                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0061n.06

                                           No. 18-3399

                          UNITED STATES COURT OF APPEALS                                FILED
                               FOR THE SIXTH CIRCUIT                              Feb 06, 2019
                                                                              DEBORAH S. HUNT, Clerk
 G.G. MARCK AND ASSOCIATES, INC.,                        )
                                                         )
        Plaintiff-Appellant,                             )
                                                                 ON APPEAL FROM THE
                                                         )
                                                                 UNITED STATES DISTRICT
 v.                                                      )
                                                                 COURT FOR THE
                                                         )
                                                                 NORTHERN DISTRICT OF
 JAMES PENG, et al.,                                     )
                                                                 OHIO
                                                         )
        Defendants-Appellees.                            )
                                                         )

BEFORE: GIBBONS, ROGERS and STRANCH, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. On October 19, 2005, G.G. Marck and

Associates, Inc. (“Marck”) reached an oral settlement agreement with James Peng and his

companies (“Peng”). For the next eight years, however, the parties argued over the terms of the

agreement: the district court twice vacated the settlement and reopened the case, and the Sixth

Circuit twice vacated the district court’s reopening and instructed the district court to put the

settlement back in place. On January 2, 2013, the district court finally entered a written agreement

to enforce the settlement. Four years later, on October 10, 2017, Marck filed a new complaint. It

alleged that Peng breached the 2005 oral agreement as early as November 2005 and that the breach

continued until the parties stopped litigating the case in 2013.       Marck therefore requested

$1,073,172.97 in compensatory damages for breach of the 2005 settlement agreement—damages

equal to the attorneys’ fees Marck incurred in litigating the case between December 15, 2005 and

December 2, 2013.
No. 18-3399
G.G. Marck and Associates v. James Peng, et al.
       Peng moved to dismiss the case, arguing that the complaint (1) was barred by Ohio’s six-

year statute of limitations for oral contracts, (2) was barred by res judicata, and (3) failed to state

a claim. The district court granted Peng’s motion, and dismissed the case under Ohio’s statute of

limitations for breach of oral contracts without considering Peng’s alternative arguments for

dismissal. We agree that the case is time-barred and affirm the district court’s dismissal of Marck’s

complaint.

                                                  I.

       Marck is an Ohio corporation that makes and imports sublimation mugs—blank mugs onto

which images can be placed. Peng, a California resident, owns three companies that compete in

the sublimation mug market. In September 2005, Marck filed a complaint against Peng in the

Lucas County Common Pleas Court in Toledo, Ohio. Marck alleged various unfair competition

and trademark violations. Peng removed to the United States District Court for the Northern

District of Ohio on the basis of diversity of citizenship and federal question jurisdiction.

       On October 19, 2005, during a hearing, the parties stated that they had reached an oral

settlement agreement. They read the key terms of the agreement into the record. The agreement

included mutual releases of claims and a provision that Peng would be monitored for compliance

with federal customs, importation, and transportation laws for three years. The next day, the

district court entered an order marking the case as “[s]ettled and dismissed without prejudice.”

DE4, Amended Compl., Page ID 35. The district court retained jurisdiction to vacate the order

and reopen the case “upon cause shown that the settlement has not been completed and further

litigation is necessary.” Id.

       After a month of negotiations in which Marck alleged that the Peng companies refused to

sign the settlement, attempted to add new material terms, and told Marck that they were “breaching



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No. 18-3399
G.G. Marck and Associates v. James Peng, et al.
and otherwise had repudiated and rejected the settlement,” the district court held a settlement

enforcement hearing on December 7, 2005. Id. at 36. The next day, the district court entered a

stipulated permanent injunction, signed by the parties, to effectuate the settlement.

       In the weeks that followed, however, the parties were unable to reach a final, written

agreement. In large part, their dispute centered around whether Anna Peng, an officer of the Peng

companies, would be a party to the agreement. On January 23, 2006, the Peng companies emailed

Marck. They contended that they would not follow through with the agreement unless Anna Peng

was not required to sign a release. As a result of their disagreement, Marck moved to reopen the

case and the district court granted its motion on January 24, 2006.

