Foss v. Eastern States Exposition

United States Court of Appeals
For the First Circuit
No. 22-1313
CYNTHIA FOSS,
Plaintiff, Appellant,
v.
EASTERN STATES EXPOSITION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Barron, Chief Judge,
Howard and Montecalvo, Circuit Judges.
Gregory Keenan, with whom Andrew Grimm and Digital Justice
Foundation were on brief, for appellant.
James C. Duda, with whom Lauren C. Ostberg and Buckley,
Richardson and Gelinas, LLP were on brief, for appellee.
Paul A. Maddock and Carey, Danis & Lowe, LLC, on brief for
amicus curiae Law Professor Christine Davik.
May 10, 2023
BARRON, Chief Judge. This case concerns Cynthia Foss's
appeal from an order that dismissed on claim preclusion grounds
her claims against Eastern States Exposition ("Eastern") in which
she alleged violations of federal copyright infringement law and
the U.S. Visual Artists Rights Act (“VARA”). She contends that
the order cannot stand because it gives claim preclusive effect to
a dismissal in a prior action that she brought, even though that
dismissal rested on multiple grounds of which one would not in and
of itself have rendered that dismissal claim preclusive. She
relies for this argument on the contention that federal res
judicata law recognizes the "alternative-determinations" doctrine,
which (at least as a general matter) strips a dismissal of claim
preclusive effect if the dismissal rests on multiple grounds, not
all of which would on their own render the dismissal claim
preclusive.
We have not had occasion in any prior case to address
whether federal res judicata law recognizes the alternative-
determinations doctrine. But, we must do so here, as we agree
with Foss that the assertedly preclusive dismissal rested on one
ground that on its own could not permit the dismissal to be claim
preclusive, notwithstanding that the dismissal also rested on two
other grounds that could have. Moreover, we conclude both that
federal res judicata law does recognize the alternative-
determinations doctrine and that this doctrine applies here. Thus,
because Eastern does not contend on appeal that there is any ground
other than claim preclusion for the dismissal of the claims at
issue, we vacate the judgment dismissing those claims and remand
for further proceedings consistent with this decision.
I.
The lengthy path to this appeal begins with the complaint
that Foss filed in January 2018 -- and amended in February 2018 --
against Eastern and five other parties1 in federal district court
in the District of Massachusetts. The amended complaint in that
action, which we will refer to as "Action 1," alleged that the
defendants had, in connection with their use of artwork that they
had commissioned from Foss for an exhibit at a fair, committed
"plagiarism" and "copyright infringement" in violation of "17
U.S.C. § 1009, 504 or 1125" by taking actions that "violated
[Foss's] rights, breach[ed] . . . contractual obligations,
creat[ed] and maintain[ed] conflict, resistance and failure to
mitigate damages, substantially affecting the Artist's right
[sic]."
1 Foss filed the initial complaint against Eastern and two
other parties and added three more parties to the amended
complaint. The five parties other than Eastern included in the
amended complaint were Joseph's Abbey ("the Abbey"), a monastery;
Spencer Brewery, a brewery owned by the monastery; Cup of Julie
Show, a Massachusetts syndicate of Eastern; William J. Ritter,
Esq., a lawyer representing Spencer Brewery; and James C. Duda,
Esq., a lawyer representing Eastern and Cup of Julie Show.
In Action 1, the district court dismissed Foss's state
law claims with prejudice. See Foss v. Eastern States Exposition,
593 F. Supp. 3d 1, 2 (D. Mass. 2022). But, the district court
dismissed her federal copyright infringement claims in that action
without prejudice, id., in part on the ground that she had failed
to plead adequately that she had fulfilled a precondition to suit
for federal copyright infringement that 17 U.S.C. § 411(a) sets
forth. Id.Section 411(a) provides that a party bringing a federal
copyright infringement suit must show that the party had either
registered its copyright with the U.S. Copyright Office or that
the U.S. Copyright Office had refused to register the copyright
after the party had delivered the proper deposit, application, and
fee to that office. Section 411(a) further provides that, in the
case of a refused registration, the party also must show as a
precondition to suit for federal copyright infringement that it
had given proper notice of the suit and served a copy of its
complaint on the Register of Copyrights.
