in Winn-Dixie represents a reasonable
    
    interpretation of a statute that deals with personal, not real, covenants. We see no
    
    “persuasive indication that the state’s highest court would decide the issue
    
    otherwise.” Studstill, 806 F.2d at 1007 (quoting Provau, 772 F.2d at 820).
    
    Moreover, we do not see sufficient ambiguity to warrant certification. See
    
    Forgione v. Dennis Pirtle Agency, Inc., 
    93 F.3d 758
    , 761 (11th Cir. 1996) (per
    
    curiam) (noting that certification is appropriate “[w]hen substantial doubt exists
    
    
    
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    about the answer to a material state law question upon which the case turns”).
    
    Because it applied the appropriate Florida case precedent, the district court did not
    
    err in allowing Winn-Dixie to enforce a covenant running with the land against
    
    non-signatory co-tenants.
    
                                              B.
    
          Big Lots argues next that Winn-Dixie failed to join indispensable
    
    parties -- the shopping center landlords. We review a district court’s decision
    
    regarding the joinder of indispensable parties for abuse of discretion. United States
    
    v. Rigel Ships Agencies, Inc., 
    432 F.3d 1282
    , 1291 (11th Cir. 2005) (per curiam);
    
    Mann v. City of Albany, Ga., 
    883 F.2d 999
    , 1003 (11th Cir. 1989). “A district
    
    court abuses its discretion when, in reaching a decision, it applies an incorrect legal
    
    standard, follows improper procedures in making the determination, or makes
    
    findings of fact that are clearly erroneous.” Rigel Ships Agencies, 432 F.3d at
    
    1291 (quoting S.E.C. v. Smyth, 
    420 F.3d 1225
    , 1230 (11th Cir. 2005)).
    
          Federal Rule of Civil Procedure 19 sets out two steps for determining
    
    whether a party must be joined as indispensable. First, under Rule 19(a), the court
    
    determines “whether the person in question is one who should be joined if
    
    feasible.” Focus on the Family v. Pinellas Suncoast Transit Auth., 
    344 F.3d 1263
    ,
    
    1280 (11th Cir. 2003) (quoting Challenge Homes, Inc. v. Greater Naples Care Ctr.,
    
    Inc., 
    669 F.2d 667
    , 669 (11th Cir. 1982)). Second, for all such necessary parties, a
    
    
    
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    court determines whether the Rule 19(b) factors permit the litigation to continue if
    
    the party cannot be joined, or instead whether they are indispensable. Id.
    
          First, then, we look to the language of Rule 19(a)(1) to determine if the
    
    landlords were necessary parties:
    
          A person who is subject to service of process and whose joinder will
          not deprive the court of subject-matter jurisdiction must be joined as a
          party if:
    
                 (A) in that person’s absence, the court cannot accord
                 complete relief among existing parties; or
    
                 (B) that person claims an interest relating to the subject
                 of the action and is so situated that disposing of the
                 action in the person’s absence may:
    
                       (i) as a practical matter impair or impede the
                       person’s ability to protect the interest; or
    
                       (ii) leave an existing party subject to a
                       substantial risk of incurring double,
                       multiple,    or    otherwise      inconsistent
                       obligations because of the interest.
    
    Fed. R. Civ. P. 19(a)(1).
    
          Here, the landlords are not necessary parties under Rule 19(a)(1)(A) because
    
    the district court could provide “complete relief” among the litigants without
    
    joining the landlords. Winn-Dixie sought legal and equitable relief in the form of
    
    damages or an injunction against Big Lots. The district court could award all of
    
    the requested relief without haling the landlords into court because Big Lots was
    
    fully able to pay damages and comply with injunctions. Cf. Focus on the Family,
    
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    344 F.3d at 1280 (finding that a party was necessary when “complete relief cannot
    
    be afforded in Eller’s absence, as PSTA cannot require the running of a particular
    
    advertisement on its bus shelters”).
    
          Nor does Rule 19(a)(1)(B) require that the landlords be joined. Section
    
    (B)(i) does not make the landlords necessary because they had no rights at stake in
    
    the litigation that were in danger of being “impair[ed] or imped[ed]” by the case
    
    proceeding without them. Big Lots acknowledges that in future litigation the
    
    landlords will not be bound by the decision of the district court. Instead, Big Lots
    
    urges under section (B)(ii) that, because the landlords were not joined, Big Lots
    
    will be subject to “inconsistent obligations.” Fed. R. Civ. P. 19(a)(1)(B)(ii). It
    
    mistakes the meaning of this term. Big Lots labels as an inconsistent obligation a
    
    breach of contract claim against it brought by a landlord. Yet the resolution of a
    
    separate contract dispute between Big Lots and its landlord in no way conflicts
    
    with the district court’s determination that Big Lots violated the grocery exclusive.
    
