was $ 2.01 per pound, but the contract price was $ .9172 per pound for resale by Internatio to M & M Mars, Inc. See id. id.
The Second Circuit held that the market value measure was not applicable there "because it would result in a recovery greater than the loss suffered." Id. The loss of the $ .9172 per pound price was the only loss proved by Internatio.
If, as might have been expected in light of the substantial increase in the price of cocoa between the time of contracting and the time of delivery, M & M had required Internatio to enter the market to purchase cocoa to make up the deficiency, then Internatio would have been entitled to damages measured by the existing market price. But the district court found, and the evidence clearly showed, that "plaintiff was unable to prove that it obtained a replacement for this cocoa shipment" and that "apparently Mars did not hold plaintiff liable for any damages."
Id. at 50-51.
Therefore, while generally appropriate, the market value measure of damages is not the exclusive measure to be used in lost cargo cases. The market value measure is the appropriate measure only if the injured party can establish that it yields the amount necessary to put the injured party in the exact position it would have been in had there been no breach, and that it would not result in a recovery greater than the loss suffered. For Judy-Philippine to succeed on its claim that the market value measure of damages should be applied in the matter at hand, it must establish that the market value of the goods in question represents the actual loss it suffered. See id. at 50. id. at 50.
The Motion for Summary Judgment is Denied
"Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 'As a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party.' However, where the nonmoving party will bear the burden of proof at trial, Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim." Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991) (citations omitted). As is often stated, "viewing the evidence produced in the light most favorable to the nonmovant, if a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. Long Island, Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991); see also Bay, 936 F.2d at 116.
Judy-Philippine's motion for summary judgment must be denied for the reasons set forth in the December 23, 1991 Opinion of the Court. Judy-Philippine, 781 F. Supp. at 253. While the Court noted Judy-Philippine had alleged damages of $ 34,514.45 in its Amended Complaint and submitted documents supporting the figure of $ 66,852.00, the Court denied the motion for summary judgment on the issue of the measure of damages because "the defendants contest this amount and, absent further evidence on the question of valuation, summary judgment on the issue of damages is not proper at this juncture. Hartford Fire Ins. [Co. v. M/V SAVANNAH], 756 F. Supp. [825,] 829 [(S.D.N.Y. 1991)]." Id. at 260.
According to Judy-Philippine the proposed amendment of the damages figure resolves the matter, alleging that the Court "reserved decision as to damages because of a discrepancy between the amount demanded in the Complaint ($ 34,514.45) and the amount demanded in plaintiff's motion for summary judgment ($ 66,852.00)." Kingsley Aff. 1-2. However, this misstates the Court's reasoning and conclusion regarding the issue of damages. The amounts contested and not sufficiently established to justify granting Judy-Philippine's previous motion for summary judgment were both the $ 34,514.45 and $ 66,852.00 figures, and they continue to be disputed on the present motion.
Pac Bridge argues that Judy-Philippine:
has not provided any evidence that [the market value] was its loss. The price list is speculative at best as no evidence has been provided that this is the actual price of the goods nor the price at which plaintiff would sell the goods. The possibility exists that the goods could be discounted, or that the price list was a guideline or even that the goods would not have been sold at all.
Pac Bridge Mem. 4-5.
Hyundai contends that the only new information added to the record on this motion is a statement by Judy-Philippine's counsel regarding the claims calculations he prepared that were based on price lists marked as an exhibit at the deposition of Angel Kwan. However, "the deposition of Angel Kwan is devoid of any testimony to authenticate this document or establish plaintiff's damages. . . . As there is no authentication they may not be considered on this motion." Hyundai Mem. 2. The fact that Judy-Philippine's witness, Angel Kwan, identified the price lists at a deposition is not sufficient to authenticate these documents or to establish Judy-Philippine's damages.
Applying the requirements of Rule 56 as interpreted by Bay and Binder to this record, the ambiguities and inferences drawn from the underlying facts must be resolved in favor of the defendants and present a genuine issue for trial.
Judy-Philippine has failed to satisfy the burden of proof imposed by Rule 56(c) of showing that there is no genuine issue as to any material fact regarding the amount of damages for which the defendants are liable, and that it is entitled to a judgment of $ 66,852.00 as a matter of law on the market value measure of damages.
For the reasons set forth above, Judy-Philippine's motion to amend is granted and motion for summary judgment is denied.
It is so ordered.
New York, N. Y.
October 23, 1992
ROBERT W. SWEET