13-4847 (L) Valjean Manufacturing, Inc. v. Michael Werdiger, Inc.



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 .**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 22 nd** **day of December, two thousand fourteen.** 4 5 **PRESENT: RALPH K. WINTER,** 6 **DENNIS JACOBS,** 7 **BARRINGTON D. PARKER,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **VALJEAN MANUFACTURING, INC., MARTIN** 12 **GRUBER,** 13 **Plaintiffs-Appellees-Cross** 14 **Appellants ,**  15 16 **-v.- 13-4847 (Lead)** 17 **14-73 (XAP)** 18 **MICHAEL WERDIGER, INC.,** 19 **Defendant-Appellant-Cross** 20 **Appellee**

**.** 21 - - - - - - - - - - - - - - - - - - - -X 22 23 **FOR APPELLANT** 24 **CROSS-APPELLEE:** KENNETH L. BRESSLER (Andrew T. 25 Hambelton, on the brief ) , Blank 26 Rome LLP, New York, New York. 27 28

1**FOR APPELLEES** 1 **CROSS-APPELLANTS:** ROGER B. MEAD, Folger Levin LLP, 2 San Francisco, California. 3 4 Appeal from a judgment of the United States District 5 Court for the Southern District of New York (Baer, J. ). 6 7 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 8 **AND DECREED**that the judgment of the district court be 9
**AFFIRMED**

. 10 11 Appellant-cross-appellee Michael Werdiger, Inc. (“MWI”) 12 and appellees-cross-appellants Valjean Manufacturing, Inc. 13 (“Valjean”) and Martin Gruber cross-appeal from a judgment 14 of the United States District Court for the Southern 15 District of New York (Baer, J. )

. We assume the parties’ 16 familiarity with the underlying facts, the procedural 17 history, and the issues presented for review. 18 19 We review a district court’s post-bench trial “findings 20 of fact for clear error and its conclusions of law de novo.” 21 Tiffany (NJ) Inc. v. eBay Inc. , 600 F.3d 93, 101 (2d Cir. 22 2010). 23 24 There are three issues on appeal. First, MWI argues 25 that the district court erred by omitting from its damages 26 calculations Credit Adjustments in favor of MWI for returns 27 of jewelry sold prior to August 1, 2004. The district court 28 did not err. The court’s 2008 amended judgment--which MWI 29 satisfied with respect to jewelry sales consummated before 30 August 1, 2004--already included estimated Credit 31 Adjustments for sales made during that period. A district 32 court may rely on “reasonable conjectures and probable 33 estimates” in calculating contract damages. Katz Commc’ns, 34 Inc. v. Evening News Ass’n , 705 F.2d 20, 25 (2d Cir. 1983) 35 (citation and internal quotation marks omitted). 36 37 Second, MWI argues that the district court erred or 38 abused its discretion in calculating damages based on a 39 12.17% commissions rate for MWI’s sales force. We find no 40 error or abuse of discretion. The record does not support 41 MWI’s contention that the district court shifted the burden 42 of proof to MWI on this issue. Furthermore, because MWI did 43 not offer the actual sales records in support of its 44 position that the commissions rate was 39.48%, the district 45 court did not clearly err in relying on the 12.17% rate it 46 previously adopted at trial. SeeInterstate Circuit v. 47

2United States , 306 U.S. 208, 226 (1939) (“The production of 1 weak evidence when strong is available can lead only to the 2 conclusion that the strong would have been adverse.”). 3 4 Third, Valjean argues that the district court erred in 5 declining to award damages or, in the alternative, impose 6 sanctions against MWI for scrapping (rather than selling) 7 its inventory of Valjean-crafted jewelry. Again, we find no 8 error. Section 5.2 of the Manufacturing and Security 9 Agreement explicitly permitted MWI to “dismantle any Jewelry 10 which MWI has held in inventory for more than 360 days and 11 sell the component parts thereof,” and make “no Valjean 12 Payment . . . in respect of such scrapped Jewelry.” Even 13 assuming some of MWI’s statements in the course of 14 litigation could be construed as promises not to scrap, 15 Valjean has not articulated how it was prejudiced by those 16 promises, given that MWI had a contractual right to scrap. 17 Prejudice is especially unlikely, given the district court’s 18 finding that none of its previous judgments relied upon its 19 understanding that MWI would not scrap. 20 21 For the foregoing reasons, and finding no merit in the 22 parties’ other arguments, we hereby **AFFIRM** the judgment of 23 the district court. 24 25 FOR THE COURT: 26 CATHERINE O’HAGAN WOLFE, CLERK 27

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