Dave & Buster's, Inc. v. White Flint Mall, LLLP
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 8:13-cv-03390-RWT Copies to all parties and the district court/agency. [999600171].. [14-1794]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1794
DAVE & BUSTER'S, INC.,
Plaintiff − Appellant,
v.
WHITE FLINT MALL, LLLP, f/k/a White Flint Limited Partnership,
Defendant − Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:13-cv-03390-RWT)
Argued:
May 12, 2015
Decided:
June 11, 2015
Before WILKINSON, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished opinion.
Judge Wilkinson wrote the
majority opinion, in which Judge Agee joined. Judge Wynn wrote
a dissenting opinion.
ARGUED: Edward Smith Scheideman, III, DLA PIPER LLP (US),
Washington, D.C., for Appellant. Albert David Brault, BRAULT &
GRAHAM, LLC, Rockville, Maryland, for Appellee. ON BRIEF: Paul
D. Schmitt, DLA PIPER LLP (US), Washington, D.C., for Appellant.
James M. Brault, BRAULT & GRAHAM, LLC, Rockville, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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WILKINSON, Circuit Judge:
This case arises from a Landlord-Tenant dispute at White
Flint Mall in Montgomery County, Maryland. Landlord White Flint
Mall sought to terminate its lease agreement with Tenant Dave &
Buster’s in 2012 in light of a prior and ongoing violation of
the radius restriction clause, which prohibited Dave & Buster’s
from operating a competing facility within the nearby geographic
area. Dave & Buster’s sought a declaratory judgment that the
termination was time-barred by the statute of limitations and
equitable
relief
agreement
between
in
the
the
form
of
parties.
specific
The
performance
district
court
of
the
granted
summary judgment for White Flint, finding that Dave & Buster’s
had
violated
the
radius
restriction
clause
and
that
White
Flint’s termination was therefore lawful, and not time-barred or
waived. Dave & Buster’s now appeals raising numerous arguments.
Because
those
arguments
all
seek
to
overlook
the
agreement
between the parties, we now affirm.
I.
In 1995, Dave & Buster’s entered into a lease agreement
with White Flint to open an entertainment-recreation-amusement
complex in the White Flint Mall in Montgomery County, Maryland.
The Lease was to last for a term of twenty years, with a right
to extend for three successive periods of five years. Included
in
the
provisions
of
the
agreement
2
was
a
radius
restriction
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clause,
in
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which
Dave
&
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Buster’s
agreed
to
refrain
from
operating a competing facility under the Dave & Buster’s Trade
Name within a given radius area. See J.A. 52 (Section 11.3).
At some point prior to April 2006, however, Dave & Buster’s
acquired a former Jillian’s location, which it rebranded and
began operating as Dave & Buster’s Grand Sports Café in the
Arundel Mills Mall in Anne Arundel County, Maryland. On April
13, 2006, White Flint Mall notified Dave & Buster’s that its
operation
of
the
Arundel
Mills
Mall
location
rendered
it
in
violation of the radius restriction clause in the 1995 Lease.
Although the map of the geographic area covered by the radius
restriction clause is not included in the record before this
court,
neither
party
contests
that
the
Arundel
Mills
of
“deference
Mall
location is within the covered area.
White
Flint
longstanding,
noted
mutually
that
out
beneficial
relationship
to
the
between
the
parties,” the company had “elected not to formally place Dave &
Buster’s in default under the Lease” even though “the Arundel
Mills
situation
Lease.”
J.A.
constitute[d]
130.
The
a
company
significant
did,
violation
however,
include
of
the
in
the
letter that “the Landlord reserves all of its rights under the
Lease
and
at
law
to
enforce
the
terms
of
the
Lease.”
Id.
Following this letter, both parties continued to engage in the
usual course of business under the Lease.
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September
5,
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2012,
however,
in
connection
with
redevelopment efforts at White Flint Mall, White Flint provided
Dave & Buster’s with formal notice demanding the company cure
the violation of the radius restriction clause within 30 days or
the
landlord
would
proceed
to
exercise
its
rights
under
the
contract. After the 30 day period had passed, on October 9, 2012
White Flint notified Dave & Buster’s that it had elected to
exercise its right to terminate the Lease under Section 18.1(c)
effective as of December 31, 2012. Id. at 134. Section 18.1(c)
allows the Landlord to terminate the Lease with 10 days’ notice
in the event that the Tenant was in default in the performance
of any of its covenants or agreements (other than payment of
rent) for a period of 30 days. Id. at 61.
