Marvel Entertainment Llc v. Stephen Kimble

MEMORANDUM

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…