                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-1130


CBRE REALTY FINANCE TRS,    LLC;   RFC    TRS,    LLC,   f/k/a   CBRE
Realty Finance TRS, LLC,

                Plaintiffs - Appellees,

          v.

BRIAN A. MCCORMICK; CHARLES W. MOORE,

                Defendants - Appellants.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, District Judge.
(1:08-cv-01964-JFM)


Submitted:   December 15, 2010                   Decided:   March 4, 2011


Before SHEDD, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ryan D. Sullivan, BODOFF & ASSOCIATES, Boston, Massachusetts,
for Appellants. Jennifer Quinn-Barabanov, George R. Calhoun, V,
Jeffrey M. Theodore, STEPTOE & JOHNSON, LLP, Washington, D.C.,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Brian     McCormick    and        Charles    W.    Moore    (herinafter

“McCormick & Moore”) appeal the district court’s order granting

summary judgment in favor of RFC TRS, LLC (formerly known as

CBRE   Realty   Finance,      hereinafter       “RFC”),      finding   McCormick    &

Moore liable for $23,342,188.38 in damages, plus post-judgment

interest,    and    denying    McCormick       &   Moore’s    motions     to   extend

discovery and for further discovery.               We affirm.

            On appeal, McCormick & Moore raise myriad issues, but

their argument can be distilled into two claims of error: the

district    court    erred    in   granting        summary    judgment;    and   the

district court erred in denying their motion to extend discovery

and for further discovery.          Importantly, with respect to summary

judgment, McCormick & Moore concede that they breached their

guaranties to RFC, and only argue that the district court erred

in its damages calculation.



       I.   Summary Judgment

            This court reviews de novo a district court’s grant of

summary     judgment.         Howard    v.     Winter,     446   F.3d     559,   565

(4th Cir. 2006).         Summary       judgment     is    appropriate     when   the

“pleadings,        depositions,     answers         to    interrogatories,       and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and the

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moving party is entitled to judgment as a matter of law.”                         Fed.

R. Civ. P. 56(c).          The parties do not dispute that Maryland

substantive law applies to this diversity action.

          Maryland     law     employs      an    “objective           approach     to

contract interpretation, according to which, unless a contract's

language is ambiguous, [Maryland courts] give effect to that

language as written without concern for the subjective intent of

the parties at the time of formation.”                Ocean Petroleum Co. v.

Yanek, 5 A.3d 683, 690 (Md. 2010) (internal citations omitted).

“Thus, the true test of what is meant is not what the parties to

the contract intended it to mean, but what a reasonable person

in the position of the parties would have thought it meant.”

Id.

          a.    Scope of the Guaranty

          McCormick    &     Moore   argue       that       the   district    court

improperly   granted   summary     judgment      in     favor     of   RFC   because

their breach was not the cause of the damages incurred by RFC.

Specifically, McCormick & Moore argue that they are not liable

for any expenditures made by RFC after their default.                             They

argue that the guaranties only make them liable for the harm

suffered by RFC if they failed to cause taxes to be timely paid,

not   necessarily    for     the   amount    of       the     taxes     themselves.

Similarly, McCormick & Moore claim that “while the failure to

substantially complete the project on time and on budget would

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perhaps tend to diminish the ability of RFC to be repaid its

debt, the harm, if any, to RFC cannot be understood without

evidence to demonstrate how much worse off RFC was” because of

the failure.       RFC claims that this issue is waived, but after

reviewing    the   record,   we   conclude   it   was   raised     before   the

district court in McCormick & Moore’s opposition to RFC’s motion

for summary judgment.

            The flaw in McCormick & Moore’s argument is that once

they have conceded that they breached the agreement, the causal

chain to RFC’s alleged damages is quite clear.              As the district

court    noted,     McCormick     &   Moore’s     failure     to     complete

construction and pay property taxes caused liens to be placed on

each property.       In order to protect its security interest in

those   properties,    RFC   (whose   interests    were   junior     to   other

lenders) had to remove the encumbrances caused by McCormick &

Moore’s breach.      Under McCormick & Moore’s theory, it is unclear

what damages could ever be fairly traceable to the breach if not

those incurred by actions taken in direct response to a breach

of a guaranty to protect a security interest.

            b.     Duty to Mitigate

            McCormick & Moore next argue that they are not liable

for certain damages because RFC had a duty to mitigate and did

not do so.       They argue that RFC has not explained why it made

protective interest payments when the real estate market was in

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a state of disarray caused by an economic recession.                                      Moreover,

they claim that they could not offer evidence in favor of its

mitigation claim because they were denied further discovery.

              We conclude that McCormick & Moore’s argument on this

point   is    without      merit.            First,        the       burden    of   proving     that

proposed      damages       are       the         result        of    economically        wasteful

decisions “is on the party that breached the contract and that

invokes      the   doctrine”          in    an     effort       to    limit    the    plaintiff’s

damages to market value.                    Andrulis v. Levin Constr. Corp., 628

A.2d 197, 208 (Md. 1993).                         We have reviewed the record and

conclude that McCormick & Moore have not carried their burden in

this    regard.          Even    if        they    had     been       able    to    present    more

evidence      on   this    point,          however,        we    agree       with   the    district

court   that       the   mitigation           defense       is,       in    this    context,     not

viable.            See     Restatement              (Second)           of     Contracts        § 347

(Illustration 10).

              c.     Assumption of Trade Payables

              In their summary judgment motion, RFC claimed damages

for    its    assumption         of    trade        payables           when    it    sold,     at   a

discount, a property at issue in this dispute.                                      It apparently

did not include these damages in response to McCormick & Moore’s

interrogatories.            In    the        district           court,      McCormick      &   Moore

argued that those damages should be stricken as a sanction for

RFC’s failure to supplement their responses.                                  We agree with the

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district    court       that   striking         the    damages    is    not     appropriate

here.

