NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GAIL KNIGHT STEINBECK, Personal representative of Thomas Myles Steinbeck;
BLAKE SMYLE,

Plaintiffs

- Appellants,

v.

WAVERLY SCOTT KAFFAGA; et al.,

Defendants

- Appellees. No. 15

- 56375

D.C. No.

2:14

- cv

- 08681

- TJH

- GJS

MEMORANDUM *

Appeal from the United States District Court

for the Central District of California Terry J. Hatter, District Judge, Presiding

Submitted November 13, 2017 **
Pasadena, California

Before: NGUYEN and HURWITZ, Circuit Judges, and EATON, *** International Trade Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Appellants’ motion for oral argument, Dkt. 64, is denied.

*** Richard K. Eaton, Judge of the United States Court of International Trade, sitting by designation. 

# FILED

NOV 16 2017

MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2

This is a suit by descendants of John Steinbeck ’s sons (the “Sons”) about their

ability to terminate and exploit copyrights of Steinbeck’ s literary works. The district

court dismissed the action , finding it barred by collateral estoppel (issue preclusion)

.

We have jurisdiction under 28 U.S.C. § 1291 and affirm

.

As the district court correctly noted

, the parties have already litigated th e

precise issues raised in this suit “ ad na useum ” in the Second Circuit

. S ee Steinbeck

v. Steinbeck Heritage Found. , 400 F. App’x 572 (2d Cir. 2010); Penguin Grp. (USA)

Inc. v. Steinbeck , 537 F.3d 193 (2d Cir. 2008) . The Seco nd Circuit squarely held

that a 1983 Settlement Agreement is “unambiguous and forecloses any argument

that the parties intended the [ Sons ] to retain control over” the “exploitation and/or

termination of rights in the works of John Steinbeck.” Steinbeck , 4 00 F. App’x at

575. Moreover, a stipulated judgment entered in 2009 in the United States District

Court for the Southern District of New York expressly provides that two of the

termination notices at issue in this suit are invalid

, 1 and that the 1983 Sett lement

Agreement binds the parties. S ee Stipulation & Order with Respect to

Counterclaims & Intervenor Complaint at 4, Steinbeck v. McIntosh & Otis, Inc. , No.

04

- CV

- 5497 (GBD) (S.D.N.Y. Dec. 2, 2009), ECF No. 140.

1 Because the parties already actually litigated the validity of The Red Pony and The Long Valley termination notices, claim preclusion also applies

. See Tahoe

Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency , 322 F.3d 1064, 1077 (9th Cir. 2003).3

The district court correctly concluded th at the Sons already have fully litigated

whether they have a right to issue and exploit copyright t ermination s of Steinbeck’s

works , and that the prior litigation held that the Sons do not have those rights

. See

Oyeniran v. Holder , 672 F.3d 800, 806 (9th Cir. 2012). 2

AFFIRMED 3

2 The Sons fail to “specifically and distinctly” raise in their opening brief any argument about the district court’s dismissal of the claims for copyright infringement

for Of Mice and Men , rights to The Grapes of Wrath a nd Tortilla Flat , and the right

to rescind th e power of attorney granted to a ppellees and to terminate M&O as a literary agent

. Miller v. Fairchild Indus., Inc. , 797 F.2d 727, 738 (9th Cir. 1986). In addition to being barred by collateral estoppel, these issues are waived. See i d. The Sons also argue for the first time on appeal that “ [ u ] nder the Covenant of Good Faith and Fair Dealing [ appellees ] are required to pay [the Sons] the fair market value” for the license for a documentary of The Grapes of Wr ath . Because this issue was not raised below, it is waived. See Whittaker Corp. v. Execuair Corp. , 953 F.2d 510, 515 (9th Cir. 1992).

3 We grant appellees’ motion t o take judicial notice, Dkt. 38.