Opinion
Civil Action 6:21-cv-2943-DCC-KFM
02-28-2024
JPB Restaurant Group, LLC, Plaintiff, v. Gringos Cantina, LLC,[1] and Harold Dean White, Defendants. Gringos Cantina, LLC, and Harold Dean White, Counterclaim Plaintiffs, v. JPB Restaurant Group, LLC, and Jacob Billingsley, Counterclaim Defendants.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD UNITED STATES MAGISTRATE JUDGE.
This matter is before the court on JPB Restaurant Group, LLC's (“plaintiff”' or “JPB”) and Jacob Billingsley's (“Mr. Billingsley”) (collectively “counterclaim defendants”) motion for summary judgment (doc. 53). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases involving pro se litigants and submit findings and recommendations to the district court.
BACKGROUND AND FACTUAL ALLEGATIONS
On May 10, 2021, JPB filed a complaint against Gringos Cantina, LLC (“Gringos”) and Harold Dean White (“Mr. White”) (collectively “defendants” and “counterclaim plaintiffs”) in the Court of Common Pleas in Greenville County, alleging a breach of contract claim (doc. 1-1). Gringos and Mr. White, represented by counsel, filed a notice of removal on September 13, 2021, based on diversity jurisdiction (doc. 1).
In its complaint, JPB alleges that on or about September 24, 2018, Mr. White purchased Gringos from JPB and became Gringos' sole owner (doc. 1-1 ¶ 5). JPB asserts that Mr. White entered into a contract for the purchase of Gringos and signed promissory notes and personal guarantees to effectuate the purchase (doc. 1-1 ¶ 12). However, JPB contends that Mr. White failed to make regularly scheduled payments as set forth in the promissory notes, despite JPB's repeated requests for Mr. White to do so and Mr. White's multiple opportunities to cure the deficiencies (id. ¶ 13). JPB seeks the amount of the remaining balance, interest, and attorney's fees, as called for in the promissory notes, and demands that tax payments are caught up and paid on a regular basis (id. ¶ 15).
Gringos and Mr. White filed an answer and counterclaims against JPB and Mr. Billingsley on September 20, 2021 (doc. 8). In their answer, Gringos and Mr. White allege that Gringos' value has been principally derived from its unique niche in downtown Greenville as a late night gathering spot and that it generates the vast majority of its profits between midnight and 2:00 a.m., when many other establishments in the area are closed (id. ¶¶ 45-46). Gringos is located in the City of Greenville's central business district, and bars and restaurants in this district are not allowed to operate after midnight unless granted a special exception permit or conditional use permit (id. ¶ 48). Gringos and Mr. White assert that, in 2013, Mr. Billingsley applied for a permit to operate Gringos until 2:00 a.m. and represented in the application that Gringos would be a full-service restaurant specializing in Tex-Mex entrees; hours of operation would be from 11:30 a.m. until close, with the option, if busy, to remain open until 2:00 a.m., seven days a week; and kitchen hours would be from 11:30 a.m. to close (id. ¶ 49). The City of Greenville's Board and Zoning Appeals approved the permit in 2013, subject to at least fourteen restrictions and requirements, including that the establishment operate in strict conformity with Mr. Billingsley's application (id. ¶ 52). Gringos and Mr. White state that in or around 2018, they began to discuss business opportunities for the Gringos location (id. ¶ 61). Gringos and Mr. White allege that they subsequently entered into an agreement with JPB, whereby JPB was required to maintain the 2:00 a.m. exception permit (id. ¶ 69). Gringos and Mr. White assert that JPB and Mr. Billingsley told them that Gringos simply had to sell food at some point during the day to remain in good standing under the permit (id. ¶ 80). In May 2021, the City revoked the permit because, on two separate occasions, law enforcement officers were unable to purchase food at Gringos (id. ¶ 93). An appeal of the permit revocation was denied, and Gringos can no longer operate between midnight and 2:00 a.m. (id. ¶¶ 102, 107).
