UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-1497

CONTRACT MATERIALS PROCESSING, INCORPORATED,

Plaintiff – Appellant,

v.

KATALEUNA GMBH CATALYSTS; TRICAT MANAGEMENT GMBH; SUD CHEMIE 

ZEOLITES GMBH, f/k/a Tricat Catalytic Products GmbH,

Defendants – Appellees.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Andre M. Davis, District Judge. (1:98-

cv-00147-AMD)

Argued: October 26, 2011 Decided: February 1, 2012

Before KING, GREGORY, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Paul Stone Richter, RICHTER, MILLER & FINN, Washington, 

D.C., for Appellant. Barbara Susan Wahl, ARENT FOX, LLP, 

Washington, D.C., for Appellees. ON BRIEF: Thomas P. Miller, 

RICHTER, MILLER & FINN, Washington, D.C., for Appellant. 

Randall A. Brater, Karen E. Carr, ARENT FOX, LLP, Washington, 

D.C., for Appellees.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

On March 30, 2010, a litigation saga spanning more than 

twelve years in the District of Maryland finally came to an end 

with the entry of a Final Order and Judgment (the “Judgment”) on 

behalf of KataLeuna GmbH Catalysts (“KataLeuna”), Tricat 

Management GmbH (“TMG”), and Tricat Catalytic Products GmbH

(“TCP”) (collectively, the “Defendants”). The Judgment awarded 

$4,726,518.81 to KataLeuna on its four counterclaims against 

Plaintiff Contract Materials Processing, Inc. (“CMP”), net of 

two claims on which CMP prevailed. CMP appeals the Judgment and 

certain interlocutory rulings incorporated within, including 

that CMP pay $202,469.26 in attorney fees and interest to 

KataLeuna, along with discovery sanctions of $27,654.30. We 

affirm in all respects.

I.

CMP, principally operating out of Baltimore, was 

incorporated in 1987 by Dr. Edwin Albers, its president and sole 

shareholder, to develop chemical and petrochemical products and 

to provide analytical, research, and consulting services. By 

1992, CMP had begun to produce and sell Fluid Cracking Catalyst 

(“FCC”) additives, which are used in the refining process to 

promote the “cracking,” or chemical transformation, of crude oil 

into lighter products such as gasoline and diesel fuel. In 
3

early 1995, Dr. Albers entered into discussions with Dr. P. 

Kenerick Maher of Tricat Industries, Inc. (“TII”), concerning a 

trio of additives that CMP was developing and for which it had 

submitted patent applications: (1) “SOx A,” designed to reduce 

sulfur emissions from the refining process; (2) “Combustion 

Promoter B,” a cobalt-based version of Mobil’s platinum-based 

progenitor, intended to facilitate the combustion of carbon 

monoxide into CO2; and (3) “Octane Enhancer B.”

TII was the American parent and sole shareholder of TMG, a 

German holding company managed by Maher. In May 1995, TMG 

acquired 74.8% of KataLeuna, with the remaining 25.2% retained 

by the Bundesanstalt für vereinigungsbedingte Sonderaufgabe 

(“BvS”), a governmental agency overseeing the privatization of 

former East German enterprises. Maher’s negotiations with Dr. 

Albers resulted in the execution of a Sales Agency Agreement

(“SAA”) and a Research and Development Agreement (“RDA”) between 

CMP and KataLeuna, and of a Technology Transfer Agreement 

(“TTA”) among the same corporate entities, Dr. Albers, and J. 

Gary McDaniel, a key CMP employee familiar with its FCC 

operations.

Under the terms of the TTA, effective November 27, 1995, 

CMP agreed to transfer to KataLeuna its “entire right, title and 

interest” in the additives. In return, KataLeuna agreed to pay

$2.1 million, transfer five thousand shares of non-voting TII 
4

stock (having a stipulated value of $75,000), and remit 

royalties to CMP amounting to 20% of KataLeuna’s gross margin 

realized from the manufacture and sale of the FCC additives, up 

to a maximum of $7.6 million. KataLeuna had long been in the 

catalyst business, and its acquisition of the FCC additive 

technology developed by CMP was part of a plan to expand its 

product line, another component being the construction of a new 

manufacturing and processing plant in Leuna, Germany. The TTA 

included the warranties of CMP and the individual signatories 

that KataLeuna could rely on any statements in the patent 

applications, that the technology had not been patented and 

violated no existing patents, that the reports previously 

delivered to KataLeuna “demonstrating the viability and the 

reliability of the Combustion Promoter B” technology were “true, 

complete and correct,” and that the technology was “new, useful 

and unobvious.” J.A. 98-99.1

The TTA also provided for the transfer of McDaniel’s 

employment from CMP to KataLeuna, and it required the delivery 

of the fully executed RDA, whereby Dr. Albers would devote 

approximately one-third of his time for one year to further test 

and develop the FCC additives in order to perfect and expand 

 1 Citations herein to “J.A. ___” refer to the contents of 

the Joint Appendix filed by the parties to this appeal.
5

their uses. In exchange, KataLeuna agreed to pay CMP $400,000 

in equal quarterly installments. The SAA, predating both the 

RDA and the TTA, appointed CMP as KataLeuna’s exclusive North 

American agent for the sale of smaller quantities of zeolites 

(absorbent minerals used in the catalytic process). CMP agreed 

thereunder to store and sell KataLeuna’s zeolites on consignment 

in exchange for a commission on net sales; to defray CMP’s sales 

and marketing expenses, KataLeuna covenanted to pay CMP $240,000 

annually in equal monthly installments.

In October 1996, notwithstanding the efforts of Dr. Albers 

to perfect SOx A, it became obvious to KataLeuna that the 

compound was not working as the parties had anticipated. The 

hoped-for chemical synergy between the hydrotalcite and zinc 

titanate components had not developed, owing to the relative 

ineffectiveness of the latter. The outcome was consistent with 

tests performed in 1994 on prior versions of the compound by Dr. 

Raghubir Gupta of the Research Triangle Institute. Dr. Gupta, 

who conducted the testing at the request of Dr. Albers, had been 

skeptical of the compound’s efficacy from the outset, given the 

chemical reality that particles useful for removing hydrogen 

sulfide are generally ineffective to also remove sulfur dioxide. 

