     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,
 4       on the 22nd day of December, two thousand fourteen.
 5
 6       PRESENT: RALPH K. WINTER,
 7                DENNIS JACOBS,
 8                BARRINGTON D. PARKER,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       VALJEAN MANUFACTURING, INC., MARTIN
13       GRUBER,
14                Plaintiffs-Appellees-Cross-
15                Appellants,
16
17                    -v.-                                        13-4847 (Lead)
18                                                                14-73 (XAP)
19       MICHAEL WERDIGER, INC.,
20                Defendant-Appellant-Cross-
21                Appellee.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR APPELLANT-
25       CROSS-APPELLEE:                       KENNETH L. BRESSLER (Andrew T.
26                                             Hambelton, on the brief), Blank
27                                             Rome LLP, New York, New York.
28

                                                  1
 1   FOR APPELLEES-
 2   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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