United States Court of Appeals

For the First Circuit

No. 20-1008

CYNTHIA FOSS,

Plaintiff, Appellant,

v.

MARVIC INC., d/b/a Brady-Built Sunrooms,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Timothy S. Hillman, U.S. District Judge] 

Before

Lynch and Selya, Circuit Judges,

and Katzmann,* Judge.

Andrew Grimm, with whom Gregory Keenan and Digital Justice 

Foundation were on brief, for appellant.

James M. McLaughlin, with whom David F. Hassett, Sarah B. 

Christie, Melina M. Garland, and Hassett & Donnelly, P.C. were on 

brief, for appellee.

April 12, 2021

* Of the United States Court of International Trade, sitting 

by designation. 
LYNCH, Circuit Judge. Cynthia Foss is a graphic designer 

who, in 2006, created a brochure for Marvic d/b/a Brady-Built 

Sunrooms ("Marvic") to use in marketing its sunrooms and for which 

she was paid. Twelve years later, she filed a complaint in federal 

district court on January 19, 2018, alleging a federal claim for

copyright infringement and pendent state law claims. The district 

court entered three separate rulings at issue in this appeal. On 

March 19, 2019, it granted Marvic's motion to dismiss Foss's 

copyright claim. See Foss v. Marvic, 365 F. Supp. 3d 164, 167 (D. 

Mass. 2019). On September 30, 2019, it denied Foss's motion to 

withdraw certain statements that the court had deemed admitted. 

See Order Den. Mot. for Recons., Foss v. Marvic, No. 4:18-cv40010-TSH, (D. Mass. Sept. 30, 2019), ECF No. 74. On December 5, 

2019, it granted Marvic's motion for summary judgment on Foss's

state law claims. See Foss v. Marvic, 424 F. Supp. 3d 158, 163 

(D. Mass. 2019). Foss appeals from these rulings. We affirm.

I. Facts

In June 2006, Foss, acting through Hunter Foss Design 

Inc., of which she is the President and Creative Director, provided 

Marvic with an estimate of $3,000 for work in designing a twentypage brochure. The estimate said that this cost would include the 

"usual and customary fees for research and design of (1) 20 page 

brochure only; presentation of up to 3 comprehensive designs 

showing style; 1 final layout showing format; 2 rounds of 
revisions; pdf files for email proofs; all file preparation for 

printer, and permanent file archiving." Marvic engaged Foss and 

paid her for her work. Marvic began using the brochure around 

that time. 

Foss alleges that ten years later, in 2016, she 

discovered that Marvic had begun using a modified version of the 

brochure she had designed in print and online without asking for 

or receiving her permission. In November 2017, she sent a letter 

to Marvic demanding payment for lost wages and copyright 

infringement. She also sent Marvic an invoice for $264,000 seeking 

compensation for Marvic's alleged copyright infringement over an 

eleven-year period. She alleges that Marvic did not pay this 

invoice.

II. Procedural History

Foss filed suit pro se against Marvic on January 19, 

2018, in federal district court in Massachusetts. Her complaint 

alleged that Marvic had infringed on her copyright and alleged, 

inaccurately, that she had "applied for official U.S. Copyright 

Registrations" for the brochure. 

Marvic filed an answer on May 9, 2018, denying Foss's 

allegations and asserting several affirmative defenses, including 

that Foss's claims were time barred and that she presented no 

evidence that she applied for copyright registration. Marvic filed

a motion to dismiss on August 7, 2018. 
On August 9, 2018, Foss filed an amended complaint. She 

stated six causes of action: (1) copyright infringement; (2) 

tortious interference with advantageous business relations; (3) 

conversion; (4) unfair and deceptive business practices; (5) 

breach of contract; and (6) fraud and breach of fiduciary duty. 

Foss also stated that she had registered the brochure with the 

U.S. Copyright Office on February 13, 2018 and February 28, 2018. 

In fact, she had only applied for registration. 

Marvic filed an amended motion to dismiss Foss's 

copyright and breach of contract claims for failure to state a 

claim on September 11, 2018. Foss did not oppose the motion, and 

the district court dismissed the case on October 3, 2018. 