According to Dr. Gupta, it was “very, very well-known that zinc 

oxide is an excellent H2S removal. So from common sense normally 

it will not work for SO2 removal.” J.A. 1806.
6

CMP had also conducted preliminary testing on Combustion 

Promoter B, with inconclusive results. Another test was run in 

late 1996 after KataLeuna had taken ownership, but, absent full 

saturation of the cobalt-based compound in the FCC unit, i.e., 

complete displacement of the platinum-based promoter, it could 

not be conclusively determined whether CMP’s invention was 

effective. McDaniel was optimistic, in that the processing 

temperature had remained fairly steady throughout, but the 

owners of the unit were so unimpressed that they purchased no 

more of the compound. Then, at a full-saturation test in August 

1997, after Mobil’s promoter had to be reintroduced to the unit 

to control rapidly rising temperatures, it became apparent that 

Combustion Promoter B was generally ineffective. Scientific 

testing by a Dutch catalyst manufacturer in August 1999 

confirmed that conclusion.

Octane Enhancer B was similarly a bust. KataLeuna 

prosecuted the patent application that had been transferred to 

it pursuant to the TTA, but the United States Patent and 

Trademark Office rejected it on the ground that the additive was 

virtually identical to a pre-existing South African patent. 

Both compounds were based upon a blend of synthetic zeolites 

with natural clinoptilolite, and each was designated for use in 

a hydrocarbon cracking process.
7

The parties’ business association thus turned out to be

short-lived. KataLeuna opted to not renew the RDA, withholding 

the final quarterly installment of $100,000. KataLeuna also 

notified CMP that the SAA would be terminated at the end of 

November 1996. The zeolites remained with CMP until late August 

2005, when KataLeuna removed some and abandoned the rest. CMP, 

whose lease on the storage area was expiring, disposed of the 

remaining materials. No royalty payments, contemplated by the 

TTA to begin on February 1, 1998, were ever made.

On January 15, 1998, prior to the date of performance with 

respect to the royalty payments, CMP filed suit in the District 

of Maryland against KataLeuna and TMG. The Complaint alleged 

breaches of payments due under the RDA and SAA, and it 

anticipatorily sought a declaratory judgment as to the parties’ 

rights and responsibilities under the TTA. Issues regarding 

proper service resulted in the filing of the operative Amended 

Complaint on December 9, 1998, which retained the RDA and SAA 

breach claims (Counts I and II); substituted a claim (Count IV) 

under the TTA for the former declaratory judgment count; amended 

a separate SAA claim (Count III) to assert entitlement to 

compensation for bailment of the stored zeolites; and added 

claims (Counts V and VI) for misappropriation and conversion, 

respectively, of trade secrets relating to CMP’s FCC additives 

technology. The Amended Complaint named a third Defendant, TCP, 
8

which had been created in 1997 to establish KataLeuna’s former 

research division, Triadd, as a formal business entity. Counts 

VII through X alleged that TMG was responsible for the acts of 

KataLeuna outlined in Counts I-III, and independently liable for 

conversion, misappropriation, and breach of the TTA. The latter 

three allegations were essentially repeated against TCP in 

Counts XI through XIII. CMP demanded a jury trial on all 

claims.

The Defendants answered and counterclaimed on April 16, 

1999. By its operative Second Amended Counterclaim, KataLeuna 

asserted breaches of the three agreements (Counts I-III) and 

alleged in the alternative (Counts IV-VI) that CMP was unjustly 

enriched. According to KataLeuna, CMP did not live up to its 

warranties in the TTA and ignored its obligations under the RDA 

and SAA. KataLeuna also maintained that CMP had converted the 

consigned zeolites (Count VII), negligently exposed them to the 

elements (Count VIII), and failed to remit sales proceeds as 

agreed in the SAA (Count IX). Finally, KataLeuna requested an 

accounting as to chemicals it transferred to CMP, and as to FCC 

additives that CMP sold to third parties (Count X).

The district court dismissed CMP’s conversion claims as to 

the additives technology (Counts VI, IX, and XIII) on August 11, 

1999. Thereafter, on September 18, 2001, the court granted 

summary judgment to TMG and TCP as to the remaining claims 
9

against them (Counts VII, VIII, X, XI, and XII), and to 

KataLeuna on the claims for breach of the TTA (Count IV) and for 

misappropriation (Count V), leaving only CMP’s claims for breach 

of the RDA and SAA (Counts I and II) and for bailment (Count 

III). On the counterclaim side of the ledger, the district 

court awarded summary judgment to KataLeuna for $18,507.40, the 

undisputed amount owed by CMP for the sale of zeolites (Count 

IX). In a proposed joint pretrial order submitted to the court 

on August 28, 2002, KataLeuna abandoned its claims for unjust 

enrichment (Counts IV-VI).

With most of CMP’s case being dismissed or summarily 

adjudicated against it, the district court was of the opinion 

that the portion of the counterclaim relating to the TTA (Count 

I) dominated the remaining issues. The court thus decided to 

bifurcate that count for a bench trial on KataLeuna’s assertion 

that it was entitled to equitable rescission, putting aside for 

the time-being the parties’ competing legal claims under the RDA 

and SAA (CMP’s Counts I-II, and KataLeuna’s Counts II-III), 

along with those arising from the storage and safekeeping of the 

consigned zeolites (CMP’s Count III and KataLeuna’s Counts VIIVIII). As the result of that twelve-day bench trial, the 

evidentiary portion of which was conducted over scattered dates 

in the winter and spring of 2003, the district court, on 

September 28, 2003, entered a Rule 54(b) judgment rescinding the 
10

TTA, awarding restitution of $2,793,449.13 to KataLeuna for 

“equitable damages . . . intertwined with its remedy of 

rescission,” J.A. 2712, and ordering CMP and KataLeuna to 

return, respectively, the TII stock and the technology 

properties.2 The judgment awarded an additional $134,945 to 

KataLeuna for attorney fees incurred in defending the 

misappropriation claims. CMP proceeded to file an interlocutory 

appeal, which we declined to certify and therefore dismissed. 

See Order, Contract Materials Processing, Inc. v. Tricat Mgmt. 

GmbH, No. 03-2253 (4th Cir. Mar. 10, 2005) (unpublished).