    As a panel of the First Circuit explained:
    
          “Inconsistent obligations” are not . . . the same as inconsistent
          adjudications or results. Inconsistent obligations occur when a party
          is unable to comply with one court’s order without breaching another
          court’s order concerning the same incident. Inconsistent adjudications
          or results, by contrast, occur when a defendant successfully defends a
          claim in one forum, yet loses on another claim arising from the same
          incident in another forum.
    
    
    
    
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    Delgado v. Plaza Las Ams., Inc., 
    139 F.3d 1
    , 3 (1st Cir. 1998) (per curiam)
    
    (citations omitted); accord Sch. Dist. of City of Pontiac v. Sec’y of U.S. Dep’t of
    
    Educ., 
    584 F.3d 253
    , 282 (6th Cir. 2009) (en banc) (“Inconsistent obligations arise
    
    only when a party cannot simultaneously comply with the orders of different
    
    courts.”); Cachil Dehe Band of Wintun Indians of the Colusa Indian Cmty. v.
    
    California, 
    547 F.3d 962
    , 976 (9th Cir. 2008) (“We adopt the approach endorsed
    
    by the First Circuit [in Delgado].”).
    
          Moreover, where two suits arising from the same incident involve different
    
    causes of action, defendants are not faced with the potential for double liability
    
    because separate suits have different consequences and different measures of
    
    damages. See In re Torcise, 
    116 F.3d 860
    , 866 (11th Cir. 1997). Here, the case on
    
    appeal involves claimed violations of the restrictive covenants, while Big Lots
    
    complains of secondary suits from landlords alleging breach of lease contracts.
    
    Big Lots does not face section (B)(ii) “inconsistent obligations,” and has no other
    
    Rule 19(a) hook on which to hang its mandatory joiner hat. As a result, we need
    
    not reach the second step to consider, under Rule 19(b), “whether, in equity and
    
    good conscience, the action should proceed among the existing parties or should be
    
    dismissed.” Fed. R. Civ. Pro. 19(b). The district court did not abuse its discretion
    
    in refusing to dismiss the case for failure to join the landlords.
    
                                               C.
    
    
    
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          Finally, Big Lots argues that Winn-Dixie cannot enforce its restrictive
    
    covenants because it neglected to make “a reasonable demand for compliance with
    
    the restriction after the breach has occurred.” Majestic View Condo. Ass’n v.
    
    Bolton, 
    429 So. 2d 438
    , 439 (Fla. 4th DCA 1983). We find no pre-suit demand
    
    requirement here because the cases relied upon by Big Lots concern materially
    
    different species of covenants. Big Lots first points to Richards v. Dodge, 
    150 So. 2d
     477, 483 (Fla. 2d DCA 1963), in which a residential tenant raised breach of
    
    covenants as an affirmative defense in a landlord’s action for unpaid rent. The
    
    court found that the tenant was estopped from asserting the defense because she
    
    had failed to notify the landlord that she objected to the presence of a male co-
    
    tenant. Id. at 484-85. The Florida court noted that “[d]emand for performance is a
    
    necessary prerequisite to breach insofar as affirmative covenants are concerned.”
    
    Id. Richards added a caveat that “[n]otice of breach and demand of performance
    
    are not required of the covenantee in order to entitle him to action against the
    
    covenantor upon breach of his covenant, unless the event upon which the action
    
    accrues is mainly or exclusively within the knowledge of the covenantee.” Id. at
    
    483 (quoting 21 C.J.S. Covenants § 88 (1940)). But, Richards, which addressed
    
    only affirmative covenants, does not impose a pre-suit demand requirement for
    
    Winn-Dixie’s enforcement of restrictive covenants running with the land.
    
    Moreover, the caveat makes demand unnecessary because the alleged breach of the
    
    
    
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    grocery exclusives was not “mainly or exclusively within the knowledge of” Winn-
    
    Dixie, the covenantee seeking enforcement. Big Lots was on notice of the
    
    restrictive covenants and was best positioned to know its own inventory. Even if
    
    the test in Richards applied, Winn-Dixie need not have made demand.
    
