Bongam v. Action Toyota, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ISAIAH BONGAM, 
Plaintiff-Appellant,
v.
ACTION TOYOTA, INCORPORATED, t/a
Darcars Toyota; MARCO MARCATILI,
Previously named as John Doe,
Manager,
Defendants-Appellees,  No. 00-1241
and
DARCARS, INCORPORATED, a/k/a
Mariam, Incorporated; JOHN DOE,
Manager May 22, 1996, Darcars
Toyota,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Joseph Robert Goodwin, District Judge,
sitting by designation.
(CA-97-2072-WMN)
Argued: June 4, 2001
Decided: August 1, 2001
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
2 BONGAM v. ACTION TOYOTA
COUNSEL
ARGUED: Steven Jeffrey Silverberg, Washington, D.C., for Appel-
lant. Samuel J. DeBlasis, II, DECARO, DORAN, SICILIANO, GAL-
LAGHER & DEBLASIS, L.L.P., Lanham, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
After Action Toyota, Inc.1 and Marco Marcatili (collectively,
Appellees) failed to sell Isaiah Bongam a Toyota 4-Runner for which
he had contracted, Bongam filed this action seeking damages for
breach of contract; discrimination based on race, color, and national
origin in violation of 42 U.S.C.A. § 1981 (West 1994) and Maryland
state and local law provisions; and intentional infliction of emotional
distress (IIED). Before trial, the district court granted summary judg-
ment to Appellees on Bongam’s IIED claim. The district court
granted Appellees’ motion for judgment as a matter of law as to Bon-
gam’s request for consequential damages, as part of his breach of con-
tract claim, at the end of Bongam’s case and granted Appellees’
renewed motion for judgment as a matter of law as to Bongam’s civil
rights claims at the end of Appellees’ case. The breach of contract
claim went to the jury, and the jury returned a verdict in favor of Bon-
gam and awarded him $5,370. Bongam now appeals the judgment of
the district court in several respects. Finding no reversible error, we
affirm.
1
Action Toyota, Inc. trades as DARCARS Toyota and will be referred
to as "DARCARS" throughout this opinion.
BONGAM v. ACTION TOYOTA 3
I.
Bongam, a black man, is a citizen of Cameroon.2 In Cameroon, he
is chief of his village, which has about 10,000 residents. In addition
to his duties as chief, Bongam owns and operates a construction com-
pany in Cameroon. On May 20, 1996, Bongam went to DARCARS
in Silver Spring, Maryland seeking to purchase a four wheel drive
Toyota 4-Runner with a manual transmission. DARCARS had a 4-
Runner meeting Bongam’s specifications, and Bongam entered into
negotiations with Philip Gyau, a DARCARS salesman, to purchase
the 4-Runner.
Gyau initially informed Bongam that the vehicle’s price was over
$26,000. Bongam made a counteroffer of $23,000. After haggling
with Bongam, Gyau, who as a salesman was not authorized to make
pricing decisions without approval from a superior, asked that Charles
Tokem, a Cameroon native, take over negotiations. Tokem got Bon-
gam to raise his offer, but Marcatili, the General Sales Manager,3 still
was not satisfied with Bongam’s offer. As a result, Hassan, a DAR-
CARS "team captain," was brought into the negotiations. Hassan
negotiated with Bongam, and they reached an agreement under which
Bongam would pay $25,000 for the vehicle.4 Bongam wanted to take
2
Because we review the district court’s entries of judgment as a matter
of law and summary judgment de novo, we recite the facts in the light
most favorable to Bongam. Appellees, however, dispute much of Bon-
gam’s version of the facts. Appellees do not dispute on appeal, regardless
of Marcatili’s subjective belief, that a contract actually existed between
DARCARS and Bongam. (See J.A. at 668 (noting jury’s finding that
DARCARS "entered into and breached a contract with Isaiah Bongam"
and that the damages, "represent[ing] the difference . . . between the con-
tract price of the vehicle and the fair market value of the vehicle," were
$5,370).)