In dismissing Foss's federal copyright infringement
claims without prejudice in Action 1, the district court held that
Foss had not adequately pleaded either that she had registered her
copyright or that her copyright registration had been refused and
she had taken the requisite steps following refusal as required by
§ 411(a). But, as that dismissal was "without prejudice," it did
not prevent Foss from seeking to cure the § 411(a)-related defect
in that same action by filing an amended complaint.
Foss did not avail herself of that option, however.
Instead, in July 2018, Foss initiated a new action, this time in
Massachusetts state court, in which she named Eastern and five
other parties2 as the defendants. The defendants then removed that
case to federal district court in the District of Massachusetts,
and that federal district court thereafter docketed two separate
federal actions.3
Foss's claims in each of these two new federal actions
-- which we will refer to as "Action 2" and "Action 3" -- were
based on the same facts as she had pleaded in Action 1. Foss
alleged in Actions 2 and 3 that the defendants had "wilfully [sic]
and knowingly infringed upon Foss's copyright protection under USC
[sic];" violated Foss's "constitutionally created individual
property rights" under, inter alia, "17 U.S.C. sections 1-11;" and
violated numerous state law provisions.
The defendants in Actions 2 and 3 thereafter filed
motions to dismiss all the claims in each of these two cases. The
2 Three of the parties to this second action -- the Abbey,
Spencer Brewery, and Cup of Julie Show -- were also defendants in
the initial action. Foss also sued Northeastern University and
Ruggles Media, a syndicate marketing program of Northeastern
University.
3 It is not clear from the record of this case why two federal
court cases were docketed.
defendants contended in their motions to dismiss that "any state-
law claims asserted in Plaintiff's Complaint are equivalent to and
preempted by Plaintiff's copyright infringement claim." They
further contended in the motions that the federal copyright
infringement claims failed to state claims on which relief could
be granted due to Foss's failure to allege adequately that she had
complied with the copyright registration-related precondition set
forth in § 411(a).
The district court in both Actions 2 and 3 granted the
defendants' motions to dismiss. But, although the district court
in those actions dismissed the state law claims in the two actions
"with prejudice," it dismissed the federal copyright infringement
claims "without prejudice."
Soon thereafter, the district court consolidated Actions
1, 2, and 3. We will refer to the consolidated action just as
"Action 3."
In April 2019, Foss filed an amended complaint in Action
3 against Eastern and two other parties,4 in which she alleged that
they had "infringed upon rights of Foss's copyright work" and that
she was entitled to relief under, inter alia, 17 U.S.C. §§ 106,
106A, 202, 411, 501(a), 502(a), 504(c)-(d), and 505. Eastern moved
to dismiss the claims "with prejudice" pursuant to Federal Rule of
4 The other parties were the Abbey and Spencer Brewery.
Criminal Procedure 12(b)(6) on multiple independent grounds: that
Foss had (1) failed to describe the allegedly infringed work; (2)
failed to allege plausibly that Eastern had copied original
elements of the work; and (3) repeatedly failed to allege that she
had fulfilled the copyright registration precondition set forth in
§ 411(a).
The district court in Action 3 granted Eastern's motion
and dismissed "with prejudice" Foss's federal copyright
infringement claims, as set forth in the amended complaint, via an
electronic order. The order explained that the motion to dismiss
with prejudice was granted "for the reasons stated in [Eastern's]
supporting memorandum."5
In 2020, Foss filed what we will refer to as "Action 4"
in federal district court in the District of Massachusetts. This
is the action from which the present appeal arises. The complaint
in this action is based on the same set of facts that formed the
basis for the complaints described above and names only Eastern as
the defendant. It alleges that Eastern committed federal copyright
infringement in violation of 17 U.S.C § 106(1)-(3), (5) and
violated VARA, 17 U.S.C. § 106(a)(1)(A).
5Less than three weeks after this case was dismissed, Foss
brought a suit arising out of the same copyright dispute against
Spencer Brewery in state court. That action was removed to federal
district court, which dismissed the case on res judicata grounds,
finding that the previous actions, including the amended complaint
in Action 3, were adjudicated "on the merits."