           Big Lots also looks to Majestic View, in which a condominium association
    
    sued unit owners for violating a restrictive covenant limiting pets to “one dog or
    
    cat under twenty-five pounds.” 429 So. 2d at 439. A Florida appellate court
    
    reversed a trial court that had applied a “due process” test requiring “a
    
    condominium association to provide a unit owner with an adversary proceeding
    
    before seeking to enforce its restrictive covenants in court.” Id. at 439-40. Finding
    
    no basis in law for imposing such a due process test, the court noted that the condo
    
    association had given the residents pre-suit notice of the violation. Id. Without
    
    explanation or analysis, the court cited Richards in noting that enforcement of the
    
    restrictive covenant required “a reasonable demand for compliance with the
    
    restriction after the breach has occurred.” Id. at 439.
    
          Majestic View involved the special relationship among a condominium
    
    association and its constituent unit owners. See id. at 440 (“Condominium unit
    
    owners comprise a little democratic sub society of necessity more restrictive as it
    
    pertains to use of condominium property than may be existent outside the
    
    condominium organization.” (quoting Hidden Harbour Estates, Inc. v. Norman,
    
    
    
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    309 So. 2d 180
     (Fla. 4th DCA 1975)). The only other Florida case in this vein,
    
    Europco Management Co. of America v. Smith, 
    572 So. 2d 963
    , 966-67 (Fla. 1st
    
    DCA 1990), similarly concluded that a residential developer did not owe any more
    
    due process to homeowners when enforcing restrictive covenants than outlined in
    
    Majestic View. Id. (“The undisputed facts of this case show that Europco
    
    complied with all necessary due process requirements for enforcement of a
    
    protective covenant such as involved in this case. See Majestic View . . . .”).
    
          Winn-Dixie is a commercial tenant whose covenant limiting competition
    
    within a shopping center arises in a far different context than the residential
    
    restrictions enforced by the condominium association in Majestic View and the
    
    residential management company in Europco. And both Majestic View and
    
    Europco refused to impose burdensome “due process” requirements for enforcing
    
    covenants. Regardless, even if these cases imposed a pre-suit demand requirement
    
    here, the exception in Richards would relieve any need for demand because
    
    violations at Big Lots stores were not “mainly or exclusively within the knowledge
    
    of” Winn-Dixie.
    
          Buttressing this conclusion, not a single Florida case has barred enforcement
    
    of a restrictive covenant for want of demand. When commercial parties seek to
    
    enforce restrictive covenants involving the operation of grocery stores and similar
    
    establishments, as best as we can tell, the Florida courts have made no mention of
    
    
    
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    any demand requirement. See Eckerd Corp. v. Corners Grp., Inc., 
    786 So. 2d 588
    ,
    
    590 (Fla. 5th DCA 2000); AC Assocs. v. First Nat’l Bank of Fla., 
    453 So. 2d 1121
    ,
    
    1124 (Fla. 2d DCA 1984); Norwood Shopping Ctr., 135 So. 2d at 449; see also
    
    Massari v. Salciccia, 
    102 Fla. 847
    , 852 (1931). In Dolgencorp, the Florida court
    
    noted that Winn-Dixie had made a demand upon the landlord, but made no
    
    mention of any demand made on the dollar store defendant. 964 So. 2d at 263.
    
    Courts around the country have considered whether and how to enforce similar
    
    restrictive covenants without mentioning a demand requirement. See, e.g,
    
    Tippecanoe Assocs. II, LLC v. Kimco Lafayette 671, Inc., 
    829 N.E.2d 512
    , 513
    
    (Ind. 2005); Davidson Bros., Inc. v. D. Katz & Sons, Inc., 
    643 A.2d 642
    , 643 (N.J.
    
    Super. Ct. App. Div. 1994); Blueberries Gourmet, Inc. v. Aris Realty Corp., 
    291 A.D.2d 520
     (N.Y. App. 2002); Great Atl. & Pac. Tea Co. v. Bailey, 
    220 A.2d 1
    , 2
    
    (Pa. 1966); Foods First, Inc. v. Gables Assocs., 
    418 S.E.2d 888
    , 889 (Va. 1992).
    
    The district court did not err in enforcing the restrictive covenant without a pre-suit
    
    demand.
    
