                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1480



NATIONAL RAILROAD PASSENGER CORPORATION, a/k/a
Amtrak,

                                               Plaintiff - Appellee,


           versus

CATALINA   ENTERPRISES,   INCORPORATED   PENSION
TRUST,

                                              Defendant - Appellant,


           and

1.578 ACRES MORE OR LESS OF LAND, located at
6301 Quad Avenue in Baltimore City, Maryland;
STERN FAMILY INVESTMENTS, LLLP; G. REX
SIZEMORE; CATALINA ENTERPRISES, INCORPORATED;
UNKNOWN OTHERS; NANCY C. ROBERTSON; GENERAL
VECTOR CORPORATION; BANK OF AMERICA, as
successor in interest to Maryland National
Bank; EDWARD J. MAKOWSKI, JR.; BALTIMORE CITY,
State of Maryland,

                                                           Defendants,


           versus

DAVID  P.   STERN,  Trustee; WHITING-TURNER
CONTRACTING COMPANY; KYRIAKOS P. MARUDAS;
RONALD U. SHAW; BANK OF AMERICA; EDWARD J.
MAKOWSKI,

                                                   Parties in Interest.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Paul W. Grimm, Magistrate Judge. (CA-00-
3569-PWG)


Argued:   November 30, 2004           Decided:   September 30, 2005


Before WIDENER, MICHAEL, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.   Judge Widener wrote a
dissenting opinion.


ARGUED: Douglas Richard Taylor, Rockville, Maryland, for Appellant.
Natalie Paige Drinkard, HODES, ULMAN, PESSIN & KATZ, P.A., Towson,
Maryland, for Appellee. ON BRIEF: Patricia McHugh Lambert, HODES,
ULMAN, PESSIN & KATZ, P.A., Towson, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                2
PER CURIAM:



                                 I.

     This is an eminent domain case between plaintiff National

Railroad Passenger Corporation (Amtrak) and defendant Catalina

Enterprises (Catalina).   This case began on December 5, 2000 when

Amtrak, using the power of condemnation conferred on it by Congress

under 49 U.S.C. § 24311, filed its complaint in condemnation, and

for possession of, certain lands in the district of Maryland.   The

property at issue is approximately 1.578 acres of land which is

improved by a warehouse of approximately 32,396 square feet.

Approximately 16,800 square feet of the warehouse had been damaged

by a fire in 1992 and had not been repaired or reconstructed at the

time of the taking.   The parties consented to a magistrate judge’s

jurisdiction and the case was assigned to a magistrate judge.   The

defendant requested that the question of just compensation be

submitted to a jury, which was denied on March 21, 2001.   The case

was then assigned to a land commission, consisting of three retired

state judges, which held a five-day hearing in the matter, and

determined that the compensation for the property was $305,242.

The district court conducted a hearing on defendant’s objections

and opposition to the land commissioners’ report on February 2,

2004, in which it applied a de novo standard of review. The

district court overruled the objections to the land commissioners’


                                 3
report and adopted its findings of fact and conclusions of law.

The report of the land commissioners was filed on March 11, 2004.

Judgment was then entered on March 12, 2004. Defendant appeals the

orders of the district court, which it asserts prevented it from

having a fair trial.

     Catalina first asserts that the district court’s March 12,

2002 order wrongfully precluded it from sufficiently completing

discovery on the issue of the cost of repairing the warehouse, that

the court’s February 4, 2003 order failed to provide an adequate

opportunity to complete discovery on that issue, and that the

district court abused its discretion in not granting an extension

to file an expert’s report, due to a blizzard.              Defendant also

challenges the district court’s denial of its request for a jury

trial.     Defendant also argues that the district court erred both

in denying its motion in limine regarding plaintiff’s hybrid

witness and in concluding that the estimate to repair the property

from an earlier lawsuit had been adopted by Catalina’s witness.