Eastern moved to dismiss the claims in Action 4 in part
on the ground that they were subject to claim preclusion due to
the dismissal with prejudice of the federal copyright infringement
claims that Foss had asserted in her amended complaint in Action
3. The District Court granted Eastern's motion and dismissed the
complaint "with prejudice." It held that the claims in Action 4
were precluded by the dismissal of the federal copyright
infringement claims in Action 3 and that, even though Foss had not
previously alleged a violation under VARA, such a claim was "barred
by res judicata as [it] should have been asserted in the prior
action(s)." Foss timely appealed.
II.
A.
Foss contends that the District Court in Action 4 erred
by holding that the dismissal of her claims in her amended
complaint in Action 3 precluded the claims before us in this appeal
and so required their dismissal. We apply federal claim preclusion
law in federal question cases like the one before us here.6 See
Blonder-Tongue Lab'ys, Inc. v. Univ. of Ill. Found., 402 U.S. 313,
324 n.12 (1971).
The District Court below, and the parties on appeal, focus
6
on the application of claim preclusion to the present case and
largely ignore issue preclusion. Our decision thus addresses only
claim preclusion.
To establish federal claim preclusion in such a case, a
party must establish that there is “(1) a final judgment on the
merits in an earlier suit, (2) sufficient identicality between the
causes of action asserted in the earlier and later suits, and (3)
sufficient identicality between the parties in the two suits.”
Mass. Sch. of L. at Andover v. Am. Bar Assoc., 142 F.3d 26, 37
(1st Cir. 1998) (quoting Gonzalez v. Banco Cent. Corp., 27 F.3d
751, 755 (1st Cir. 1994)). Foss does not dispute that the
dismissal with prejudice of her federal copyright infringement
claims in Action 3 satisfies the second and third requirements for
claim preclusion with respect to the claims in Action 4 that are
at issue in this appeal. She also concedes that a dismissal based
on two of the three grounds given for the dismissal in Action 3
-- namely, the ground concerning Foss's asserted failure to
describe the work that had been allegedly infringed and the ground
concerning her asserted failure to plead plausibly the work's
originality -- were merits-based and thus would have satisfied the
first requirement set forth above. Thus, she does not dispute
that had the dismissal of Action 3 been based on either or both of
those grounds, that dismissal would have been preclusive of her
claims in Action 4 that are before us in this appeal.7
7None of the parties contend that any dismissals other than
the dismissal of the claims in the amended complaint in Action 3
preclude Foss's claims in the present action.
The linchpin of Foss's appeal, then, is that the
dismissal in Action 3 also rested on one other ground -- her
failure to allege that she had satisfied the registration-related
precondition to copyright infringement suits under § 411(a). She
reasons in this regard that a dismissal that rests solely on that
ground cannot be claim preclusive because that ground is not
merits-based. And so, she argues, the dismissal in Action 3 also
is not claim preclusive, because that dismissal was based in part
on that ground.
Foss relies in pressing this argument on what she
contends is federal res judicata law's recognition of the
alternative-determinations doctrine. Under that doctrine, as she
describes it, an adjudication of a claim by a court of first
instance is not claim preclusive if the court of first instance
rested that adjudication on at least one ground that would not
have made the adjudication claim preclusive if it had been the
sole ground for judgment in that case.
We have not had occasion to decide whether federal res
judicata law recognizes the alternative-determinations doctrine.
Nor have we had occasion to address what the scope of that doctrine
is insofar as federal res judicata law recognizes it. We need
tackle those questions here, however, only if Foss is right that
the dismissal of her federal copyright infringement claims with
prejudice in Action 3 was based on one ground that would not on
its own have rendered that dismissal claim preclusive. We thus
turn first to that question, which concerns the basis for the
dismissal in Action 3. Our review in doing so is de novo. See
Silva v. City of New Bedford, 660 F.3d 76, 78 (1st Cir. 2011).
B.
Foss contends that the District Court in Action 4
incorrectly based its claim preclusion ruling on the premise that
all the grounds for the dismissal were merits-based within the
meaning of the first prong of the test for federal claim
preclusion. She contends that the District Court did so in Action
4 because it wrongly understood dismissals under Federal Rule of
Civil Procedure 12(b)(6) for "failure to state a claim" always to
be merits-based for the purpose of that prong of the test. We
agree with Foss that the District Court was in error to the extent
it labored under that understanding.8
While dismissals for failure to state a claim under Rule
12(b)(6) usually are "merits"-based and so claim preclusive, see
Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3
(1981), such dismissals are not when they are based solely on a
failure to allege a precondition to suit. See Lebron-Rios v. U.S.