On October 19, 2018, Foss filed a motion to reopen the 

case and a motion for a preliminary injunction, both of which 

Marvic opposed. The district court granted the motion to reopen 

the case on January 9, 2019, and Foss filed an opposition to 

Marvic's motion to dismiss that same day. Foss then retained 

counsel, who entered an appearance on her behalf on February 22, 

2019, the day the court held a hearing on Marvic's motions.

One of Marvic's arguments in support of dismissing 

Foss's copyright claim was that Foss failed to establish that she 

had registered her copyright, as required under 17 U.S.C. § 411(a). 

Marvic noted the existence of a circuit split about whether 17 

U.S.C. § 411(a) required the U.S. Copyright Office to grant an 
application or whether the submission of the application alone 

sufficed. Marvic maintained that regardless of which standard 

applied, Foss's "conclusory statements" merely asserting the 

brochure was "registered" failed to meet either standard. 

On February 26, 2019, the district court stayed the case 

pending the Supreme Court's decision in Fourth Estate Public

Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019), which 

addressed the meaning of the phrase "registration . . . has been 

made" in 17 U.S.C. § 411(a).1 That decision issued on March 4, 

2019, and held that registration occurs "not when an application 

for registration is filed, but when the Register has registered a 

copyright after examining a properly filed application." Fourth 

Est., 139 S. Ct. at 892. The district court lifted its stay and 

entered an order on March 19, 2019, granting Marvic's motion to 

dismiss in part. Relying on Fourth Estate, it dismissed Foss's 

copyright claim because "the Copyright Office has not acted upon 

[Foss's] application for a copyright." Foss, 365 F. Supp. 3d at

167. The district court did not dismiss Foss's breach of contract 

claim because she had "done enough to summarize the contract's 

purported legal effect and provide Defendant notice of the nature 

of the claim." Id.

1 At the hearing on February 22, 2019, the court asked the 

parties whether they thought the case should be stayed pending the 

Supreme Court's decision. Foss opposed the stay, while Marvic 

supported it. 
On May 2, 2019, Marvic served Foss, then represented by 

counsel, with a request for production of documents and request 

for admissions pursuant to Federal Rules of Civil Procedure 34 and 

36. Foss did not respond to either request, so on June 21, 2019, 

Marvic moved to compel a response to the request for documents 

and, on July 8, 2019, filed a motion for discovery asking that the 

statements in its request for admissions be deemed admitted. The 

district court granted both motions on August 13, 2019. 

The district court held a status conference attended by 

counsel for all parties on August 21, 2019. At this conference, 

Marvic told the court that it intended to file a dispositive motion 

on Foss's remaining claims based on the statements the court had 

deemed admitted. 

On August 28, 2019, Foss's counsel moved to withdraw 

from the case as of September 9, 2019.2 The court granted this 

motion on September 5, 2019. 

In late August and early September 2019, Foss, again 

proceeding pro se, filed a series of motions requesting, among 

other things,3 that the court reconsider its order deeming admitted 

2 Foss's attorney had been suspended from the practice of 

law in Massachusetts.

3 Foss also requested that the court compel arbitration, 

appoint a law student to represent her pro bono, and "[o]rder a 

special subpoena authority" she said was warranted under Federal 

Rule of Civil Procedure 34. The court denied the first two 

requests on September 25, 2019. It denied her third request 
the statements in Marvic's request for admissions; that her time 

to respond to Marvic's request for admissions be extended; and 

that the court not grant summary judgment in Marvic's favor. She 

also filed a motion captioned that the court should enter summary 

judgment in her favor, but she provided no evidence or developed 

argumentation in support of that contention. Marvic opposed these 

motions and filed its own motion for summary judgment on September 

13, 2019. Foss did not argue that her state law claims should be 

dismissed without prejudice given the dismissal of her federal 

claim. See 28 U.S.C. § 1367. 

On September 25, 2019, the district court denied Foss's 

request for more time to answer Marvic's request for admissions. 

On September 30, 2019, it denied her request for reconsideration 

of the court's order deeming certain statements admitted. 