          Because Florida law imposed no pre-suit demand requirement on Winn-
    
    Dixie for enforcement of the restrictive covenants, we have no occasion to consider
    
    whether Big Lots waived this argument by not pleading it as an affirmative
    
    defense. See Fed. R. Civ. P. 9(c) (“[W]hen denying that a condition precedent has
    
    occurred or been performed, a party must do so with particularity.”)
    
    
    
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                                              D.
    
          In its lone issue on cross-appeal, Dollar Tree argues that the Florida statute
    
    of limitations precluded Winn-Dixie from enforcing its restrictive covenants
    
    because the continuing tort doctrine should not apply. We review the district
    
    court’s grant of summary judgment on an affirmative defense de novo. See
    
    Capone v. Aetna Life Ins. Co., 
    592 F.3d 1189
    , 1194 (11th Cir. 2010).
    
          Florida applies a five-year limitations period to actions to enforce a
    
    restrictive covenant. Fla. Stat. § 95.11(2)(b); Pond Apple Place III Condo. Ass’n
    
    v. Russo, 
    841 So. 2d 526
    , 527 (Fla. 4th DCA 2003). Here, however, the district
    
    court applied “the doctrine of continuing tort” because “each day Plaintiffs’
    
    grocery exclusives were allegedly violated resulted in a distinct, separate breach of
    
    the restrictive covenant.” The continuing tort doctrine, or the continuing violation
    
    principle, distinguishes between a single act that causes multiple, cascading harms,
    
    and recurrent, repetitive acts excepted from the running of the statute of
    
    limitations: “A continuing tort is ‘established by continual tortious acts, not by
    
    continual harmful effects from an original, completed act.’” Suarez v. City of
    
    Tampa, 
    987 So. 2d 681
    , 686 (Fla. 2d DCA 2008) (quoting Horvath v. Delida, 
    540 N.W.2d 760
    , 763 (Mich. Ct. App. 1995)).
    
          Dollar Tree reasons that, because Winn-Dixie brings contract, not tort
    
    claims, there is no continuing “tort.” But Florida law does not so clearly
    
    
    
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    distinguish between covenant-enforcement actions and tort suits for purposes of
    
    the continuing violation principle. Dollar Tree cites contract cases in which courts
    
    found that the cause of action accrued at the first breach, with no applicable
    
    continuing violation principle. See Garden Isles Apts. No. 3, Inc. v. Connolly, 
    546 So. 2d 38
    , 41 (Fla. 4th DCA 1989); see also Servicios De Almacen Fiscal Zona
    
    Franca y Mandatos S.A. v. Ryder Int’l, Inc., 264 F. App’x 878, 880 (11th Cir.
    
    2008) (per curiam) (unpublished). In turn, Winn-Dixie points to cases involving
    
    torts, such as nuisance and trespass, in which Florida courts recognize a continuing
    
    violation rule, see Carlton v. Germany Hammock Groves, 
    803 So. 2d 852
    , 854-56
    
    (Fla. 4th DCA 2002), and to cases involving affirmative covenants, see City of
    
    Quincy v. Womack, 
    60 So. 3d 1076
    , 1078 (Fla. 1st DCA 2011) (“In asserting that
    
    the limitations period had expired, the City ignores the continuing nature of its
    
    obligations under the contract, and that its ongoing nonperformance constituted a
    
    continuing breach while the contract remained in effect. The appellee’s cause of
    
    action was not limited to the City’s initial breach, and the section 95.11(2)(b)
    
    statute of limitations had not expired when the appellee filed his lawsuit which
    
    encompassed the City’s continuing breach.”).
    
          No Florida authority has addressed whether the continuing violation doctrine
    
    applies to restrictive covenants running with the land. Because Florida courts look
    
    to decisions from around the country in applying the continuing tort doctrine, the
    
    
    
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    parties turn to out-of-state cases. See, e.g., Suarez, 987 So. 2d at 686. Winn-Dixie
    
    cites Barker v. Jeremiasen, 
    676 P.2d 1259
    , 1260-61 (Colo. App. 1984), in which a
    
    plaintiff neighbor sued to enforce a restrictive covenant against a horse farm for
    
    violation of a restrictive covenant providing that the property was not to contain
    
    more than twenty head of livestock. The Colorado intermediate appeals court
    
    stated: “We agree with the trial court that defendants’ horse operation resulted in
    
    repeated and successive breaches of the continuing protective covenants which
    
    continued until the date of trial. Thus, the statute of limitations . . . does not bar
    
    this action for breach of covenant.” Id. at 1261.
    
