[PUBLISH]

FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT SEP 02 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

_________________________ No. 02-14372

_________________________ D. C. Docket No. 98-02868-CV-WMH SCADIF, S. A., a Foreign C orporation, Plaintiff-Appel lant,

versus FIRST UNION NATIONAL, a National banking a

ssociation, Defenda nts-Th ird-Par tyPlaintiff-Appellee, AMERIPLEX GROUP, INC., Third-Party -Defendant.

____________________________ Appeal from the United States District Court for the Southern District of Florida

____________________________ (September 2 , 2003)

Before ANDE

RSON, COX a

nd MAGILL*, C

ircuit Judges.

__________________________________ ____________ *Honorable Frank J. Magill, U.S. Circuit Judge for the Eighth Circuit, sitting by designation.2

MAGILL, Circuit Judge: Plaintiff-Appellant SCADIF, S.A. ("SCADI F") appeals the district court's judgment in fa

vor of Defendant-

Appellee First U

nion National Bank,

n/k/a Wachovia Bank (" First Union"). S CADIF alleges t hat First Union is str

ictly liable to SCADIF for a

pproximately

$3.2 million because First Union fa iled to pay or return a check for

this amount befor

e the "midnight de

adline," as requir

ed by the Uniform Com

mercial Code

("UCC"), as codified in Florida. The district court found that SCADIF sent the check at issue to First Union for collection rather than for payment, and therefore, the m idnight deadline rule does not apply. The court entered judgm

ent for First Union

and, in addition, de

nied SCADIF's motion for sanctions, finding tha

t any miscon

duct by First Un

ion during the trial did

not merit the imposition of san ctions. SCADIF appeals. Our jurisdiction i s proper pursuant to 28 U.S.C. § 1291 ( 2000). For the follo wing r eason s, we af firm. I. We review, as summarily as possible, the somewhat complicated factual background behind the deal leading up to First Union's receipt of the check at issue, as this background is relevant to our disposition of the case.1 A hypermarket store is one that sells a wide variety of goods at discount prices, similar to a Sam's Club or Wa

l-Mart.

2 Parapharmace

uticals are non-

prescription med

icines and medica

l supplies. 3 A. SCADIF, a Fr

ench company

, is a buying coope

rative that purchas es and supplies goods to twenty-two hypermarket 1 stores in Paris, F rance. In the ea

rly 1990's, SCADIF anticipated a change in a French law that limited the retail sales of parapharma

ceuticals 2 to licensed pharm acies. SCADI

F arranged for a nonFrench compan

y, I.Tra. S., to purchase pa rapharmace

uticals on its behalf by misrepresenting that t he goods would be s old outside of Fran ce. Through I.Tra.S., SCADIF purcha

sed more than $3 m

illion worth of produc

ts. In 1996, with no chang

e in the law having occurred, I.Tr a.S. agreed to repurchase the par

apharmaceuti

cals and reimb

urse SCADIF f

or its shipping and storage costs. To

facilitate this re

purchase, I.T

ra.S. obtained a

loan from a Sw

iss bank. The Swiss b ank made the loa n after, at SCA

DIF’s request

, Banque Francaise, a Fr

ench bank with whom

SCADIF had a pr

evious relationship, guaranteed the loan.

SCADIF in turn g

uaranteed Banque F

rancaise’s oblig

ation to the Swiss bank. In order to meet its oblig ation to the Swiss b ank, inter alia , I.Tra.S. obtained3 Several interesting features of the Check are relevant to this appeal: (1) the Check w as drawn on an account opened and maintained at a First Union in Sarasota, Florida; (2) the Check was a starter ch

eck for a new ac

count, with only

the name “Amerip

lex Group, Inc .” typed on i t; (3) the Check wa

s hand-numbered

as “0002”; (4) the

Check was handwr

itten; (5) there w

as a discrepancy

between the nume

ric and the word a

mount on the Check; a

nd (6) the only

First Union address included on the Check was "First Union National Bank of Florida, Sarasota, Florida 34236," although t he following was written on the Check: "Branch 273." 4 a loan commitment from