3
Marcatili testified that, in his capacity as the General Sales Manager,
his duties included supervising the sales managers, salespeople, and the
Financial Services Manager.
4
Bongam testified that $25,000 was the total purchase price. Because
he was taking the car outside of the United States, he did not have to pay
taxes or title and tag fees. Appellees presented evidence that a dispute
existed over whether Bongam would pay the standard freight charge, in
addition to the $25,000 purchase price, that is included in the price of
every new vehicle. Because Bongam disputes this and we must take the
evidence in the light must favorable to him, we assume that the $25,000
purchase price agreed upon by the parties was all inclusive.
4 BONGAM v. ACTION TOYOTA
possession of the vehicle that day, but was told that he could not take
the car home because certain documents first had to be prepared and
Bongam did not have the full amount with him in cash. Gyau, how-
ever, requested that Bongam make a deposit to show that his offer
was serious, and Bongam put down a $10,000 deposit on the vehicle.5
Bongam was to return in two days with the remainder of the purchase
price. Gyau then placed a "Sold" sign on the vehicle. Bongam testi-
fied that, during the negotiations, he informed Gyau that he needed
the vehicle for a project in Cameroon.
At some point on May 22, before Bongam arrived to pick up the
vehicle another salesman, Janci Rivas, told Gyau "I am selling your
car" and that the couple buying the car was already in the financing
department. (J.A. at 458.) The deal was approved by the manager on
duty,6 and the car was sold to a Hispanic couple for $30,370 plus
taxes, tag and title, and service fees, or over $5,000 more than Bon-
gam had offered.
Shortly thereafter, Bongam returned to DARCARS. Upon arriving,
Bongam saw Gyau, told him that he was there to pick up his vehicle,
and gave him a check for the remainder of the purchase price. Gyau
took Bongam to see Marcatili. After Gyau handed Marcatili the
check, Marcatili told Bongam that Bongam’s vehicle would be ready
in a few minutes. After waiting for more than thirty minutes, Bongam
told Marcatili, "I have been waiting for long, please, can you give me
my car and let me go ?" (J.A. at 324.) Marcatili responded, "Nigger,
you can go, I sold this car, go anywhere you want." (J.A. at 324.)
Marcatili then turned and went into his office.
After Bongam complained to DARCARS’s owner about the inci-
dent, DARCARS offered to sell him another vehicle. Although DAR-
CARS did not offer to sell Bongam the same 4-Runner that he had
5
Although Gyau requested the deposit, Bongam determined the
amount of the deposit.
6
Marcatili testified without contradiction that he was not the manager
to open on May 22, that there was another manager in charge that morn-
ing, and that the other manager sold the vehicle to the Hispanic couple.
Marcatili further testified that he was not involved at all in negotiating
the deal to sell the Hispanic couple the vehicle.
BONGAM v. ACTION TOYOTA 5
attempted to buy earlier (because it had already been sold to the His-
panic couple), it did attempt "to replace the car." (J.A. at 339.) Bon-
gam, however, only was willing to accept another 4-Runner if it had
a manual transmission, and DARCARS did not have such a vehicle.
II.
On June 27, 1997, Bongam filed a complaint initiating this action
in the United States District Court for the District of Maryland. On
September 16, 1998, Bongam filed an amended complaint alleging
breach of contract; discrimination based on race, color, and national
origin in violation of 42 U.S.C.A. § 1981, Article 49B of the Anno-
tated Code of Maryland, and Chapter 27 of the Montgomery County
Code; and IIED. On January 18, 2000, jury trial proceedings began.
Prior to impaneling the jury, the district court granted summary judg-
ment to Appellees on Bongam’s IIED claim. At the close of Bon-
gam’s case, Appellees made a motion for judgment as a matter of law
as to the remaining counts. The district court ruled that "the question
of the existence of a contract is and remains a question of fact for the
jury." (J.A. at 554.) The district court, however, granted the motion
insofar as it challenged Bongam’s claim for consequential damages.