Catalina    lastly   asserts   that       the   district   court   erred   in

determining that just compensation for the property was $305,242.

For the reasons stated below, we affirm the judgment of the trial

court.




                                      4
                                           II.

       Catalina contends that the trial court erred in denying its

request for a jury trial in this case.                  The denial of Catalina’s

request for a trial by jury in this case is governed by the abuse

of discretion standard. United States v. Keller, 142 F.3d 718 (4th

Cir. 1998).        There is no Constitutional right to a jury trial in

eminent domain proceedings.              United States v. Reynolds, 397 U.S.

14, 18 (1970) (citing Bauman v. Ross, 167 U.S. 548, 593 (1897)).

Federal     Rule    of    Civil   Procedure       71A(h)   explicitly      gives    the

district court discretion in determining whether or not to grant a

jury trial, specifically stating:

       [A]ny party may have a trial by jury of the issue of just
       compensation by filing a demand therefor within the time
       allowed for answer or within such further time as the
       court may fix, unless the court in its discretion orders
       that, because of the character, location, or quantity of
       the property to be condemned, or for other reasons in the
       interests of justice, the issue of compensation shall be
       determined by a commission of three persons appointed by
       it . . . .

Fed.   R.   Civ.     P.    71A(h).       This    rule   “gives   the   trial     court

discretion    to     eliminate       a   jury    entirely.”      United    States   v.

Reynolds, 397 U.S. 14, 20 (1970); Accord Keller, 142 F.3d at 721.

       In this case, the district court exercised its discretion and

determined that the issue of just compensation should be determined

before the land commissioners.                   The district court identified

reasons for this determination as the existence of a standing land

commission     for        the   district;       the   peculiar    nature    of     land


                                            5
condemnation cases involving commercial property; and the judicial

and real estate experience of the land commissioners.      In our

opinion, this decision was a permissible exercise of the district

court’s discretion under Rule 71A(h).     There is nothing in the

reasons given by the district court to support Catalina’s claim

that the denial of a trial by jury was an abuse of discretion.   On

appeal, Catalina takes the position that Amtrak was allowed to

change its position as to a jury trial on account of a change in

Fed. R. Civ. P. 53 and infers that this required the granting of

its motion for trial by jury.    Any such action which has been so

taken by Amtrak, the court does not consider to be a sufficient

reason to support a holding of an abuse of discretion in the

district court’s denial of Catalina’s motion.

     The denial of trial by jury is affirmed.



                                III.

     Catalina also contends that the district court erred by

preventing it from adequately completing discovery and presenting

evidence on the issue of the cost of repairing the warehouse.

Catalina takes issue with two orders of the district court to

support this argument. As Catalina concedes, Brief of Appellant at

16, we review the challenged orders for abuse of discretion.

     The complaint in this case was filed on December 5, 2000;

discovery was contentious.   In an effort to resolve one discovery


                                 6
dispute, on October 25, 2001, the district court issued an order

requiring Catalina to submit the report of its appraisal expert,

Richard H. Nichols, within ninety days.           J.A. 137.      On January 16,

2002, Catalina moved that it be allowed an additional thirty days

to submit Mr. Nichols’ report because that report assertedly relied

on   another    expert’s    opinion   as    to   the     cost   of   repair    and

reconstruction and the other expert had unexpectedly died on

January 8.      J.A. 202-203.    On January 22, 2002, the district court

held a conference to resolve this and other discovery matters.

J.A. 207-242.     The court granted the thirty days extension.                J.A.

224, 243.

       On February 11, 2002, Catalina submitted Mr. Nichols’ report

but moved for an extension of time until March 30, 2002 to submit

the report of its additional experts (now six of them) on repair

and reconstruction. J.A. 249-52.           On March 12, 2002, the district

court denied that motion reasoning that the issue of repair and

reconstruction     costs   was   of   “slight,    if     any    relevance,”    not

warranting the considerable expense entailed in the creation of

“six   expert   reports    and   perhaps    an   equal    number     of   rebuttal

experts.”    J.A. 278.     This March 12, 2002 order is the first order

Catalina challenges.

