         11-3265-cv
         Taub, et al. v. Marchesi Di Barolo S.P.A.

                                 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 17th day of May, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                RAYMOND J. LOHIER, JR.,
 8                           Circuit Judges,
 9                J. GARVAN MURTHA,
10                           District Judge.*
11
12
13       DAVID S. TAUB, MARK TAUB, as successor to Martin G. Taub,
14       deceased, PALM BAY INTERNATIONAL, INC.,
15
16                        Plaintiff-Counter-Defendant-Appellants,
17
18                                            -v.-                                  11-3265-cv
19
20       MARCHESI DI BAROLO S.P.A.,
21
22                                     Defendant-Counter-Claimant-Appellee.
23
24
25




                *
                Judge J. Garvan Murtha, of the United States District
         Court for the District of Vermont, sitting by designation.
 1   FOR APPELLANT:    GARY ETTELMAN, Ettelman & Hochheiser,
 2                     P.C., Garden City, NY, for
 3                     Plaintiffs-Counter-Defendants-Appellants
 4                     David S. Taub, Mark Taub, Palm Bay
 5                     International, Inc.
 6
 7   FOR APPELLEE:     RACHAEL G. PONTIKES, (Larry Selander,
 8                     John Dellaportas, Brian J. Slipakoff, on
 9                     the brief), Duane Morris LLP, New York,
10                     NY, for
11                     Defendant-Counter-Claimant-Appellee
12                     Marchesi di Barolo S.p.A.
13
14
15        Appeal from the United States District Court for the
16   Eastern District of New York (Spatt, J.)
17
18       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

19   AND DECREED that the judgment of the United States District

20   Court for the Eastern District of New York be AFFIRMED.

21       Plaintiffs-Appellants appeal from the decisions of the

22   United States District Court for the Eastern District of New

23   York (Spatt, J.): (1) granting partial summary judgment in

24   favor of Defendant-Appellee Marchesi di Barolo, S.p.A.

25   (“Marchesi”); (2) granting judgment against Appellants after

26   a jury found Appellants liable to Marchesi in the amount of

27   $519,552.68; and (3) denying Appellants’ post-trial motions

28   for judgment as a matter of law pursuant to Federal Rule of

29   Civil Procedure 50(b) and for a new trial pursuant to

30   Federal Rule of Civil Procedure 59.   We assume the parties’

31   familiarity with the procedural history, facts, and issues

32   on appeal.

                                  2
1        Appellants argue that the district court erred in: (1)

2    submitting the issue of cure to the jury; (2) instructing

3    the jury as to the legal standard for cure; (3) denying Palm

4    Bay International, Inc. (“Palm Bay”) judgment as a matter of

5    law on the ground that the jury’s verdict that Marchesi

6    tendered an effective cure was against the manifest weight

7    of the evidence; (4) submitting the issue of Palm Bay’s

8    alleged breach of the dispute resolution provision of the

9    Importation Agreement to the jury; (5) granting summary

10   judgment in favor of Marchesi on the ground that Palm Bay’s

11   set-off was improper; and (6) finding that Palm Bay’s set-

12   off was a material breach of the Importation Agreement,

13   which entitled Marchesi to terminate both the Importation

14   and Agency Agreements.

15       The district court properly found that Palm Bay

16   forfeited its argument that Marchesi’s cure offer was

17   ineffective as a matter of law; Palm Bay never raised this

18   issue at trial or in its Federal Rule of Civil Procedure

19   50(a) motion.   At trial, Palm Bay repeatedly argued that

20   cure was futile because it was tendered after Olive Garden

21   cancelled the Moscato Program.    The futility argument

22   differs from the one Palm Bay raised in its post-trial

23   motions and on appeal: that Marchesi’s cure was ineffective

                                   3
1    because it failed to compensate Palm Bay for damages

2    incurred as a result of the defective wine.    Because Palm

3    Bay did not sufficiently raise the ineffective-cure argument

4    at trial or in its Rule 50(a) motion, the claim is

5    forfeited.     Lambert v. Genesee Hosp., 10 F.3d 46, 53-54 (2d

6    Cir. 1993).    We also conclude that Palm Bay forfeited its

7    right to challenge the court’s jury instruction by failing

8    to object explicitly to the district court’s proposed

9    instruction.     See Caruso v. Forslund, 47 F.3d 27, 31 (2d

10   Cir. 1995).

11       Because the question of whether cure was futile depends

12   on the disputed factual circumstances at issue, the question

13   of cure was properly submitted to the jury.     See 1 White &

14   Summers’ Uniform Commercial Code § 8-5; § 8-7.     To the

15   extent that Palm Bay challenges the jury instruction

16   relating to that question, the challenge would be meritless

17   as the instruction was fully consistent with the

18   requirements of cure set forth in N.Y. U.C.C. § 2-508.        See

19   T.W. Oil, Inc. v. Consol. Edison Co. of N.Y., Inc., 57

20   N.Y.2d 574, 582-83 (1982).

21       Palm Bay also argues that the jury verdict regarding

22   cure is unsupported by the evidence.    Having reviewed the

23   record in the light most favorable to Marchesi, we cannot

                                     4
1    conclude that “there is such a complete absence of evidence

2    supporting the verdict that the jury’s findings could only

3    have been the result of sheer surmise and conjecture, or

4    [that there is] such an overwhelming amount of evidence in

5    favor of the movant that reasonable and fair minded men

6    could not arrive at a verdict against [Palm Bay].”

7    LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir.

8    1995) (quotation marks omitted).

9        We also agree with the district court that Palm Bay’s

10   claims that the dispute resolution provision is

11   unenforceable as a matter of law are without merit.    The

12   provision at issue uses mandatory language and acts as a

13   condition precedent to Palm Bay seeking a remedy for any

14   disputed merchandise.   It is neither too indefinite to be

15   enforceable nor an optional non-exclusive remedy.     See,

16   e.g., Tractebel Energy Mktg., Inc. v. AEP Power Mktg., Inc.,

17   487 F.3d 89, 97-98 (2d Cir. 2007).   As Palm Bay failed to

18   comply with the mandatory requirement that the condition of

19   the disputed merchandise be verified in the presence of

20   representatives from Marchesi, the jury could have

21   reasonably determined that Palm Bay breached the provision.

22       Because we affirm the jury’s verdict regarding

23   Marchesi’s cure and Palm Bay’s breach of the dispute

                                   5
1    resolution provision, we do not reach Palm Bay’s claim that

2    the court erred in granting summary judgment in favor of

3    Marchesi on the ground that Palm Bay’s set-off was improper.

4    See Bruh v. Bessemer Venture Partners III L.P., 464 F.3d

5    202, 205 (2d Cir. 2006); see also Shinseki v. Sanders, 129

6    S. Ct. 1696, 1705 (2009).

7        Finally, we find no merit in Palm Bay’s argument that

8    even if the set-off by Palm Bay was improper, it was not a

9    material breach that entitled Marchesi to terminate the

10   Importation and Agency Agreements.   It is axiomatic that

11   failure to pay is a material breach of a contract.   See ARP

12   Films, Inc. v. Marvel Entm’t Grp., Inc., 952 F.2d 643, 649

13   (2d Cir. 1991).   As such, the district court’s holding that

14   Palm Bay’s set-off (if improper) entitled Marchesi to

15   terminate the agreements was correct.

16       For the foregoing reasons, the judgment of the district

17   court is hereby AFFIRMED.

18
19                               FOR THE COURT:
20                               Catherine O’Hagan Wolfe, Clerk
21
22




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