          Similarly, in Black Island Homeowners Ass’n v. Marra, 
    588 S.E.2d 250
    ,
    
    251-52 (Ga. Ct. App. 2003), plaintiffs sued to enforce a restrictive covenant
    
    requiring that land be maintained in its native state when defendants had
    
    periodically mowed grass. The Georgia court distinguished between two types of
    
    cases: those in which a defendant had erected a permanent fixture violating a
    
    covenant, when the cause of action “accrues when the violation first results,” and
    
    cases in which a defendant commits a “distinct, separate act that constitutes an
    
    alleged breach each time it occurs.” Id. at 253. In the latter type, the court agreed
    
    with the trial court that the statute of limitations does not bar recovery because
    
    “each incidence of mowing gives rise to a new cause of action.” Id. The most
    
    relevant out-of-state case cited by Dollar Tree tracked this distinction: an
    
    
    
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    Oklahoma court did not consider the continuing violation doctrine when a fixture,
    
    a “modular home,” violated a restrictive covenant that prohibited buildings near
    
    property lines. Russell v. Williams, 
    964 P.2d 231
     (Okla. Civ. App. 1998).
    
          Based on the parallel application of the continuing tort doctrine in Florida
    
    and persuasive precedent from other states, we believe that Florida law recognizes
    
    a continuing violation principle when restrictive covenants are violated by
    
    ongoing, separate acts. Cf. Carlton, 803 So. 2d at 855-56 (applying the continuing
    
    tort doctrine to nuisance and trespass actions by distinguishing between permanent
    
    injuries and reoccurring injuries to a property owner’s land). Applying this
    
    continuing violation principle, we must determine whether Dollar Tree’s sale of
    
    products allegedly in violation of a Winn-Dixie restrictive covenant amounts to
    
    many discrete acts (measured daily, as the district court found), or instead one
    
    overarching violation dating to the opening of the store. We believe the analogy to
    
    the multiple-violation cases involving horses (Barker) and mowing (Black Island)
    
    to be far more compelling than the comparison to single-violation permanent
    
    fixture cases, such as those involving mobile homes (Russell). The violation here
    
    arises from what is being continuously stocked and sold in Dollar Tree stores.
    
    Winn-Dixie takes no issue with the permanent shelves as such; the violation stems
    
    from the repeated activities that Dollar Tree conducts on those shelves. Just as
    
    keeping more than thirty horses on the land in Barker amounted to repeated and
    
    
    
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    successive breaches, the continued offering of more than 500 square feet of
    
    groceries for sale represents discrete, separate breaches of the covenant.
    
           Finally, Dollar Tree argues that the district court erred in granting summary
    
    judgment on the statute of limitations defense because material facts remained in
    
    dispute. Florida courts have repeatedly stated that the question of “[w]hether the
    
    continuing torts doctrine applies to the facts of a case is for a trier of fact to
    
    decide.” Pearson v. Ford Motor Co., 
    694 So. 2d 61
    , 67-68 (Fla. 1st DCA 1997).
    
    For example, in Carlton, the Florida appellate court refused to grant summary
    
    judgment recognizing an affirmative defense because the plaintiff had “alleged
    
    sufficient facts with regards to the flooding and resulting damage occurring in the
    
    four years preceding the date suit was filed so as to urge application of the
    
    continuing torts doctrine and preclude summary judgment.” 
    803 So. 2d 856
    ; see
    
    Halkey-Roberts Corp. v. Mackal, 
    641 So. 2d 445
    , 447 (Fla. 2d DCA 1994) (“The
    
    question of whether [Defendants’] actions constituted continuing torts precludes
    
    the granting of summary judgment as to counts I and II. To what extent, if any, the
    
    concept applies to this case is an issue for the trier of fact to decide.”). Typically,
    
    these cases involve the denial of a defendant’s motion for summary judgment
    
    when the plaintiff presents facts suggesting the continuing tort doctrine may apply.
    
    Here, however, Dollar Tree did not dispute material facts before the district court.
    
    Instead, it made purely legal arguments explaining why the continuing tort doctrine
    
    
    
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    did not apply. Because this legal position was unsuccessful, the district court was
    
    left with no material facts in dispute, and thus did not err in granting Winn-Dixie
    
    summary judgment on the defense.
    
