Foss v. Marvic, Inc. d/b/a Brady-Built Sunrooms et al. (D. Mass. 20-cv-4057).

Graphic designer Cynthia Foss, acting pro se, accuses Marvic of using a twenty-page brochure prepared by Foss in a scope beyond that contemplated by her (unwritten) agreement with Marvic and in violation of her copyright in the brochure.  Foss first brought suit in 2018, asserting copyright infringement, breach of contract, tortious interference with advantageous business relations, conversion, unfair and deceptive business practices, fraud, and breach of fiduciary duty.  The copyright claim was dismissed following the Supreme Court’s Fourth Estate decision because the Copyright Office had not yet acted on Foss’ application for registration, and Marvic was granted summary judgment on the remaining claims, in part because Foss failed to respond to Marvic’s requests for admissions, resulting in the admissions being deemed true.  Foss appealed the dismissal of the copyright count, believing that Fourth Estate allows for a stay of litigation pending a decision from the Copyright Office rather than dismissal, and the appeal remains pending.  Foss asserts that Marvic refused to agree to a tolling of the statute of limitations on her copyright claim while the appeal was pending, forcing her to file the new complaint to preserve her rights.  Judge Hillman, who presided over the previous case, has been assigned to this matter.

FabriClear, LLC v. Harvest Direct, LLC (20-cv-10580).

FabriClear, LLC developed a spray for treating bed bug infestations, and reached an agreement with Harvest Direct by which Harvest would advertise and sell the product, which was known as “FabriClear.” FabriClear asserts that, after several years of complying with the agreements with FabriClear, Harvest began re-labelling the product as “X-Out” and failing to pay FabriClear on sales of the same. FabriClear identifies several examples in which the “X-Out” label was simply superimposed directly over the “FabriClear” label. The complaint further alleges that Harvest essentially copied FabriClear’s label, packaging, website and advertisements for X-Out, including an advertisement in which the FabriClear bottle remained in several segments. FabriClear asserts breach of contract, trade secret misappropriation, and false designation of origin, as well as unfair competition. Magistrate Judge Hillman has the case.

(Note – I filed this complaint on behalf of FabriClear. As I always do when reporting on cases in which I and my firm are involved, I blog about the issues presented in the pleadings or orders, and avoid adding any “insider information.”)

Foss v. Spencer Brewery (19-cv-40098).

Cynthia Foss sued Spencer Brewery in June 2019, asserting breach of contract and copyright infringement. Judge Hillman granted Spencer’s motion to dismiss on res judicata grounds. Foss had previously sued Spencer Brewery on two separate occasions, asserting the same causes of action. Those cases ended with a judgment on the pleadings in favor of Spencer and dismissal for failure to state a claim on which relief could be granted. Judge Hillman found that each of these constituted a final decision on the merits, resulting in preclusion of the instant lawsuit.

Laddawn, Inc. et al. v. Bolduc (17-cv-11044).

In 2017, plastic bag and packaging maker Laddawn and its owner Ladd Lavallee sued former Laddawn employee Marc Bolduc for cybersquatting and defamation. Bolduc had been Laddawn’s network administrator since 1999, and is alleged to have kept information pertaining to Laddawn’s network secret from Laddawn personnel. His performance allegedly devolved over the years to the point that he was terminated in 2015. Laddawn asserts that Bolduc has password-protected its data backup and refused to turn over the passwords, and that following his termination he began a pattern of harassment of Laddawn and its employees. As a part of this, Laddawn asserts that Bolduc registered a number of domain names utilizing the federally-registered “LADDAWN” mark and made them available for sale “to the highest bidder.”

In the ensuing litigation, Bolduc repeatedly failed to comply with deadlines and discovery orders, resulting in the entry of default judgment against him. Judge Hillman has now awarded damages and costs and entered a permanent injunction. He found that Laddawn had demonstrated bad faith in Bolduc’s registration of the domain names – Bolduc testified at deposition that he had no intellectual property rights in the names registered, did not use the sites to offer goods or services, and registered the names solely to sell them for financial gain. He awarded $3000 per name in statutory damages, for a total of $24,000. He also awarded $100,000 in damages for defamation, and enjoined Bolduc from further acts of defamation or cybersquatting.

Inline Plastics Corp. v. Lacerta Group, Inc. (18-cv-11631).