            Fed. R. Civ. P. 37(c)(1) states that “If a party fails

to provide information or identify a witness as required by Rule

26(a) or (e), the party is not allowed to use that information

or witness to supply evidence on a motion, at a hearing, or at a

trial,    unless     the    failure       was       substantially      justified        or   is

harmless.”       This court “gives particularly wide latitude to the

district     court’s       discretion       to        issue    sanctions        under     Rule

37(c)(1).”       S. States Rack & Fixture, Inc. v. Sherwin-Williams

Co., 318 F.3d 592, 595 (4th Cir. 2003).                          Citing to Roberts ex

rel.     Johnson    v.     Galen    of     Va.,        Inc.,    325,    F.3d      776,       782

(6th Cir. 2003).           McCormick & Moore argue that the burden is on

the party seeking to include the information in a later motion

to show harmlessness.

            We     have     reviewed       the        record    and     conclude,        after

reading RFC’s reply in support of their summary judgment motion,

that they have carried their burden.                      They correctly note that

McCormick    &     Moore    can    show    no       prejudice     here,    as    they     have

always been on notice about the nature of the damages sought.

Accordingly,       we    decline    to     conclude       that    the     district       court

abused its discretion in not striking the challenged damages.




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         II.    Discovery Motions

                We     review the district court’s handling of discovery

matters for an abuse of discretion.                                Wells v. Liddy, 186 F.3d

606, 618 n.12 (4th Cir. 1999).                         We will not reverse the denial

of   a    Fed.    R.    Civ.    P.     56(f)       motion      absent      a   clear          abuse    of

discretion or a real possibility that the party was prejudiced

by   the       denial.         Strag    v.     Bd.       of    Trs.,      55     F.3d        943,     954

(4th Cir. 1995).

                a.      Motion to Extend Discovery

                Prior     to    the    completion             of    discovery,          McCormick       &

Moore moved on an “emergency” basis for an extension of time to

complete        discovery.           The     district         court       denied        the    motion,

noting that if, at the close of discovery, McCormick & Moore

required        additional       discovery,            they    could      file      a    motion       for

further        discovery       pursuant       to    Rule       56(f).       Fed.        R.     Civ.    P.

16(b)(4) allows for modification of a discovery schedule only

for good cause and with the court’s consent.

                After     reviewing        the      record,          we   conclude           that     the

district        court     did    not       abuse        its        discretion       in       requiring

McCormick        &     Moore    to     seek      relief        pursuant        to       Rule    56(f).

Discovery had not yet ended at the time the “emergency” motion

was made, and the court allowed McCormick & Moore to pursue

alternative avenues of relief if they thought, after a summary

judgment        motion,    that       such     relief         was    required.            The       court

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simply   exercised      its        discretion       to     regulate         the       discovery

process, and we decline to disturb the court’s decision.

           b.     Rule 56(f) Motion

           Finally, McCormick & Moore argue that the court abused

its discretion in denying their Rule 56(f) motion for further

discovery.      According      to     Rule       56(f),    if       a    party    opposing   a

motion   for    summary       judgment       shows        by       affidavit      that,    for

specified reasons, it cannot present facts essential to justify

its position, the court may:              (1) deny the motion; (2) order a

continuance to enable affidavits to be obtained, depositions to

be taken, or other discovery to be undertaken; or (3) issue any

other just order.       Fed. R. Civ. P. 56(f).                          We will affirm the

denial of a Rule 56(f) motion “where the additional evidence

sought for discovery would not have by itself created a genuine

issue of material fact sufficient to defeat summary judgment.”

Strag, 55 F.3d at 954.             In their motion, McCormick & Moore argue

that RFC’s production was untimely, that they had no time to

test   their    theories      of    liability       and        a   failure       to   mitigate

damages defense.

           We have reviewed the record, and conclude that the

district court did not err in denying the Rule 56(f) motion.

First,   the    court      properly      noted       that          the     materials      that

McCormick & Moore sought in their Rule 56(f) motion could have

been sought during the discovery period.                           The basis for relief

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was clear on the face of the complaint, and McCormick & Moore do

not   allege    that    they    were   surprised         by    anything       in    RFC’s

document production such as to require more discovery, after the

close of the discovery period.

            Next, the court correctly found that McCormick & Moore

have not been diligent in pursuit of their discovery rights.

Even if, at the close of discovery, they lacked the information

they needed to defend against RFC’s claims, they certainly could

have pursued that discovery earlier in the proceedings.                            As the

court discussed, Rule 56(f) is not designed to protect “those

who slumber upon perceptible rights.”                    Ayala-Gerena v. Bristol

Myers-Squibb     Co.,    95    F.3d    86,    92     (1st Cir. 1996)          (internal

citations omitted).

            Finally, the court properly concluded that McCormick &

Moore’s    claims      were    nonspecific,        and    to     the    extent       they

articulate a defense that they could have developed with further

discovery, that defense is insufficient (as we noted above) as a

matter of law to defeat RFC’s claims.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions     are   adequately      presented        in     the    materials

before    the   court   and    argument      would    not      aid   the     decisional

process.

                                                                               AFFIRMED

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