Dave & Buster’s continued to operate and pay rent while the
parties attempted to negotiate a resolution to the dispute. The
discussions
did
not
result
in
a
satisfactory
outcome
and
on
October 17, 2013, White Flint sent a letter to Dave & Buster’s
stating that it was “no longer willing to refrain from enforcing
its right to possession of the Premises” and requesting Dave &
Buster’s vacate the property by the end of November. Id. at 139.
On
lawsuit
November
in
the
14,
2013,
district
of
Dave
&
Maryland
Buster’s
initiated
seeking
declaratory
this
and
injunctive relief. The Complaint pled three counts. It sought a
declaratory judgment on whether White Flint’s claim of breach of
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contract
was
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time-barred
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by
the
statute
of
limitations,
requested specific performance of the Lease and a preliminary
injunction to that effect, and asserted breach of the implied
covenant of good faith and fair dealing. White Flint in response
moved to dismiss, or in the alternative for summary judgment.
Dave & Buster’s crossed moved for summary judgment only on the
issue of the statute of limitations.
The
district
court,
after
a
hearing,
granted
partial
summary judgment to White Flint on March 24, 2014 with regard to
Count One, finding the company’s breach of contract claim was
not precluded by the statute of limitations or any theory of
waiver and that the radius restriction clause was enforceable
and breached by Dave & Buster’s. It further dismissed Dave &
Buster’s request for a preliminary injunction that would enable
it to continue operation at White Flint Mall notwithstanding the
radius restriction clause. Further, the court rejected any claim
that White Flint had breached an implied covenant of good faith
and fair dealing. On July 22, 2014, the court dismissed the
outstanding claims, finding the Lease properly terminated, and
ruled on a counterclaim for possession of the property filed by
White
Flint
in
answer
to
the
initial
Complaint,
awarding
possession of the premises to White Flint.
On July 29, 2014, Dave & Buster’s filed a Motion to Alter
or Amend a Judgment arguing that the district court erroneously
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stated that it had “abandoned any claim for damages arising out
of any violation of the express terms of the Lease between the
parties.” Id. at 418. The district court denied the motion on
August 8, 2014. Dave & Buster’s now appeals.
II.
A.
Dave & Buster’s primary contention is that the statute of
limitations
has
run
on
White
Flint’s
claim
for
breach
of
contract. The company argues that the district court erred when
it refused a declaratory judgment on the question and granted
summary judgment for White Flint. We disagree. Because Dave &
Buster’s actively continued to breach a contract that was still
valid and in effect, White Flint’s action did not run afoul of
the statute of limitations.
Under
Maryland
limitations
law,
question,
a
which
civil
governs
action
“shall
the
be
statute
filed
of
within
three years from the date it accrues unless another provision of
the Code provides a different period of time within which an
action shall be commenced.” MD. CODE ANN., CTS. & JUD. PROC. § 5101.
Maryland
strictly.
See
courts
Murphy
construe
v.
the
Merzbacher,
statute
697
A.2d
of
limitations
861,
865
(Md.
1997). Traditionally, the statute of limitations for a claim of
breach of contract begins to run when the contract has been
breached and “the breach was or should have been discovered.”
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Jones
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v.
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Hyatt
Ins.
Agency,
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Inc.,
741
A.2d
1099,
1104
(Md.
1999); see also Mayor of Federalsburg v. Allied Contractors,
Inc., 338 A.2d 275, 280 (Md. 1975) (“In contract cases, the
general rule is that the period of limitations begins to run
from the date of the breach.”).
Here, there is no factual dispute surrounding the conduct
constituting the breach -– the opening of a Dave & Buster’s
facility in Arundel Mills Mall in violation of Section 11.3 of
the Lease – so the question of accrual is one of law that we
decide de novo. See Litz v. Md. Dep’t of Env’t., 76 A.3d 1076,
1086 (Md. 2013). Dave & Buster’s argues that the facts before us
amount
to
a
single
breach
based
on
the
acquisition
and
rebranding of the Arundel Mills location from which consequences
continued
involve
to
the
flow.
We
disagree.
“continuing
effects
The
of
situation
here
a
earlier
single
does
not
act.”
MacBride v. Pishvaian, 937 A.2d 233, 240 (Md. 2007), overruled
on other grounds by Litz, 76 A.3d at 1090 n.9.
The Lease between White Flint and Dave & Buster’s imposed a
continuing obligation on the latter not to operate any competing
facilities within the radius restriction area so long as the
contract continued to be valid and the parties continued to do
business under its terms. The Maryland Court of Appeals has long
accepted
that
certain
covenants
imposing
ongoing
negative
obligations are covenants de die in diem and can be breached
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continuously, or on a daily basis. Kaliopulus v. Lumm, 141 A.
