UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.
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      in    the    form   of     specific        performance     of   the

agreement     between      the        parties.       The    district      court      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          was   a   radius   restriction

                                              2
clause,     in      which     Dave     &    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     Mall

location is within the covered area.

     White       Flint        noted        that       out     of    “deference       to       the

longstanding,          mutually       beneficial             relationship      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          constitute[d]         a   significant        violation    of      the

Lease.”    J.A.       130.    The    company          did,    however,    include     in      the

letter that “the Landlord reserves all of its rights under the

Lease    and     at    law    to    enforce        the      terms   of   the    Lease.”       

letter, both parties continued to engage in the

usual course of business under the Lease.

                                                  3
      On   September         5,    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. 

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. 

      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. 

      On   November     14,       2013,    Dave        &   Buster’s    initiated      this

lawsuit    in   the    district      of    Maryland        seeking    declaratory      and

injunctive relief. The Complaint pled three counts. It sought a

declaratory judgment on whether White Flint’s claim of breach of

                                               4
contract   was    time-barred        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

                                          5
stated that it had “abandoned any claim for damages arising out

of any violation of the express terms of the Lease between the

parties.” 

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        law,     which       governs       the        statute     of

limitations     question,       a    civil     action    “shall        be    filed   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. § 5-

101.    Maryland       courts       construe       the   statute        of    limitations

strictly.      See   Murphy     v.    Merzbacher,        

,    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.”

                                              

.     Hyatt      Ins.   Agency,     Inc.,     

,     1104    (Md.

1999); see also Mayor of Federalsburg v. Allied Contractors,

Inc., 

, 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., 

,

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       to      flow.   We   disagree.     The   situation     here     does    not

involve       the       “continuing     effects    of    a    single    earlier       act.”

MacBride v. Pishvaian, 

, 240 (Md. 2007), overruled

on other grounds by 

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

                                              7
continuously, or on a daily basis. Kaliopulus v. Lumm, 

(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., 

, 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.

.     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. 

        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    equitable    doctrine     of     laches




                                            8
despite the passage of five years time. 1 

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.” 

       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,    with   the   result    being   that     accrual     occurs

continuously.”        

;    see      also   Indian

Territory Illuminating Oil Co. v. Rosamond, 

, 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. 

.


                                        9
continues    so    long     as    the   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 

).

       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       breach     theory     where     the    grounds     for

tolling     the    statute        of    limitations      were     “ongoing       adverse

consequences” but not ongoing adverse conduct. 

(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.



                                             10
     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,

, 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

                                      11
April 2006 letter, White Flint notified Dave & Buster’s that it

believed    the      operation    of    the   Arundel        Mills      location

“constitute[d]    a     significant     violation    of   the     Lease”    and

“clearly    advise[d]     [Dave    &    Buster’s]     that      the    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, 

, 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., 

, 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

                                       12
do    business.            To   “avoid     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, 

, 980 n.17 (Md. 2011) (citing

Pumphrey      v.     Pelton,      

,       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, 

, 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    a    breach       of    contract    claim.        See     Chertkof     v.   Southland

Corp.,       

,    127    (Md.      1977).      However,     it     “does   not

establish waiver as a matter of law.” 

“treat[s]

the question of waiver of a breach by the acceptance of rent as



                                                13
a   matter        of   intent,      which      necessarily       turns    on    the    factual

circumstances” of the case. 

          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.” 

.       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      its       right   to    enforce     the       radius     restriction      clause.

Although      White       Flint      continued        to     accept    rent     from   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

                                                14
the Landlord reserve[d] all of its rights under the Lease and at

law   to    enforce   the   terms        of    the    Lease.”      

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.”      

.    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)
                                              15
                                           III.

                                            A.

      Dave    &   Buster’s       primary    contentions         in     this    action   are

procedural, namely that the statute of limitations bars White

Flint’s      ability      to     terminate        the    contract           and,   in   the

alternative,       that    any     claim    for    the   breach        of    contract   was

waived.     On    the    merits,    Dave    &     Buster’s      also    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., 

,

236 (4th Cir. 1995). Summary judgment is proper where “there is

no genuine dispute as to [any] issue of material fact.” 

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.


                                            16
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., 

, 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. 

. 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.”

n.7.

      Both    Dave    &    Buster’s        and     White      Flint       are    sophisticated

business entities and radius restriction clauses are common in

commercial     leases.      The      significant         economic         purpose      is      self-

evident     here.    The    Lease      is    for        the   operation          of   a    Dave   &

                                              17
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,         but    failed      to    brief     the    necessary      facts    to

support       such   an    allegation.         “[T]here   is    no     issue    for   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., 

, 249 (1986); see also Celotex

Corp.    v.    Catrett,      

,    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,       that     the    district      court

                                               18
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, 

, 244

(4th   Cir.   2002)    (quoting      

  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.,

, 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 

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

                                       19
a claim that the opportunity for discovery was inadequate.’”