The district court also denied Appellees’ motion for judgment as a
matter of law as to Bongam’s civil rights claims.7 Appellees renewed
their motion for judgment as a matter of law as to the civil rights
claims at the end of their case. The district court granted the motion,
leaving only Bongam’s breach of contract claim for resolution by the
jury. On January 24, 2000, the jury returned a verdict in favor of Bon-
7
In the district court, Bongam "lumped [his civil rights claims] all
together into the racial discrimination action." (J.A. at 530.) Like the dis-
trict court, we will treat these three counts as one for purposes of our
analysis, because Maryland Code Ann. Art. 49B, § 42 (which incorpo-
rates the anti-discrimination provisions of the Montgomery County
Code) is "substantively similar" to federal anti-discrimination law.
Magee v. Dansources Tech. Serv., Inc., 769 A.2d 231, 243 (Md. App.
2001); see also Parlato v. Abott Lab., 850 F.2d 203, 205-06 n.6 (4th Cir.
1988) ("[T]he public policies expressed in Article 49B are in substance
duplicative of the policies expressed in its federal counterparts."). Bon-
gam makes no argument that the claims based upon state and local code
provisions remain if his federal claim is denied.
6 BONGAM v. ACTION TOYOTA
gam for $5,370, representing "the difference . . . between the contract
price of the vehicle and the fair market value of the vehicle." (J.A. at
668.) On February 18, 2000, Bongam filed a notice of appeal.
On appeal, Bongam claims that the district court erred in granting
Appellees’ motions for judgment as a matter of law as to Bongam’s
claim for consequential damages and his civil rights claims and in
granting summary judgment to Appellees on his IIED claim. Bongam
also claims that the district court erred when it refused to allow a wit-
ness called by Bongam to testify as an expert and when it ruled that
it would not continue the trial to allow a witness to arrive who was
delayed in transit in France after his green card was stolen. We
address each issue in turn.
III. Civil Rights Claims
Section 1981 provides in pertinent part that "[a]ll persons . . . shall
have the same right to make and enforce contracts . . . as is enjoyed
by white citizens." 42 U.S.C.A. § 1981(a). To prevail on a § 1981
claim, a plaintiff "must prove purposeful discrimination." Patterson
v. McLean Credit Union, 491 U.S. 164, 186 (1989). "Typically, most
litigation involving § 1981 claims has emanated from the right to
make and enforce employment contracts." Hampton v. Dillard Dept.
Stores, Inc., 247 F.3d 1091, 1102 (10th Cir. 2001). "However, the
statute has been applied [to discrimination claims arising] in the retail
sector." Id. To establish a prima facie case under § 1981, the plaintiff
must show (1) that he "is a member of a protected class"; (2) "that the
defendant had the intent to discriminate [against him] on the basis of
race"; and (3) that the discrimination interfered with his right to con-
tract. Id.
We review de novo the district court’s grant of Appellees’ motion
for judgment as a matter of law, construing "the evidence in the light
most favorable to the party against whom the motion was made."
Anderson v. Russell, 247 F.3d 125, 129 (4th Cir. 2001). Judgment as
a matter of law is appropriate during a jury trial when a party "has
been fully heard on an issue and there is no legally sufficient evidenti-
ary basis for a reasonable jury to find for that party on that issue."8
8
The standard for judgment as a matter of law under Federal Rule of
Civil Procedure 50(a) mirrors the standard for summary judgment under
Federal Rule of Civil Procedure 56. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986).
BONGAM v. ACTION TOYOTA 7
Fed. R. Civ. P. 50(a). In other words, a mere scintilla of evidence
introduced by the party having the burden of proof is not enough to
avoid the entry of judgment as a matter of law. Instead, "before the
evidence is left to the jury, there is a preliminary question for the
judge, not whether there is literally no evidence, but whether there is
any upon which a jury could properly proceed to find a verdict for the
party producing it, upon whom the onus of proof is imposed." Ander-
son v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986) (internal quota-
tion marks omitted). The party bearing the burden of proof must
produce genuine evidence that creates a fair doubt; "wholly specula-
tive assertions will not suffice." Ross v. Communications Satellite
Corp., 759 F.2d 355, 364 (4th Cir. 1985), overruled on other grounds
by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
Our inquiry here focuses on whether Appellees had the intent to
discriminate against Bongam on the basis of his race, and whether
that discrimination, if established, interfered with his right to contract.