Marshal Serv., 341 F.3d 7, 13–14 (1st Cir. 2003) (citing Costello
8 Insofar as Eastern argues to us, on appeal, that the
dismissal of Action 3 was based on Foss's misuse of the legal
system, we find scant evidence in the record to support this
argument.
v. United States, 365 U.S. 265, 284–88 (1961)); cf. In re Sonus
Networks, Inc., S'holder Derivative Litig., 499 F.3d 47, 60-62
(1st Cir. 2007) (finding that dismissal under Massachusetts Rule
of Civil Procedure 23.1 for failure to allege a precondition to a
derivative suit is not a bar to subsequent litigation under state
claim preclusion law). In that event, the dismissal turns on an
issue too disconnected from the merits of the underlying claim to
constitute an adjudication of the claimed rights of the parties
sufficient to "terminat[e]" a "controversy" and preclude future
litigation of that controversy. See Costello, 365 U.S. at 285-88(quoting Haldeman v. United States, 91 U.S. 584, 585-86 (1875));
cf. In re Sonus Networks, Inc., S'holder Derivative Litig., 499
F.3d at 60-62 (explaining that "[w]hile dismissal of a derivative
suit for failure to plead demand or excuse is of course a type of
dismissal for inadequate pleadings, it is also a dismissal for
failure to accomplish a precondition" and thus is not claim
preclusive under Massachusetts law).
Thus, insofar as the District Court deemed the dismissal
in Action 3 claim preclusive because it was ordered pursuant to
Rule 12(b)(6), see Foss, 593 F. Supp. at 3, Foss is right that the
District Court erred. After all, the parties do not dispute that
the copyright registration requirement set forth in § 411(a) is a
precondition to federal copyright infringement suits. See Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157 (2010). Nor do they
dispute that the dismissal of Foss's federal copyright
infringement claims in Action 3 rested in part on her failure to
allege what was necessary with respect to that requirement. As a
result, that dismissal, if based on that ground alone, would not
have been claim preclusive, see Lebron-Rios, 341 F.3d at 13–14,
just because it was a dismissal for failure to state a claim under
Rule 12(b)(6).
As Eastern points out, however, the dismissal in Action
3 was "with prejudice." But that feature of the dismissal does
not in and of itself render it claim preclusive if it otherwise
would not be. The "with prejudice" label does not itself determine
a dismissal's preclusive effect. See Semtek Int'l Inc. v. Lockheed
Martin Corp., 531 U.S. 497, 505 (2001) (noting that while a
dismissal "without prejudice" will "ordinarily (though not always)
have the consequence of not barring the claim from other courts,"
its "primary meaning relates to the dismissing court itself"); see
also Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 396
(1996) (Ginsburg, J., concurring in part and dissenting in part)
("A court conducting an action cannot predetermine the res judicata
effect of the judgment; that effect can be tested only in a
subsequent action.").
We do recognize, though, as Eastern also argues, that
the motion to dismiss Foss's federal copyright infringement claims
in the amended complaint in Action 3 sought to have the claims
dismissed "with prejudice" because Foss's complaint failed to
plead satisfaction of the requirement set forth in § 411(a) after
Foss had multiple opportunities to cure the defect in the complaint
concerning the precondition. And thus, we agree with Eastern that
the District Court may be understood to have ordered the dismissal
of that claim "with prejudice" in consequence of that failure on
Foss's part, given that the District Court granted the motion to
dismiss "for the reasons stated in [Eastern's] supporting
memorandum."
