                                                                            FILED
                           NOT FOR PUBLICATION                               JUL 16 2013

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



                            FOR THE NINTH CIRCUIT


MARVEL ENTERTAINMENT LLC,                        No. 12-15315

              Plaintiff - Appellee,              D.C. No. 4:10-cv-00792-DCB

  v.
                                                 MEMORANDUM*
STEPHEN KIMBLE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    David C. Bury, District Judge, Presiding

                     Argued and Submitted December 5, 2012

                      Submission vacated December 14, 2012
                          Resubmitted May 29, 2013

                              San Francisco, California

Before: O’SCANNLAIN, THOMAS and CALLAHAN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Appellant Stephen Kimble appeals the district court’s order granting

Appellee Marvel Entertainment, LLC’s (“Marvel”) motion for summary judgment

on his counterclaim for breach of an alleged verbal agreement. The district court

found that Kimble’s claim was barred by a subsequent Settlement Agreement,

which was unambiguous under New York law. It accordingly did not address

Marvel’s arguments that the claim was also barred by the doctrine of res judicata

and the applicable statute of limitations. We have jurisdiction pursuant to 28

U.S.C. § 1291. Because we find that the Settlement Agreement is ambiguous

under New York law and that we cannot affirm the district court’s decision on

either of the other grounds, we vacate the district court’s decision and remand for

further proceedings.

                                          I

      Marvel bears the burden of proving that the Settlement Agreement

discharged its obligations under the verbal agreement because its argument is

essentially an accord and satisfaction affirmative defense. See City of Amsterdam

v. Daniel Goldreyer, Ltd., 882 F. Supp. 1273, 1279-80 (E.D.N.Y. 1995). Under

New York law, we determine whether an agreement is ambiguous “by looking

within the four corners of the document, not to outside sources.” Riverside S.

Planning Corp. v. CRP/Extell Riverside, L.P., 920 N.E.2d 359, 404 (N.Y. 2009).

                                          2
“An ambiguity exists where the terms of the contract could suggest more than one

meaning when viewed objectively by a reasonably intelligent person who has

examined the context of the entire integrated agreement . . . .” Law Debenture

Trust Co. of N.Y. v. Maverick Tube Corp., 595 F.3d 458, 466 (2d Cir. 2010)

(internal quotation marks omitted).

      The Settlement Agreement included an integration clause stating that “[t]his

Agreement contains the entire agreement among the parties with respect to the

subject matter hereof and supersedes all prior and contemporaneous arrangements

or understandings with respect thereto.” It also, however, included a release clause

that explicitly excepted Marvel’s obligations under the Settlement Agreement and

its “obligations under the alleged verbal agreement.” Thus, on its face, the

Settlement Agreement is ambiguous. Contrary to Marvel’s contention, Marvel’s

act of agreeing to the Settlement Agreement did not discharge its obligations under

the verbal agreement if the Settlement Agreement, by its own terms, preserved

those very obligations.

      Accordingly, we vacate and remand to the district court to allow the parties

an opportunity to introduce extrinsic evidence. If “the extrinsic evidence is so one-

sided that no reasonable factfinder could decide contrary to one party’s

interpretation,” the district court may grant summary judgment to that party. SCS

                                          3
Commc’ns, Inc. v. Herrick Co., Inc., 360 F.3d 329, 342 (2d Cir. 2004) (internal

quotation marks and citation omitted). If, however, that is not the case, the dispute

raises a question of fact that must be resolved by a jury.

                                           II

      Marvel also contends that we should affirm the district court’s decision

because Kimble’s claim is barred by res judicata. A settlement agreement,

however, “can limit the scope of the preclusive effect of a dismissal with prejudice

by its terms.” California v. Randtron, 284 F.3d 969, 975 (9th Cir. 2002) (quoting

U.S. ex rel. Barajas v. Northrop Corp., 147 F.3d 905, 911 (9th Cir. 1998)).

Accordingly, if the Settlement Agreement explicitly preserved Kimble’s claims

under the verbal agreement, res judicata would not apply, and we cannot affirm the

district court’s decision on this basis.

                                           III

      Marvel further argues that we should affirm the district court’s decision

because Kimble’s claim is barred by the statute of limitations. Under New York

law, in contract cases involving a claim for the payment of a sum of money, the

statute of limitations is “triggered when the party that was owed money had the

right to demand payment.” Hahn Auto. Warehouse, Inc. v. Am. Zurich Ins. Co.,

967 N.E.2d 1187, 1191 (N.Y. 2012); see also Sirico v. F.G.G. Prods., Inc., 896

                                           4
N.Y.S.2d 61, 66 (App. Div. 2010) (indicating that a contractual right to recurring

royalty payments accrues each time the obligation to pay is breached). On the

present record, it is not clear when Kimble would have had a right to demand

payment under the verbal agreement. Accordingly, it is also unclear whether his

claim is barred by the statute of limitations, and we cannot affirm the district

court’s decision on that basis either.

      VACATED and REMANDED.




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