The court held a hearing on the parties' motions for 

summary judgment on November 5, 2019. Foss attended this hearing 

and argued pro se. On December 5, 2019, the court granted Marvic's 

motion, denied Foss's motion, and entered judgment in Marvic's 

favor. In doing so, it referred in part to the statements in 

Marvic's request for admissions that were deemed admitted. First, 

on Foss's tortious interference claim, it held that she could not 

establish a prima facie case because she "has not identified any 

without prejudice on September 30, 2019, and instructed her to 

comply with Local Rule 37.1. 
advantageous relation with a third party or submitted any evidence 

showing that Defendant knew of such a relation and intentionally 

interfered with it" and because Foss had conceded that she had no 

evidence showing that Marvic interfered with her business. Foss, 

424 F. Supp. 3d at 161. Second, on her conversion claim, the court 

explained that no reasonable juror could find in Foss's favor 

because she "conceded that she did not inform Defendant that she 

owned all rights to the graphic images or that Defendant needed 

her permission to modify the work" and offered no evidence to 

support the conclusion that Marvic "intended to deprive her of her 

property." Id. Third, on her unfair and deceptive business 

practices claim, the court held that because Foss "conceded that 

she did not inform Defendant in 2006 that she owned all rights to 

her work or that Defendant needed her permission to modify it," no 

reasonable jury could find in her favor. Id. at 162. Fourth, on 

her breach of contract claim, it granted summary judgment to Marvic 

because Foss conceded that the contract did not require Marvic to 

obtain Foss's consent before using or modifying the brochure. Id. 

Finally, on Foss's fraud claim,4 the district court ruled in 

Marvic's favor because of Foss's earlier-described concessions and 

because she had offered no evidence that Marvic knew it was making 

4 Foss initially brought a breach of fiduciary duty claim 

but had withdrawn it before the district court ruled on Marvic's 

summary judgment motion. Foss, 424 F. Supp. 3d at 162.
a false representation or that she relied on any false 

representation to her detriment. Id. at 162-63.

On December 13, 2019, Foss pro se filed a notice of 

appeal from the orders described earlier. She later retained 

appellate counsel who entered an appearance on February 20, 2020,

and filed her briefs in this appeal. 

III. Analysis

A. The District Court Did Not Err in Granting Marvic's Motion to 

Dismiss Foss's Copyright Claim.

We review a grant of a motion to dismiss for failure to 

state a claim de novo. See Alston v. Spiegel, 988 F.3d 564, 571 

(1st Cir. 2021). We find no error.

In Fourth Estate, the Supreme Court held that 

registration occurs when the Copyright Office registers a 

copyright, not when a copyright owner applies for a copyright. 

139 S. Ct. at 888. "[R]egistration is akin to an administrative 

exhaustion requirement that the owner must satisfy before suing to 

enforce ownership rights." Id. at 887. Under 17 U.S.C. § 411(a), 

"no civil action for infringement of the copyright in any United 

States work shall be instituted" until "registration of the 

copyright claim has been made." Here, Foss admits that she did 

not register her copyright before filing suit. The district 

court's dismissal of the suit under Fourth Estate was proper. See

Cortés-Ramos v. Martin-Morales, 956 F.3d 36, 43 (1st Cir. 2020)
(applying Fourth Estate and holding that because the plaintiff 

"conceded that he had not secured registration before filing [the]

action," the district court was correct to dismiss the plaintiff's 

complaint). 

Foss makes two main arguments against this conclusion, 

neither of which is persuasive.5 First, she argues that the 

district court erred because, instead of dismissing her copyright 

claim, it should have stayed her claim pending the U.S. Copyright 

Office's decision on registration and copyrightability. But Foss 

never asked the district court for any such stay and so has waived 

this argument. See CMM Cable Rep., Inc. v. Ocean Coast Props., 

Inc., 48 F.3d 618, 622 (1st Cir. 1995) ("A party who neglects to 

ask the trial court for relief that it might reasonably have 

thought would be available is not entitled to importune the court 

of appeals to grant that relief."); Teamsters, Chauffeurs, 

Warehousemen & Helpers Union, Local No. 59 v. Superline Transp. 