Gringos and Mr. White allege the following defenses to the plaintiff's claims: failure to state a claim, prior breach, plaintiff's conduct/others' conduct, modification/conditions precedent, express terms, consent/acquiescence/waiver, privity of contract, nonjoinder/real party in interest/lack of standing, recoupment/setoff/limitations, equitable doctrines, ambiguity, service of process, accord and satisfaction/release, failure to mitigate, improper remedies, punitive damages, and reservation of rights (doc. 8 ¶¶ 1733). Additionally, Gringos and Mr. White allege the following counterclaims: negligence, constructive fraud, actual fraud, aiding and abetting fraud, fraudulent misrepresentation, negligent misrepresentation, Unfair Trade Practices Act violation, unjust enrichment, and piercing the corporate veil (id. ¶¶ 144-97, 215-21). Gringos also alleges the following additional counterclaims: breach of contract, breach of contract accompanied by a fraudulent act, violation of the South Carolina Trade Secrets Act, and preliminary and/or permanent injunction (id. ¶¶ 128-143, 198-214).
On January 11, 2022, Gringos' and Mr. White's counsel moved to withdraw from representation due to “a complete breakdown in the client relationship” (doc. 21). In a text order filed on February 14, 2022, the district court granted counsel's motion and stayed the action for sixty days to allow Gringos and Mr. White to retain new counsel (doc. 23). The district court also stated as follows in its text order:
The Court reminds Gringos Cantina, LLC that it cannot proceed without representation. Therefore, failure on the part of Gringos Cantina, LLC to retain new counsel within 60 days may result in it being held in default. In the event that new counsel does not appear on behalf of Harold Dean White within 60 days, he will be deemed to be proceeding pro se.(Id.).
On April 13, 2022, new counsel appeared on behalf of Gringos and Mr. White (doc. 28). Counsel for all parties were directed to submit a joint proposed amended scheduling order within fourteen days (doc. 30). After the parties submitted their proposals, a second amended conference and scheduling order was issued on May 12, 2022 (doc. 32).
On July 12, 2022, JPB and Mr. Billingsley served its first set of interrogatories and requests for production via the United States Postal Service by way of regular mail to Gringos and Mr. White (docs. 53-1 at 4; 53-2). The responses were due no later than August 16, 2022, but they never received a response (docs. 53-1 at 4; 53-2). See Fed.R.Civ.P. 6(d), 33(b)(2), 34(b)(2).
On October 14, 2022, counsel for Gringos and Mr. White moved to withdraw from representation due to “a complete breakdown in the client relationship” (doc. 33). In a text order filed on November 21,2022, the district court granted the motion and stated as follows:
The Court notes that no party has objected to the motion; however, Plaintiff and Counter-Defendant request that Defendants be given 30 days to find replacement counsel in light of the procedural posture of this action. They also request that any new counsel be required to answer current discovery within 30 days of Notice of Representation and that any new counsel confer with Plaintiff and Counterclaim Defendants counsel within 10 days of Notice of Representation to provide a proposed Amendment Scheduling Order to the Court. Given the upcoming holidays, the Court stays this action for 45 days to allow Gringos Cantina, LLC and Harold Dean White to retain new counsel. The Court finds that the remainder of Plaintiff and Counterclaim Defendants counsel[']s request is reasonable and directs any new counsel to comply with that request. The Court reminds Gringos Cantina, LLC that it cannot proceed without representation. Therefore, a failure on the part of Gringos Cantina, LLC to retain new counsel within 45 days may result in it being held in default. In the event that new counsel does not appear on behalf of Harold Dean White within 45 days, he will be deemed to be proceeding pro se.(Doc. 36).
JPB and Mr. Billingsley filed a motion for entry of default against Gringos on January 27, 2023, which the district court granted on January 31,2023 (docs. 39; 40). The district court also stated that Mr. White was deemed to be proceeding pro se and referred this matter to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.) (doc. 40). The Honorable Jacquelyn D. Austin was assigned the case (doc. 41), and Mr. White was mailed an order apprising him of the court's pro se rules and procedures on February 1, 2023 (docs. 43; 44).
On February 2, 2023, Judge Austin entered an order directing Mr. White and counsel for JPB and Mr. Billingsley to conference and submit a proposed amended scheduling order by February 16, 2023 (doc. 45). This order was mailed to Mr. White on the same date (doc. 46). JPB's and Mr. Billingsley's counsel asserts that he began attempting to communicate with Mr. White on or about February 6, 2023 (doc. 53-1 at 5; see doc. 53-3 at 4). Mr. White responded via email on February 13, 2023, asking that counsel provide proposed dates for him to review (doc. 53-3 at 4). On the same day, counsel responded with a list of proposed dates (id. at 2-4). Mr. White had not responded to counsel by February 15, 2023, so counsel reached back out to Mr. White via email (id. at 2). Mr. White responded on February 16, 2023, agreeing to the proposed dates (id. at 1). Two additional emails between Mr. White and counsel confirmed Mr. White's mailing address (id.).