The case languished on remand until CMP moved for the 

district court’s recusal on September 28, 2006, citing in part 

the litigation delay and other grounds, but based primarily on 

the court’s service in 2003-05 as a member of the Board of 

Directors of the Foundation for Research on Economics and the 

Environment (“FREE”). FREE’s activities as a nonprofit entity 

are substantially underwritten by corporate subsidies, including 

donations from Shell Oil Co., which, since 1998, has been an 

indirect corporate parent of KataLeuna. Following a hearing on 

June 14, 2007, the court declined to recuse itself. In the

 2 Rule 54 permits a district court to “direct entry of a 

final judgment as to one or more, but fewer than all, claims or 

parties,” on condition that “the court expressly determines that 

there is no just reason for delay.” Fed. R. Civ. P. 54(b).
11

interim, on January 24, 2007, CMP petitioned for mandamus relief 

to compel recusal, which we summarily denied. See Order, In re: 

Contract Materials Processing, Inc., No. 07-1059 (4th Cir. Feb. 

16, 2007) (unpublished).

At the June 14 hearing, the district judge revealed that he 

had resigned from the Board of FREE following his receipt of an 

undisclosed letter opinion on the matter from the Committee on 

Codes of Conduct, an authorized body of the Judicial Conference 

of the United States. CMP again sought the court’s recusal 

through a second petition for a writ of mandamus filed on July 

13, 2007, requesting disclosure of the letter. We again denied 

relief via a short-form order. See Order, In re: Contract 

Materials Processing, Inc., No. 07-1657 (4th Cir. Oct. 2, 2007)

(unpublished).

On April 28, 2008, KataLeuna tendered a Rule 68 offer of 

judgment to CMP on the latter’s claims for breach of the RDA and 

of the SAA (Counts I and II), agreeing to pay the damages 

demanded in the pleadings, plus interest and costs, to be offset 

against any judgment in its favor on the counterclaim, Counts II 

and III of which (pertaining to KataLeuna’s claims against CMP 

under the RDA and SAA) would be dismissed with prejudice. CMP 

refused the offer, but, on October 30, 2008, the district court 

nonetheless granted KataLeuna’s motion to dismiss Counts I and 

II of the Amended Complaint for mootness. The dismissal order 
12

also encompassed Counts II and III of the Second Amended 

Counterclaim. CMP sought immediate review of the district 

court’s order through a third mandamus petition and a separate 

notice of appeal, neither of which were successful. See Order, 

In re: Contract Materials Processing, Inc., No. 08-2246 (4th 

Cir. Dec. 16, 2008) (unpublished) (denying petition for writ);

Order, Contract Materials Processing, Inc. v. KataLeuna GmbH 

Catalysts, No. 08-2311 (4th Cir. Feb. 9, 2009) (unpublished)

(dismissing appeal as interlocutory).

The parties submitted an amended proposed pretrial order on 

November 19, 2009, in which KataLeuna abandoned its claim for an 

accounting of proceeds from the sale by CMP of certain chemicals 

and additives (Count X). That paved the way, after almost 

twelve years of litigation, for a jury trial solely on the 

claims emanating from the consigned zeolites, relating to Count 

III of the Amended Complaint and Counts VII and VIII of the 

Second Amended Counterclaim. The trial commenced on December 7, 

2009, with the court granting judgment as a matter of law to 

KataLeuna on CMP’s claim for bailment at the close of the 

latter’s case-in-chief. At the conclusion of trial, the jury 

returned a verdict for KataLeuna on its claims for conversion 

and negligence in the amount of $571,389.25, plus prejudgment 

interest. The district court entered its final judgment against 

CMP on March 30, 2010, as follows:
13

 2,793,449.13 (TTA equitable damages)

+ 1,732,091.53 (interest from 10/5/99)

 4,525,540.66

 571,389.25 (zeolites conversion/negligence)

+ 8,452.51 (interest from 11/14/05)

 5,105,382.42

+ 18,507.40 (zeolites consignment sales)

 5,123,889.82

 (181,021.37) (KataLeuna breach of RDA, plus interest)

+ (216,349.64) (KataLeuna breach of SAA, plus interest)

$ 4,726,518.81

The district court entered a final net judgment in 

KataLeuna’s favor of $4,726,518.81, supplementing interlocutory 

awards to KataLeuna of $202,469.26 in attorney fees and 

interest, together with discovery sanctions of $27,654.30. On 

appeal, CMP asserts that the proceedings below were infected 

throughout with error. For clarity’s sake, we address in 

chronological order the specific instances giving rise to these 

assertions.

II.

A.

Shortly after the filing of the Amended Complaint, the 

Defendants sought to dismiss CMP’s claims for misappropriation 

and conversion. The district court granted dismissal of the 

conversion claims, concluding that CMP’s assignment through the 

TTA of the entirety of its interest in the FCC additives 

deprived it of any entitlement to possess them, an essential 

element of the tort. The court, however, “[i]n light of the 
14

liberal spirit pervading the pleading requirements,” declined to 

dismiss the misappropriation claims. J.A. 158. In so ruling, 

the court recognized that CMP had not alleged “that Kataleuna 

initially obtained the technology improperly,” but had instead 

maintained that, through subsequent transfers, one or more of 

the other Defendants had “improperly procured [its] use . . . in 

order to circumvent Kataleuna’s responsibility to pay CMP 

royalty payments.” Id. at 159.

The misappropriation claims were thus among those permitted 

to proceed to discovery. In developing the discovery plan, 

counsel for CMP became informed that TII had hired John McCauley 

in April 1996 to coordinate with McDaniel in specifying and 

controlling the research that CMP and Dr. Albers were to conduct 

under the RDA. McCauley’s assigned station was a lab in a 

trailer at CMP, where he worked through October 1996. CMP 

speculated that McCauley was a potential conduit for the flow of 

proprietary information that enabled KataLeuna to further its 

fledgling FCC additives business by developing patentable 

advances from the TTA technology and, perhaps, other CMP 

discoveries. Proceeding on that theory, CMP requested at the 

outset of the litigation “documents concerning . . . any FCC 

additive,” J.A. 199, and “patent prosecution files . . . for all 

patent applications related to [the TTA patents] or any related 

non-U.S. patent applications.” Id. at 201. The defendants 
15

objected on trade secret and other grounds, in particular that

“documents concerning technology other than the [TTA technology] 

are irrelevant.” Id. at 213.