440 (Md. 1928). Such is the case here and we find that an action
for breach of contract accrued for so long as Dave & Buster’s
was in violation of the radius restriction clause through the
operation
of
the
Arundel
Mills
location.
In
a
case
of
this
nature, the statute of limitations may indeed operate to bar
recovery
of
damages
incurred
more
than
three
years
prior
to
suit, but it does not render the present action for an equitable
remedy time-barred. See Singer Co., Link Simulation Sys. Div. v.
Baltimore Gas & Elec. Co., 558 A.2d 419, 425-26 (Md. 1989).
In Kaliopulus v. Lumm, the Court of Appeals of Maryland
considered a question quite similar to the one before us today.
See
141
A.
at
442.
Appellant
James
Kaliopulus
sold
his
Hagerstown restaurant to Mr. and Mrs. Charles E. Lumm on the
contractual condition that he would not “enter into, conduct, or
finance
any
restaurant
or
dining
room
business
within
the
corporate limits” of the city for a period of ten years. Id.
When
Kaliopulus
breached
this
contractual
obligation
by
financing a new restaurant on the very same street as the one he
sold, the Court found that the specific relief sought by the
buyers
was
not
subject
to
the
8
equitable
doctrine
of
laches
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despite the passage of five years time. 1 Id. at 445-46. Rather,
the Court explained that continued operation of the competing
restaurant constituted a breach de die in diem such that “each
successive breach in the course of the continuing or recurring
breaches was constantly creating fresh causes of action.” Id. at
445.
Appellant makes much of the fact that this case was decided
nearly a century ago and concerned the equitable doctrine of
laches rather that the statute of limitations, but we find that
of no moment. The case remains good law and demonstrates that
under
Maryland
law,
the
continued
operation
of
a
competing
enterprise can constitute a continuous breach of a contractual
obligation so long as the contract under which the obligation
arose is valid and in effect. Furthermore, in 1989, the Court of
Appeals
underscored
that
“where
a
contract
provides
for
continuing performance over a period of time, each successive
breach of that obligation begins the running of the statute of
limitations
anew,
continuously.”
with
the
result
Singer,
558
A.2d
being
at
that
426;
accrual
see
also
occurs
Indian
Territory Illuminating Oil Co. v. Rosamond, 120 P.2d 349, 352
(Okla. 1941) (“[T]he right to maintain an action for its breach
1
The sale was executed pursuant to a specialty contract
such that the applicable statute of limitations was twelve
years. Kaliopulus, 141 A. at 445.
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continues
so
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long
as
the
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breach
continues
and
plaintiff
is
damaged thereby. . . . The rule is that a breach of a continuing
covenant gives rise to a cause of action each day the breach
continues.”) (rationale adopted by Court of Appeals of Maryland
in Singer, 558 A.2d at 425).
It is not difficult to see why the resolution of the case
at bar comports with Maryland law. Dave & Buster’s was under a
continuing obligation, so long as the Lease was valid and the
parties continued to do business under its terms, to refrain
from
operating
any
competing
facilities
within
the
radius
restriction area. It was not merely the opening of the facility,
but its daily operation that constituted a continued breach of
the agreed-to contract.
Furthermore, this finding also mirrors what Maryland courts
have concluded in the tort context. The Court of Appeals has
rejected
a
continuing
tolling
the
statute
breach
of
theory
limitations
where
the
grounds
were
“ongoing
for
adverse
consequences” but not ongoing adverse conduct. Litz, 76 A.3d at
1089 (internal quotations omitted). What is at issue before this
court is not merely adverse effects allegedly suffered by White
Flint Mall but rather an adverse course of conduct that Dave &
Buster’s engaged in every day the competing facility was open
for business as a challenger to the White Flint location.
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We think it important to note, however, that Maryland’s
theory of continuing breach of contract is a limited one. Here,
the party to the contract that committed the breach was subject
to an ongoing obligation to refrain from certain conduct and
repeatedly or continuously engaged in that very conduct while
the contract remained in effect. We do not, however, read the
Court of Appeals of Maryland to be endorsing a wide-reaching
continuous
breach
exception
to
the
statute
of
limitations.
Statutes of limitations “represent a public policy about the
privilege
to
litigate”
and
“find
their
justification
in
necessity and convenience . . . [in order to] spare the courts
from litigation of stale claims.” Chase Sec. Corp. v. Donaldson,
325 U.S. 304, 314 (1945). Here, the facts do not present a
single, isolated breach. Every day that Dave & Buster’s operated
the Arundel Mills Mall facility in direct competition with the
White Flint Mall location constituted a breach of the ongoing
contract between the parties such that accrual of the statute of
limitations began anew. Thus, we do not find the action for
termination of the Lease by White Flint Mall to be time-barred
by the statute of limitations.