That feature of the dismissal, however, ensured only
that Foss was denied the opportunity to try yet again to cure her
failure to allege compliance with the precondition to suit in the
action in which the claim was dismissed. See Semtek Int'l Inc.,
531 U.S. at 505. It did not change the fact that the dismissal
was based, in part, on the failure to allege satisfaction of a
precondition to suit.9
All that said, we are aware that, in holding that a
dismissal based on a failure to satisfy a precondition to suit is
in general not claim preclusive under Massachusetts law, we noted
9 This, of course, is not to say that a court is prevented
from ordering a dismissal with prejudice as a sanction explicitly
based on a plaintiff's repeatedly ignoring court directives
requiring amendment or refiling to allege compliance with a
precondition to suit. As described in this opinion, however, such
a basis was not clearly set out in the district court's order of
dismissal with prejudice in Action 3.
that such a failure might be claim preclusive under Massachusetts
law if "the plaintiff's failure to satisfy [the] precondition
before bringing the first suit prejudices the defendants." In re
Sonus Networks, Inc., S'holder Derivative Litig., 499 F.3d at 62
n.8. But, the District Court did not address whether such a
prejudice-based ground for deeming the dismissal at issue here
claim preclusive was applicable. It instead determined that the
dismissal was claim preclusive for reasons unrelated to any showing
in that regard, because the dismissal was pursuant to Rule 12(b)(6)
and "with prejudice." And, as we have explained, Foss is right
that the District Court erred in so ruling.
III.
As we noted at the outset, the district court's dismissal
of Foss's federal copyright infringement claims with prejudice in
Action 3 was not based solely on her failure to allege satisfaction
of the precondition to suit that § 411(a) sets forth. It was also
based on the two other grounds that we described above. And, even
Foss agrees that each of those grounds was independently a ground
that would have sufficed to render the dismissal preclusive if it
had been the sole basis for the dismissal. Thus, for Foss to be
right that the dismissal with prejudice of her federal copyright
infringement claims in Action 3 is not claim preclusive just
because it rested on a ground that on its own would not have
rendered that dismissal claim preclusive, we must determine
whether she is right both that federal res judicata law recognizes
the alternative-determinations doctrine and that, insofar as it
does, that doctrine's scope is such that it applies here.
Accordingly, we now turn to those questions, which are
questions of first impression in this Circuit, although we have
recognized that the doctrine applies under Massachusetts law, at
least under certain circumstances. See In re Baylis, 217 F.3d 66,
71 (1st Cir. 2000). Our review is de novo. See Silva, 660 F.3d
at 78.
A.
We start with the first of the two questions. Here,
Foss asks us to conclude that federal res judicata law recognizes
the alternative-determinations doctrine as it is set forth in the
Restatement (Second) of Judgments. See Restatement (Second) of
Judgments § 20 cmt. e (Am. L. Inst. 1982) [hereinafter
"Restatement"]. The Restatement provides in that regard that if
an adjudication "rendered by a court of first instance" is "based
on two or more determinations, at least one of which, standing
alone, would not render the judgment a bar to another action on
the same claim," then the judgment "should not operate as a bar"
to future litigation. Id.
We have long recognized the Restatement as "[t]he
preeminent authority" on issues of claim preclusion. Andrew
Robinson Int'l, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48, 57
(1st Cir. 2008). And, several of our sister circuits have followed
the Restatement in concluding that federal res judicata law
recognizes the alternative-determinations doctrine. See Pizlo v.
Bethlehem Steel Corp., 884 F.2d 116, 119 (4th Cir. 1989); Remus
Joint Venture v. McAnally, 116 F.3d 180, 184 n.5 (6th Cir. 1997);
see also Ruiz v. Snohomish Cnty. Pub. Util. Dist. No. 1, 824 F.3d
1161, 1164-65 (9th Cir. 2016) (adopting alternative-determinations
doctrine at least where non-merits ground is lack of personal
jurisdiction).
We see no reason to disagree with the Restatement or our
sister circuits in this regard, at least with respect to the broad
outlines of the alternative-determinations doctrine as the
Restatement describes it. Indeed, as the Restatement and our
sister circuits recognize, there are good reasons for applying the
doctrine, at least in some circumstances.
As an initial matter, in the absence of the alternative-
determinations doctrine, a litigant whose claim has been dismissed
and wants to preserve the ability to bring the claim in a follow-
on action would need to appeal the dismissal whenever it rests on
at least one ground that would not on its own render the dismissal
preclusive. Otherwise, the litigant would not be able to obtain
a ruling that affirmed the dismissal solely on that non-preclusive
ground. That would be so even if the non-preclusive ground for
the dismissal were indisputably sound, such that the appellant
would have no shot in the appeal of that dismissal of reviving the
claim in that same action, no matter how successful an appeal of
the other grounds would be.