Ameriplex Group, Inc. (“Am eriplex”), a Canadian corporation. However, Ameriplex never funded the loan, despite its repeated promises to do so, as des cribed below. In November 19 97, Ameriple x commence

d a serious of contac

ts with SCADIF and/or Banque Francaise assuring imminent funding. By letter dated January 12, 1998,

Ameriplex not

ified Banque Francaise that the prom ised funding had been delayed by “unforeseen changes . . . bey ond our control.” Ameriplex copied SCADIF on this letter. On January 31, 1998, Banque Francaise was forced to honor its guarantee, as I.Tra.S. was unable to repay the Swiss bank. Banque Franca ise debited SCADIF’s account for the amount it paid. Finally, on April 3, 1998, Ameriplex sent SCADIF a post-dated check for $3,215,183 (“Check”). 3 Along with the Check, Ame

riplex sent a letter

providing that SCAD

IF had “ agreed to retain the cheque and not deposit same.” SCADIF complied with these conditions for three and one-half months.5

During this three and one-half month period, on April 21, 1998, Ameriplex sent a stop-paym

ent order on the Chec

k. The record sho

ws that the averag

e daily balance of the accoun t on which the Check was drawn was $3.83 from incepti on. On May 5, 1998, Ameriplex informed Ba nque Francaise via letter that Ameriplex’ s unidentified lender had attempted t

o transfer funds into

the account, but that the Federal Reserve had imposed a hold. Banque Francaise informed SCADIF of this communicati on. On May 11,

Ameriplex w

rote Banque Franc aise again, stating that it would exhibit p roof of funds by May 13; this did not occur. Similar com

munications conti

nued. On June 12, A

meriplex sent a

letter to I.Tra.S., copyin g both Ban que Francai se and SCADIF , stating t hat Ameriplex ’s president, Peter

Giannotti ("Giann

otti"), would arr

ive in Paris on June 18 t

o settle Ameriplex’s obligations. Giannotti did not appear in Paris, and Ameriplex never provided proof of funds to Banque Francaise or SCADIF. On July 20, 1998,

one month after

Giannotti's failur

e to show, SCAD

IF sent the Check to Banque F

rancaise via regul

ar mail. Inc

luded with the Check

was a letter directed to

Banque Francaise ’s International Department p

roviding: this “confirm [s] our telephone conversation of toda

y whereby

we instructed y

ou to send for collection t

he Ameriplex

Group, Inc.’ s April 14, 1998 chec k in the amount of [$3,215,183.00].”6

Banque Fran caise did n ot provis ionally cred it the Chec k to SCADIF’s account and never extended any credit or payment thereon to SCADIF. Rather, Banque Francaise separated the Check from other checks it received that were drawn on United Sta

tes banks. It sent th

e Check individually

to First Union via Airborne Express

along with a form

letter (“Col

lection Letter”)

identifying the transaction as a “Collection Payable Abroad.” The Collection Le

tter provided that the

Check was being sen

t for collection, identified Am

eriplex as the draw

ee from whom

payment shou

ld be obtained, requested paym

ent or notice of dishon

or, and requested p ayment of B anque Francaise’s f

ees. The Collec

tion Letter also re

quired First Union to

respond to Banque Francaise

via SWIFT, a telex system used for internation

al bank communica

tions. The Collec

tion Letter recog

nized that First Un

ion would assess fees for the collection service, and it instructed First Union to collect these fees directly from

the drawee, Am

eriplex. Banque F

rancaise did not, a

s it does with most checks dra

wn on a United Stat

es bank, forwar

d the Check to its correspondent Unite

d States bank, Citi

bank of New York,

for processing throu

gh the Federal Reserve System. Instead, it sent the Check as a one-of- a-kind item directly to Fir

st Union. Banque Francaise

sent the Check and the

Collection Letter

addressed to7

"First Union Natio

nal Bank of Florida,

Sarasota, Flori

da 34236," as this wa

s the only address provided on the Check. See supra n.3. At this time, First Union had two branches locat