Some of the contested documents were accidentally produced, 

relating to six patent applications that KataLeuna was then 

pursuing, including one for SOx B, a magnesium oxide variation of 

the zinc oxide-based SOx A technology. CMP argued for the 

production of additional materials based on its assertion that 

the inadvertently disclosed documents revealed that some of the 

new applications were “continuation” applications, that some 

were attributable to McCauley’s efforts, and that some 

incorporated work product, such as testing results, produced by 

CMP pursuant to the RDA. Indeed, it seems that some of these 

applications contained graphs with plot points derived from a 

proprietary CMP procedure, which the company evidently perfected 

while developing the additives that were the subject of the TTA.

Although the threshold for relevance is not a high one, 

i.e., “information . . . reasonably calculated to lead to the 

discovery of admissible evidence,” Fed. R. Civ. P. 26(b)(1), the 

district court, at the December 16, 1999 hearing on CMP’s motion 

to compel, called the company’s attempts at discovery 

“promiscuous,” J.A. 351, making it plain that the court was not 

going to convert its “extraordinarily generous” denial of 

KataLeuna’s threshold motion to dismiss the misappropriation 
16

claims “into some dragon of a discovery machine and thereby open 

up all kinds of lines of inquiry that simply are not likely to 

lead anywhere fertile.” Id. at 380. After hearing from both 

sides, the court declared that it was “not persuaded” by CMP’s 

arguments that the requested materials were germane. Id. at

401.

A district court’s discovery rulings are reviewed for abuse 

of discretion. See Carefirst of Md., Inc. v. Carefirst 

Pregnancy Centers, Inc., 334 F.3d 390, 396 (4th Cir. 2003). In 

denying CMP’s motion to compel, some of the court’s remarks may 

have rankled (“This is exactly the kind of thing, with all 

respect, sir, that people point to when they talk about 

discovery abuse.”), J.A. 352, but the undercurrent motivating 

them is readily understood: the relatively discrete claims that 

survived dismissal had, with discovery scarcely begun, been 

transformed into something much broader.

Worse, the transformation had no legal basis. A claim 

under Maryland law for the misappropriation of business 

information is governed by the state’s adoption of the Uniform 

Trade Secrets Act (“UTSA”), which requires, among other things, 

that the information be “acquired by improper means.” Md. Code. 

Ann. Com. Law § 11-1201(c)(1). To the extent that KataLeuna may 

have used the CMP technology to facilitate its fledgling 

catalyst business, it was not barred from doing so by the TTA, 
17

which merely required KataLeuna to pay royalties to CMP on sales 

of the specific additives that were the subject of that 

agreement; consistently therewith, the RDA imposed an obligation 

of confidentiality solely on CMP, with no similar restriction on 

KataLeuna. Consequently, the information that CMP sought was 

not reasonably calculated to lead to the discovery of admissible 

evidence, and the district court did not abuse its discretion by 

declining to compel the Defendants to produce it.

Hewing more closely to the misappropriation claims as 

conceived in its pleadings, CMP pursued information concerning

the April 1997 decision to transfer TMG’s majority interest in 

KataLeuna to BvS, the minority owner. The arrangement as 

proposed would have assigned KataLeuna’s rights to the FCC 

additives to TCP, contrary to an alleged oral understanding 

between Maher and Dr. Albers. That deal never materialized, 

however. Instead, by virtue of a series of agreements executed 

in the summer of 1998 among multiple parties, TMG indeed 

divested its interest in KataLeuna, but the latter retained the 

rights and obligations set forth in the TTA.

CMP sought to discover these “Summer 1998 Agreements,” but 

not all of them were provided, and some that were provided were 

heavily redacted. With the assistance of the court, KataLeuna 

agreed to produce less-redacted versions. The matter appeared 

to have been resolved, except for some complaints from CMP at a 
18

hearing to dismiss KataLeuna’s counterclaims, see J.A. 562-63, 

and a couple of objections at the subsequent bench trial on 

rescission, see id. at 1796-97, 1912-14, that the documentation 

evidencing the transfer was unclear or incomplete. Absent more 

proactive efforts from CMP to bring their complaints to the 

attention of the court prior to the hearing or trial, however, 

we are unable to ascertain any abuse of discretion.

B.

The misappropriation claims ultimately failed at the 

summary judgment stage, as CMP could show no impropriety or 

misuse in that KataLeuna legitimately acquired all rights to the 

FCC additives, and there was no evidence adduced of a subsequent 

transfer in violation of the supposed oral agreement. In 

addition, the district court noted a dearth of evidence 

supporting the proposition that the technology had actually been 

maintained with sufficient secrecy to qualify as a “trade 

secret” under the UTSA. See Md. Code. Ann. Com. Law § 11-

1201(e)(2) (defining term in part as information that “[i]s the 

subject of efforts that are reasonable under the circumstances 

to maintain its secrecy”). The court thereafter granted a 

petition for attorney fees of $134,945 incurred in defending the 

claims, finding that KataLeuna, TMG, and TCP had “carried the 

burden imposed upon them by Maryland law, frankly by a very 

large margin, to show clearly and convincingly that CMP 
19

initiated and maintained its trade secrets claims in bad faith.” 

J.A. 1459.

A court may award attorney fees under the UTSA if a party 

initiates or pursues in bad faith a claim for misappropriation 

of trade secrets. See Md. Code. Ann. Com. Law § 11-1204(1); 

Optic Graphics, Inc. v. Agee, 591 A.2d 578, 588 (Md. Ct. Spec. 

App. 1991). Generally, an award of fees lies within the trial 

court’s discretion. See Deadwyler v. Volkswagen of Am., Inc., 

884 F.2d 779, 784 (4th Cir. 1989).

The district court here concluded that the misappropriation 

claims were “alleged and maintained in objective speciousness,” 

J.A. 1478 (footnote omitted), and it further referred to CMP’s 

approach to discovery (multiple unsuccessful motions to compel, 

coupled with deposition notices and a non-party subpoena being 

quashed for “reckless extravagance”) as evidence of its 

subjective ill will. Insofar as the court’s ruling is 

plausible in view of the facts and the law, it was not an abuse 

of discretion. CMP complains that the court awarded fees 

without convening an evidentiary hearing, but our precedent 

counsels that due process is satisfied so long as the court has

familiarized itself with the relevant facts by becoming immersed

in the underlying proceedings. See In re Kunstler, 914 F.2d 

505, 521 (4th Cir. 1990). Such was undoubtedly the case here.
20

The district court also granted summary judgment to 

KataLeuna on CMP’s claim for breach of the TTA. CMP insists the 

court’s ruling was in error, pointing to a single page from a 

July 15, 1997 report by KataLeuna’s auditor, translated from the 

German, stating that the TTA “was rescinded effective January 1, 

1997.” J.A. 1119. The court excluded the report excerpt as 

hearsay, but CMP contends that the statement is a party 

admission, see Fed. R. Evid. 801(d)(2), in that the auditor may 

properly be considered an agent of KataLeuna.