       On February 5, 2009, the Sixth Circuit vacated the district court’s reopening of the case.

G.G. Marck & Assocs., Inc. v. Peng (Marck I), 309 F. App’x 928, 935 (6th Cir. 2009). The Sixth

Circuit remanded, reasoning that the district court did not sufficiently explain the basis for granting

this exceptional relief under Fed. R. Civ. P. 60(b)(6). Id. On remand, the district court again

vacated the settlement and reopened the case on October 21, 2009. The case then “[made] a return

visit” to the Sixth Circuit. G.G. Marck & Assocs., Inc. v. North Am. Invs., Corp. (Mark II), 465 F.

App’x 515, 516 (6th Cir. 2012) (per curiam). On March 6, 2012, the Sixth Circuit again vacated

the district court’s decision to reopen the case and remanded with instructions to enforce the

settlement. Id. at 518–19. Accordingly, on January 2, 2013, the district court entered a “Settlement

Agreement and Mutual Release of All Claims,” effective October 19, 2005, and a “Final Order for

Permanent Injunction.” DE 4, Amended Compl., Page ID 42. The agreement included a clause

stating that it “constitutes the entire agreement between the parties hereto.” DE 8-5, Settlement

Agreement, Page ID 108. It also contained a section stating that any claim for attorneys’ fees or

expenses incurred after October 19, 2005 “is not released, acquitted or discharged.” Id. at 107.



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No. 18-3399
G.G. Marck and Associates v. James Peng, et al.
       The Peng companies appealed the district court’s agreement. They argued, inter alia, that

the agreement included terms that were not part of the original 2005 oral agreement. The Sixth

Circuit agreed but affirmed the agreement anyway. It explained:

       [W]hen the parties originally entered their settlement into the record in 2005, they
       discussed only the agreement’s basic framework. . . . The district court was thus on
       solid ground in concluding that the record contained only “the agreement’s bare
       essential terms,” with “additional terms” remaining to be specified. The parties,
       however, never got around to writing down those additional terms. Nor could the
       parties agree about what they had agreed to, even though the district court urged
       them to work these differences out themselves. The parties thus saddled the district
       court with the unsought responsibility of figuring out just what the unrecorded
       terms of the parties’ settlement were. We can discern no clear error in the district
       court’s execution of this factual task—and Peng’s appellate briefs offer no basis for
       finding one.

G.G. Marck & Assocs. Inc. v. Peng (Marck III), No. 13-3015, 2013 U.S. App. LEXIS 26529, at

*5–6 (6th Cir. Sept. 3, 2013). On December 2, 2013, the Peng companies provided a signed release

from Anna Peng.

       The case stayed quiet for four years. Then, in August 2017, Marck filed a motion for

sanctions, contending that the Peng companies acted in bad faith by failing “to timely comply with

the essential terms of the settlement agreement.” DE 15, Order, Page ID 478. Marck requested

that the Peng companies pay its attorneys’ fees and costs incurred between December 15, 2005

and December 2, 2013.

       On October 10, 2017, while the sanctions motion was pending, Marck filed a new

complaint—from which the current appeal stems—alleging the Peng companies breached the

October 19, 2005 settlement agreement. Marck requested $1,073,173 in compensatory damages—

equal to the amount Marck incurred in attorneys’ fees between December 15, 2005 and December

2, 2013. Marck alleged that the Peng companies:




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No. 18-3399
G.G. Marck and Associates v. James Peng, et al.
        [1] breach[ed], reject[ed], and repudiate[ed] the Settlement Framework terms of
            October 19, 2005 that were read into the record of the District Court in the
            Initial Lawsuit;
        [2] refus[ed] to timely cooperate in the reduction of the Settlement Framework
            terms into writing;
        [3] fail[ed] to timely provide signed Mutual Releases for each of the Peng
            Defendants;
        [4] fail[ed] to timely provide a Mutual Release signed by Anna Peng;
        [5] fail[ed] to timely seek Anna Peng’s cooperation in the execution of a Mutual
            Release signed by Anna Peng; [and]
        [6] continu[ed] to litigate without completing the required settlement including, but
            not limited to, executing a Settlement and Mutual Releases, and producing a
            Release executed by Anna Peng.

