(CN) – A 14-year-old lawsuit over proceeds from a toy that mimics Spider-Man’s power to shoot webs from his wrists will stay in Arizona, a federal judge in New York ruled recently, finding that Marvel Entertainment’s attempts to move the case to New York were intended only to gain “a litigation advantage.”
In the late 1980s, Tucson resident and attorney Stephen Kimble invented a glove that shot aerosol string similar to Spider-Man’s webs. He pitched it to Toy Biz, which partners with Marvel Entertainment to develop toys based on comic book heroes, and the parties entered into an oral agreement in 1990. But Toy Biz later developed its own version of the toy, now called the Web Blaster.
Kimble sued in 1997 in Arizona District Court, and a jury found that Toy Biz had breached the oral agreement. The jury awarded Kimble 3.5 percent of net product sales. After both parties appealed the award, they reached a settlement agreement with Marvel in 2001, exchanging the toy patent for more than $500,000 and 3 percent of future sales, according to court documents.
Nearly a decade later, in 2008, Marvel recalculated its royalty payments to Kimble and argued that the 2001 settlement would expire in May 2010. Kimble sued for breach of contract, arguing that even if the settlement agreement had expired, the 1990 oral agreement he had with Toy Biz required the company to continue to pay him royalties.
The day after the court denied Kimble’s motion to amend his complaint in April 2010, Marvel filed a declaratory judgment action in New York, seeking “resolution of the effect of the 1990 oral agreement,” and also seeking to move the case to Manhattan, according to Manhattan court filings.
Kimble, described by the Manhattan federal judge as elderly and retired in Arizona, sought to have Marvel’s latest action in the long-suffering litigation moved to Tucson, where the case has been located since its inception.
U.S. District Judge Harold Baer agreed in December, finding no reason why the case should be moved east.
“The central issue in dispute is the enforceability of the 1990 oral agreement,” Baer wrote. “Kimble, who was there at its formation and is party to the 2001 settlement agreement that may have superseded it, is elderly, retired, and lives in Arizona. Moreover, Marvel has not argued that sending its witnesses to Arizona would present a hardship to the multimillion dollar corporation. At best this factor tips only slightly in favor of Marvel and New York.”
Baer added that even though Marvel is the nominal plaintiff in the most recent action, Kimble had been a plaintiff in the related complaints, and Marvel’s efforts to move the case to New York smack of gamesmanship.
“Marvel’s choice of forum here seems more intended to gain a litigation advantage than to address the merits of the 1990 oral agreement issue expeditiously,” Baer wrote. “I am not eager to reward such tactics with the deference traditionally afforded a plaintiff’s choice of forum and decline to do so here.”
Baer ordered the case removed from the New York docket and transferred to Tucson.