Hampton, 247 F.3d at 1102. Bongam points to the following evidence
to support his claim that Appellees intentionally discriminated against
him on the basis of his race: (1) Gyau testified that the sales staff at
DARCARS drove harder bargains with black and Hispanic customers
than they did with whites, "Chinese," and "Indians" to obtain a higher
price from people the sales staff perceived to be less informed, (J.A.
at 464-67); (2) Marcatili told Bongam "Nigger, you can go, I sold this
car, go anywhere you want," (J.A. at 324); and (3) Gyau testified that
he thought that "from the way things went at the dealership, if it was
a white gentleman that left [the deposit], I think we would have held
the car," (J.A. at 494). We agree with the district court that this evi-
dence, if assumed to be true, describes conduct that is reprehensible
and condemnable. It does not, however, demonstrate that the alleged
discriminatory conduct interfered with Bongam’s right to contract
under § 1981 on the basis of Bongam’s race.
First, the evidence that Appellees drove harder bargains with peo-
ple they believed to be less informed, while evidence of an alleged
discriminatory atmosphere at DARCARS, does not show that Appel-
lees interfered with Bongam’s right to contract because of his race.
Appellees agreed to sell Bongam the vehicle for $25,000, more than
$1,000 less than the sticker price in excess of $26,000, and substan-
tially less than the $30,370 plus taxes, tag and title, and service fees
8 BONGAM v. ACTION TOYOTA
for which the vehicle was ultimately sold. Thus, the evidence indi-
cates that Bongam, whom Appellees knew to be black,9 was offered
the vehicle for less than the sticker price, and the contract was not
breached until someone else — also a member of a group allegedly
treated differently from whites, Asians, and Indians in negotiations —
made an offer more than twenty percent higher than Bongam’s. More-
over, Bongam does not argue that Appellees discriminated against
him in the negotiations leading up to his agreement to pay $25,000
for the vehicle. Thus, although this evidence arguably demonstrates
intentional discrimination, it does not demonstrate that the discrimina-
tion interfered with Bongam’s right to contract.
With respect to Marcatili’s alleged racist remark, the remark was
not made until after the sale of the vehicle to the Hispanic couple —
for more than $5,000 above the price which Bongam agreed to pay
— had been approved by another manager. Other than a temporal
relation, "no nexus exists between the alleged discriminatory state-
ment" and the decision to sell the vehicle to the subsequent purchaser.
EEOC v. Clay Printing Co., 955 F.2d 936, 952 (4th Cir. 1992).
Indeed, Marcatili initially had approved the sale of the vehicle to Bon-
gam. Cf. Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991) ("[I]n
cases where the hirer and firer are the same individual and the termi-
nation of employment occurs within a relatively short time span fol-
lowing the hiring, a strong inference exists that discrimination was
not a determining factor for the adverse action taken by the
employer."). Finally, Gyau’s speculation that "from the way things
went at the dealership, if it was a white gentleman that left [the
deposit], I think we would have held the car," (J.A. at 494), was not
linked to any incident in which a vehicle was held for a white person
after the white person put down a deposit and someone else subse-
quently offered more money for the vehicle. More importantly, Gyau
pointed to nothing in the course of Appellees’ dealings with Bongam
that led him to this conclusion. In fact, Gyau testified, when specifi-
cally asked, that he did not know why Appellees did not sell the vehi-
cle to Bongam. Gyau testified, in response to the question "Isn’t it
true . . . that the fact that Mr. Bongam didn’t get the car had nothing
to do with his color?" that "I wouldn’t know that . . . . I wouldn’t
know what [Marcatili] was thinking." (J.A. at 475.) Gyau’s specula-
9
Marcatili testified that he dealt directly with Bongam on May 20.