DE 4, Amended Compl., Page ID 43–44.

        The Peng companies filed a motion to dismiss Marck’s complaint. They argued that the

complaint (1) was barred by Ohio’s six-year statute of limitations for oral contracts, (2) was barred

by res judicata, and (3) failed to state a claim.

        The district court consolidated Marck’s motion for sanctions and new amended complaint.

It denied sanctions and dismissed the complaint. The court found that Ohio’s six-year statute of

limitations for oral agreements applied and that the statute was not tolled at any point. The district

court therefore concluded that since the statute of limitations began running when the alleged

breach occurred, at the latest, in January 2006, Marck’s 2017 complaint was barred by the six-year

statute of limitations. The district court did not address the Peng companies’ alternative theories

for dismissal. Marck timely appealed, contending that Ohio’s six-year statute of limitations for

oral contracts did not bar its suit.

                                                    II.

        This court reviews de novo a district court’s grant of a motion to dismiss on statute of

limitation grounds. Am. Premier Underwriters, Inc. v. Nat’l R.R. Passenger Corp., 839 F.3d 458,

461 (6th Cir. 2016). Although the statute of limitations is an affirmative defense and “a plaintiff



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No. 18-3399
G.G. Marck and Associates v. James Peng, et al.
generally need not plead the lack of affirmative defenses to state a valid claim,” the court can

dismiss the claim if “the allegations in the complaint affirmatively show that the claim is time-

barred.” Cataldo v. U.S. Steel Corp, 676 F.3d 542, 547 (6th Cir. 2012). When the allegations

show that relief is barred by the applicable statute of limitations, dismissal is proper under Fed. R.

Civ. P. 12(b)(6) for failure to state a claim. Id.

        In assessing a motion to dismiss under Rule 12(b)(6), this court “construes the complaint

in the light most favorable to the plaintiff, accepts the plaintiff’s factual allegations as true, and

determines whether the complaint ‘contain[s] sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.’” Heinrich v. Waiting Angels Adoption Servs., Inc., 668

F.3d 393, 403 (6th Cir. 2012) (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)). A claim has facial plausibility when the plaintiff “pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The

plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully”

but is not akin to a probability requirement. Id. In conducting this analysis, a court “primarily

considers the allegations in the complaint, although matters of public record, orders, items

appearing in the record of the case, and exhibits attached to the complaint also may be taken into

account.” Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001) (quoting Neiman v. NLO, Inc.,

108 F.3d 1546, 1554 (6th Cir. 1997)).

                                                     III.

        On appeal, Marck argues that the district court erred in finding that its complaint for breach

of contract was time-barred. We disagree. First, the statute of limitations began running when the

cause of action began accruing—at the earliest in November 2005, and at the latest, in January



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No. 18-3399
G.G. Marck and Associates v. James Peng, et al.
2006. Second, the 2013 written agreement does not alter when the statute of limitations for breach

of the 2005 agreement began running. Third, even if the statute was tolled when the district court

reopened the case between January 24, 2006 and March 6, 2012, Marck’s complaint still is

untimely. We therefore affirm the district court’s dismissal of Marck’s complaint.

                                                A.

       Marck’s complaint alleges breach of contract, and the defendants removed to federal court

on the basis of diversity of citizenship. Thus, this court applies the substantive law of the forum

state—Ohio—and federal procedural law. Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374

(6th Cir. 2009) (“Under the Erie doctrine, federal courts sitting in diversity apply the substantive

law of the forum state and federal procedural law.”) (citing Erie R.R. Co. v. Tompkins, 304 U.S.