Assuming, for the sake of argument, that the auditor was 

KataLeuna’s agent and that the excerpt accurately reflected his 

understanding with respect to the TTA, its potential 

admissibility under a hearsay exception is beside the point in

that the statement utterly lacks probative value. To suggest 

that KataLeuna attempted a unilateral rescission of the TTA is 

contrary to any reasonable view of the case and its surrounding

context. Following the initial exchange of rights for money, 

KataLeuna’s only substantive obligation under the TTA was to pay 

CMP if and when it sold the FCC additives. Having not sold any 

additives, KataLeuna paid no royalties to CMP; it did not have 

to “rescind” anything. KataLeuna did seek rescission as a 

remedy once it had been sued, but that particular action in no 

way meets the legal definition of “breach.”
21

Wrapped up in this issue, as with the misappropriation 

claims, is CMP’s assertion that, prior to the execution of the 

TTA, Maher and Dr. Albers reached an oral agreement that 

KataLeuna would not further transfer the FCC additive rights 

until the royalty payments topped out at $7.6 million. Maryland 

law governs the contract, with the result that “[t]he parol[] 

evidence rule only applies where the parties to a written 

contract agree or intend that the writing shall be their whole 

agreement.” State Dep’t of Gen. Servs. v. Cherry Hill Sand & 

Gravel Co., 443 A.2d 628, 631 (Md. Ct. Spec. App. 1982) 

(citations omitted). Inasmuch as there is no merger or 

integration clause in the TTA, it is at least arguable that 

Maher’s alleged assurances to Dr. Albers could be part of the 

parties’ agreement, at least to the extent that nontransferability is not flatly inconsistent with CMP’s written 

assignment of its “entire right, title and interest.” Again, 

however, there is no evidence that KataLeuna actually 

transferred the rights to the additives. The district court 

therefore appropriately awarded summary judgment to KataLeuna on 

CMP’s claim for breach.
22

III.

A.

KataLeuna countered CMP’s claims of breach with similar 

allegations of its own, asserting entitlement to alternative 

remedies. In late 2002 or early 2003, as the parties were 

preparing for trial, KataLeuna elected to pursue rescission, 

forgoing its pursuit of legal damages and abandoning its claims 

for unjust enrichment. Rescission is an equitable proceeding, 

see Griggs v. E.I. duPont de Nemours & Co., 385 F.3d 440, 447 & 

n.4 (4th Cir. 2004), among those that fall outside the 

constitutional right to trial by jury of “suits at common law.” 

U.S. Const. amend. VII; see Tull v. United States, 481 U.S. 412, 

417 (1987) (citations omitted).

Nonetheless, the right to a jury trial for claims at law is 

“preserved to the parties inviolate,” Fed. R. Civ. P. 38(a), and 

“only in the most imperative circumstances . . . can the right 

to a jury trial of legal issues be lost through prior 

determination of equitable claims.” Dairy Queen, Inc. v. Wood, 

369 U.S. 469, 472-73 & n.7 (1962) (quoting Beacon Theatres, Inc. 

v. Westover, 359 U.S. 500, 510-11 (1959)). Thus, “where legal 

and equitable claims are contained in the same set of facts, the 

right to a jury trial, which the legal claims permit, should 

predominate.” Ritter v. Mount St. Mary’s College, 814 F.2d 986, 
23

990 (4th Cir. 1987); accord, Terry v. Chauffers, Teamsters and 

Helpers Local 391, 863 F.2d 334, 336 (4th Cir. 1988).

Ritter, however, proved an exception to the rule. In that 

case, the district court erroneously dismissed the plaintiff’s 

legal claims and conducted a bench trial on an equitable claim; 

after the legal claims were reinstated on appeal, the question 

arose as to whether the bench trial findings were precluded from 

relitigation before the jury. The district court ruled in the 

affirmative, and we agreed, relying on the Supreme Court’s 

decision in Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 

(1979), arising on similar facts, for the proposition that “the 

harm complained of is insufficient to override the judicial 

interest in the speedy resolution of disputes.” Ritter, 814 

F.2d at 991.

Plainly, “mixed” cases in which rescission is invoked as a 

potential remedy pose a problem for the district courts in case 

administration. One approach to the problem is to employ a 

method whereby “the jury first decides the questions of fact and 

then the judge decides whether rescission is an appropriate 

remedy.” Falco v. Alpha Affiliates, Inc., No. 97-494, 2000 WL 

727116 (D. Del. Feb. 9, 2000) (unpublished) (citing precedent 

that substantial non-performance justifying rescission is a 

question for the trier of fact, and noting that “many, but not 

all, of the alleged facts underlying the equitable counterclaim 
24

are the same as that underlying the counterclaims triable to the 

jury”); cf. Terry, 863 F.2d at 339 (“Resolution of the 

declaratory relief demand, however, raises legal issues that may 

well require both a determination by the court of the meaning of 

the collective bargaining agreement and a resolution by the jury 

of disputed facts concerning whether that agreement was 

breached.”).

It is arguably a different situation where the legal and 

equitable claims arise on separate facts, such as in Dollar 

Sys., Inc. v. Avcar Leasing Sys., Inc., 890 F.2d 165 (9th Cir. 

1989), in which the court of appeals upheld the district court’s 

decision to conduct a bench trial on the defendants’ 

counterclaim for rescission, prior to impaneling a jury to 

decide the remaining legal claims. The Ninth Circuit 

acknowledged the rule of Dairy Queen, but observed that “[t]he 

legal and equitable claims asserted in this action . . . do not 

involve any common questions of law or fact.” Id. at 170. In 

such a situation, “the order of trial is immaterial, and may be 

left in the discretion of the court.” Id. at 171 (quoting 9 C. 

Wright & A. Miller, Federal Practice and Procedure § 2305, at 35 

(1971)); accord, Arber v. Essex Wire Corp., 490 F.2d 414, 421-24 

(6th Cir. 1974) (finding no violation of Seventh Amendment where 

federal claim potentially implicating right to jury trial was 
25

dismissed and rescission subsequently elected as to remaining 

state law claim).