B.
Dave & Buster’s next contends that White Flint waived its
right
to
termination
of
the
Lease
by
continuing
performance
under the contract after learning of the breach. However, in its
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April 2006 letter, White Flint notified Dave & Buster’s that it
believed
the
“constitute[d]
“clearly
operation
a
of
the
Arundel
significant
advise[d]
violation
[Dave
Buster’s]
&
of
Mills
the
that
location
Lease”
the
and
Landlord
reserve[d] all of its rights under the Lease and at law to
enforce the terms of the Lease.” J.A. 130. In addition, the
Lease
agreement
contains
an
express
non-waiver
provision.
Because White Flint clearly and explicitly reserved its rights
under the Lease, we find that there was no waiver and summary
judgment was properly granted on this issue.
The Court of Appeals of Maryland defines waiver as “the
intentional relinquishment of a known right, or such conduct as
warrants an inference of the relinquishment of such right.” Food
Fair Stores, Inc. v. Blumberg, 200 A.2d 166, 172 (Md. 1964).
Waiver “may result from an express agreement or be inferred from
circumstances.” Id.; see also John B. Robeson Assocs., Inc. v.
Gardens of Faith, Inc., 172 A.2d 529, 533 (Md. 1961) (“There are
few principles of contract law better established . . . than
that a party to an executory bilateral contract, who keeps the
same in existence after a known breach by the other party and
accepts further performance from the party who has committed the
breach, waives the breach.”).
However, as the Court of Appeals has made clear, waiver is
not always mandated in a situation where the parties continue to
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business.
To
“avoid
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waiver,
a
party
must
assert[]
his
intention to retain the rights accruing to him as a result of
said breach.” Hovnanian Land Inv. Grp., LLC v. Annapolis Towne
Centre at Parole, LLC, 25 A.3d 967, 980 n.17 (Md. 2011) (citing
Pumphrey
v.
Pelton,
245
A.2d
301,
304
(Md.
1968))
(internal
quotations omitted) (brackets in original). The intent to waive
a contractual provision “must be clearly established and will
not
be
inferred
from
equivocal
acts
or
language.”
Myers
v.
Kayhoe, 892 A.2d 520, 531 (Md. 2006). Here, for the reasons
noted above, the record is clear. In light of the undisputed
material facts before us, no rational factfinder could find that
White Flint intended to waive its right to enforce the terms of
the Lease, including the non-waiver provision and the radius
restriction clause.
Dave & Buster’s argues that the continued performance under
the contract constitutes a waiver of White Flint’s rights to
terminate
the
Lease
for
violation
of
the
radius
restriction
clause. The continued acceptance of rent after the breach of a
covenant may, in some cases, be considered evidence of intent to
waive
Corp.,
a
breach
371
A.2d
of
contract
124,
127
claim.
(Md.
See
1977).
Chertkof
However,
v.
it
Southland
“does
not
establish waiver as a matter of law.” Id. Maryland law “treat[s]
the question of waiver of a breach by the acceptance of rent as
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matter
of
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intent,
which
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necessarily
turns
on
the
factual
circumstances” of the case. Id.
In
considering
the
factual
circumstances
here,
it
is
important to reemphasize that the Lease agreement between White
Flint
and
Dave
&
Buster’s
contains
an
express
non-waiver
provision. Section 20.3 of the contract states that “[f]ailure
of either party to complain of any act or omission on the part
of the other party, no matter how long the same may continue,
shall not be deemed to be a waiver of said party of any of its
rights hereunder.” J.A. 66. As with any provision, “waiver of
[the non-waiver] clause may be implied from the very actions
which imply waiver of the condition precedent.” Hovnanian, 25
A.3d
at
985.
However,
to
defeat
summary
judgment,
Dave
&
Buster’s would have had to produce evidence that White Flint
intended
to
waive
Section
20.3
in
addition
to
the
radius
restriction clause. This it cannot do.
The evidence here is clear that White Flint intended to
reserve
Although
its
right
White
to
Flint
enforce
the
continued
to
radius
accept
restriction
rent
from
clause.
Dave
&
Buster’s location at White Flint Mall, it plainly explained in
the April 2006 letter that it was choosing not to pursue its
remedies under the Lease at that time only out of “deference to
the longstanding, mutually beneficial relationship between the
parties.” J.A. 130. It “clearly advise[d] [Dave & Buster’s] that
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the Landlord reserve[d] all of its rights under the Lease and at
law
to
enforce
the
terms
of
the
Lease.”
Id.