BONGAM v. ACTION TOYOTA 9
tive testimony is not probative evidence sufficient to withstand a
motion for judgment as a matter of law. See, e.g., Greensboro Prof’l
Fire Fighters Ass’n v. City of Greensboro, 64 F.3d 962, 967 (4th Cir.
1995) (noting that "purely speculative" evidence was "flawed" and
thus was not "probative evidence" supporting claims against the city
under 42 U.S.C.A. § 1983); Ross, 759 F.2d at 364 (noting that
"wholly speculative assertions" do not create a genuine issue of fact
sufficient to withstand a motion for summary judgment).
We conclude that an insufficient evidentiary basis exists for a rea-
sonable jury to find that the discriminatory conduct alleged interfered
with Bongam’s right to contract under § 1981. Hampton, 247 F.3d at
1102. We therefore hold that the district court properly granted
Appellees’ motion for judgment as a matter of law.
IV. Consequential Damages
Bongam also claims that the district court erred in granting Appel-
lees’ motion for judgment as a matter of law on Bongam’s contract
claim for consequential damages. As stated earlier, we review de
novo the district court’s grant of Appellees’ motion for judgment as
a matter of law and construe "the evidence in the light most favorable
to the party against whom the motion was made." Anderson v. Rus-
sell, 247 F.3d 125, 129 (4th Cir. 2001).
The award of consequential damages resulting from the breach of
a contract in Maryland is governed by Maryland Code Annotated,
Commercial Law § 2-715(2)(a). Section 2-715(2)(a) states that
"[c]onsequential damages resulting from the seller’s breach include
. . . [a]ny loss resulting from general or particular requirements and
needs of which the seller at the time of contracting had reason to
know and which could not reasonably be prevented by cover or other-
wise." Md. Code Ann., Com. Law I § 2-715(2)(a) (1997). The Mary-
land Courts have explained § 2-715, in the context of breach of
warranty, as follows:
The allowance of incidental and consequential damages
. . . finds its genesis in the rule of Hadley v. Baxendale, that
damages which a plaintiff may recover for breach of con-
tract include both those which may fairly and reasonably be
10 BONGAM v. ACTION TOYOTA
considered as arising naturally from the breach (general
damages) and those which may reasonably be supposed to
have been in the contemplation of both parties at the time
of making of the contract (special damages).
Addressograph-Multigraph Corp. v. Zink, 329 A.2d 28, 33-34 (Md.
1974) (internal citations omitted).
Bongam claims that he "lost an amount up to, and including" $50
million because Appellees did not sell him the manual transmission,
four wheel drive Toyota 4-Runner. (Appellant’s Br. at 23.) These
extraordinary damages, Bongam claims, result from the cancellation
of a contract that Bongam’s construction company had with the Cam-
eroonian government to build a school. Specifically, Bongam claims
that the contract was canceled because he could not access the job site
because he did not receive the vehicle that he attempted to buy from
Appellees’ and that a Toyota 4-Runner with a "manual shift" was the
"only vehicle that would ply that road." (J.A. at 291.) As a result of
the cancellation of the contract, Bongam claims that his "reputation
was ruined," (J.A. at 350), that he would be prevented from contract-
ing with the Cameroonian government for five years, and conse-
quently his net worth dropped from $60 million to $10 million.
For the purpose of our analysis, we must determine whether Appel-
lees, at the time that they breached the contract, had reason to know
that such damages would be the natural and probable result of their
breach. See Md. Code Ann., Com. Law I § 2-715(2)(a) (1997);
Addressograph-Multigraph, 329 A.2d at 33-34. The Maryland Code
also provides that the breaching party is liable only for those damages
"which could not reasonably be prevented by cover or otherwise" by
the non-breaching party. Md. Code Ann., Com. Law I § 2-715(2)(a)
(1997). Thus, the focus is not on what allegedly happened but on
whether Appellees reasonably could have foreseen Bongam’s alleged
damages and whether Bongam could have prevented them. The evi-
dence reflects that Bongam told Gyau that he "had a contract and it
was almost suffering from cancellation if [he] didn’t have this car."
