13-4847 (L)

Valjean Manufacturing, Inc. v. Michael Werdiger, Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 22nd 4 day of December, two thousand fourteen.

5

6 PRESENT: RALPH K. WINTER,

7 DENNIS JACOBS,

8 BARRINGTON D. PARKER,

9 Circuit Judges.

10

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12 VALJEAN MANUFACTURING, INC., MARTIN

13 GRUBER, 

14 Plaintiffs-Appellees-Cross15 Appellants,

16

17 -v.- 13-4847 (Lead)

18 14-73 (XAP)

19 MICHAEL WERDIGER, INC., 

20 Defendant-Appellant-Cross21 Appellee.

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23

24 FOR APPELLANT25 CROSS-APPELLEE: KENNETH L. BRESSLER (Andrew T.

26 Hambelton, on the brief), Blank

27 Rome LLP, New York, New York.

28

1
1 FOR APPELLEES2 CROSS-APPELLANTS: ROGER B. MEAD, Folger Levin LLP,

3 San Francisco, California.

4

5 Appeal from a judgment of the United States District

6 Court for the Southern District of New York (Baer, J.).

7

8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

9 AND DECREED that the judgment of the district court be

10 AFFIRMED. 

11

12 Appellant-cross-appellee Michael Werdiger, Inc. (“MWI”)

13 and appellees-cross-appellants Valjean Manufacturing, Inc.

14 (“Valjean”) and Martin Gruber cross-appeal from a judgment

15 of the United States District Court for the Southern

16 District of New York (Baer, J.). We assume the parties’

17 familiarity with the underlying facts, the procedural

18 history, and the issues presented for review. 

19

20 We review a district court’s post-bench trial “findings

21 of fact for clear error and its conclusions of law de novo.” 

22 Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93, 101 (2d Cir.

23 2010). 

24

25 There are three issues on appeal. First, MWI argues

26 that the district court erred by omitting from its damages

27 calculations Credit Adjustments in favor of MWI for returns

28 of jewelry sold prior to August 1, 2004. The district court

29 did not err. The court’s 2008 amended judgment--which MWI

30 satisfied with respect to jewelry sales consummated before

31 August 1, 2004--already included estimated Credit

32 Adjustments for sales made during that period. A district

33 court may rely on “reasonable conjectures and probable

34 estimates” in calculating contract damages. Katz Commc’ns,

35 Inc. v. Evening News Ass’n, 705 F.2d 20, 25 (2d Cir. 1983)

36 (citation and internal quotation marks omitted).

37

38 Second, MWI argues that the district court erred or

39 abused its discretion in calculating damages based on a

40 12.17% commissions rate for MWI’s sales force. We find no

41 error or abuse of discretion. The record does not support

42 MWI’s contention that the district court shifted the burden

43 of proof to MWI on this issue. Furthermore, because MWI did

44 not offer the actual sales records in support of its

45 position that the commissions rate was 39.48%, the district

46 court did not clearly err in relying on the 12.17% rate it

47 previously adopted at trial. See Interstate Circuit v.

2
1 United States, 306 U.S. 208, 226 (1939) (“The production of

2 weak evidence when strong is available can lead only to the

3 conclusion that the strong would have been adverse.”).

4

5 Third, Valjean argues that the district court erred in

6 declining to award damages or, in the alternative, impose

7 sanctions against MWI for scrapping (rather than selling)

8 its inventory of Valjean-crafted jewelry. Again, we find no

9 error. Section 5.2 of the Manufacturing and Security

10 Agreement explicitly permitted MWI to “dismantle any Jewelry

11 which MWI has held in inventory for more than 360 days and

12 sell the component parts thereof,” and make “no Valjean

13 Payment . . . in respect of such scrapped Jewelry.” Even

14 assuming some of MWI’s statements in the course of

15 litigation could be construed as promises not to scrap,

16 Valjean has not articulated how it was prejudiced by those

17 promises, given that MWI had a contractual right to scrap. 

18 Prejudice is especially unlikely, given the district court’s

19 finding that none of its previous judgments relied upon its

20 understanding that MWI would not scrap.

21

22 For the foregoing reasons, and finding no merit in the

23 parties’ other arguments, we hereby AFFIRM the judgment of

24 the district court.

25

26 FOR THE COURT:

27 CATHERINE O’HAGAN WOLFE, CLERK

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