Following
this
letter, Dave & Buster’s was on notice that at any point in the
future White Flint might seek to enforce the radius restriction
clause
with
regard
to
the
Arundel
Mills
location.
Dave
&
Buster’s took no action to conform its behavior to the terms of
the
contract
for
seven
years,
instead
choosing
to
enjoy
the
benefits of operating both facilities. However, it also assumed
the risks associated with that business decision, namely that
White
Flint
could
still
elect
to
pursue
its
bargained-for
remedies under the Lease.
In 2012, when White Flint did choose to terminate the Lease
and
resume
possession
of
the
property,
the
downside
of
Plaintiff’s business decision came to pass. But that does not
permit the courts to confer on Dave & Buster’s a benefit that
the contract did not provide. On the record here, there is no
issue of triable fact such that a reasonable jury could conclude
that the evidence “amount[s] to an understanding between the
parties that the [radius restriction] condition would no longer
be
enforceable.”
Hovnanian,
25
A.3d
at
984.
Thus,
summary
judgment was properly granted on the question of waiver. 2
2
Our colleague in dissent argues that the facts here could
amount to waiver, relying on asserted similarities between the
facts at bar and those in Chertkof v. Southland Corp., 371 A.2d
(Continued)
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III.
A.
Dave
&
Buster’s
primary
contentions
in
this
action
are
procedural, namely that the statute of limitations bars White
Flint’s
ability
alternative,
waived.
On
to
that
the
terminate
any
claim
merits,
the
for
Dave
&
the
contract
breach
Buster’s
also
and,
of
in
the
contract
was
challenges
the
district court’s grant of summary judgment for White Flint on
the
question
of
whether
the
radius
restriction
clause
was
enforceable and breached by Dave & Buster’s.
The
district
court
did
not
err
when
it
granted
summary
judgment in White Flint’s favor on the issue. We review a grant
of summary judgment de novo. Nguyen v. CNA Corp., 44 F.3d 234,
236 (4th Cir. 1995). Summary judgment is proper where “there is
no genuine dispute as to [any] issue of material fact.” Id. at
236-37; see also FED. R. CIV. P. 56(a). The radius restriction
clause at issue in this case is a straightforward restrictive
124 (Md. 1977). The Maryland Court of Appeals noted in Chertkof,
however, one important difference between our case and theirs:
the unilateral nature of the reservation of rights. It explained
that “the inference of intent to waive, arising from the
acceptance of rent, [can be] rebutted by the express agreement
between the parties.” Chertkof at 128. Such is the case here.
The previously agreed-to express non-waiver clause combined with
the express reservation of rights at the time of the breach
provides clear and indisputable evidence that White Flint did
not intend to waive the breach.
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covenant of a kind often enforced by Maryland courts where there
is a “significant economic purpose” to the covenant. See, e.g.,
Diamond Point Plaza Ltd. P’ship v. Wells Fargo Bank, N.A., 929
A.2d 932, 952 n.7 (Md. 2007) (noting that radius restriction
clauses
are
“in
the
nature
of
restraints
on
trade
and
competition, which are to be narrowly construed” but are often
upheld).
The
language
of
the
provision
here
is
clear
and
unambiguous. Dave & Buster’s was obligated “not to operate a
restaurant-bar-entertainment-recreation-amusement
complex
under
the Dave & Buster’s Trade Name within the radius area.” J.A. 52.
It is undisputed that the Arundel Mills Dave & Buster’s location
was within the radius restriction area, and thus in violation of
the
provision.
Furthermore,
the
language
at
issue
is
very
similar to that which the Maryland Court of Appeals upheld in
Diamond Point Plaza. See 929 A.2d at 950. As the Court observed,
“it would seem clear that the purpose of the radius restriction
was
to
protect
the
percentage
rent
by
precluding
competing
operations within the same market area that might siphon sales.”
Id. at 952 n.7.
Both
Dave
&
Buster’s
and
White
Flint
are
sophisticated
business entities and radius restriction clauses are common in
commercial
evident
leases.
here.
The
The
significant
Lease
is
for
17
economic
the
purpose
operation
of
is
a
self-
Dave
&
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Buster’s facility in the White Flint Mall and provides White
Flint with a percentage of the operation’s sales. It does not
require
expert
testimony
to
determine
that
another
Dave
&
Buster’s, which is a unique entertainment experience, operating
nearby would affect the number of customers visiting the White
Flint Mall location.
Dave & Buster’s argues on appeal that the provision was
unenforceable,
support
such
but
an
failed
to
the
“[T]here
allegation.
brief
is
necessary
no
issue
facts
for
to
trial
unless there is sufficient evidence favoring the nonmoving party
for a jury to return a verdict for that party.” Anderson v.