Co., 953 F.2d 17, 21 (1st Cir. 1992) ("[A]bsent the most 

extraordinary circumstances, legal theories not raised squarely in 

the lower court cannot be broached for the first time on appeal.").

5 Foss submitted her opening brief on March 27, 2020, 

before this court decided Cortés-Ramos on April 13, 2020. To the 

extent she argues that her submission of a complaint did not 

"institute" proceedings and trigger § 411(a), that argument is 

barred by Cortés-Ramos. See 956 F.3d at 42-43. 
Next, Foss argues that her failure to register her 

copyright before filing suit could be and later was cured, making 

dismissal improper.6 This argument fails. She asserts that her 

copyright registration must be deemed to be effective as of 

December 3, 2018, which predates the district court's dismissal of 

her claim on March 19, 2019. But Foss did not present this argument 

to the district court. She learned that the Copyright Office had 

registered her copyright on December 13, 2019, almost nine months 

after the district court had dismissed her case, and did not move 

for any relief from the district court's judgment. Instead, she

filed this appeal on December 13, 2019. In addition to her failure 

to diligently pursue this issue, "[i]t is elementary . . . that we 

review the record as it existed at the time the district court 

rendered its ruling." Lewis v. City of Boston, 321 F.3d 207, 214 

6 The district court dismissed Foss's copyright claim

pursuant to Federal Rule of Civil Procedure 12(b)(6) without 

stating whether the dismissal was with or without prejudice. 

Generally, when the district court is "silent on the issue of 

prejudice," we "presume that such a dismissal was with prejudice." 

Claudio-De León v. Sistema Universitario Ana G. Méndez, 775 F.3d 

41, 49 (1st Cir. 2014). In Cortés-Ramos, this court held that a 

plaintiff's failure to register a copyright before filing suit 

warranted dismissal but held that the district court should have 

dismissed the claim without prejudice. 956 F.3d at 43. Foss 

discusses Cortés-Ramos in her reply brief but does not argue that 

the district court should have dismissed her claim without 

prejudice. Instead, she argues that Cortés-Ramos supports her two 

main arguments that "a rush-to-dismiss approach is not mandatory" 

and that the registration of her copyright after dismissal cured 

any defect in her failure to register her copyright before filing 

suit. We therefore do not address whether her claim should have 

been dismissed without prejudice. 
n.7 (1st Cir. 2003) (citing Crawford v. Lamantia, 34 F.3d 28, 31 

(1st Cir. 1994)). Because there was no evidence in the record 

that Foss had registered her copyright when the court issued its 

order of dismissal on March 19, 2019, there was no error in its 

ruling. 

B. The District Court Did Not Abuse its Discretion in Denying Foss's 

Motion to Withdraw Her Deemed Admitted Statements.

Under Federal Rule of Civil Procedure 36(a), after a 

party serves a written request for admission, "[a] matter is 

admitted unless, within 30 days after being served, the party to 

whom the request is directed serves on the requesting party a 

written answer or objection . . . ." Rule 36(b) provides a 

mechanism for withdrawing admissions after they have been deemed 

admitted, and "[d]istrict courts have considerable discretion over 

whether to permit withdrawal or amendment of admissions made 

pursuant to Rule 36." Farr Man & Co. v. M/V Rozita, 903 F.2d 871, 

876 (1st Cir. 1990) (citing Bergemann v. United States, 820 F.2d 

1117 (10th Cir. 1987); Brook Village N. Assocs. v. General Elec. 

Co., 686 F.2d 66, 70 (1st Cir. 1982); 4A J. Moore & J. Lucas,

Moore's Federal Practice ¶ 36–08 at 36–80 (2d ed. 1990)). We 
review a denial of a request to withdraw admissions for abuse of 

discretion and find none here.7 Cf. id.

Under Rule 36(b), a district court "may permit 

withdrawal or amendment" if two conditions are met: (1) doing so 

"would promote the presentation of the merits of the action" and 

(2) "the court is not persuaded that it would prejudice the 

requesting party in maintaining or defending the action on the 

merits." Foss argues that the district court abused its discretion 

because it denied her motion through "two perfunctory orders on 

the docket" and did not properly engage with the standard in Rule 

36(b). 