JPB and Mr. Billingsley served their first set of interrogatories, requests for production, and requests for admission on Mr. White via the United States Postal Service by way of regular mail and certified mail on February 22, 2023 (docs. 53-1 at 6; 53-4; 53-5). Although Mr. White had confirmed his mailing address less than one week before, the certified mail was not deliverable as addressed or otherwise refused by Mr. White, who was required to sign for the mailing (docs. 53-1 at 6; 53-5). JPB and Mr. Billingsley assert that the regular mailing of the same item was never returned and was received by Mr. White (doc. 53-1 at 6). The requests for admission state as follows:
1. Admit that Defendant/Counterclaim Plaintiff White stopped making payments in or about September 2020 on ‘Promissory Note' to JPB Restaurant Group, LLC executed by Defendant/Counterclaim Plaintiff White on or about December 11,2018 (hereinafter referred to as “Promissory Note”) and on ‘Line of Credit Promissory Note' to Rocket Cap, LLC executed by Defendant/Counterclaim Plaintiff White on or about October 29, 2018 (hereinafter referred to as “Line of Credit PN”).
2. Admit that Defendant/Counterclaim Plaintiff White breached both Promissory Note and Line of Credit PN.
3. Admit that Defendant/Counterclaim Plaintiff White has failed to make regular scheduled tax payments on behalf of Defendant/Counterclaim Plaintiff Gringos.
4. Admit that Defendant/Counterclaim Plaintiff White's actions were the cause of Plaintiff/Counterclaim Defendants' damages.
5. Admit that Defendant/Counterclaim Plaintiff White's own actions were the cause of Defendant/Counterclaim Gringos'
value being deprived as a unique “late night gathering spot” in downtown Greenville.
6. Admit that Plaintiff/Counterclaim Defendants were not responsible for the city of Greenville revoking the Special Exception Permit/2 a.m. exemption (hereinafter referred to as “the Permit”) to stay open past 2 a.m.
7. Admit that Plaintiff/Counterclaim Defendants did not partake in any fraud associated with the Permit or Defendants/Counterclaim Plaintiffs.
8. Admit that Plaintiff/Counterclaim Defendants did not partake in any misrepresentation, concealment of facts, and/or failure to disclose material facts regarding Defendant/Counterclaim Plaintiff Gringos' operations, the Permit, or the city of Greenville's violations, ordinances, and/or requirements.
9. Admit that Plaintiff/Counterclaim Defendants did everything to the best of their ability to help appeal the city of Greenville's revocation of the Permit and save the Permit.
10. Admit that Plaintiff/Counterclaim Defendants are not responsible for any of Defendants'/Counterclaim Plaintiffs' past, present, or future legal costs, expenses, or attorneys' fees.(Doc. 53-4 at 19-21). Mr. White's responses were due by March 27, 2023. Fed.R.Civ.P. 36(a)(3); id. 6(a), (d).
JPB and Mr. Billingsley state that Mr. White's deadline to provide responses was March 29, 2023 (doc. 53-1 at 7-8). However, according to the undersigned's calculations, the deadline was March 27, 2023. See Fed.R.Civ.P. 36(a)(3); id. 6(a), (d).
Mr. White did not provide responses by the deadline (doc. 53-1 at 8). Accordingly, counsel notified Mr. White that he had not received Mr. White's discovery responses and stated that all responses would need to be submitted by 5:00 p.m. on May 1, 2023, to avoid the filing of a motion to compel (doc.53-6 at 1). On May 1, 2023, Mr. White responded and stated, “I had started pulling this together into the shared drive but never completed. I will send over a link later today so you can access” (id.). Mr. White later sent another email on the same date, informing counsel that counsel had been added to “the Teams site with all the files” (doc. 53-7 at 1). Counsel submits that, through this link, Mr. White provided “an evasive and incomplete disclosure of various documents” and that “said documents were independently submitted without any formal response to any discovery request sent to him” (doc. 53-1 at 8). Counsel maintains that he has never received a response to the requests for admission (docs. 53 at 1-2; 68 at 2).