Liberty Lobby, Inc., 447 U.S. 242, 249 (1986); see also Celotex
Corp.
v.
Catrett,
477
U.S.
317,
322
(1986)
(finding
summary
judgment proper against “a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case”).
Here, Dave & Buster’s cannot point to any
genuine issues of fact that exist to support a finding that the
clause lacked significant economic purpose, or was overly broad,
or
unduly
burdensome.
Thus,
summary
judgment
was
properly
granted for White Flint.
B.
Dave & Buster’s further argues that summary judgment was
improperly granted because the parties had not been allowed to
undertake
discovery
and
relatedly,
18
that
the
district
court
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abused its discretion in not granting Dave & Buster’s Rule 56(d)
request for discovery, which it filed as part of its motion for
reconsideration. We address these two interconnected arguments
in turn.
As a general matter, of course, summary judgment is to be
“refused where the nonmoving party has not had the opportunity
to discover information that is essential to his opposition.”
Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244
(4th
Cir.
2002)
(quoting
Anderson,
447
U.S.
at
250
n.5).
However, the party opposing summary judgment “cannot complain
that summary judgment was granted without discovery unless that
party ha[s] made an attempt to oppose the motion on the grounds
that
more
time
was
needed
for
discovery
.
.
.
before
the
district court ruled.” Evans v. Techs. Applications & Serv. Co.,
80 F.3d 954, 961 (4th Cir. 1996).
Generally such an attempt is made through the filing of a
Rule 56(d) affidavit that outlines the need for discovery and
what
additional
facts
litigants
hope
to
uncover
through
discovery to properly defeat summary judgment. See id. Although
this court has found that filing an affidavit is not a necessary
condition of obtaining discovery prior to summary judgment, we
have repeatedly “warned litigants that we ‘place great weight on
the [Rule 56] affidavit’” and that “’the failure to file an
affidavit under [Rule 56] is itself sufficient grounds to reject
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a claim that the opportunity for discovery was inadequate.’”
Harrods Ltd., 302 F.3d at 244 (quoting Evans, 80 F.3d at 961).
Dave & Buster’s failed to make the case for why discovery was
necessary prior to a grant of summary judgment. Dave & Buster’s
did not file a Rule 56(d) affidavit until April 4, 2014, almost
two weeks after the district court granted summary judgment in
White Flint’s favor. J.A. 308-11.
In
party’s
Harrods,
this
objections
functional
court
before
equivalent,”
a
found
where
“the
district
the
that
court
served
Rule
56(d)
affidavit
nonmoving
may
as
the
not
be
necessary. Id. at 244-45 (internal quotations omitted) (quoting
First Chicago Int’l v. United Exch. Co. Ltd., 836 F.2d 1375,
1380
(D.C.
nothing
more
memorandum
“further
Cir.
1988)).
than
in
a
here,
conclusory
opposition
factual
But
to
development
Dave
statement
summary
of
the
&
Buster’s
at
the
end
included
of
its
judgment
arguing
that
record
regarding
the
reasonableness of the radius restriction” was needed. J.A. 172.
This is not the equivalent of a Rule 56(d) affidavit, nor
does it provide reasonable “notification and explanation” for
why more time for discovery was necessary or what the parties
intended to discover that was not yet in the record. Evans, 80
F.3d
at
961;
see
also
Harrods
Ltd.,
302
F.3d
at
244
(“[R]eference to [Rule 56] and the need for additional discovery
in a memorandum of law in opposition to a motion for summary
20
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judgment
is
Filed: 06/11/2015
not
affidavit.”).
an
As
adequate
explained
Pg: 21 of 29
substitute
above,
the
for
court
a
[Rule
properly
56(d)]
granted
summary judgment on the enforceability of the radius restriction
clause given the record before it. Only after the court granted
summary judgment for White Flint did Dave & Buster’s file its
Rule
56(d)
affidavit.
J.A.
308-11.
This
was
too
little,
too
abused
its
late.
Secondly,
we
do
not
find
the
district
court
discretion in denying Dave & Buster’s request for discovery as
part of its motion for reconsideration of the grant of summary
judgment. It is within the district court’s discretion to deny
such a request for discovery where “the information sought would
not by itself create a genuine issue of material fact sufficient
for
the
nonmovant
to
survive
summary
judgment.”
Strach, 743 F.3d 927, 931 (4th Cir. 2014).
sought
to
prove
speculative
as
to
through
any
additional
specific
facts
Pisano
v.