          Two key material facts could be at issue in a case involving the continuing
    
    tort doctrine: whether any acts took place within the limitations period; and
    
    whether these acts were sufficiently similar to qualify as “continuing” the prior
    
    events. See Rindley v. Gallagher, 
    890 F. Supp. 1540
    , 1549 (S.D. Fla. 1995) (“To
    
    establish a continuing violation, the plaintiff must show a substantial nexus
    
    between the time barred acts and the timely asserted acts.”). Here, unlike in the
    
    many cases denying summary judgment, no dispute exists as to either type of fact.
    
    There is no dispute that the acts continued up to a point well within the limitations
    
    period. Nor do the parties dispute that the repeated stocking and selling of
    
    challenged items at Dollar Tree stores remained largely consistent in manner and
    
    scope. As a result, the only issue raised was a pure question of law: whether a
    
    violation of a covenant restricting grocery sales could qualify as a continuing
    
    violation measured each day, or was instead a discrete violation that occurred when
    
    a store first established its shelving arrangements. With no material facts in
    
    dispute, the district court did not err in granting Winn-Dixie summary judgment as
    
    a matter of law.
    
                                             V.
    
    
    
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          In sum, we hold that, for forty-one Florida stores, the district court
    
    misapplied Florida law in determining whether Defendants had violated Winn-
    
    Dixie’s restrictive covenants. 29 For these stores, we reverse and remand for a new
    
    trial based on a definition of “staple or fancy groceries” and “sales area” consistent
    
    with the holding of the Florida Third District Court of Appeals in 99 Cent. We
    
    also hold that the district court applied incorrect state law in determining whether
    
    the Defendants had violated the terms of restrictive covenants at thirteen stores in
    
    Alabama and Georgia. 30 We reverse and remand for interpretation of covenants
    
    binding these Alabama and Georgia stores in accordance with the appropriate law
    
    of each state. We affirm as to the forty-three remaining stores for which the
    
    district denied all relief on other grounds.31
    
    
    29
     BL505/WD506; BL512/WD2210; BL525/WD698; BL530/WD654; BL550/WD609;
    BL553/WD236; BL555/WD307; BL558/WD160; BL1519/WD306; BL1628/WD348;
    BL1711/WD302; BL4258/WD254; DG1056/WD489; DG1416/WD622; DG1453/WD662;
    DG1541/WD629; DG2634/WD777; DG2969/WD681; DG7376/WD737; DG8551/WD561;
    DT332/WD2311; DT723/WD254; DT807/WD657; DT892/WD2230; DT986/WD737;
    DT1566/WD228; DT2117/WD353; DT2159/WD309; DT2714/WD2205; DT2804/WD84;
    DT2838/WD412; DT4181/WD678; DT4199/WD255; DT4230/WD656; DT4266/WD501;
    DT4339/WD632; DT4365/WD236; DT4497/WD378; DT4511/WD647; DT4550/WD658;
    DT4625/WD577.
    30
     DG246/WD478; DG2965/WD428; DG4952/WD599; DG8665/WD579; DG11814/WD574;
    DT153/WD463; DT582/WD166; DT2160/WD443; DT2395/WD461; DT2936/WD599;
    DT3382/WD514; DT4133/WD456; DT4637/WD471.
    31
     BL554/WD671; BL570/WD612; DG626/WD1537; DG770/WD1540; DG1026/WD1511;
    DG1095/WD209; DG1322/WD612; DG1333/WD151; DG1382/WD30; DG1389/DG710;
    DG1402/WD2260; DG1413/WD631; DG1420/WD611; DG1421/WD144; DG1451/WD723;
    DG1456/WD331; DG1493/WD647; DG1513/WD2326; DG1522/WD2268; DG1524/WD566;
    DG1649/WD2342; DG2363/WD411; DG2685/WD1572; DG2762/WD652; DG3013/WD713;
    
    
    
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               Case: 12-14527   Date Filed: 03/05/2014   Page: 72 of 72
    
    
         AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
    
    
    
    
    DG4008/WD553; DG4444/WD2213; DG4701/WD649; DG4821/WD3; DG4981/WD221;
    DG7268/WD123; DG7457/WD167; DG7539/WD577; DG7584/WD639; DG7824/WD1588;
    DG7883/WD305; DG9149/WD750; DG9263/WD705; DG10357/WD1431; DG10484/WD654;
    DT1135/WD116; DT1805/WD705; DT2161/WD1555.
    
    
    
                                         72