In this respect, the alternative-determinations doctrine
usefully protects litigants who have claims that may well be
meritorious10 -- but that were dismissed in part for a reason
disconnected from their merits -- from having to engage in what
appears to be mere appellate hoop-jumping to keep alive the
possibility of bringing the claim. The doctrine does so by sparing
such litigants from having to appeal the dismissals of their claims
while knowing that the appeals are sure to result in the claims
remaining dismissed just to preserve their opportunity to pursue
the claims in future actions in which the non-merits-based defects
that caused the claims' earlier dismissals could easily be cured.
10 We note that, based on this reasoning, it might seem that
the value of the alternative-determinations doctrine may be
diminished in a case in which a claim was previously adjudicated
in part based on a merits determination that is indisputably
correct. However, requiring courts to determine whether the merits
of a claim are indisputably correct in order to decide whether the
alternative-determinations doctrine applies in any given case
would effectively require courts to make the kind of merits-based
determination that res judicata is meant to protect them from
having to make in order to determine whether res judicata applies.
To avoid that situation, we conclude that the alternative-
determinations doctrine applies even when a claim has previously
been adjudicated based in part on a merits-based ground that is
indisputably correct. But, for the reasons we explain below, we
refrain from ruling on whether the alternative-determinations
doctrine applies in the separate but related scenario in which a
merits-based ground for adjudicating a claim in a prior action was
"rigorously considered."
See Restatement § 20 cmt. e; see Ruiz, 824 F.3d at 1164-65 ("It
would be an inefficient use of judicial resources to encourage
litigants to appeal judgments for the sole purpose of preserving
their ability to potentially bring the same claims again, in a
hypothetical future action.").
In sparing litigants from having to secure a pyrrhic
victory, the alternative-determinations doctrine does something
more than saving litigants from having to endure such rigamarole.
It spares appellate courts from having to weigh in on cases that,
in practical reality, may be of no real consequence to the parties
or to the appeal itself beyond making way for a mere contingent
future action in which those merits issues could be addressed in
a case in which their resolution would matter. See id.Finally, holders of claims that have been dismissed may
often choose to forego the option-preserving appeal. They may do
so, moreover, even though they later decide to bring the follow-
on action. The alternative-determinations doctrine in this way
avoids giving preclusive effect to a merits-based ground for the
dismissal in cases in which the decision not to appeal was based
on a calculation wholly unrelated to an assessment of the soundness
of the ruling as to any merits-based ground. See Costello, 365
U.S. at 285-88; see also Huntley v. United States, 4 Cl. Ct. 65,
69 (Ct. Cl. 1983) (noting that when faced with alternative
determinations, losing parties might "be unlikely to seek an appeal
because of the likelihood that the decision would be upheld on at
least one of the alternative grounds," and claim preclusion in
such a case could result in the "freezing in place [of] potentially
bad law").
To be sure, in preserving the resources of appellate
courts by disincentivizing wasteful appeals, the alternative-
determinations doctrine can lead to inefficiencies of its own. It
necessarily will permit, in some cases, the refiling of claims
that were already disposed of on strong merits-based grounds in an
earlier action. And, depending on the scope of this doctrine, it
may also permit -- as this case suggests -- the refiling of claims
that were dismissed for then-curable defects.
But, we are not alone in following the Restatement in
opting for an approach that requires a litigant to call upon
judicial resources to be expended only to ensure that relief can
be granted on the claim that is being brought and not solely for
the purpose of preserving the option of seeking relief on a claim
that may never be brought at all. See Pizlo, 884 F.2d at 119;
Remus Joint Venture, 116 F.3d at 184 n.5; see also Ruiz, 824 F.3d
at 1164-65 (adopting the alternative-determinations doctrine at
least where the non-merits ground is lack of personal
jurisdiction); cf. Johnson v. Spencer, 950 F.3d 680, 719 n.16 (10th
Cir. 2020) (declining to determine whether to adopt the
alternative-determinations doctrine); Dozier v. Ford Motor Co.,
702 F.2d 1189, 1193-94 (D.C. Cir. 1983) (same).11 And, for the
reasons given above, we see no reason on balance to depart from
that approach.