What Dave & Buster’s
discovery
that
was
might
largely
support
a
finding that the radius restriction clause was unenforceable. It
was
not
an
conclusions
abuse
regarding
of
discretion
summary
to
judgment
refuse
on
the
to
reconsider
basis
of
only
“vague assertions” about what possible facts might be discovered
to support Dave & Buster’s claim. Nguyen, 44 F.3d at 242.
21
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IV.
In addition to its request for additional discovery, Dave &
Buster’s
also
included
in
its
motion
for
reconsideration
an
argument that it had a right to cure under Section 18.1 of the
Lease.
It
now
argues
that
the
district
court
erred
when
it
denied the opportunity to cure and found the Lease was validly
terminated. We disagree.
Section 18.1 of the Lease provides in relevant part that in
the event of a default by Dave & Buster’s in the performance of
its covenants or agreements (other than payment of rent), the
company would have thirty days after notice in writing of the
default to cure. J.A. 61-62. In addition, where “there is a bona
fide dispute . . . [Dave & Buster’s would be able to] cure any
default at any time prior to final adjudication by a court of
competent
jurisdiction,”
through
the
payment
of
monetary
damages. Id. at 62-63.
The district court did not err in denying Dave & Buster’s
the
opportunity
to
cure.
Dave
&
Buster’s
chose
not
to
cure
following initial notice of default in 2006 or after subsequent
notice that White Flint intended to pursue its bargained-for
remedies under the Lease in 2012. By the time the company made
the argument that it had a right to cure, the parties were
months
into
litigation.
White
Flint
had
already
elected
to
terminate the Lease, a decision which the district court upheld.
22
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Furthermore, the language of the Lease itself makes clear
that only where there is a “bona fide dispute” could Tenant cure
at a point later than 30 days after notice of default. Here,
however, the parties agree that the Arundel Mills location was
in fact a violation of the terms of the Lease. In addition, the
district judge had upheld the radius restriction clause as valid
and found Dave & Buster’s had defaulted on its obligation when
it opened the Arundel Mills location. We do not think the mere
fact of litigation is what the parties intended by “bona fide
dispute.” As such, we cannot find that the district court erred
in refusing to allow Dave & Buster’s to cure at the eleventh
hour of litigation a violation that was over seven years in the
making.
V.
We have reviewed the various claims pressed by Plaintiff
and find no merit in them. 3 Dave & Buster’s violated the radius
restriction clause in its agreement with White Flint Mall and
made the business decision that it was worth the risk to operate
both
facilities
elected
to
for
pursue
as
its
long
as
possible.
properly-reserved
3
When
rights
White
under
Flint
the
We do not think the district court abused its discretion
in denying Dave & Buster’s Rule 59(e) Motion to Alter or Amend
Judgment and we affirm its ruling that Dave & Buster’s has
abandoned any claim for damages arising out of a violation of
the express terms of the Lease.
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contract, the district court enforced the contract’s terms as
written. For the foregoing reasons, its judgment is affirmed.
AFFIRMED
24
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WYNN, Circuit Judge, dissenting:
I
agree
with
the
majority’s
conclusion
that
the
radius
restriction is enforceable and that Dave & Buster’s breached it.
But I disagree with the majority’s conclusion that “no rational
factfinder could find that White Flint intended to waive its
right to enforce the terms of the Lease.”
Ante at 13.
I
believe that a rational factfinder viewing all of the facts in
the light most favorable to Dave & Buster’s could determine that
White
Flint
waived
waiver clause.
both
the
radius
restriction
and
the
non-
I therefore respectfully dissent.
I.
To survive summary judgment, Dave & Buster’s needed only to
marshal evidence that would allow a rational factfinder to find
that White Flint waived both the radius restriction and the nonwaiver clause.
See Hovnanian Land Inv. Grp., LLC v. Annapolis
Towne Ctr. at Parole, LLC, 25 A.3d 967, 987 (Md. 2011); see also
Smith v. Comair, Inc., 134 F.3d 254, 256 (4th Cir. 1998) (noting
that we view the facts at summary judgment in the light most
favorable to the nonmoving party).
the
opposite
conclusion,
the
This it did.
majority
opinion
In reaching
oversimplifies
Maryland’s waiver inquiry by granting outsized importance to the
fact that White Flint reserved its rights under the Lease and by
failing
to
articulate
why
the
same
25
facts
that
could
support
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waiver
of
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the
radius
Pg: 26 of 29
restriction
clause
cannot
also
support
waiver of the non-waiver clause.
A.
Under
rent
Maryland
constitutes
intent.
1977).
a
law,
whether
waiver
is
a
the
continued
acceptance
of
question
of
fact-intensive
See Chertkof v. Southland Corp., 371 A.2d 124, 127 (Md.