On August 31, 2023, JPB and Mr. Billingsley filed a motion for summary judgment, arguing that they never received responses to their requests for admission, the statements in the requests for admission should be deemed admitted pursuant to Federal Rule of Civil Procedure 36, and there are accordingly no genuine issues of material fact regarding JPB's breach of contract claim or Mr. White's counterclaims (doc. 53-1). JPB and Mr. Billingsley also seek costs and attorney's fees incurred in bringing their motion for summary judgment (id. at 9). By order filed on the following day, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Mr. White was advised of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately to JPB's and Mr. Billingsley's motion (doc. 54). Mr. White's deadline for responding to the motion for summary judgment was October 2, 2023 (id.). On October 17, 2023, Judge Austin issued an order noting that Mr. White had failed to timely respond to the motion for summary judgment and extending the deadline for him to file a response until November 6, 2023 (doc. 60). Mr. White was specifically advised that if he failed to respond, his counterclaims would be subject to dismissal for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and for failure to comply with the court's orders (id.). Mr. White did not file a timely response but ultimately filed a response on November 20, 2023 (doc. 63). On January 25, 2024, this case was reassigned to the undersigned magistrate judge (doc. 70). Accordingly, this matter is now ripe for review.
APPLICABLE LAW AND ANALYSIS
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
As set out above, JPB and Mr. Billingsley argue that because Mr. White did not submit a timely response to their requests for admission, the matters in their requests are deemed admitted (doc. 53-1 at 7-8). Pursuant to Federal Rule of Civil Procedure 36, “[a] party may serve on any other party a written request to admit . . . facts, the application of law to fact, or opinions about either” that are within the permissible scope of discovery. Fed.R.Civ.P. 36(a)(1)(A). A matter is deemed admitted if a party does not respond within 30 days following service. Fed.R.Civ.P. 36(a)(3). Additionally, a matter admitted is “conclusively established unless the court, on motion, permits the admission to be withdrawn or amended.” Id. 36(b). Withdrawal or amendment is permissible “if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits.” Id.
In his response to JPB's and Mr. Billingsley's motion for summary judgment, Mr. White submits various documents without explanation (see docs. 63; 63-1; 63-2). Specifically, Mr. White submits a document reflecting responses to requests for admission that show his signature and a date of September 28, 2023, various exhibits relating to the issues in the case, and a proof-of-delivery from FedEx reflecting that something was delivered to some unknown address in Greenville, South Carolina on September 29, 2023 (docs. 63; 63-1; 63-2). As set out above, Mr. White has not provided any explanations with these documents and has therefore failed to disclose what was mailed or where exactly this mailing was delivered (see docs. 63; 63-1; 63-2). In reply, JPB's and Mr. Billingsley's counsel asserts that Mr. White has fully misrepresented to the court that his responses to the requests for admission were completed, mailed via FedEx on September 28, 2023, and delivered on September 29, 2023 (doc. 68 at 1). Counsel states that he utilized the tracking number in the attached FedEx proof-of-delivery and determined that this mailing was not sent to either his office or the court (id. at 3). Counsel also attached documentation reflecting that this mailing was not sent to either of those addresses (docs. 68-1; 68-2; 693).
While he did not provide any explanation, Mr. White presumably wants the court to infer that he mailed responses to the requests for admission to JPB's and Mr. Billingsley's counsel on September 28, 2023. However, “[i]t is not the Court's responsibility to sift through exhibits to determine how they might support a party's claims.” Poux v. Drew, C/A No., 4:11-2195-TMC-TER, 2011 WL 6817887, at *4 (D.S.C. Oct. 18, 2011), R&R adopted by 2011 WL 6826832 (D.S.C. Dec. 28, 2011); Jenkins v. South Carolina Dep't of Corr., C/A No. 8:09-3293-RMG-BHH, 2010 WL 5419108, at *3 (D.S.C. Dec. 2, 2010) (same), aff'd by 415 Fed.Appx. 473 (4th Cir. 2011). “While the general rule is that pro se pleadings must be construed liberally, this rule has limits and the court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record.” Poux, 2011 WL 6817887, at *4; Jenkins, 2010 WL 5419108, at *3.
