Foss v. Eastern States Exposition

          United States Court of Appeals
                     For the First Circuit


No. 24-1360

   CYNTHIA ALYSON FOSS, d/b/a Hunter Foss Design & Interest,

                     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

                Montecalvo, Kayatta, and Aframe,
                         Circuit Judges.


     Andrew Grimm, with whom Gregory Keenan and Digital Justice
Foundation were on brief, for appellant.
     Lauren C. Ostberg, with whom James C. Duda and Bulkley,
Richardson and Gelinas, LLP were on brief, for appellee.
     Paul A. Maddock and Carey, Danis & Lowe were on brief, for
Professor Christine Davik, amicus curiae in support of appellant.


                        August 21, 2025
            MONTECALVO, Circuit Judge.         This case returns to us for

the second time on appeal.         Appellant Cynthia Foss appeals the

dismissal   of   her    federal   copyright-infringement      suit     against

appellee Eastern States Exposition ("Eastern") on claim preclusion

and statute-of-limitations grounds.           For the reasons that follow,

we conclude that the district court properly dismissed the suit as

untimely and, accordingly, affirm.

                               I. Background

            We   draw    the   following      facts   from   the     operative

complaint's allegations, which we take as true and examine in the

light most favorable to Foss.           See Fantini v. Salem State Coll.,

557 F.3d 22, 26

 (1st Cir. 2009) (quoting Nisselson v. Lernout, 

469 F.3d 143, 150

 (1st Cir. 2006)).

            In 2016, Spencer Brewery commissioned Foss, who is a

graphic   designer,     to   "produce    a   room-sized   artwork"    for   the

brewery's exhibition space at the 2016 "Big E," an annual fair

that Eastern produces and runs.               Under that agreement, Foss

produced a photorealistic installation resembling the interior of

a Trappist monastery for Spencer Brewery.             She did so, however,

subject to the conditions, as relevant here, that (1) she retain

copyright ownership over the installation and (2) the brewery only

show the installation in person and only to paying patrons of the

2016 Big E physically present at the installation space.




                                   - 2 -
            During the 2016 Big E, "Eastern created marketing videos

prominently featuring [Foss's] works and . . . widely disseminated

the[] videos online," without crediting Foss.              Eastern posted

"these numerous videos" on its Facebook page and on YouTube and

encouraged viewers to "[s]hare the post!"            Foss requested that

Eastern include attribution for her work -- specifically "a credit

line and/or mention" -- in the videos, but Eastern did not do so.

            Later, Foss applied for copyright registration of her

work with the U.S. Copyright Office ("Copyright Office"), which

received her application on April 19, 2017.          The Copyright Office

eventually registered the work, but the record does not reveal

when the Copyright Office made a decision on Foss's application.

A series of lawsuits followed.

                         A. Previous Lawsuits

            Foss, proceeding pro se,1 initiated her first suit in

Massachusetts Federal District Court in early 2018, alleging that

Eastern, along with several other parties, infringed upon her

copyright ("First Action").       As we will explain, Foss's first

complaint   included   more   details   regarding    certain   aspects   of

Eastern's    alleged   infringement     than   did   her   complaints    in

subsequent lawsuits. In response to Foss's First Action complaint,

Eastern moved to dismiss, arguing in part that Foss had failed to


     1 Following Eastern's dismissal in that case, Foss obtained
counsel.


                                 - 3 -
allege that she had satisfied "statutory prerequisites for filing

for relief under the Copyright Act," namely the requirement that

a plaintiff register their copyright with the Copyright Office

prior to bringing suit, 

17 U.S.C. § 411

(a).       In a short text order,

on June 27, 2018, the district court granted the motion "for the

reasons in [Eastern's] memorandum."         That dismissal was without

prejudice and "did not prevent Foss from seeking to cure the

§ 411(a)-related defect in that same action by filing an amended

complaint."   Foss v. E. States Exposition, 

67 F.4th 462, 464

 (1st

Cir. 2023) (first appeal in this case).