(J.A. at 306.) Bongam further testified that he told Gyau "I have a
contract where I am supposed to execute and this car has been keep-
ing this contract for more than six months I cannot operate there
BONGAM v. ACTION TOYOTA 11
because if I don’t have this car I would not have access with my mate-
rial to the site." (J.A. at 307.)
While Bongam may have believed that the manual transmission
Toyota 4-Runner was the best vehicle to do the job, it strains credulity
to believe that no other vehicle would have been an acceptable, if not
perfect, substitute. Bongam failed to show that it was within Appel-
lees’ contemplation that Bongam would not be able to find any man-
ual transmission, four wheel drive vehicle to complete the project.
Moreover, the district court correctly noted that Bongam had not
presented specific evidence regarding how his damages arose out of
his own breach of the construction contract. We hold, therefore, that
the district court correctly granted Appellees’ motion for judgment as
a matter of law because no reasonable jury could conclude from this
evidence that Appellees were on notice that Bongam would lose $50
million if he did not receive the precise vehicle for which he bar-
gained or that Bongam could not have reasonably prevented this loss
"by cover or otherwise." Md. Code Ann., Com. Law I § 2-715(2)(a)
(1997).
V. Intentional Infliction of Emotional Distress Claim
Bongam next claims that the district court erred when it granted
summary judgment to Appellees on Bongam’s IIED claim.10 We
review the district court’s grant of summary judgment de novo. Evans
v. Tech. App. & Serv. Co., 80 F.3d 954, 958 (4th Cir. 1996). Summary
judgment is appropriate when there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of law. Hughes
v. Bedsole, 48 F.3d 1376, 1381 (4th Cir. 1995).
The elements of an IIED claim in Maryland are: "(1) The conduct
10
Bongam suggests that we should review the entry of judgment for
Appellees on this claim under the standards applicable to a Federal Rule
of Civil Procedure 12(b)(6) motion. We disagree, noting that the district
court considered matters outside of the pleading before entering judg-
ment. Accordingly, this issue will be reviewed under the standards appli-
cable to summary judgment. See Fed. R. Civ. P. 12(b) (noting that when
"matters outside the pleading are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment").
12 BONGAM v. ACTION TOYOTA
must be intentional or reckless; (2) The conduct must be extreme and
outrageous; (3) There must be a causal connection between the
wrongful conduct and the emotional distress; (4) The emotional dis-
tress must be severe." Harris v. Jones, 380 A.2d 611, 613 (Md. 1977).
The Maryland courts have made it clear that "recovery [for IIED] will
be meted out sparingly, its balm reserved for those wounds that are
truly severe and incapable of healing themselves." Figueiredo-Torres
v. Nickel, 584 A.2d 69, 75 (Md. 1991). Moreover, "[t]he conduct must
strike to the very core of one’s being, threatening to shatter the frame
upon which one’s emotional fabric is hung." Hamilton v. Ford Motor
Credit Co., 502 A.2d 1057, 1064 (1986). "It is for the court to deter-
mine, in the first instance, whether the defendant’s conduct may rea-
sonably be regarded as extreme and outrageous." Harris, 380 A.2d at
615.
While the term "nigger" is an "unambiguously racial epithet" that
"is pure anathema" to blacks, Spriggs v. Diamond Auto Glass, 242
F.3d 179, 185 (4th Cir. 2001), Marcatili’s alleged conduct was not
sufficiently extreme and outrageous as to constitute IIED. However
reprehensible we find the conduct, liability under Maryland law does
not extend "to mere insults, indignities, [or] threats." Harris, 380
A.2d at 614 (internal quotation marks omitted). Marcatili’s single
alleged utterance of the slur, standing alone, is not the sort of "major
outrage . . . essential to the tort" of IIED. Id. Therefore, we affirm the
district court’s entry of summary judgment in favor of Appellees on
this issue.