Harrods 

(quoting 

).

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    Harrods,       this    court       found    that     where      “the       nonmoving

party’s      objections       before       the       district    court       served       as   the

functional      equivalent,”          a    Rule       56(d)     affidavit         may    not    be

necessary. 

(internal quotations omitted) (quoting

First Chicago Int’l v. United Exch. Co. Ltd., 

,

1380   (D.C.    Cir.     1988)).          But    here,    Dave    &     Buster’s        included

nothing      more    than    a     conclusory        statement     at       the   end     of   its

memorandum      in    opposition           to    summary        judgment      arguing          that

“further      factual        development         of      the    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. 

;     see        also    Harrods        

(“[R]eference to [Rule 56] and the need for additional discovery

in a memorandum of law in opposition to a motion for summary

                                                20
judgment       is        not      an     adequate        substitute        for    a     [Rule    56(d)]

affidavit.”).             As      explained          above,     the   court      properly       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

late.

       Secondly,             we     do    not    find     the    district        court      abused   its

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.”          Pisano    v.

Strach, 

, 931 (4th Cir. 2014).                                 What Dave & Buster’s

sought        to        prove       through          additional       discovery          was    largely

speculative             as     to    any       specific       facts     that     might      support    a

finding that the radius restriction clause was unenforceable. It

was     not        an     abuse          of     discretion       to     refuse        to    reconsider

conclusions             regarding           summary      judgment     on    the       basis     of   only

“vague assertions” about what possible facts might be discovered

to support Dave & Buster’s claim. 

.




                                                       21
                                          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. 

      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
       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   for   as    long   as   possible.   When     White    Flint

elected       to   pursue     its   properly-reserved       rights    under    the


       3
       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.


                                           23
contract, the district court enforced the contract’s terms as

written. For the foregoing reasons, its judgment is affirmed.



                                                         AFFIRMED




                               24
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   both    the       radius   restriction    and   the   non-

waiver clause.       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 non-

waiver clause.        See Hovnanian Land Inv. Grp., LLC v. Annapolis

Towne Ctr. at Parole, LLC, 

, 987 (Md. 2011); see also

Smith v. Comair, Inc., 

, 256 (4th Cir. 1998) (noting

that we view the facts at summary judgment in the light most

favorable to the nonmoving party).                     This it did.     In reaching

the   opposite      conclusion,         the    majority   opinion     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   facts   that   could    support

                                              25
waiver    of    the   radius    restriction         clause        cannot     also    support

waiver of the non-waiver clause.

                                           A.

       Under    Maryland    law,    whether         the    continued       acceptance       of

rent    constitutes     a   waiver    is        a    fact-intensive          question      of

intent.    See Chertkof v. Southland Corp., 

, 127 (Md.

1977).    The continued acceptance of rent does not constitute a

waiver as a matter of law.           

similar vein, a unilateral

reservation      of    rights      under    a        lease        is   not    necessarily

enforceable as a matter of law.                 See 

            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 

.             The lease also included

a provision that required the original lessee to receive written

approval before subleasing or assigning the lease to another

party.    

subleased and assigned the lease without

first    receiving     written     consent.          

         When   the

lessor discovered the assignment, it declared the lease “null

and void and cancelled” due to the breach of the lease terms.

      The lessor’s agent also wrote a letter specifying

that continued acceptance of rent should not be construed as a

waiver.    

trial court held that the lessee breached the lease

provision requiring written consent.            

    But it also

found,   despite     the   lessor’s   relatively   speedy     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.”          

      The Maryland Court

of Appeals affirmed based on the acceptance of rent and months-

long 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.”

.


                                      27
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.            According to the

majority, “This it cannot do.”      Ante at 14.     Again, I disagree.

     Maryland    law   provides   that   the    waiver   of   a    non-waiver

clause “may be implied from the very actions which imply waiver

of the condition precedent.”       Hovnanian Land Inv. 

.   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.”    Food    Fair    Stores,    Inc.   v.

                                   28
Blumberg,      

,      172        (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      Dave        &    Buster’s      and          White    Flint     made        business

decisions.      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       that    contractual              agreement    is     subject    to

Maryland law.         If, for example, White Flint had not waited so

long to enforce the radius restriction, perhaps my conclusion

would be different.               But because these facts, when taken in a

light   most    favorable             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.




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