       Even assuming the district court abused its discretion in

issuing this order, that abuse was cured when the court later

modified its order to permit Catalina the opportunity to designate


                                       7
a   repair     and   reconstruction    expert.      Seven       months    after     the

issuance of the March 12, 2002 order, on October 31, 2002, Catalina

moved    for    modification     of   the   March   12   order     to     permit    it

additional time to submit the reports of its repair experts.                      J.A.

497-504.     On February 4, 2003, the district court held a hearing on

the matter, in which Catalina clarified that even though the fire-

damaged building had been torn down in the preceding seven months,

it would like to “have a witness, a cost estimator or contractor be

able to express an opinion regarding the cost of repair.”                         J.A.

613.     Given expert testimony that repair and reconstruction,

although an “unusual” element in determining valuation, was not

“unheard of,” J.A. 597, the court modified its March 12, 2002

order.         It    permitted   Catalina    thirty      days     to     disclose    a

“contractor, or a cost estimator” and submit that expert’s report

on repair costs.        J.A. 617.

       In doing so, the court warned Catalina:

       . . . the pace has not been exemplary. I will be candid,
       there have been times when I have been tempted to reach
       the conclusion that [Catalina] has not been acting with
       the degree of concern to get this thing resolved that I
       thought was appropriate. . . . I will make it crystal
       clear that these deadlines will not be modified, they
       will be met or they are gone.

J.A. 616-617 (emphasis added).              On February 5, 2003, the court

issued a written order confirming this oral order; the written

order provided inter alia that Catalina had 30 days -- until March

6, 2003 -- to designate “a general contractor or a cost estimator”


                                        8
on the issue of repair costs and to submit his report.               The court

reiterated       that   the     order   would   “not   be    changed    absent

extraordinary circumstances.”           J.A. 631-632 (emphasis added).

       Nevertheless, on February 28, 2003 Catalina again moved for an

extension of time.        Catalina stated that after ten days it had

located a repair expert, D. Neil Sinclair, but could not submit his

report because a February snowstorm had prevented Mr. Sinclair from

visiting the site and so preparing his report.                    J.A. 633-34.

Amtrak objected to the motion on numerous grounds, noting inter

alia that the snowstorm did not prevent Catalina from fulfilling

its other discovery obligations under the rules; yet Catalina had

failed to notify Amtrak of Mr. Sinclair’s qualifications, rate of

compensation, list of publications, or list of cases in which he

had testified -- all of which are required by Fed. R. Civ. P. 26 --

and had failed to contact counsel for Amtrak to make arrangements

to visit the site or discuss the issue, as required by the Local

Rules.    J.A. 653E-M.

       On April 7, 2003, the district court denied Catalina’s motion

for extension J.A. 690 -- this is the second order that Catalina

challenges on appeal. The court assumed, without deciding, as

Catalina proffered, that the excuses offered for the delay “are not

because of Pension Trust” but decided that they did not warrant a

modification of the deadline. The district court acted pursuant to

Rule     37(c)    and   found    that    Catalina   had     not   demonstrated


                                         9
“substantial justification” for its failure to meet the deadlines

imposed by the court in its order of February 4, 2003.              It found,

further, that Amtrak would be prejudiced by granting additional

time.

     Rule    37(c)(1)     expressly   provides    a   district     court   with

discretion to penalize a party who fails -- “without substantial

justification” -- to comply with procedural rules and court orders.

No finding of fault or “bad faith” is required prior to imposition

of these sanctions.        We are of the opinion the findings of the

district    court   are   essentially       factual   and   are   not   clearly

erroneous. Its decision to preclude the admission of the testimony

of the expert as to the cost of repairs was not an abuse of

discretion and is affirmed.      See Mut. Fed. Sav. & Loan v. Richards

& Assocs., 852 F.2d 88 (4th Cir. 1989); cf. Rabb v. Amatex Corp.,

757 F.2d 996 (4th Cir. 1985).



                                      IV.

