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Ho Myung Moolsan, Co., Ltd v. Manitou Mineral Water

June 7, 2011


The opinion of the court was delivered by: Richard J. Holwell, District Judge:


On August 23, 2007, plaintiff Ho Myung Moolsan ("Moolsan") sued defendant Manitou Mineral Water ("Manitou") for breach of contract and related claims arising out of a failed contract for the sale of mineral water. After trial in late October 2010 on the breach of contract claim, a jury returned a unanimous verdict for Manitou on liability. Now before the Court is Moolsan's timely motion for judgment as a matter of law, for a new trial, and for other post-verdict relief. For the reasons stated below, Moolsan's motion is denied in its entirety.


A. Background

In 1982, Kang Hyun-Song ("Kang")*fn1 started a cosmetics company called Hwa Jin in South Korea ("Korea"). (Tr. of Trial (hereinafter "Trial Tr.") at 21-23.) By the mid-2000s, Kang had established several companies and employed, in total, approximately 800 "in the company" employees, and an "outside" sales force of approximately 75,000.

(Id. at 24.) In 2004 or 2005, one of Kang's agents, Jee Young-Gil ("Jee"), introduced Kang to a business opportunity involving Manitou Springs Mineral Water (the "Water") sold by Manitou. (Id. at 24-27.) Manitou's Chief Executive Officer ("CEO") was Kwon O-Yoon ("Kwon"). (Id. at 372.) Its Water factory in Colorado was run by Jhon Nam-In ("Jhon"). (Id. at 252.) To contract with Manitou and eventually to sell the Water in Korea, Kang formed Moolsan. (Id. at 24.) In January 2005 Kang made Kim Jeong-Hee ("Kim"), a woman who had run several of Kang's other companies, president of Moolsan. (Id. at 44-45.)

On December 1, 2005, Moolsan and Manitou executed a contract, in essence, for the sale of Water. (See Pl.'s Trial Ex. 16A (hereinafter the "Contract").) Manitou sold a distribution right to Moolsan for $500,000 and agreed to sell Water to Moolsan for $1 per one-liter bottle. (Id. ¶¶ 3, 5.) Moolsan made an advance payment of $1 million for mineral water inventory for the first year, and after the first year was required to order a minimum of $1 million worth of Water each year. (Id. ¶¶ 3, 4.) Moolsan was required to pay for orders in advance, and additionally "to place its orders, in writing, normally 3 months in advance." (Id. ¶¶ 4, 5.) The contract was to run for five years. (Id. ¶ 4.)

Manitou initially shipped Moolsan around 307,000 bottles of water. (Trial Tr. at 144-45.) Moolsan used Hwa Jin's pre-existing sales force of 75,000 to advertise the Water by word-of-mouth and sell it door-to-door for $15 per bottle. (Id. at 141, 145-47.) Moolsan disposed of the entire initial amount of Water, but only about half was sold while half was given away for free in promotional efforts. (Id. at 145-47.)

Moolsan alleged that it placed several orders for a total of eight "containers" of Water from Manitou in January, February, and March of 2007, but that those orders went unfilled. (Id. at 124-25.) Each "container" contained approximately 16,632 one-liter bottles; accordingly eight containers totaled 133,056 bottles of Water. (Id. at 125, 282.) Though Moolsan alleges it placed the purchase orders dated January 23, 2007; January 30, 2007; February 6, 2007; February 13, 2007; and March 6, 2007 (the "Original Orders"); Manitou claimed it never received those orders. (See id. at 277-78.) Moolsan, however, complained to Manitou of its perceived failure to fill the orders by fax dated May 30, 2007. (Id. at 125-26; see also Pl.'s Trial Ex. 37A.) Manitou replied by fax dated June 1, 2007, and requested that Moolsan reorder the eight containers at issue. (Trial Tr. at 125, 278; see also Pl.'s Trial Ex. 38A.) Moolsan did submit, and Manitou received, a reorder dated June 5, 2007 (the "Reorder"). (Trial Tr. at 126, 279-80; see also Pl.'s Trial Ex. 39A.) Manitou also alleged that, starting as early as 2005, and through 2006, Moolsan inquired into the possibility of Manitou selling it half-liter bottles instead of one-liter bottles. (Trial Tr. at 267-72.) Manitou perceived these inquiries as "Moolsan want[ing] 500 milliliter [bottles]." (Id. at 270.) Manitou alleged that it began construction of machinery to accommodate half-liter bottling in the spring and summer of 2007, and that it advised Moolsan of the expense and time necessary to complete the construction and factory renovations. (Id. at 269-76.) Moolsan denied ever having made a request that Manitou renovate its factory or sell it half-liter bottles. (Id. at 111-12, 179.)

In any event, Moolsan never received any Water from Manitou after the end of April 2007. (Id. at 123-24.) After a tumultuous spring and summer, on August 29, 2007, Manitou sent Moolsan a fax indicating its readiness to resume water shipments upon Moolsan's order. (Id. at 284-85; see also Def.'s Trial Ex. 11.) Moolsan, however, had filed suit in this Court on August 23, and accordingly replied by letter dated August 30, 2007, requesting Manitou to direct all further communications to Moolsan's lawyer. (Trial Tr. at 285; see also Def.'s Trial Ex. 12.)

B. Procedural History

Moolsan filed this lawsuit on August 23, 2007, asserting breach of contract, fraud, and related claims against Manitou, Kwon, and several other parties. Moolsan also sought an injunction prohibiting Manitou from selling or providing Water to any party other than Moolsan, and ordering Manitou to provide Moolsan with all the water its factory produced. (See Tr. of Hr'g of Oct. 22, 2007 (hereinafter "Oral Arg. Tr.") at 14-15.) The Court denied that motion from the bench on October 22, 2007. (See id. at 18-21.)

After several rounds of motion practice, Moolsan's sole remaining claim-that for breach of contract against Manitou-was tried before a jury from October 25 to November 1, 2010. Before and during trial, the Court ruled on several motions and applications from the parties. Those rulings included holding that the Contract was an installment contract and not an output contract, and excluding the testimony and report of Moolsan's damages expert and certain of Moolsan's trial exhibits relating to its claimed lost profits. These rulings, and others, are summarized in the Court's first post-trial opinion, Ho Myung Moolsan, Co. Ltd. v. Manitou Mineral Water, Inc., No. 07 Civ. 7483, 2010 WL 4892646 (S.D.N.Y. Dec. 2, 2010). At trial Moolsan called Kang, Kim, and Bob Lee, the manager of Moolsan's United States branch. Manitou called Jhon and Kwon. These witnesses testified to the facts as set forth above.

On November 1, 2010, the jury returned a unanimous verdict for Manitou on liability for breach of contract. (See Trial Tr. at 523-24.) Specifically, the jury found that for neither the Original Orders nor the Reorder did Manitou "default in fulfilling [those orders], thereby substantially reducing the value to [Moolsan] of that shipment." (Stacchini Decl. Ex. B (hereinafter the "Verdict Form"); see also Trial Tr. at ...

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