We realize in so concluding that this case is hardly a
poster child for the alternative-determinations doctrine. Foss
had numerous chances to cure the defect in the prior action, and
it is not evident that the passage of time would have enabled her
to cure the defect in a way that she could not have earlier. Cf.
In re Sonus Networks, Inc., S'holder Derivative Litig., 499 F.3d
at 61-62. Adding to the sense that Foss need not be given another
bite at the apple is the possibility that her present claims would
be barred by collateral estoppel had any defense of issue
preclusion been asserted.
But, those quirks of this case aside, without the
alternative-determinations doctrine, future Fosses with less
capacity to cure the defect in the initial action would be
encouraged to appeal dismissals that they could not overturn just
to preserve their option of bringing future actions that they might
never bring. We see little sense in creating such an incentive
11We note that, in Herrera v. Wyoming, Justice Alito,
dissenting, rejects the alternative-determinations doctrine as it
applies to issue preclusion. See 139 S. Ct. 1686, 1710-12 (2019).
However, none of his arguments for doing so provide grounds for
rejecting the reasons we give for applying the doctrine to claim
preclusion here, insofar as they even apply to claim preclusion at
all.
structure by holding that federal res judicata does not recognize
the alternative-determinations doctrine.12
B.
There remains the distinct question of what the scope of
the alternative-determinations doctrine is and whether that scope
encompasses this case. In contending that, even if federal res
judicata law recognizes the alternative-determinations doctrine,
it should not apply here, Eastern argues that the doctrine has no
application in cases -- such as Eastern contends this one is -- in
which the court of first instance that adjudicated the allegedly
preclusive claims did "rigorously consider" the merits rationales
upon which its adjudications were based. Eastern argues in this
regard that, "as understood by [Foss]" herself, the Restatement
adopts the alternative-determinations doctrine in part out of a
"concern that courts may not 'rigorously consider' a merits
rationale when there is a threshold non-merits question that
efficiently disposes of the case." Eastern thus contends that
even if federal res judicata law does recognize the alternative-
12Eastern contends that Foss had an incentive to appeal the
dismissal in Action 3 because, "by her own logic," one ground for
that dismissal was "not 'clearly correct.'" That is so, Eastern
contends, because Foss claims that she had in fact registered the
infringed work prior to filing her amended complaint in Action 3.
But, Eastern does not dispute that Foss failed to allege that she
had registered the infringed work whether or not she had in fact
registered it. Thus, we do not see this as a case in which the
non-preclusive ground for the dismissal was less than ironclad.
determinations doctrine in some circumstances, it has no
application here.13
But, whether or not Eastern is right that such a
limitation may apply in some cases -- a contention that we take no
position on at present -- Eastern is wrong to conclude that it
would apply here. And that is because Eastern provides no support
for the contention that the District Court, in dismissing Foss's
federal copyright infringement claims in Action 3, "rigorously
considered" the merits-based grounds for that dismissal.
In dismissing Action 3, the District Court, via
electronic order, gave as its only explanation for the dismissal
"the reasons stated in [Eastern's] supporting memorandum." In
that order, the District Court provided no indication that it had
"rigorously considered" any of the reasons given by Eastern in its
memorandum, including the merits-based grounds for dismissal.
And, Eastern's contentions that the District Court had "discussed
13The Second Circuit, for example, has declined to apply the
doctrine where a litigant was "prosecuting both [the preclusive
and precluded] actions at once," and so any appeal taken on the
preclusive action would not have been taken only in the service of
preserving the opportunity to file potential but uncertain future
litigation. Williams v. Ward, 556 F.2d 1143, 1154 (2d. Cir. 1977);
see Winters v. Lavine, 574 F.2d 46, 66-67 (2d Cir. 1978) (relying
on Williams in declining to apply the alternative-determinations
doctrine when the litigant was pursuing both the preclusive and
precluded action at the same time). But cf. Pizlo, 884 F.2d at
119. We are not faced with such a circumstance in the present
case, however, and so do not address whether the alternative-
determinations doctrine applies to such a circumstance.
[Foss's] copyright infringement claim[s] with [Foss] at a motion
hearing" in Action 1; "discussed the registration precondition"
with Foss at a status conference in Action 1; issued a written
opinion dismissing without prejudice Foss's federal copyright
infringement claims as set forth in a complaint filed prior to the
amended complaint in Action 3; and ruled on the "res judicata
effect" of the dismissal in Action 3 on a separate action, all
pertain to the District Court's consideration of claims other than
the federal copyright infringement claims set forth by Foss in the
amended complaint in Action 3.