ed in the 34236 zip code, each operating sepa

rately: one in S

t. Armands ("St. Armands branch") and o ne in Center City ("Center Ci ty branch"). Ameriplex's

account was held at

the St. Arm

ands branch; howeve

r, as the routing slip did not specify a branch, Airborne Express delivered the Check to the Center City branch. The Check arrive

d at the City Ce

nter branch on July

24, 1998. Due to human error, the Check was not sent, as it should have been, to First Union's international opera

tions departmen

t ("International O

perations"). On J

uly 30, Banque Francaise

sent a SWIFT inquiry to Inter national Operation

s, inquiring about the Check. T

he following day

, after receiv

ing no response, Banq

ue Francaise sent a secon d inquiry via SWIFT. On August 5, First

Union located the Ch

eck and the Collecti

on Letter and overnighted them to International Operations. First Union immediately informed Banque Francaise of this delivery. The following day, nine banking days after receipt of the Che

ck, International

Operations notifie

d Banque Francaise

that the Check was being re

turned unpaid because

of the previous stop-p ayment ord er and the discrepancy

between the writ

ten and the numer

ical amount on the

Check. This8

same day, August 6, First Un

ion sent Banque Fran

caise a SWIFT

message and returned the Check

via Federal Expr

ess. In this sam

e correspondence,

First Union requested reim

bursement from

Banque Francaise

for its cable char

ges. Banque Francaise paid the se charges. B. SCADIF filed s

uit, claiming t

hat First Union wa

s strictly liabl

e for the amount of the Check, $3,215,183, because it failed to pay or return the Check within the midnig

ht deadline. The d

istrict court enter

ed judgment fo

r First Union, finding that the Check was sent for collection rather than payment, and therefore, the midnight dead

line rule did not apply

. The district co

urt also found that Fir

st Union's handling of the Check did not cause SCADIF any loss or injury. SCADIF also fi

led a motion for

sanctions two m

onths after the tria

l, alleging, inter alia , (1) concealm ent of documents

by First Union,

and (2) misconduct by

First Union and one of

its witnesses, Pr

ofessor Barkley

Clark. The district court denie

d the motion, fi

nding that any m

isconduct by Firs

t Union during the trial did not m

erit the imposit

ion of sanctions. SC

ADIF appeals the

judgment in favor of First Unio n and the denial of s anctions. II. First, we examine whether the district court erred in finding that the Check4 In the absence of an agreement to the contrar y, First Union would be the payor bank under the definition of "payor bank" in the UCC. Fla. Stat. ch. 674.105(3) (2002)

.

5 "Presentment" is defined by UCC Article 3 as "a demand made by or on behalf of a person entitled to

enforce an instr

ument: (a) To pay

the instrument made

to the drawee or

a party obliged to pay the instrument or, in the case of a note or acce pted draft payable at a bank, to the bank; or (b) To ac

cept a draft mad

e to the drawee. " Fla. Stat. ch. 6 73.5011(1). I

n other words, presentment is a te

rm of art that conn

otes delivery

for the specific

purpose of pay

ment.

6 The "midnight de

adline rule" pr

ovides: (1) If an ite

m is presented to a

nd received by

a payor ba

nk, the bank is accountable for the amount of: (a) A demand item, other than a documentary 9 was sent for colle

ction rather than pa

yment, the

reby holding that t

he midnight deadline rule was not applicable and ent ering judgment

for First Union. One question is dispositive of this issue: whether the parties agreed that the Check was sent to First Union for collection and therefore not presented for payment. In other words, did the parties agree that First Union was to pay upon the Check if and when there were sufficient fun ds in Ameriplex's account to cover the Check. We find that the pa

rties did reach suc

h an agreement

, in accordance w

ith Florida law, and therefore, the midnight deadline rule is not applicable. A. The midnight dea

dline rule provides th

at a payor bank 4 that is presented 5 a check must return the check before midnight of the following banking day in order to revoke settlem

ent; otherwise, t

he payor bank is li

able for the am

ount of the check. See

Fla. Stat. ch. 674.302 (2002). 6 This rule, by its own terms, appliesdraft, whether properly pay able or not, if the bank, in any case in which it is not also a depositary bank, retains the item bey ond midnight of the banking day of receipt without settling for it or, whether or not it is also the depositary bank, does not pay or return the item or send notice of dishonor until after its midnight deadline. Fla. Stat. ch. 674. 302. In other w ords, a pay

or bank that is pre

sented a check f

or payment m

ust return the check before midnight of the following banking day in order to revoke settlement. Otherwise, the payor bank is liable for the amount of the check. " Payor bank" is defined infra , at n.4.

