11-2339-cv
Ho Myung Moolsan Co., Ltd., et ano. v. Manitou Mineral Water, Inc., et al.

                                   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.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel
Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 8th day
of November, two thousand twelve.

PRESENT:

          PIERRE N. LEVAL,
          JOSÉ A. CABRANES,
          ROBERT D. SACK,
                       Circuit Judges.

__________________________________________

Ho Myung Moolsan Co., Ltd. and Hyun-Song Kang,

                    Plaintiffs-Appellants,
                                                                             No. 11-2339-cv
                              v.

Manitou Mineral Water, Inc.,

                    Defendant-Appellee,

Raphael Drug and Health Co., O-Yoon Kwon, Nam-In
Jhon, Hanmi Home Shopping Company, New Jersey Flea
Market News, New York Flea Market News, AKA
www.FINDALLUSA.com, 1 through 10 John Does, 1 through
10 Jane Does, 1 through 10 ABC Companies,

            Defendants.
__________________________________________


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FOR PLAINTIFFS-APPELLANTS:                            Michael S. Kimm, Kimm Law Firm,
                                                      Englewood Cliffs, NJ.

FOR DEFENDANT-APPELLEE:                               Andrew Kimler, Eun Chong Thorsen,
                                                      Vishnick McGovern Milizio LLP, Lake
                                                      Success, NY.

        Appeal from a June 7, 2011 judgment of the United States District Court for the Southern
District of New York (Richard J. Holwell, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Plaintiffs-appellants Ho Myung Moolsan Co., Ltd. and Hyun-Song Kang (“plaintiffs”) appeal
from the June 7, 2011 judgment of the District Court denying their post-verdict motion for various
forms of relief, including judgment as a matter of law. They also appeal certain pre-trial and trial
orders of the District Court. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal, which we reference only as necessary to
explain our decision to affirm.

        Plaintiffs filed this action against Manitou Mineral Water, Inc. (“Manitou”) on August 23,
2007, alleging, inter alia, that Manitou breached its contractual obligation to provide them with
bottled mineral water to sell in Korea. Manitou argued in response that any failures on its part were
not actionable because plaintiffs were not deprived of any value as they had no market for selling
mineral water in Korea, were not selling the water, and could not sell the water.

       On June 29, 2010, the District Court denied plaintiffs’ motion for summary judgment on the
breach of contract claim because disputed issues of material fact existed, but granted Manitou’s
cross-motion for summary judgment on plaintiffs’ conspiracy-to-breach-a-fiduciary-duty claim. The
breach of contract claim was tried before a jury and, on November 1, 2010, the jury returned a
unanimous verdict in favor of Manitou on the issue of liability.

          Before and during trial, plaintiffs made several motions that the District Court denied. In
particular, they argued that: (1) the United Nations Convention on Contracts for the Sale of
International Goods, as opposed to New York law, applied to the action; (2) the contract in question
was an “output contract,” as opposed to an “installment contract”; (3) their damages expert, Don
Smith, should be allowed to testify; and (4) they should be allowed to amend their complaint (during
trial) to add various claims, including fraud in the inducement. The District Court explained why it
denied these motions in a Memorandum Opinion and Order dated December 2, 2010.


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        Plaintiffs also filed a motion for post-trial relief, seeking: (1) judgment as a matter of law
under Rule 50(b); (2) a new trial under Rule 59(a); (3) disgorgement of certain funds; and (4)
sanctions. The District Court denied this motion in a Memorandum Opinion and Order filed on
June 7, 2011.

         We have reviewed all of plaintiffs’ arguments and find each of them to be without merit.
Substantially for the reasons stated in the District Court’s careful and comprehensive decisions dated
June 29, 2010, December 2, 2010, and June 7, 2011, we conclude that it did not err in denying
plaintiffs’ various motions.

        Accordingly, the judgment of the District Court is AFFIRMED.


                                                         FOR THE COURT,
                                                         Catherine O’Hagan Wolfe, Clerk of Court




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