Eastern separately contends that the alternative-
determinations doctrine has no application here because it does
not apply in cases in which a plaintiff's repeated filings
constitute an "abuse" of the legal system resulting in "waste[]"
for the judiciary and "inequity" for defendants. As support for
this contention, Eastern looks to Browning Debenture Holders'
Comm. v. DASA Corp. There, the Second Circuit, in finding that
res judicata applied to the case before it, noted that the
plaintiff-appellant in the case could not "rely upon their own
non-compliance with a court order to bootstrap themselves into
further harassing of appellees who already have borne a very
substantial burden in defending against essentially baseless and
frivolous claims." 605 F.2d 35, 39 (2d Cir. 1978).
Eastern ignores, however, an essential feature of
Browning Debenture Holders' Comm. that distinguishes it from the
one before us. In Browning Debenture Holders' Comm., the Second
Circuit found that the preclusive action was preclusive because it
was dismissed "for failure to comply with a court order" to "post
a bond," and such a failure "constitutes a dismissal on the
merits." Id. In the present case, by contrast, the District Court
found that the dismissal of Action 3 was based in part on a failure
to allege satisfaction of a precondition to suit, and, as we have
explained, that is not a merits-based ground.
Moreover, to the extent Eastern means to be arguing, in
invoking Browning Debenture Holders' Comm., that the alternative-
determinations doctrine should not apply in the event that its
application would result in prejudice to the defendant, see In re
Sonus Networks, Inc., S'holder Derivative Litig., 499 F.3d at 62
n.8, the District Court did not rely on this ground for dismissing
this case. In the absence of the District Court's having made a
determination about whether such prejudice exists to bar the
present litigation, we decline to rest our ruling on that ground.
In sum, we are not persuaded by either of the grounds
that Eastern gives for affirming the ruling below even if federal
res judicata law recognizes the alternative-determinations
doctrine. Accordingly, the District Court's finding that the
claims at issue on appeal before us are barred on claim preclusion
grounds cannot stand.
IV.
In clarifying the circumstances in which claim
preclusion applies under federal law when a dismissal is based on
multiple grounds not all of which would be claim preclusive in
their own right, we have kept alive Foss's claims for now. But,
we do not foreclose the possibility that there are grounds not
relied on by the District Court, or Eastern on appeal to us, that
would support the dismissal of Foss's claims independent of the
merits-based grounds on which the district court in Action 3 also
relied in dismissing the claims in that action.
Indeed, the Restatement itself contemplates that the
alternative-determinations doctrine "is not an inflexible" rule,
and, "[i]n some instances, the doctrines of estoppel or laches
could require the conclusion that it would be plainly unfair to
subject the defendant to a second action." Restatement § 20 cmt.
n. However, no arguments for declining to apply the alternative-
determinations doctrine in the present action on any of these
grounds were given by the District Court in dismissing the claims
at issue on appeal. Instead, as we have noted, the claims were
dismissed solely on the ground that the dismissal in Action 3 was
claim preclusive because the dismissal in Action 3 was based on
grounds that on their own would have rendered that dismissal claim
preclusive. Moreover, as we have already pointed out, in
dismissing those claims for that reason alone, the District Court
did not make any assessment of whether, even if the dismissal in
Action 3 was not otherwise claim preclusive because it was based
partly on a failure to satisfy a precondition to suit, it must be
given claim preclusive effect nonetheless due to the prejudice to
Eastern caused by Foss's failure to allege satisfaction of the
precondition to suit. See In re Sonus Networks, Inc., S'holder
Derivative Litig., 499 F.3d at 62 n.8.
We therefore leave it to the parties and the District
Court to address whether any of those grounds for barring the
claims at issue here are applicable, in light of our holdings that
a dismissal for failure to state a claim that is based on a failure
to satisfy a precondition to suit is not necessarily claim
preclusive and that federal res judicata law recognizes the
alternative-determinations doctrine (with the refinements that we
have described). Accordingly, we vacate and remand for further
proceedings consistent with this opinion. The parties shall bear
their own costs.