The parties dispute whether KataLeuna’s equitable 

counterclaim seeking rescission of the TTA is truly independent 

of CMP’s indisputably legal claims for damages under the RDA and 

SAA. It is certainly the case that the RDA is one of several 

documents referred to in the TTA whose execution and delivery 

was a condition of closing. It is also true that one purpose of 

the RDA was “to further develop [the TTA] technology,” J.A. 106, 

together with new additives technologies. That the FCC 

additives were apparently subject to additional testing and 

refinement, however, has scant bearing on whether CMP lived up 

to its representations in the TTA that the technology was 

useful, reliable, and patentable, and very little to do with 

CMP’s specific claim of non-payment under the RDA. Thus, the 

facts underlying this appeal are analogous to those described by 

the Ninth Circuit in Avcar, and a similar result should arguably 

obtain. More to the point, however, any error occasioned by the 

bifurcation in this matter was harmless, inasmuch as CMP 

recovered fully on its claims under the RDA and SAA.

B.

KataLeuna’s claim under the TTA thus proceeded to trial 

before the district court, sitting without a jury. Among the 

witnesses were Christopher Rosenthal and Arthur Steiner. 
26

Rosenthal was KataLeuna’s damages expert. Following Rosenthal’s 

brief testimony, CMP declined the court’s invitation to crossexamine, explaining that “[w]e’re going to call him during our 

defense case.” J.A. 1756. KataLeuna objected, and the court 

reserved ruling, although it opined “That’s not the way it’s 

done.” Id. at 1759. CMP employed the same tactic with Steiner, 

who had testified on behalf of KataLeuna as an expert on 

patents, and also as a fact witness on KataLeuna’s attempt to 

obtain certain patents. KataLeuna again objected, and the court 

again deferred its ruling: “You know my feelings about the 

whole question of CMP’s recalling certain witnesses . . . . 

[Counsel] will have to make a very detailed proffer . . . before 

I permit him to recall any witness.” Id. at 1811-12.

When the time came for the proffer, counsel explained that 

CMP wanted to question Rosenthal on his damages calculation 

being premised on a legal breach theory, rather than an 

equitable rescission theory, to inquire as to some late 

revisions to his report, and “to ask him about some defects that 

are in his methodology and in his analyses.” J.A. 1817. With 

respect to Steiner, CMP proposed to examine him regarding patent 

applications for SOx B and combustion promoters submitted by 

KataLeuna that, according to CMP, had been based upon the FCC 

additives technology. The district court denied recall of both 

witnesses, ruling that the proffer as to Rosenthal would have 
27

been the proper subject of cross-examination, and the proffer as 

to Steiner was foreclosed in reaffirmation of the court’s prior 

rulings on the misappropriation claims. Proffered testimony 

from Dr. Albers as to the patent sources was also excluded.

We review evidentiary rulings to ensure that the district 

court did not abuse its discretion. See United States v. Blake, 

571 F.3d 331, 350 (4th Cir. 2009) (citation omitted). The trial 

court is afforded wide latitude in the conduct of proceedings 

and presentation of evidence, and, in this instance, it gave 

counsel ample and timely warning that CMP might be precluded 

from eliciting evidence from hostile witnesses in the manner it 

apparently preferred. Under the circumstances, the court 

appears to have acted well within its sound discretion in 

conforming its rulings to its warnings.

Apart from the foregoing procedural dispute, CMP maintains 

that the district court substantively erred in adjudging 

KataLeuna entitled to rescission. CMP contends that the court’s 

conclusion flouts a number of legal prerequisites to equitable 

relief, specifically that: (1) the parties could not be 

restored to their respective positions prior to the TTA, because 

KataLeuna sold the additives technology to TCP; (2) KataLeuna 

failed to tender all the benefits it received under the TTA; (3) 

KataLeuna had an adequate remedy at law for damages; (4) the 
28

election of remedy came too late and was thus barred by laches; 

and (5) CMP’s breach of the TTA, if any, was not material.

These contentions merit little discussion. The record is 

clear that although KataLeuna contemplated a transfer of the 

additives technology, it actually retained those rights 

throughout. Moreover, the supposed benefits KataLeuna failed to 

tender (the profits purportedly realized from the transfer that 

did not happen, together with allegedly derivative SOx B and 

copper palladium combustion promoter patents) likewise find no 

record support for their existence. Indeed, McCauley 

testified at deposition, without contradiction, “that he 

learned nothing from CMP.” J.A. 392.

Although a minority of jurisdictions adhere to the 

traditional rule that rescission is contingent upon damages at 

law proving inadequate, Maryland affords the innocent party the 

right to rescission whenever “there has been a material breach 

of a contract.” Washington Homes, Inc. v. Interstate Land Dev. 

Co., 382 A.2d 555, 563 (Md. 1978). The right to elect 

rescission can be waived if not elected within a reasonable time 

following discovery of the breach and the breaching party 

suffers prejudice from the delay, see Benjamin v. Erk, 771 A.2d 

1106, 1120 (Md. Ct. Spec. App. 2001), but the district court

specifically found that KataLeuna did not reasonably discover 

that all the TTA technologies were without value until well 
29

after litigation had commenced. See J.A. 2704. And, 

notwithstanding CMP’s insistence that the TTA cannot be properly 

understood independently of the RDA’s contemplation that the 

additive technologies were subject to further development, it 

seems plain that the essence of CMP’s obligations under the TTA 

was that something worth developing was being transferred. The 

district court’s judgment of rescission, being supported by the 

facts and governing law, was therefore proper.

IV.

As previously noted, we dismissed as premature CMP’s appeal 

of the Rule 54(b) order entering judgment for KataLeuna on its 

counterclaim for rescission. About eighteen months afterward,

Dr. Albers filed a sworn declaration pursuant to 28 U.S.C. 

§ 144, seeking the district court’s recusal.3

 The declaration 

accused the court of intentionally delaying the proceedings on 

remand, and it set forth Dr. Albers’s belief that the court had

“not been impartial in this case as a result of [its] 

association with FREE or [its] identification with the 

 3 The statute provides, in pertinent part, that if a party 

to any proceeding before the district court devises and submits 

“a timely and sufficient affidavit that the judge before whom 

the matter is pending has a personal bias or prejudice either 

against him or in favor of any adverse party, such judge shall

proceed no further therein, but another judge shall be assigned 

to hear such proceedings.” 28 U.S.C. § 144.
30

substantial contributors to that private foundation.” J.A. 