64 (1938)). In applying Ohio law, this court “must follow the decisions of the state’s highest court

when that court has addressed the relevant issue.” Savedoff v. Access Grp., Inc., 524 F.3d 754,

762 (6th Cir. 2008) (internal quotation marks omitted). If the highest court has not yet answered

the precise question at hand, this court “must predict how the [state] court would rule by looking

to all the available data, including intermediate appellate decisions.”       Lutz v. Chesapeake

Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013) (internal citations omitted). Thus, this court

must determine whether Marck’s complaint was time-barred under Ohio contract law.

       Under Ohio law, when parties enter into an oral settlement agreement in court, the

agreement constitutes “a binding and enforceable contract.” Tabbaa v. Koglman, 777 N.E.2d 338,

341 (Ohio Ct. App. 2002). Ohio’s general rule is that “a breach of contract action accrues when

the breach occurs or when the complaining party suffers actual damages as a result of the breach.”

Lutz, 717 F.3d at 473 (citing Columbus Green Bldg. Forum v. State, 980 N.E.2d 1, 10 (Ohio Ct.




                                                 7
No. 18-3399
G.G. Marck and Associates v. James Peng, et al.
App. 2012)). When the “terms of a contract are clearly repudiated by a party,” “a cause of action

for breach of contract accrues only once—at the time of repudiation.” Id. at 468 n.7.

         The Ohio Revised Code Chapter 2305 provides the statutes of limitations for breach of

contract claims. If the contract is oral, parties have up to six years after the cause of action accrues

to file suit. Id. § 2305.07. If the contract is written, parties are afforded eight years.1 Id. § 2305.06.

         Here, Marck alleges breach of “[t]he settlement agreement reached on October 19, 2005.”

DE 4, Amended Compl., Page ID 43. The October 19 agreement was oral. Marck II, 465 F. App’x

at 516 (“In October 2005, the parties reached an oral settlement agreement.”). That hearing

transcript is the only written document discussed by the parties describing an agreement reached

in October 2005, and a transcript is not a writing sufficient to convert an oral agreement into a

written one. See, e.g., Smith v. ABN AMRO Mortg. Grp., Inc., 434 F. App’x 454, 461–62 (6th Cir.

2011) (concluding that “the parties reached an oral settlement agreement” even though the district

court read the “basic settlement terms” into the record); Selvage v. Emnett, 909 N.E.2d 143, 146–

47 (Ohio Ct. App. 2009) (determining that “the parties reached a valid oral agreement to settle the

case” based on the terms of the agreement read into the record). Thus, the applicable statute of

limitations for breach of the oral contract was six years. Ohio Rev. Code § 2305.07.

         Since the clock starts when breach or repudiation occurs, see Lutz, 717 F.3d at 468 n.7,

473, Marck’s action began accruing as early as November 16, 2005 and as late as January 23,

2006. In its complaint, Marck contended that on November 16, 2005, Peng’s attorney “told

Marck’s counsel that the Peng Defendants were breaching and otherwise had repudiated and


         1
            On appeal, Marck argues that the eight-year statute of limitations for written agreements should apply.
Marck is correct that the current Ohio Revised Code contains an eight-year statute for claims involving breach of
written contracts. Ohio Rev. Code § 2305.06. But because the alleged breach occurred prior to 2012, the applicable
statute of limitations for a written contract would likely be fifteen years. See Browne v. Artex Oil Co., No. 17 CA 20,
--- N.E.3d ---, 2018 WL 4471737, at *4 n.1 (Ohio Ct. App. May 31, 2018) (“The statute was amended from fifteen
years to eight years, effective September 28, 2012.”). This discrepancy is inconsequential, however, because Marck’s
complaint alleges breach of an oral contract.

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No. 18-3399
G.G. Marck and Associates v. James Peng, et al.
rejected the settlement and Settlement Framework terms.” DE 4, Amended Compl., Page ID 36

(emphasis added). Additionally, Marck asserts that on January 23, 2006, Peng’s attorney emailed

Marck and “confirmed there would be no settlement on the terms reached on October 19, 2005.”