The continued acceptance of rent does not constitute a
waiver as a matter of law.
reservation
of
rights
Id.
In a similar vein, a unilateral
under
a
enforceable as a matter of law.
lease
is
not
necessarily
See id. at 127–8.
Chertkof is
instructive in this regard.
Chertkof involved a commercial lease with a percentage-rent
clause that guaranteed the lessor a certain percentage of the
lessee’s gross sales.
371 A.2d at 125.
The lease also included
a provision that required the original lessee to receive written
approval before subleasing or assigning the lease to another
party.
first
Id.
The lessee subleased and assigned the lease without
receiving
written
consent.
Id.
at
125–26.
When
the
lessor discovered the assignment, it declared the lease “null
and void and cancelled” due to the breach of the lease terms.
Id. at 126.
The lessor’s agent also wrote a letter specifying
that continued acceptance of rent should not be construed as a
waiver.
Id.
26
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The trial court held that the lessee breached the lease
provision requiring written consent.
found,
despite
the
lessor’s
Id. at 126.
relatively
speedy
But it also
filing
of
an
ejectment action and its express statement disavowing waiver,
that the lessor had waived its “right to a forfeiture of the
estate granted by the lease.”
Id. at 127.
The Maryland Court
of Appeals affirmed based on the acceptance of rent and monthslong negotiations for a new lease.
The facts of this case bear a more-than-passing resemblance
to the Chertkof facts: (1) The Lease included a percentage rent
clause, which gave White Flint an economic interest in Dave &
Buster’s performance, J.A. 33; (2) Dave & Buster’s breached a
lease
provision
designed
to
protect
White
Flint’s
economic
interest; (3) White Flint promptly notified Dave & Buster’s of
the breach and unilaterally reserved its rights under the lease; *
(4) White Flint continued to accept rent; and (5) White Flint
engaged in months-long negotiations (October 2012–October 2013)
with Dave & Buster’s before threatening to take legal action
unless Dave & Buster’s vacated the premises.
Indeed, the main
difference between this case and Chertkof is the length of time
*
White Flint’s April 2006 letter was a unilateral
reservation of its rights under the lease, and this reservation
is quite distinct from the (waivable) non-waiver clause
discussed below.
“Had the reservation been the subject of
express agreement, a different result might have obtained.”
Chertkof, 371 A.2d at 128.
27
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between the initial notice of breach and the threat of legal
action; instead of waiting months, White Flint waited more than
six years.
It is difficult to square Chertkof with the majority
opinion’s holding that no rational factfinder could find that
White Flint waived the radius restriction.
B.
To survive summary judgment, Dave & Buster’s must also show
that White Flint waived the non-waiver clause.
majority, “This it cannot do.”
Maryland
law
provides
Ante at 14.
that
the
According to the
Again, I disagree.
waiver
of
a
non-waiver
clause “may be implied from the very actions which imply waiver
of the condition precedent.”
at 985.
Hovnanian Land Inv. Grp., 25 A.3d
The non-waiver clause states that “[f]ailure of either
party to complain of any act or omission on the part of the
other party, no matter how long the same may continue, shall not
be deemed to be a waiver of said party of any of its rights
hereunder.”
J.A. 66.
To demonstrate waiver of this non-waiver
clause, Dave & Buster’s need only put forward facts showing that
White Flint waived some right by failing to complain.
This it
can do.
As the majority opinion observed, The Court of Appeals of
Maryland defines waiver as “the intentional relinquishment of a
known right, or such conduct as warrants an inference of the
relinquishment
of
such
right.”
28
Food
Fair
Stores,
Inc.
v.
Appeal: 14-1794
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Blumberg,
Filed: 06/11/2015
200
A.2d
166,
172
Pg: 29 of 29
(Md.
1964).
This
precisely
describes White Flint’s (in)action when it chose not to complain
about
the
radius
restriction
for
more
than
six
years.
Accordingly, I cannot agree with the majority that no rational
factfinder could find waiver of the non-waiver provision.
II.
Both
decisions.
Dave
&
Buster’s
and
White
Flint
made
business
Dave & Buster’s made the business decision to breach
the radius restriction.
White Flint made the business decision
to not enforce the radius restriction for more than six years.
To be sure, these business decisions are subject to contractual
agreement.
But
Maryland law.
that
contractual
agreement
is
subject
to
If, for example, White Flint had not waited so
long to enforce the radius restriction, perhaps my conclusion
would be different.
light
most
favorable
But because these facts, when taken in a
to
Dave
&
Buster’s,
could
support
a
rational factfinder’s determination that White Flint waived both
the radius restriction and the non-waiver clause, I respectfully
dissent.
29
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