Foss v. Marvic, Inc. d/b/a Brady-Built Sunrooms et al. (D. Mass. 20-cv-40057).

Graphic designer Cynthia Foss filed suit against Marvic in 2020, asserting that Marvic used a brochure prepared by Foss for purposes beyond the scope of their oral agreement and in violation of her copyright in the brochure.  Foss had initially filed suit in 2018 pro se, bringing copyright infringement charges along with a host of state law claims, but the copyright claim was dismissed because at the time of filing, Foss had not actually received a copyright registration, and the remainder were decided on summary judgment against Foss,  primarily because Foss failed to answer Marvic’s requests for admissions, resulting the admissions being deemed as true.

Undeterred, Foss appealed, and while the appeal was pending filed the instant suit, again alleging copyright infringement against Marvic but now having a registration.  Judge Hillman, who presided over the prior case, dismissed the claim against Marvic on res judicata grounds.  In the prior case, the copyright claims were dismissed with prejudice.  While the First Circuit found that the dismissal should have been without prejudice, as the registration could still be obtained, it noted that Foss had not sought to vacate the dismissal with prejudice and amend the complaint to assert registration and affirmed the dismissal with prejudice.  This means that Foss has effectively forfeited the copyright claim.