Id. at 37. Construing the complaint in the light most favorable to Marck, see Heinrich, 668 F.3d

at 403, we will assume the claim began accruing on January 23, 2006.

       Marck filed the complaint for breach and repudiation of the October 2005 agreement on

October 10, 2017—eleven years and eight months after January 23, 2006. Therefore, under Ohio’s

six-year statute of limitations for oral contracts, Marck’s complaint is time-barred. See Ohio Rev.

Code § 2305.07.

                                                 B.

       The later 2013 written agreement—whether it memorialized or integrated the previous oral

agreement—does not alter our conclusion.

                                                  1.

       First, Marck argues that “the settlement agreement of January 2, 2013 is a written contract”

and “memorialization of the settlement.” CA6 R. 15, Marck Br., at 30. It therefore contends that

the eight-year statute of limitations for written contracts applies and that it did not begin running

until the agreement was written on January 2, 2013. We disagree.

       Despite later memorialization, the six-year statute of limitations for oral contracts governs

this dispute. When an oral contract’s terms are later memorialized in writing, the six-year statute

of limitations applies because the written memorialization “does not convert the oral contract into

a contract in writing” so long as the litigant “does not seek to enforce [the later written agreement]

as a distinct instrument.” First Nat’l Sec. Corp. v. Hott, 122 N.E.2d 777, 778–79 (Ohio 1954); see




                                                  9
No. 18-3399
G.G. Marck and Associates v. James Peng, et al.
also Joseph W. Diemert, Jr. & Assocs. Co. v. Rubenstein, Novak, Einbund & Pavlik, No. 76575,

2000 WL 1038177, at *2–3 (Ohio Ct. App. July 27, 2000).

       Second, when an agreement is memorialized does not affect when the statute of limitations

begins accruing. Under Ohio law, a valid oral agreement has the same binding effect as a valid

written agreement. RE/MAX Int’l, Inc. v. Realty One, Inc., 271 F.3d 633, 646 (6th Cir. 2001)

(applying Ohio contract law). Thus, parties can breach an oral agreement in the same way they

can breach a written agreement, and a cause of action for breach of contract accrues when the

breach occurs. Lutz, 717 F.3d at 473 (citing Columbus Green Bldg. Forum, 980 N.E.2d at 10).

Thus, the relevant starting point for a breach of contract action is when the breach occurs, not when

the terms are memorialized.

       Here, Marck alleged that the Peng companies breached the “terms of October 19, 2005.”

DE 4, Amended Comp., Page ID 45. Thus, Marck does not “seek to enforce [the 2013 agreement]

as a distinct instrument.” First Nat’l Sec. Corp., 122 N.E.2d at 778. Rather, Marck’s complaint

explicitly alleges breach of the 2005 agreement, and the later memorialization does not convert the

earlier agreement into a written one for statute of limitations purposes. Thus, even if the 2013

agreement is a “lawful memorialization of the settlement,” the oral six-year statute still applies,

and it began running when the breach first occurred.

                                                 2.

       Similarly, Marck’s argument about integration is not persuasive. Under Ohio law, when a

written agreement is completely integrated, it is the “single and final memorial of the

understanding of the parties,” and “prior and contemporaneous negotiations, oral or written, are

excluded.” Galmish v. Cicchini, 90 Ohio St.3d 22, 27 (2000). Thus, a fully integrated agreement

“cannot be modified by evidence of earlier or contemporaneous agreements that might add to,



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No. 18-3399
G.G. Marck and Associates v. James Peng, et al.
vary, or contradict the writing.” Bellman v. Am. Int’l Grp., 865 N.E.2d 853, 857 (Ohio 2007)

(citation omitted).