7 "Collecting bank" is defined by UCC Article 4 as "a ba nk handling an item for collection except the payor bank." Fla. Stat. ch. 674.105(5).

8 "Drawee" is defined as "a person ordered in a dra ft to make payment." Fla. Stat. ch. 673.1031(1)(b). 10 only to (1) pay

or banks (2) that ar

e presented checks

for payme

nt. It does not apply to collect

ing banks. 7 In other words, in asmuch as an ite

m is sent to a bank for collection and no

t presented for pay

ment, the bank receiving the chec k for collection is not a pay

or bank, but a collec

ting bank, and there fore, the mid night deadline is not applicable. SCADIF argues

that the plain languag

e of the Check, w

hich unambiguously designates First Union as the drawee, 8 combined with t he plain language of A

rticle 4, which defines "payor bank" as the "bank that is the drawee of the draft," see supra n.4, and "collect

ing bank" as any ba

nk handling a check for

collection "except the payor bank," see supra n.7, necessaril y suggests that Fi

rst Union is the payor bank and therefore subject to the midnight deadline rule. We disagree, as9 Under UCC Article 4, as adopted in Fl

orida, a collect

ing bank is an ag

ent for its customer. Fla. Stat. ch. 674.201(1). Therefore, with regard to all of Banque F rancaise's actions with respect to the Che ck, Banque Francaise was acting as an agent for SCADIF. 11 this analysis fa

ils to consider that U

CC provisions ma

y be varied by

agreement of the parties. The Florida UCC

provides that partie s may vary provisions of the UCC

by agreement. See Fla. Stat. ch.671.102(3) (providing that "[t]he eff

ect of provisions of this code may

be varied by agr

eement"); see also, e.g. , Miller v. Econ. Lab., Inc. , 410 So.2d 642, 642 ( Fla. Dist. Ct. App. 1982). Ther efore, if SCA

DIF and First Union agree

d that Banque Franc aise, SCADIF 's agent, 9 sent the Check to First Union for Fir

st Union to pay if

and when there we

re sufficient fund

s in Ameriplex's

account to cover the

Check, then First

Union was acting a

s a collecting bank and the

refore not subjec

t to the midnight de

adline rule. W

e must decide if the parties did so agree. B. "Agreement" is defined by the UCC as "the bargain of the parties in fact as found in their language

or by implication from othe r circumstances including course of dealing or

usage of trade or course of perform ance as provided in th

is code." Fla. Sta

t. ch. 671.201(3).

Therefore, w

e may consi

der course of deal

ing, usage of trade, a

nd course of perfor

mance in deter

mining whether

the parties ma

de12

an agreement to vary the provis ions of the UCC. There was testimony at trial that when a check and a collection letter are transmitted together, they are readily recognized in the banking industry as an item known as a "clean c

heck collection." Because it is a col lection item,

the bank to whom it is sent is

a collecting bank and

therefore not subj ect to the midnig ht deadline rule, as thi s rule is limited by its own te rms to payor banks. See Fla. Stat. ch. 674.302. This

evidence of usage of

trade was proper

ly considered by

the district court in determining that the parties reached an agreement that the Check was being sent for collection. SCADIF argues that if such evidence of usage of trade is permitted to vary the provisions of the UCC, the result is that (1) no matter what a collection letter says, a ch eck will never b e subjec t to the midnigh t deadl ine rul e if pres ented b y a foreign bank, and (2) no foreign bank can ever present a check as a demand item by mail dire