VI. Expert Testimony
Bongam argues that the district court erred when it excluded cer-
tain expert testimony concerning government contracting in Camer-
oon proffered by Bongam in the form of the testimony of George
Achu, a former Cameroonian government official. "It is well-settled
that decisions regarding the admission and exclusion of evidence are
peculiarly within the province of the district court" and will not "be
reversed on appeal absent an abuse of discretion." See Martin v.
Deiriggi, 985 F.2d 129, 137 (4th Cir. 1992).
At trial, although the district court allowed Achu to testify about
the condition of the roads in Cameroon, it refused to allow Achu to
BONGAM v. ACTION TOYOTA 13
testify as an expert regarding the consequences of breaching a con-
tract with the Cameroonian government because it was not "foresee-
able that as a direct result of this failure by the dealership to sell Mr.
Bongam the vehicle that he would lose millions of dollars on a con-
struction contract, that it would cause a default, and that he would
lose all of this money." (J.A. at 508.) The same absence of evidence
linking the two events that properly kept the question of consequential
damages from the jury also supports the district court’s exercise of
discretion in deciding to limit Achu’s testimony. Without a reasonable
nexus between Appellees’ breach of the sales contract and Bongam’s
breach of the government contract, notwithstanding whether Achu
qualified as an expert on Cameroonian government contracts, Achu’s
testimony was not relevant to the breach of the sales contract at issue.
See Fed. R. Evid. 401 (defining relevant evidence as "evidence having
any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than
it would without the evidence").11 Accordingly, we cannot conclude
that the district court abused its discretion in excluding this aspect of
Achu’s testimony.
VII. Failure to Grant a Continuance
Bongam’s final argument is that the district court erred when it
failed to grant a continuance that would have allowed a witness for
Bongam, Jonathan Ngumdam, to testify. We review a district court’s
denial of a continuance for abuse of discretion. Kosnoski v. Bruce,
669 F.2d 944, 947 (4th Cir. 1982).
The record reflects that Ngumdam’s green card was stolen in Paris
and that his arrival in the United States was delayed by several days.
In fact, Ngumdam, who was scheduled to arrive Monday night before
the trial began on Tuesday, apparently was not available until Friday,
the day the case went to the jury and two days after the last witness
testified. In denying Bongam’s request for a continuance, the district
11
In his reply brief, Bongam states that the admissibility of the contract
between Bongam and the Cameroonian government is not at issue on
appeal. Therefore, to the extent that Bongam appears to challenge in his
opening brief the district court’s decision to exclude the contract from
evidence, we consider that argument waived.
14 BONGAM v. ACTION TOYOTA
court noted that "throughout this entire trial, which was filed in 1997,
counsel had the opportunity to develop the case." (J.A. at 629.)
The district court was well within its discretion in denying Bon-
gam’s motion for a continuance. Given the inherent uncertainties in
international travel, Bongam’s decision to schedule his witness to
arrive on the eve of trial was daring, if not foolhardy. Moreover,
Ngumdam’s testimony, as summarized for the district court by Bon-
gam’s attorney, simply repeated testimony already offered at trial.12
Accordingly, we conclude that the district court’s denial of the contin-
uance was neither an abuse of discretion nor prejudicial.
VIII.
In conclusion, we hold that Bongam did not establish a legally suf-
ficient evidentiary basis for determining that Appellees’ failure to
honor its contract to sell Bongam the Toyota 4-Runner was the result
of discrimination based upon Bongam’s race. Similarly, Bongam has
not demonstrated that the district court erred by dismissing his conse-
quential damages or IIED claims, or that the district court’s evidenti-
ary rulings were erroneous. The judgment of the district court is
therefore affirmed.
AFFIRMED
12
Bongam’s attorney told the district court that Ngumdam "would have
testified that he heard the racial slur. He would have testified that he was
there when he saw the contract [between Appellees and Bongam] entered
into, and that there was an agreement." (J.A. at 630.)