         Here, Marck argues that the 2013 agreement entirely replaced the earlier oral agreement

through its integration clause, and therefore the statute of limitations for written contracts applied

and began running in January 2013. Marck is correct that the 2013 agreement states that it

“constitutes the entire agreement between the parties.” DE 8-5, Settlement Agreement, Page ID

108. But the district court’s own explanation of the written agreement indicates that it does not

entirely replace the 2005 agreement. When the district court entered the 2013 agreement, it noted

that it “[did] not alter the effect of the settlement entered by the parties on October 19, 2005.” DE

8-4, Order, Page ID 103. And even if the 2013 agreement was fully integrated, Marck cites no

Ohio caselaw construing a suit under a preexisting oral agreement as brought under a subsequent,

fully integrated agreement. To the contrary, when an Ohio appellate court concluded, based on an

integration clause, that a written Service and License Agreement was “the entire agreement

between the parties” as to the development of a certain software platform, it promptly affirmed the

grant of judgment on the pleadings on all of the plaintiff’s claims “arising out of the alleged oral

development contract.” Fontbank, Inc. v. CompuServe, Inc., 742 N.E.2d 674, 679 (Ohio Ct. App.

2000).

         Moreover, Marck alleges breach as early as November 2005—far before the 2013

agreement came into existence. Marck’s complaint “only refers to the 2013 agreement in passing

and does not seek relief for any breach or failure to comply with that agreement.” DE 15, Order,

Page ID 486. Thus, whether or not the 2013 agreement was fully integrated is not dispositive

because Marck does not allege breach of the 2013 agreement. It explicitly requests relief for

breach of the 2005 oral agreement.



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No. 18-3399
G.G. Marck and Associates v. James Peng, et al.
                                                    3.

       Marck also argues that the 2013 agreement is a separate agreement that allows recovery

for breach of the earlier oral agreement. In Ohio, while “a prevailing party in a civil action may

not recover attorney fees as part of the costs of litigation,” there is an exception for breach of

settlement agreements that “specifically provide[] for the losing party to pay the prevailing party’s

attorney fees or when the prevailing party demonstrates bad faith on the part of the unsuccessful

litigant.” Wilborn v. Bank One Corp., 906 N.E.2d 396, 400 (Ohio 2009). “When a party breaches

a settlement agreement to end litigation and the breach causes a party to incur attorney fees in

continuing litigation, those fees are recoverable as compensatory damages in a breach of settlement

claim.” Tejada-Hercules v. State Auto. Ins. Co., No. 08AP-150, 2008 WL 4416534, at *3 (Ohio

Ct. App. Sept. 30, 2008) (citation omitted).

       Here, Marck argues that under the 2013 agreement, it “could seek recovery of its attorneys’

fees and costs incurred from October 19, 2005, forward.” CA6 R. 22, Marck Reply Br., at 2. But

while Marck’s underlying theory—that it could seek compensatory damages for breach in the

amount incurred as attorneys’ fees stemming from Peng’s failure to adhere to the oral settlement

agreement—may be warranted under Wilborn, this theory is unrelated to calculating when the

statute of limitations expired. Wilborn provides a vehicle through which Marck could request

compensatory damages equal to attorneys’ fees—but Marck’s suit is still a breach of contract suit

subject to the applicable statute of limitations.

                                                    C.

                                                    1.

       Lastly, even if the statute of limitations was tolled when the district court reopened the

case, Marck’s suit is still time-barred. Marck contends that “any Statute of Limitations that may



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No. 18-3399
G.G. Marck and Associates v. James Peng, et al.
have applied did not run, or was tolled[,] between January 23, 2006, with the Order ‘destroying’

and ‘superseding’ [the] settlement, and March 6, 2012, when the appellate court found and ordered

that there was a settlement to be enforced, vacating the last judgment for monetary damages.”

CA6 R. 15, Marck Br., at 37.

