                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 15 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

INTERMEC, INC.,                                  No. 12-35738

              Plaintiff - Appellee,              D.C. No. 2:11-cv-00165-JCC

  v.
                                                 MEMORANDUM*
INTERNATIONAL BUSINESS
MACHINES CORPORATION,

              Defendant - Appellant.



INTERMEC, INC.,                                  No. 12-35743

              Plaintiff - Appellant,             D.C. No. 2:11-cv-00165-JCC

  v.

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                  John C. Coughenour, District Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     Argued and Submitted December 3, 2013
                              Seattle, Washington

Before: TALLMAN and BEA, Circuit Judges, and MURPHY, District Judge.**

      International Business Machine Corp. (“IBM”) appeals the district court’s

grant of partial summary judgment for Intermec, Inc. (“Intermec”) and the

subsequent jury verdict in favor of Intermec on Intermec’s unjust enrichment

claim. Intermec appeals the district court’s denial of pre-judgment interest on the

unjust enrichment award. For the following reasons, we reverse the district court’s

grant of partial summary judgment.

      Intermec’s claims are time-barred. Section 19.8 of the Agreement

Regarding Assignment of Radio Frequency Identification Technology and Sale of

Tangible Personal Property (“Agreement”) states no party “may bring an action . . .

arising out of the performance of this Agreement, more than four years after the

action has accrued[.]” The Agreement did not give Intermec a right of final

accounting when the agreement ended in April 2008. Under New York law,

Intermec’s last claim accrued at the time of the last alleged overpayment in 2006.

See Elliott v. Qwest Communications Corp., 808 N.Y.S.2d 443, 444–445 (N.Y.




      ** The Honorable Stephen Joseph Murphy, III, District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by designation.

                                          2
App. Div. 2006). Thus, Intermec’s suit, which was filed on January 31, 2011, is

not timely.

      Even if Intermec’s claim were not time-barred, the district court’s grant of

partial summary judgment must be reversed because the plain meaning of the

language of the Agreement obligates Intermec to pay IBM fees for the Rapid Start

Licensing Agreements under § 10.3.1 of the Agreement. See Greenfield v. Philles

Records, Inc., 780 N.E.2d 166, 170 (N.Y. 2002) (holding a “written agreement that

is complete, clear and unambiguous on its face must be enforced according to the

plain meaning of its terms”); See also Black’s Law Dictionary 149 (6th ed. 1990)

(defining bare patent license).

      This interpretation of the contract removes the basis of the district court’s

finding of any mootness of IBM’s counterclaim. IBM may now pursue that claim

in the district court, and Intermec, of course, preserves all defenses that it had

properly pleaded.

      The parties shall bear their own costs on appeal.

      REVERSED, VACATED, and REMANDED.




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