Dave & Buster's, Inc. v. White Flint Mall, LLP

Filing 36

MEMORANDUM OPINION AND ORDER denying 25 MOTION for Reconsideration re 21 Order on Motion to Dismiss,, Order on Motion for Summary Judgment, and if Denied, to Certify the March 24, 2014 Order as a Final Judgment and Stay the Order Pending Appeal. Signed by Judge Roger W Titus on 4/25/2014. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

DAVE & BUSTER’S, INC.,
Plaintiff,
v.
WHITE FLINT MALL, LLP,
Defendant.

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Case No. 13-cv-3390-RWT

MEMORANDUM OPINION AND ORDER

After a hearing held on March 21, 2014, this Court granted a motion by White Flint Mall,
LLP (“White Flint”) to dismiss Count 3 and Count 2 of Dave & Buster’s Complaint to the extent it
requests a preliminary injunction. ECF No. 21. The Court also adjudged and declared that: (1) the
Radius Restriction in Section 11.3 of the Lease between the parties is valid and enforceable; (2) the
Plaintiff violated Section 11.3 of the Lease by operating a restaurant-bar-entertainment- recreationamusement complex under the Dave & Buster’s Trade Name at Arundel Mills Mall in Hanover,
Maryland, a location within the radius area encompassed by Section 11.3, from at least 2006 to the
present; (3) the Defendant gave notice to the Plaintiff of its violation of Section 11.3 of the Lease on
or about September 5, 2012 in accordance with the provisions of Section 18.1 of the Lease,
demanding that the Plaintiff cure its ongoing breach of Section 11.3; (4) the Plaintiff failed to
remedy its breach of Section 11.3 within the thirty day period following the notice set forth in
Section 18.1 of the Lease; (5) the notice by the Defendant to the Plaintiff dated October 9, 2012 of
termination of the Lease was valid and effective; (6) the Defendant’s termination of the Lease for
the Plaintiff’s continuing violation of Section 11.3 of the Lease was not precluded by the statute of
limitations, waiver, estoppel, or laches; (7) there was insufficient evidence before the Court at the

time to permit the Court to further declare the rights of the parties with respect to any other
violations of the Lease by either party. Id.
On April 4, 2014, Dave & Buster’s filed a Motion for Reconsideration of the Court’s Order
adjudging and declaring the enforceability of the radius restriction clause and finding that Dave &
Buster’s breached that clause of the Lease. ECF No. 25. The Motion additionally requests that if
the Court declines to reconsider its ruling, it certify the Order as a final judgment and stay the Order
pending appeal. Id. On April 21, 2014, White Flint filed a response in opposition. ECF No. 30.
The next day, April 22, 2014, Dave & Buster’s filed a notice of interlocutory appeal to the United
States Court of Appeals for the Fourth Circuit. ECF No. 31.
The Court will deny the motion for reconsideration. The language of the Lease is clear and
unambiguous. These sophisticated parties negotiated for and agreed to the terms of the Lease and
the Court had a sufficient basis to find that the radius restriction clause is valid, enforceable and
has been breached. Dave & Buster’s admits to operating the business at the Arundel Mills location
continuously since 2006, a clear violation of that provision. The record also shows that White Flint
gave the requisite notice and opportunity to cure and that Dave & Buster’s did not do so. The
arguments made by Dave & Buster’s in its motion recite the same points that the Court already
addressed and decided at the hearing. The Court declines to reconsider its ruling at this time.
In order to certify the Court’s rulings for appeal under Federal Rule of Civil Procedure
54(b), the Court must determine that a judgment is “an ultimate disposition of an individual claim
entered in the course of a multiple claims action.” Braswell Shipyards, Inc. v. Beaser East, Inc., 2
F.3d 1331, 1335 (4th Cir. 1993). It must also consider whether there is no just reason for the delay
in the entry of judgment. Id. In making this determination, the Court can consider “whether the
claims under review were separable from the others remaining to be adjudicated and whether the
nature of the claims already determined was such that no appellate court would have to decide the
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same issues more than once even if there were subsequent appeals.” Curtiss-Wright Corp v.
General Elec. Co., 446 U.S. 1 (1980). Under applicable law, it is clear that this Court cannot certify
these issues for appeal. There has been no final disposition of any individual claim and the issues
previously decided remain intertwined with remaining claims and disputes between the parties.
A stay would also be inappropriate. A party seeking a stay in litigation “must show (1) that
he will likely prevail on the merits of the appeal, (2) that he will suffer irreparable injury if the stay
is denied, (3) that other parties will not be substantially harmed by the stay, and (4) that the public
interest will be served by granting the stay.” Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970).
Dave & Buster’s does not meet this standard and its motion will therefore be denied.
Accordingly, it is, this 25th day of April, 2014, by the United States District Court for the
District of Maryland,
ORDERED that the Motion for Reconsideration of this Court’s March 24, 2014 Order, and
if Denied, to Certify the March 24, 2014 Order as a Final Judgment and Stay the Order Pending
Appeal (ECF No. 25) is DENIED.

/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE

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