4083. According to Dr. Albers, partiality was manifest in the 

court’s rulings against CMP and in its statement on remand that 

it would not reconsider any matter previously decided. 

A district court has the discretion to entertain the

possibility of recusal, and its exercise of discretion in favor 

of remaining on the matter is reviewed for abuse. See Newport 

News Holdings Corp. v. Virtual City Vision, Inc., 650 F.3d 423, 

432 (4th Cir. 2011). At the outset, we may decline KataLeuna’s 

invitation to invoke res judicata on its assertion that our 

denial of mandamus relief decided the issue. Mandamus is, of 

course, an extraordinary remedy to which the petitioner need 

show a clear entitlement. See In re Beard, 811 F.2d 818, 826 

(4th Cir. 1987) (noting that “mandamus will not issue when all 

that is shown is that the district court abused its discretion 

in making the challenged ruling”). Our review would therefore 

have been more deferential than it is now, on appeal of the 

final order.

Under any standard, however, it was hardly incumbent upon 

the district court to disqualify itself. To begin with, “the 

bias or prejudice which can be urged against a judge must be 

based upon something other than rulings in the case.” Berger v. 

United States, 255 U.S. 22, 31 (1921). A properly sworn § 144 

affidavit accompanied by the certificate of counsel that it is 
31

being filed in good faith, upon being acknowledged by the court 

as legally sufficient, is enough to require recusal of the 

presiding judge. The affidavit, however, must “show the 

objectionable inclination or disposition of the judge, which we 

have said is an essential condition.” Id. at 35. Mere 

intimations of prejudice or bias founded on the court’s 

association with a nonprofit entity receiving indeterminate 

funding by a remote parent of a corporate litigant fall short of 

the required showing.

In Berger, the affidavit was filed on information and 

belief by defendants in a 1918 espionage prosecution, three of 

whom were of German or Austrian descent. The defendants’ 

averments related certain remarks attributed to the trial judge, 

Kenesaw Mountain Landis, in a different proceeding. According 

to the defendants, Judge Landis premised his remarks by 

boasting, “If anybody has said anything worse about the Germans 

than I have I would like to know it so I can us[e] it.” 255 

U.S. at 28. Judge Landis went on to opine that “[o]ne must have 

a very judicial mind, indeed, not to be prejudiced against 

German-Americans in this country.” Id. He continued:

Their hearts are reeking with disloyalty . . . . This 

same kind of excuse of the defendant offering to 

protect the German people is the same kind of excuse 

offered by the pacifists in this country, who are 

against the United States and have the interests of 

the enemy at heart by defending that thing they call 

the Kaiser and his darling people . . . . I know a 
32

safe-blower . . . who is making a good soldier in 

France. He was a bank robber for nine years, that was 

his business in peace time, and now he is a good 

soldier, and as between him and this defendant, I 

prefer the safeblower.

Id. at 28-29. Needless to say, Judge Landis’s purported 

statements were far more illuminative of his state of mind in 

that case than the circumstances alleged here to reveal the 

district court’s supposed bias in favor of KataLeuna. Cf. Davis 

v. Bd. of Sch. Comm’rs of Mobile Cnty., 517 F.2d 1044, 1050 (5th 

Cir. 1975) (concluding that trial judge did not abuse his 

discretion by refusing to disqualify himself in response to 

“peremptory challenge type approach [that] would bid fair to 

decimate the bench. Lawyers, once in controversy with a judge, 

would have a license under which the judge would serve at their 

will.”).

Though we by no means insinuate that a section 144 affiant 

need produce evidence of a trial judge’s bias or prejudice to 

the degree attributed to Judge Landis in Berger, Dr. Albers’s 

declarations in this matter fall far short of the evidentiary 

critical mass necessary to compel the conclusion that the 

district court should have recused itself. That being the 

situation, we can discern no abuse of discretion in the court’s 

decision to remain on the case.
33

V.

A.

The matter of the court’s recusal having been resolved for 

the time-being by our denial of extraordinary relief, the 

parties moved inexorably toward their final trial. The issues 

to be tried narrowed considerably upon the district court’s 

approval of KataLeuna’s offer of judgment to CMP for the 

former’s breach of the RDA and SAA. Federal Rule of Civil 

Procedure 68 provides that “a party defending against a claim 

may serve on an opposing party an offer to allow judgment on 

specified terms, with the costs then accrued.” Fed. R. Civ. P. 

68(a). If the offer is accepted, then the clerk must enter 

judgment consistent with the agreed terms, but “[a]n unaccepted 

offer is considered withdrawn,” and the defendant’s subsequent 

costs are subject to being paid by the plaintiff in the event 

that the eventual judgment obtained is less favorable than the 

defendant’s offer. Fed. R. Civ. P. 68(b), (d).

The rule undoubtedly contemplates an offer in the nature of 

a compromise, but in this case KataLeuna tendered full judgment 

in offset, including prejudgment interest and costs, as to 

Counts I and II of CMP’s Amended Complaint. Despite CMP’s 

purported rejection of the offer, the district court essentially 

forced its acceptance by ruling that it no longer had subject 
34

matter jurisdiction over the claims because their satisfaction 

had mooted the underlying case or controversy.

Our precedent supports the court’s ruling. In Zimmerman v. 

Bell, 800 F.2d 386, 390 (4th Cir. 1986), a putative class 

action, we affirmed the district court’s dismissal of the 

plaintiff’s individual claims following the defendants’ offer of 

judgment in full. We observed that in light of the offer, 

“there was no longer any case or controversy. . . . [The 

plaintiff’s] personal stake in the outcome had disappeared, and 

federal courts do not sit simply to bestow vindication in a 

vacuum.” Id. 

CMP counters, citing Bevier v. Blue Cross & Blue Shield of 

S.C., 337 Fed. App’x 357 (4th Cir. 2009) (per curiam) 

(unpublished), in which we rejected the plaintiff’s contention 

on appeal that his acceptance of the defendant’s Rule 68 offer 

of a money judgment failed to extinguish his right to pursue 

permanent injunctive relief on the same claim. According to 

CMP, the circumscribed context evident in Bevier permits 

consideration of a broader proposition that a court may not 

invoke an offer of judgment to dismiss particular claims in a 

multiple-claim proceeding.

