Foss v. Marvic, 20-1008P

In 2006 Foss, a graphic designer, created a 20‑page brochure for Marvic and was paid for the work; Marvic used the brochure thereafter.
Foss alleges she discovered in 2016 that Marvic was using a modified version without her permission and later submitted an invoice for alleged infringement.
Foss filed suit on January 19, 2018 asserting copyright and several pendent Massachusetts state claims; she had applied for copyright registration but had not obtained registration before filing.
The district court stayed the case pending the Supreme Court's decision in Fourth Estate; after that decision (holding registration occurs only when the Register acts), the court dismissed Foss's copyright claim on March 19, 2019.
Marvic served discovery in 2019; Foss (then represented, later pro se) failed to respond to requests for admissions, the court deemed many matters admitted, and the district court denied Foss's motion to withdraw those admissions.
The district court granted Marvic summary judgment on the remaining state‑law claims (conversion, breach of contract, Chapter 93A, fraud) based largely on Foss’s deemed admissions; this appeal followed and the First Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether copyright claim was properly dismissed for failure to have a Copyright Office registration before suit	Foss argued dismissal was improper and that registration later cured any defect; she also suggested a stay should have been entered instead of dismissal	Marvic argued §411(a) requires actual registration before instituting suit; Foss had only applied	Court: Dismissal proper under Fourth Estate — registration occurs only when the Register acts; no registration existed when suit was filed, so claim fails
Whether the court abused its discretion by refusing to withdraw admissions deemed admitted under Fed. R. Civ. P. 36	Foss sought withdrawal to present the merits	Marvic argued withdrawal was untimely, prejudicial given repeated delays and Foss's failure to respond while represented	Court: No abuse of discretion — Rule 36(b) factors (presentation of merits vs. prejudice) weighed against withdrawal due to delay and prejudice
Whether summary judgment on conversion, breach of contract, and Chapter 93A claims was improper	Foss argued the merits supported her state claims	Marvic relied on Foss’s deemed admissions (e.g., she never told Marvic she owned all rights; contract did not require consent to modify) and lack of evidence of intent or deception	Court: Summary judgment affirmed — admissions and lack of evidence defeat conversion, breach, and 93A claims

Fourth Estate Pub. Benefit Corp. v. Wall‑Street.com, LLC, 139 S. Ct. 881 (2019) (registration occurs when the Copyright Office registers a claim, not when an application is filed)
Cortés‑Ramos v. Martin‑Morales, 956 F.3d 36 (1st Cir. 2020) (applies Fourth Estate to dismiss claims where registration was not secured before filing)
Farr Man & Co. v. M/V Rozita, 903 F.2d 871 (1st Cir. 1990) (district courts have broad discretion to permit or deny withdrawal/amendment of admissions under Rule 36)
United States v. Kenealy, 646 F.2d 699 (1st Cir. 1981) (delay and discovery misconduct can justify denial of attempts to withdraw deemed admissions)
Evergreen Marine Corp. v. Six Consignments of Frozen Scallops, 4 F.3d 90 (1st Cir. 1993) (elements required for conversion under Massachusetts law)
Baker v. Goldman, Sachs & Co., 771 F.3d 37 (1st Cir. 2014) (mere negligence is insufficient to establish a Chapter 93A violation)