United States District Court, S.D. New York
Counsel for plaintiff: Daniel Knox Knox Law Group, P.C.
Counsel for defendant: Brian E. Lehman Julie R. Solarz Lehman
MEMORANDUM AND ORDER
REICE BUCHWALD UNITED STATES DISTRICT JUDGE
Treasure Chest Themed Value Mail, Inc. (“Treasure
Chest” or plaintiff) commenced this action against
defendant David Morris International, Inc. (“David
Morris” or defendant), seeking damages, interest
thereon, and attorneys' fees for the latter's failure
to perform under their “Vacation Travel Mailing
Participation Agreement.” The parties proceeded to a
June 5, 2018 bench trial before this Court, at the conclusion
of which plaintiff's motion for a directed verdict was
granted. This Memorandum and Order constitutes the
Court's findings of fact and conclusions of law
consistent with that ruling. See Fed.R.Civ.P. 52(a).
witnesses testified at trial. Plaintiff called Richard Shane,
Treasure Chest's founder and chief executive officer.
Affidavit of Richard Shane (“Shane Aff.”) ¶
1, May 21, 2018, Dkt. No. 39. The direct testimony of Mr.
Shane was by affidavit pursuant to court order. Defendant
called David Morris himself solely as an impeachment witness.
Chest is an advertising company that “primarily employs
direct mailing and digital media to deliver advertising
materials to consumers.” Id. ¶ 3. To that
end, Treasure Chest “maintains a proprietary database
comprised of the names and addresses” of 1.4 million
“individuals in the United States who have expressed
interest in vacation travel by requesting travel-related
information directly from Treasure Chest and/or
travel-related periodicals.” Id. ¶¶
4-5; see Trial Transcript (“Tr.”)
January 2016, David Morris contracted with Treasure Chest,
pursuant to a “Vacation Travel and Mailing
Participation Agreement” (the “Contract”),
to include advertising materials for Arosa Cruises and
AutoEurope in Treasure Chest's Spring 2016 mailing to the
individuals in its database. See Shane Aff.
¶¶ 6-8 & Ex. A. Under the Contract, Treasure
Chest was required to (1) “include [David Morris']
information on two sides of an insert in the Company's
direct mail business campaign to at least 730, 000 vacation
travelers nationwide . . . with two logos on [the] response
card;” and (2) provide “greater than 300, 000
follow up weekly digital impressions . . . for two different
products;” such that (3) David Morris was
“guaranteed greater than 3, 000 total leads, ”
otherwise “the following season['s]” mailing
would be “free.” Contract §§ 2-3. David
Morris was to compensate Treasure Chest for its services with
(1) $45, 000 by July 1, 2016; along with (2) “up to
$40, 000 in airfare and hotel accommodations at fair market
value, ” and (3) “up to $10, 000 value in Arosa
cruises.” Id. § 3.
after Treasure Chest completed the mailing, David Morris
refused to pay, citing the mailing's failure to generate
business. See Shane Aff. ¶¶ 19, 22.
Treasure Chest thereafter commenced this action, asserting a
single claim for breach of contract, and seeking damages,
interest thereon, and attorneys' fees. See
Compl., Jan. 1, 2017, Dkt. No. 1. David Morris, in response,
asserted counterclaims for fraud, unjust enrichment, and
breach of contract. See Am. Answer &
Countercls., June 28, 2017, Dkt. No. 13.
multiple contentious discovery disputes, but before deposing
plaintiff or serving targeted discovery requests, David
Morris requested a bench trial, which this Court scheduled
for June 5, 2018. See Letter from Brian Lehman,
Lehman LG LLC, to Hon. Naomi Reice Buchwald, United States
District Judge, Southern District of New York (Apr. 18,
2018), Dkt. No. 34. In advance of trial, the parties
exchanged proposed findings of fact and conclusions of law.
Treasure Chest offered the direct testimony, via affidavit,
of Mr. Shane. See Shane Aff. ¶ 1. David Morris
declined to produce any direct testimony and, in its
submission, withdrew its fraud and breach of contract
counterclaims. Def. David Morris International, Inc.'s
Proposed Pre-Trial Statement Facts and Law (“Def.'s
Mem. Law”) § 27, May 25, 2018, Dkt. No. 41.
eve of trial, David Morris filed (1) motions in
limine to exclude exhibits D, E, F, and G to Mr.
Shane's affidavit as a discovery sanction under Federal
Rule of Civil Procedure 37(c), and (2) a motion for judgment
under Federal Rule of Civil Procedure 52(c) on
plaintiff's breach of contract claim. See Letter
from Brian Lehman, Lehman LG LLC, to Hon. Naomi Reice
Buchwald, United States District Judge, Southern District of
New York (June 1, 2018), Dkt. No. 45. At the outset of the
trial, we granted in part and denied in part the former, and
reserved decision on the latter. We explained the basis for
each decision on the record, and do not repeat the reasoning
here.,  See Tr. 3:23-9:5.
granted plaintiff's motion for a directed verdict at the
conclusion of its case in chief. Id. 38:14-15.
recover for breach of contract under New York law,
plaintiff must prove, by a preponderance of the evidence:
“ the formation of a contract between the parties;
 performance by the plaintiff;  failure of defendant to
perform; and  damages.” Orchard Hill Master Fund
Ltd. v. SBA Commc'ns Corp., 830 F.3d 152, 156 (2d
Cir. 2016) (internal quotation marks omitted); accord JP
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