We may "affirm a district court's ruling for any reason 

supported by the record," Victim Rts. L. Ctr. v. Rosenfelt, 988 

F.3d 556, 563 (1st Cir. 2021) (citing Miles v. Great N. Ins. Co., 

634 F.3d 61, 65 n.5 (1st Cir. 2011)), and "in the context of review 

for abuse of discretion, . . . this court offers deference to the 

district court's decisionmaking to the extent its 'findings or 

reasons can be reasonably inferred.'" Id. (quoting Cotter v. Mass.

7 Foss requested withdrawal of the statements the court 

had deemed admitted in a "Motion for Reconsideration" that did not 

mention Federal Rule of Civil Procedure 36 or the standard under 

which it is permissible for a party to seek withdrawal of 

statements deemed admitted under Rule 36(a). Because she was 

acting pro se when she filed this motion, and because "[a] document 

filed pro se is 'to be liberally construed,'" Erickson v. Pardus, 

551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 

106 (1976)), we construe her motion as a motion under Rule 36(b). 
Ass'n of Minority L. Enf't Officers, 219 F.3d 31, 34 (1st Cir. 

2000)). 

Marvic argued to the district court that Foss's request 

to withdraw the statements deemed admitted came too late. It said 

that the court should not revisit its order deeming the statements 

admitted because Foss's motion was "long overdue" and Foss was 

represented by counsel during the first four months she failed to 

respond to Marvic's request for admissions. While the district 

court did not explicitly state those reasons, the potential 

prejudice to Marvic was obvious.8 Resolution of this case has been 

delayed repeatedly. Foss waited more than twelve years after she 

designed the brochure for Marvic to file her complaint. She 

alleges she did not discover Marvic's purportedly unauthorized use 

of the brochure until 2016, but even so waited until 2018 to bring 

suit. She then failed to answer Marvic's 2018 motion to dismiss, 

causing this case to be dismissed. She was permitted to reopen 

the case in 2019 and, even after retaining counsel, failed to 

respond to any of Marvic's discovery requests. Her failure to 

respond to Marvic's request for admissions resulted in Marvic's 

July 8, 2019, motion to deem these statements admitted, which Foss 

never opposed and which the court granted on August 13, 2019. Foss 

8 On appeal, Marvic does not contest that granting the 

motion would have "promote[d] the presentation of the merits of 

the action." Fed. R. Civ. P. 36(b). 
then waited more than a month to request withdrawal of the 

statements deemed admitted.9 Given this case's long history marked 

by repeated delays by Foss and the erratic nature in which she 

chose to prosecute it, Marvic would have been prejudiced if Foss 

were allowed to further delay the case by withdrawing her 

admissions. See United States v. Kenealy, 646 F.2d 699, 703 (1st 

Cir. 1981) (holding that, after a notice of default had issued and 

the default was later removed, it was within the district court's 

discretion to deny a defendant's motion seeking withdrawal of

statements deemed admitted when the defendant had repeatedly 

delayed the proceedings, had failed "to oppose [a] request for 

[involuntary admission]," and had engaged in "cavalier conduct" in 

the discovery process). On this record, the conditions of Rule 

36(b) were not met and the district court did not abuse its 

discretion.

C. The District Court Did Not Err in Granting Marvic's Motion for 

Summary Judgment on Foss's Remaining Claims.

We review a grant of summary judgment de novo. See

Henderson v. Mass. Bay Transp. Auth., 977 F.3d 20, 29 (1st Cir. 

9 On August 30, 2019, Foss submitted a "Motion to Extend 

Time to Answer Defendant's Requests for Admittance" and included 

answers to the original request for admissions. This filing came 

more than four months after Marvic asked for Foss's admissions, 

almost two months after Marvic filed its motion asking the court 

to deem the statements admitted, and two weeks after the district 

court had granted that motion.
2020). Foss argues that, even if the district court did not abuse 

its discretion in denying Foss's motion to withdraw the statements 

deemed admitted, it erred when it granted summary judgment on her 

conversion claim, her breach of contract claim, and her unfair and 

deceptive business practices claim.10 We again find no error. 