     There was no reversible error in admitting the testimony of

James Jost offered by Amtrak as an hybrid witness - part expert,

part fact.     There was also no reversible error admitting an

estimate of repair damage prepared by Catalina’s insurance company

and used in an earlier law suit.




                                      10
                                 V.

     Catalina’s final contention is that the district court erred

in determining that it had failed to prove by a preponderance of

the evidence that the resulting value from the repairs justified

the necessary expenditures, and therefore determining that just

compensation was $305,242.   To support this Catalina points to the

fact that the land commissioners failed to discuss and consider the

testimony of Mr. Nichols that it was economically feasible to

repair the warehouse and any seller of the property would do so

before selling.   However, the district court rejected Mr. Nichols’

repair cost opinions as not being persuasive.

     Notably, the method each side depended on to ascertain value

was the same and based largely on rental value of the premises.

Amtrak’s evidence of rental value was $20.00.       Catalina’s was

$22.50.   The finding of the land commissioners of $22 was not

clearly erroneous, and we affirm.

     The judgment of the district court is accordingly

                                                         AFFIRMED.




                                 11
WIDENER, Circuit Judge, dissenting:

     I respectfully dissent.        While the reasons given by the

majority usually justify an affirmance, in this case I think that

a new trial is required for the reasons which follow.



                               I.

     There can be no doubt that the excluded evidence is the key to

this case.   Indeed, the district court commented that the “only

real differences, and everybody agrees, is whether or not the

repairs were feasible to the fire damaged property.” The Land

Commissioners noted this issue’s importance as well. The Land

Commissioners’ report also expressly relied on Catalina’s failure

to submit reconstruction expert testimony in recommending an award

in Amtrak’s favor.

     Nevertheless, Catalina failed to introduce any competent
     evidence on which evidence of repair costs could be made.
     They failed to provide expert opinion that any steel or
     masonry could be used or, if some could be used, exactly
     how much and at what cost.

J.A. 1771.

     The reason that the evidence was so crucial is simple:      the

area to be restored, the cost of which was disputed, constituted

about one-half of the total square footage of the property.   As the

Land Commissioners observed, the parties’ determinations of value

per square foot were almost identical:     $20 by Amtrak, and $22.50

by Catalina. Thus, the condemnation award would effectively have


                                12
doubled had Catalina’s reconstruction-cost evidence been considered

and credited.   On the other hand, exclusion possibly halved the

award.



                                  II.

     The district court erred by excluding evidence that should

have been provisionally admitted, making it impossible for this

court to assess whether the exclusion was harmless.



                                  A.

     In this non-jury setting, the district court should have

admitted relevant evidence of repair costs and disregarded any

evidence that it found inadmissible or unpersuasive when rendering

its decision.

     In Multi-Medical Convalescent & Nursing Center of Towson v.

N.L.R.B., 550 F.2d 974 (4th Cir. 1977), we expressed grave concern

about an administrative law judge’s “curtail[ing] development of

potentially   relevant   lines   of    inquiry.”   Id.   at   976.   We

recommended liberalized admission in non-jury trials:

     Professor Wright tells us that “the attitude now
     governing has been strongly stated by Judge Sanborn: ‘In
     the trial of a nonjury case, it is virtually impossible
     for a trial judge to commit reversible error by receiving
     incompetent evidence, whether objected to or not’.” The
     appellate courts have taken a similarly critical view of
     exclusionary rulings by administrative agencies. Thus,
     we strongly advise administrative law judges:       if in
     doubt, let it in.