       But even if we assume that the statute was tolled when the district court reopened the case,

Marck’s complaint is still time-barred because the case was not open for the entire time that Marck

contends it was. Rather, the settlement was alive again between February 5, 2009, when the Sixth

Circuit vacated the district court’s reopening, and October 21, 2009, when the district court again

reopened the case. Thus, if the statute of limitations was tolled when the case was reopened, the

proper calculation would be between January 23, 2006 and February 5, 2009, and then again

between October 21, 2009 and March 6, 2012. Accounting for 1976 days of potential tolling,

Marck still filed its complaint six years, three months, and 21 days after the claim began accruing.

Its complaint is therefore time-barred under Ohio’s six-year statute of limitations for oral contracts.

                                                  2.

        Finally, this case does not present extraordinary circumstances in which to apply the

equitable tolling doctrine. Ohio state law governs the analysis. See Weikle v. Skorepa, 69 F. App’x

684, 687 (6th Cir. 2003) (“We have generally held that . . . tolling principles are governed by state

law, except when dealing with federal claims or in unusual cases where doing so would produce

an outcome substantially different from the outcome that would have been obtained in state

court.”) (internal citations and quotation marks omitted). Under Ohio law, “[a] litigant seeking

equitable tolling must demonstrate that he or she diligently pursued his or her rights, but some

extraordinary circumstance stood in his or her way and prevented timely action.” Lottridge v.

Gahanna-Creekside Invs., L.L.C., 36 N.E.3d 744, 753 (Ohio Ct. App. 2015). Equitable tolling is



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No. 18-3399
G.G. Marck and Associates v. James Peng, et al.
“to be applied sparingly and only in exceptional circumstances.” Id. With regard to breach of

contract claims, the Ohio Court of Appeals has noted that the statute of limitations is not tolled

when “a party chooses to seek redress by filing a motion to enforce the terms of a settlement

agreement rather than an independent action sounding in breach of contract.” Castle King L.L.C.

v. Attorney Gen. of Ohio, No. 10AP-735, 2011 WL 1137299, at *3 (Ohio Ct. App. Mar. 29, 2011).

       Here, Marck does not present a compelling case for equitable tolling. Marck argues that

this court should apply the equitable tolling doctrine because “[i]t would have been inequitable to

require Marck to file a lawsuit flowing from the breach of a settlement that simply did not exist

and could not be enforced as a matter of law between January 23, 2006 and March 6, 2012—a

period of more than 6 years itself.” CA6 R. 15, Marck Br., at 40. But Marck has not demonstrated

that it “diligently pursued [its] rights” and that “some extraordinary circumstance” stood in its way.

Lottridge, 36 N.E.3d at 753. Rather, Marck argues that it could not bring a breach of contract

claim earlier because the district court had reopened the case between January 2006 and March

2012. Marck, however, is the party who moved to have the settlement enforced in 2005 and the

case reopened in January 2006. At Marck’s request, the district court reopened it. Instead of

requesting that the district court reopen the case, Marck could have immediately sued for breach

of contract. Marck chose not to. Where a party could bring an independent action sounding in

breach of contract but chooses to take another route—as Marck did—there are not “extraordinary

circumstances” that compel equitable tolling. See Castle King L.L.C., 2011 WL 1137299, at *3;

Lottridge, 36 N.E.3d at 753.

       Second, the heart of Marck’s argument is that it was unfair to expect it to bring its claim

while the case was reopened. But even if we agree with this reasoning, there is no support for

otherwise tolling the statute of limitations past when the district court reopened the case. Marck



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No. 18-3399
G.G. Marck and Associates v. James Peng, et al.
alleged breach of contract almost twelve years after becoming aware of the breach. With no

tolling, Marck’s statute of limitations expired on January 23, 2012. If we credit Marck’s argument

and assume the statute was paused when the district court reopened the case, its clock ran out on

June 14, 2017. But Marck did not file its complaint until October 10, 2017. Marck does not

provide any support for why we should not only toll the statute during the time when the case was

reopened but also for an additional three months.

                                                IV.

       For the reasons stated, we affirm the district court’s grant of Peng’s motion to dismiss the

case under Ohio’s six-year statute of limitations for breach of contract.




                                                 15