In so arguing, CMP conflates the dismissal of individual 

“claims” in a lawsuit (which is clearly permitted by the text of 

the rule), with the dismissal of the gamut of potential 
35

“remedies” associated with a claim (which is all that Bevier had 

occasion to address). CMP insists that the RDA and SAA issues 

overlap the rest of the case, and it was therefore error to 

remove the consideration of those claims from the jury, but for 

the reasons previously discussed with respect to the bifurcation 

of KataLeuna’s claim for rescission of the TTA, the court did 

not abuse its discretion in the conduct of the proceedings.

B.

In preparing for the jury trial on the claims involving the 

consigned zeolites, KataLeuna noticed depositions of Dr. Albers 

and his son-in-law, Kurt Kroger, the latter being a lawyer who 

had assumed responsibility for winding up CMP’s business 

affairs. Although CMP had, throughout the litigation, accepted 

and produced witnesses pursuant to the identical notice 

templates, counsel in these instances (in conjunction with local 

counsel for Dr. Albers in Florida, and with counsel for Kroger 

in California) advised their clients not to attend the scheduled 

depositions because, in counsel’s estimation, the notices were 

technically defective for not including the witnesses’ local 

addresses. Thereafter, CMP’s counsel refused all proffered 

dates to reschedule the deposition of Kroger (whom his firm did 

not represent), and did not relent until KataLeuna filed a 

motion to compel. After the depositions were conducted, the 

district court denied KataLeuna’s motion as moot.
36

In addition to the deposition shenanigans, CMP failed to 

produce a videotape that KataLeuna specifically requested, one 

in which Kroger detailed KataLeuna’s cleanup and removal of the 

zeolites. At first, CMP disavowed the video’s existence and 

denied that such a thing had ever been commissioned; six months 

later, CMP acknowledged possession of the tape but produced only 

a redacted copy, asserting the attorney-client and work-product 

privileges in its formation.

Upon finding all the foregoing, the district court awarded 

KataLeuna $27,654.30 in attorney fees. Where a party “fails to 

obey an order to provide or permit discovery,” sanctions may 

include paying “the reasonable expenses, including attorney’s 

fees” attributable to the failure. Fed. R. Civ. P. 37(b)(2)(A), 

-(C). CMP points out that it disobeyed no specific order 

pursuant to a motion to compel, but that position misapprehends 

the proper meaning of the word “order” in the rule. CMP’s 

actions contravened the general order of the district court 

authorizing discovery, see J.A. 3211, and it was therefore 

within the court’s discretion to award sanctions. See Deadwyler 

v. Volkswagen of Am., Inc., 884 F.2d 779, 784 (4th Cir. 1989)

(reciting abuse-of-discretion standard).

C.

A jury was impaneled to decide whether KataLeuna was liable 

in bailment to reimburse CMP for the cost of keeping the 
37

consigned zeolites on the latter’s property for nearly ten years 

prior to their removal, and whether CMP was liable in conversion 

or negligence for permitting the exposed materials to degrade by 

moving them outside its warehouse. Under the SAA, CMP was 

entitled to a percentage of net sales of the zeolites, plus 

$20,000 per month “[i]n support of [its] sales and Marketing 

expenses.” J.A. 89.

CMP took the position that $6,000 of the monthly charge for 

expenses was allocated for storage, based on an alleged 

conversation among McDaniel (on behalf of KataLeuna) and Dr. 

Albers and his son (on behalf of CMP), following termination of 

the SAA, during which CMP offered to continue to house the 

zeolites for that price. Prior to trial, the district court 

excluded evidence of that particular conversation and, more 

generally (based on the parol evidence rule and the SAA 

integration clause), evidence of any negotiations concerning the 

execution of the SAA or attempted oral modification afterward.

The court explained that, in light of CMP’s failure to 

respond to specific discovery inquiries regarding damages 

(including the non-disclosure prior to the hearing of any 

conversation involving McDaniel and the Alberses), it was stuck 

with Dr. Albers’s 1999 deposition testimony that the standard 

annual storage fee in the area was “probably around $6 a square 
38

foot.” J.A. 3639-40, 3810.4 The court rejected CMP’s arguments

that KataLeuna should have phrased its discovery requests 

differently or moved to compel more specific answers. See id.

at 3866.

During the trial, the district court sustained objections 

to questions concerning the substance of post-termination 

conversations between Dr. Albers and McDaniel, to questions 

regarding similar conversations between Dr. Albers’s son and 

other KataLeuna representatives, and to CMP reading into the 

record a letter whereby KataLeuna’s counsel referred to the 

zeolites as “consigned.” See J.A. 3871-74, 3901-06, 4010. All 

that was presented to the jury with respect to CMP’s claim for 

bailment was KataLeuna’s recitation, for impeachment purposes, 

of Dr. Albers’s conclusory testimony at deposition that CMP was 

seeking $6,000 per month as storage compensation. There was no 

evidence of any written agreement between the parties 

establishing a bailment at a particular rate, nor of any written 

demand or invoice supporting an inference that KataLeuna had 

acquiesced to CMP’s terms. Dr. Albers was not even asked to 

 4 Based on the uncontested representations of KataLeuna’s 

counsel that the zeolites had been stored in approximately 1,600 

square feet of space, CMP’s claim would have been for only about

$800 per month. 
39

repeat his deposition testimony that the fair market value for 

storage was $6 per square foot. 

At the end of CMP’s case-in-chief, the district court 

granted KataLeuna’s judgment as a matter of law on CMP’s 

bailment claim, ruling that no reasonable jury could conclude 

that KataLeuna was legally obligated to CMP. Moreover, the lack 

of evidence on damages, according to the court, would have 

required the jury to engage in impermissible speculation as to 

their proper measure. See J.A. 3937-39.

The rules plainly specify that “[i]f a party fails to 

provide information or identify a witness . . . , the party is 

not allowed to use that information or witness to supply 

evidence . . . at a trial, unless the failure was substantially 

justified or is harmless.” Fed. R. Civ. P. 37(c)(1). It is 

therefore difficult to see how the district court abused its 

discretion in excluding CMP’s late proffer. The court was also 

correct, in light of the resultant lack of proof, to enter 

judgment as a matter of law for KataLeuna on CMP’s bailment 

claim.

VI.

Pursuant to the foregoing, the judgment of the district 

court is affirmed.

AFFIRMED