Judge Hillman issued a claim construction order in this litigation involving tamper-resistant plastic food containers. The patents specifically describe the incorporation of a non-replaceable strip that must be severed before the cover could be removed from the container. In addition to construing seven different terms from the asserted patents, Judge Hillman addressed Lacerta’s assertions of indefiniteness involving several terms of degree, including “at least in part,” “relatively inaccessible,” and “tamper evident bridge.” Noting that such terms are not indefinite where the specification provides sufficient certainty to one of skill in the art, when read in the context of the invention, to identify the metes and bounds of the claim. He rejected Lacerta’s argument that “at least in part” was indefinite for failing to identify what else in addition to the “at least” components could form the relevant structure, noting that in such a circumstance, the claim would cover any structure incorporating the specified components. Judge Hillman rejected Lacerta’s argument that “relatively inaccessible” should be deemed indefinite because the Canadian Patent Office had so found in a related prosecution, noting both that the decision of the Canadian office is not binding on a U.S. court and that he disagreed with the Canadian decision because the specification identified the structures used to render the subject component inaccessible. Finally, he rejected Lacerta’s argument that “tamper evident bridge” was indefinite because it had no antecedent basis and was added during prosecution. Judge Hillman found that the claim itself provided sufficient detail to be definite, despite its not having been a part of the original claim language.

Foss v. Spencer Brewery (19-cv-40098).

Cynthia Foss, a graphic designer who has filed a number of pro se copyright suits in Massachusetts, filed suit against Spencer Brewery in July a day after filing a demand for arbitration on the same claims, and subsequently moved to compel arbitration. Judge Hollman denied Foss’ motion. Judge Hillman noted that Foss had filed two civil actions against Spencer Brewery, had litigated for more than a year without seeking to require arbitration, and had had judgment entered against her in both litigations – Judge Hillman granted both a motion to dismiss and a motion for judgment on the pleadings after Foss failed to oppose either, apparently thinking that Spencer Brewery still needed to, and failed to, answer the two complaints – before filing the demand for arbitration.  The voluntary filing and litigating of suits in Federal Court prior to the demand for arbitration were deemed to constitute a waiver of any arbitration rights she might have had.

Foss v. Spencer Brewery et al. (18-cv-40125).

In 2018, Cynthia Foss, who does graphic design work as Hunter Foss Design filed a pro se complaint in state court against Spencer Brewery, St. Joseph Abbey, Ruggles Media, Northeastern University, Cup of Julie Show, and Big Eastern Exposition (known as the “Big E”), accusing each of copyright infringement, tortious interference with business relations, defamation and violation of 93A. Foss contends that she owns the copyright in graphic compositions that were commissioned by Spencer Brewery, located within St. Joseph’s Abbey, of a stained-glass wall found in the Abbey, with the composition to be displayed at Spencer Brewery’s exhibit room at the 2016 Big E. Foss asserted that Spencer modified the composition, displayed it in places not contemplated by the agreement between Foss and Spencer, and by using the composition in an electronic display continuously since 2016. Cup of Julie, a marketing business, and Ruggles Media, which is associated with Northeastern University. After the case was removed to federal court, Judge Hillman dismissed the state law claims with prejudice as against the Big E and Cup of Julie, and Foss filed an amended complaint alleging claims only for copyright infringement against the two. Subsequently, he granted motions to dismiss and for judgment on the pleadings, which Foss did not oppose – while the dismissal motion was pending, she instead filed a motion for default, apparently (and incorrectly) thinking that the motion to dismiss did not abrogate the need to answer the complaint. Following dismissal, the Big E filed a Bill of Costs under Fed. R. Civ. P. 54(d) and 28 U.S.C. §1920, seeking $1835 in costs. Noting that he had discretion to refuse to award costs despite the presumption that costs be awarded, Judge Hillman denied request despite Foss having not filed a motion for disallowance, because four of the six categories of costs sought were plainly not recoverable under the statute. He found that the Bill of Costs was thus not filed in good faith, but instead evidenced punitive intent, and denied the bill in total.

Foss has filed two other pro se copyright cases in Massachusetts, one of which was dismissed for failure to timely serve or to timely seek an extension to serve (and which asserted claims that were time-barred, implausible and/or preempted); the second was dismissed for failure to state a claim when Foss failed to oppose the motion to dismiss, but Foss was successful in having the case reopened and is presently seeking a preliminary injunction.