First, for a conversion claim to succeed under 

Massachusetts law, the defendant must, among other things, have 

intentionally and wrongfully exercised control or dominion over 

another's personal property. Evergreen Marine Corp. v. Six 

Consignments of Frozen Scallops, 4 F.3d 90, 95 (1st Cir. 1993). 

Foss's deemed admissions mean that she cannot satisfy that 

standard.11 Independently, Foss also offered no evidence that she 

10 Foss did not argue to the district court that it should 

have dismissed her state law claims without prejudice after 

dismissing her federal claim and does not make this argument on 

appeal, so the issue is waived. Even if it were not waived, 

district courts have discretion to retain pendent state law claims 

after dismissing a plaintiff's federal claim. See Rodriguez v. 

Doral Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir. 1995). There was 

no abuse of discretion in retaining the state law claims here given 

the clarity of state law, the district court's sound basis for 

disposing of the claims, and the additional time it would have 

taken to resolve the case if the court were to dismiss Foss's 

pendent claims without prejudice. See id. 

11 Foss made four admissions that prevent her from 

succeeding on her conversion claim: (1) she "possesses no evidence 

to support her contention . . . that [Marvic] intended 'to deprive 

[her] of her own use, display, modification, and sale of [her] 

intellectual property'"; (2) she "never informed anyone at 

[Marvic] that she owned all graphic design images in [the 

brochure]"; (3) if a contract existed, it "did not require Marvic 

. . . to obtain [Foss's consent] before using and/or modifying 

[Foss's] work"; and (4) her "work on [the brochure] was limited to 
in fact had the ownership interest she maintains she had in the 

design of the brochure. No reasonable juror could conclude that 

Marvic intentionally and wrongfully exercised control or dominion 

over Foss's personal property. 

Next, on Foss's breach of contract claim, her complaint 

stated that Marvic breached the contract because it "modifi[ed] 

[Foss's] copyrighted 2D visual artwork without notifying [Foss] to 

obtain the required consent or agreement." But Foss admitted that 

"if a contract or agreement existed between [Foss and Marvic], the 

contract or agreement did not require [Marvic] to obtain [Foss's] 

consent . . . before using and/or modifying the [P]laintiff's 

work." And she has never presented any evidence that Marvic 

entered into a contract with her containing such terms. 

Finally, on the unfair and deceptive business practices

claim, "'[a]ny person who engages in the conduct of any trade or 

commerce and who suffers any loss of money or property, real or 

personal,' as a result of the unfair or deceptive act or practice, 

or unfair method of competition, of another person who engaged in 

trade or commerce" can recover under this theory. Auto Flat Car 

Crushers, Inc. v. Hanover Ins. Co., 17 N.E.3d 1066, 1076 (Mass. 

2014) (quoting Mass. Gen. Laws. ch. 93A, § 11) (alteration in 

original). The Massachusetts Supreme Judicial Court "has 

assembling the photographs and written content provided by Marvic 

. . . ." 
repeatedly held that 'mere negligence,' standing alone, is not 

sufficient for a violation of ch. 93A." Baker v. Goldman, Sachs 

& Co., 771 F.3d 37, 51 (1st Cir. 2014); see Klairmont v. Gainsboro 

Rest., Inc., 987 N.E.2d 1247, 1257 (Mass. 2013); Darviris v. 

Petros, 812 N.E.2d 1188, 1192 (Mass. 2004). Summary judgment was 

proper because Foss admitted that she had no evidence that Marvic 

intended to deprive her of property and that any agreement did not 

require Marvic to obtain her consent to modify or use the brochure. 

She also presented no evidence of any unfair or deceptive act or 

practice or unfair method of competition that occurred during her 

dealings with Marvic. No reasonable juror could find that Marvic 

behaved unfairly or deceptively in modifying and later using the 

brochure. 

IV. Conclusion

Affirmed. Costs are awarded to Marvic.