                                  13
Id. at 978 (citations omitted).

      This principle extends to all sorts of non-jury trials.                  See

Eagle-Picher Indus., Inc. v. Liberty Mut. Ins. Co., 682 F.2d 12, 18

(1st Cir. 1982) (“a district court, sitting without a jury, might

be well advised to admit provisionally all extrinsic evidence of

the parties’ intent, unless it is clearly inadmissible, privileged,

or   too   time   consuming,      in   order   to   guard   against      reversal”)

(emphasis added); Gulf States Utils. Co. v. Ecodyne Corp., 635 F.2d

517, 519 (5th Cir. 1981) (calling exclusion of “prejudicial”

evidence in a bench trial a “useless procedure”).                   We expressly

adopted Gulf States in Schultz v. Butcher, 24 F.3d 626 (4th Cir.

1994),     finding   that   the    district    court’s      error   in   excluding

evidence was not harmless because “a party was prevented from fully

developing evidence relevant to a material issue.”                  Id. at 632

      The broader admissibility of evidence in bench trials is

premised on the helpfulness of the practice in appellate review.

Indeed, McCormick recommends that courts “provisionally admit all

arguably admissible evidence, even if objected to[,] with the

announcement that all admissibility questions are reserved until

all the evidence is in”; the treatise explains that this “helps

ensure that appellate courts have in the record the evidence that

was rejected as well as that which was received.”                   McCormick on

Evidence § 60 (4th ed. 1992) (footnote omitted).




                                         14
       Given the Land Commissioners’ reliance on the absence of

reconstruction-cost testimony in support of Catalina, I believe

that these principles apply to this case, where the excluded

evidence spoke to not just a material issue, but the material

issue.    Cf. Schultz, 24 F.3d at 632.         The district court should

have admitted the evidence into the record and later decided the

questions of admissibility and weight to be given the evidence.



                                      B.

       The report in question with respect to an estimate of repair

costs was due on March 6, 2003, 30 days from the date of the

February 4, 2003 hearing.        It was offered for filing late, a reason

given by Catalina being that Baltimore, in that period, had a snow

storm, which turned out to be a blizzard, which was all or part of

the reason offered for the delay.              While the district court

rejected the reasons given by Catalina for the late offering of the

repair estimate, it stated in two places that it did not rely on

those reasons for its decision not to admit the testimony of the

expert who had been employed by Catalina.         It stated, on April 7,

2003, “Even assuming without deciding, as Catalina proffers, that

the excuses offered for the delay are not because of Pension Trust,

such excuses do not warrant a modification of the deadline.”           J.A.

691.      And,   in   deciding    Catalina’s   objections   to   the   Land

Commissioners’ finding, the district court stated:


                                      15
     Now,   because the Defendants in this case failed to comply
     with    that order, the sanctions appropriate were under
     Rule   37 of the Federal Rules of Civil Procedure. They
     were   sanctioned for failing to obey a court order

     They were not sanctioned under Rule 37 for failing to
     make Rule 26(A)(2)(b) disclosures, which has a different
     standard and is a more stringent standard.

J.A. 1928.    Thus, the key evidence was held to be inadmissible and

kept from the Land Commissioners because of the violation of a

court order.

  It is true the district court decided that Amtrak had been

prejudiced by such failure, but it did not state how Amtrak was

prejudiced.    In particular, so far as this record shows, there was

no delay on account of such failure, the letters from the expert

with respect to the delay being dated February 27 and March 14,

2003.   So far as we are advised, the case, at the time of the

district court’s order of April 7, 2003, had not been set for

trial, and the trial of the case before the Land Commissioners was

some five months later, in September, 2003.    So whatever prejudice

Amtrak may have suffered, it was not in a delay of the trial.        In

any event, any prejudice to Amtrak on that account, other than

allowing Catalina to reach the merits of the controversy, could

only have been in annoyance and additional expenses, if any.       As we

have mentioned before, Amtrak was in possession of the property and

had been using the same for more than a year, so there was no

denial of use.



                                  16
     Accordingly, I would vacate the judgment of the district court

and grant a new trial.




                                17