ctly to a pay

or bank because the d

irect presentm

ent of the check wou

ld change the nature of

the check and constit

ute a "clean check

collection." The se assertions are er

roneous, as SCAD

IF is suggesting that th

e method of pre sentment is determinative to the c lassification of th e item. Only if the par

ties reach an agre

ement that the c

heck is being sent for collection does the de

mand item b ecome a "clean check collection " item. Mere ly10 The Eleventh Circuit is bound by cases decided by the Fifth Circuit prior to the creation of the Eleventh Circuit. Bonner v. City of Pritchard, Ala. , 661 F.2d 1206, 1207 (11th Cir. 1981). 13 because (1) the par

ty presenting the

check is foreign,

or (2) the party

directly presents the check, it does not follow that an agreement for a “clean check collection” autom

atically resul

ts. An agreem

ent is required to va

ry the term

s of the UCC; therefo

re, whether the

parties reached a

n agreement is

determinative

to whether the item

was presented for

collection, not the nature of the prese ntment. Contrary to SCADIF's allegation, it was not a check alone whose "nature" was changed; this w

as the Check plus the Collection Letter, and the Collection Letter was base

d on a telephone conver

sation between Ban

que Francaise and First Union. These ac

tions, combined with the usage of tr ade, support our conc

lusion that the Check was sent to First Union f or collection, base

d on an agreeme

nt of the parties. Further, binding pr

ecedent in this circ

uit 10 holds that the mid

night deadline rule does not appl y to demand items sent to or left with a bank for collection

. See Western Air & Refrigeration, Inc. v. Metro Bank of Dallas , 599 F.2d 83 (5th Cir. 1979). Although the c

hecks at issue in Western Air were dishonored as demand items first and then became coll ection items, id. at 86, there is no reason why an item initially submitted for collection should be treated differently under Article 414

than one initially

presented for pay

ment. The midnight deadline rule is not applicable because the parties agreed that the Check at issue w

as sent to First Unio

n as a collection ite

m and not present

ed for payme

nt. Therefore,

the district court pr

operly entere

d judgment for

First Union. III. Next, we review whether the district court erred in denying SCADIF' s motion for sanctions ag ainst First Union. SCADIF ar gues, inter alia , that First Union (1) conceale

d highly relevant

documents, and

(2) conspired with witness Professor Barkle

y Clark in his am

ending his treatise du

ring the pendency

of this trial to add a sectio

n providing specific f

actors a court should

consider in determining whether an item is sent for collection. We review a district court's decision whether to impose sanctions for ab use of discretion. Barnes v. Dalton , 158 F.3d 1212, 1214 (11th Cir. 1998) (citation omitted). First, there is no dispute that First U nion failed to tim

ely produce cer

tain documents during t

he course of trial.The district court found these failure s to timely produce documents "a serious procedural and ethical violation, and one that cannot be dismissed lightly," and it included a written reprimand in its published decision. SCADIF v. Fir st Union Nat. Ban

k , 208 F.Supp.2d 1352, 1379 (S.D. Fla.15

2002). However, it also found that the relevant documents were of minim al relevance. Id. SCADIF has presented no evidence on appeal that suggests that these findings an d conclusions were an abuse of discretion

. With regard to Pr

ofessor Clark's a

mendments t

o his treatise during the pendency of this case, the district court found that although the amendments may have created an appearance of impropriety, there was "no actual prej udice" because: (1) the court did not rely on the treatise; (2) First Union never attempted to persuade the cour

t to rely on the tr

eatise; (3) First

Union never entere

d the treatise into evid ence; and (4) the court was aware of the amendments. Id. at 1380. Further, the

district court pointe

d out that SCADIF

"extensively ex

amined" Professor Clark, givi ng the court an opp ortunity to evaluate h is credibility. Id. SCADIF has pre sented no evidence to show that the distric t court abused its discretion in refus ing to impose monetary sanctio ns for Professor Clark 's actions. Therefore, w

e affirm the

district court's m

otion denying sanct

ions. IV. For the aforementioned reas ons, we affirm. AFFIRMED.