Further, even if Mr. White is attempting to make this assertion, JPB and Mr. Billingsley have set forth evidence reflecting that Mr. White in fact did not mail his responses to either JPB's and Mr. Billingsley's counsel or the court through this September 28, 2023, mailing. In addition, responses mailed and delivered in September 2023 would still be over six months past the thirty-day deadline to respond. See Fed.R.Civ.P. 36. Accordingly, because Mr. White did not response to JPB's and Mr. Billingsley's requests for admission by the deadline of March 27, 2023, the matters set forth in the requests are deemed admitted pursuant to Federal Rule of Civil Procedure 36. See Burwick v. Pilkerton, 700 Fed.Appx. 214, 216 (4th Cir. 2017) ("The fact remains, however, that Burwick failed to timely respond to Pilkerton's requests for admissions and that, by operation of Fed.R.Civ.P. 36, Burwick has admitted [the facts in the requests for admissions.]"); Metpath, Inc. v. Modern Medicine, C/A No. 90-2234, 1991 WL 87534, at *3 (4th Cir. May 29, 1991) (citing Dukes v. South Carolina Ins. Co., 770 F.2d 545, 548-49 (5th Cir. 1985) (plaintiffs' failure to timely respond to request for admission and failure to offer reason for delay justified striking late response; control of discovery committed to sound discretion of district court)).
Moreover, Mr. White has never moved for an extension of time to file responses to the requests for admission or to withdraw his admissions. Although there is some case law indicating that the filing of late responses can constitute a motion to withdraw, see Metpath, 1991 WL 87534, at *2 (noting in dicta that another circuit has held that untimely responses could be the equivalent of a motion to withdraw admissions), the undersigned declines to construe Mr. White's documents, which were filed without any explanation and almost one year after the response deadline, as a motion to withdraw.
JPB and Mr. Billingsley argue that because the matters in their requests for admission are deemed admitted, those admissions entitle JPB to summary judgment on its breach of contract claim and entitle JPB and Mr. Billingsley to summary judgment on Mr. White's counterclaims (docs. 53-1 at 8-9; 68 at 3). By failing to submit timely responses to the requests for admission, Mr. White has now admitted that he stopped making payments in or about September 2020 on the promissory notes that he executed; he breached the promissory notes; he failed to make regularly scheduled tax payments on behalf of Gringos; his actions were the cause of JPB's damages; his own actions were the cause of Gringos being deprived as a unique late night gathering spot in downtown Greenville; JPB and Mr. Billingsley were not responsible for the City of Greenville revoking the special exception permit/2:00 a.m. exemption; JPB and Mr. Billingsley did not engage in any fraud associated with the permit or Mr. White; JPB and Mr. Billingsley did not misrepresent, conceal, and/or fail to disclose material facts regarding Gringos' operations, the permit, or the City of Greenville's violations, ordinances, and/or requirements; JPB and Mr. Billingsley did everything to the best of their ability to help appeal the City of Greenville's revocation of the permit and save the permit; and JPB and Mr. Bilingsley are not responsible for any of Mr. White's past, present, or future legal costs, expenses, or attorney's fees (see doc. 53-4 at 19-21).
As set out above, Mr. White failed to provide any kind of argument or explanation in response to JPB's and Mr. Billingsley's motion. Based on Mr. White's admissions, the undersigned recommends that the district court find that there is no genuine issue of material fact regarding JPB's breach of contract claim or Mr. White's counterclaims and that JPB and Mr. Billingsley are entitled to judgment in their favor. Should the district court adopt this recommendation, the undersigned further recommends that the district court grant JPB the damages that it seeks and grant JPB and Mr. Billingsley attorney's fees and costs. See, e.g., Wells Fargo Bank, N.A. v. Walls, 543 Fed.Appx. 350, 351-52 (4th Cir. 2013) (affirming a district court's grant of summary judgment when there were no genuine issues of material fact after a defendant failed to respond to the plaintiff's requests for admissions); Metpath, 1991 WL 87534, at *3 ("[T]aking the matters admitted by Modern Medicine as conclusive [due to Modern Medicine's failure to file timely responses to the requests for admission], there was no remaining genuine issue of material fact.").
CONCLUSION AND RECOMMENDATION
Wherefore, based on the foregoing, the undersigned recommends that the district court grant JPB's and Mr. Billingsley's motion for summary judgment on JPB's breach of contract claim and Mr. White's counterclaims (doc. 53). Should the district court adopt this recommendation, the undersigned further recommends that JPB be granted the damages that it seeks and that JPB and Mr. Billingsley be granted attorney's fees and costs.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Suite 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).