           Foss did not attempt to cure that defect and instead

initiated a second action, again acting pro se, this time in state

court, in July 2018.     That case was removed to federal court (for

reasons unclear to us the removed case was docketed as two actions,

but we will refer to these singularly as the "Second Action").

Eastern   again moved to dismiss, and, with respect to Foss's

copyright-infringement    claim,    the    district   court    granted   the

motion without prejudice, allowing Foss "leave to file an amended

complaint . . . stating    a   plausible    claim."     Foss    v.   Spencer

Brewery, 

365 F. Supp. 3d 168, 172

 (D. Mass. 2019).

           Foss then filed an amended complaint, and the defendants

(including Eastern) yet again moved to dismiss, arguing that Foss

had failed to state a plausible copyright-infringement claim, that

the amended complaint failed to comply with local rules and was


                                   - 4 -
otherwise infirm, and that Foss again failed to allege that she

had fulfilled the copyright-registration precondition to suit.

Foss did not respond to the motions to dismiss, and the district

court    granted   the     motions        and    dismissed    Foss's   federal

copyright-infringement claims with prejudice, explaining that the

motion   was   granted    "for    the    reasons    stated   in   [defendants']

supporting memorandum."

                            B. Present Action

           This time represented by counsel, Foss initiated the

present case solely against Eastern on December 4, 2020, alleging

claims of copyright infringement in violation of the U.S. Copyright

Act, 

17 U.S.C. § 106

(1)-(3), (5), and the U.S. Visual Artists

Rights Act, 17 U.S.C. § 106A(a)(1)(A).             In response, Eastern filed

a motion to dismiss, arguing in relevant part that the federal

claims were subject to claim preclusion because of the outcome in

the Second Action and should be dismissed with prejudice.                    The

district court agreed, concluding that the dismissal of the Second

Action    precluded      Foss's    copyright-infringement          claim,    and

dismissed the case with prejudice.              Foss v. E. States Exposition,

593 F. Supp. 3d 1

, 4-5 (D. Mass. 2022).            Foss then appealed.      Foss,

67 F.4th at 466

.

           On appeal, this court reversed and remanded, adopting

the Restatement (Second) of Judgment's alternative-determinations




                                        - 5 -
doctrine2 and directing the district court to determine whether,

even       though   the   alternative-determinations   doctrine   provided

relief from preclusion, the dismissal of the previous action "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."           

Id. at 473

; see also 

id. at 473-74

(addressing          grounds     for      declining    to   apply     the

alternative-determinations doctrine).

              On remand, Eastern again moved to dismiss, this time

arguing that (1) allowing Foss to subject Eastern to yet another

lawsuit was prejudicial and, therefore, claim preclusion applied

and (2) the copyright-infringement statute of limitations barred

suit.      The district court agreed on both counts.    Foss v. E. States

Exposition, No. 4:20-cv-12167, 

2024 WL 1178460

, at *5 (D. Mass.

Mar. 14, 2024).

              Regarding prejudice, the district court recounted the

facts of the First and Second Actions and determined that "without


       The court explained that, as set forth in the Restatement,
       2

the alternative-determinations doctrine provides 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." Foss v. E. States Exposition, 

67 F.4th 462, 469

 (1st
Cir. 2023) (quoting Restatement (Second) of Judgments § 20 cmt. e
(Am. L. Inst. 1982)). And, because the Second Action was dismissed
in part on non-merits grounds (namely, § 411(a)'s registration
precondition), this court determined that the district court's
dismissal "[could not] stand." Id. at 467-68, 473.


                                       - 6 -
serious question" Foss "ha[d] prejudiced Eastern and that it would

be manifestly unfair to force it to again have to defend against

Foss's   claims."     It     thus   concluded    that,     despite   the

alternative-determinations    doctrine,   the   prejudice    to   Eastern

meant that claim preclusion nevertheless applied.        With respect to

timeliness, the district court (after dismissing Foss's argument

that the Federal Rules of Civil Procedure barred Eastern from

raising the issue in a Rule 12(b)(6) motion)3 determined that "[o]n

the record before [it], it [was] clear that Foss did not file suit

within the requisite three-year period."         In so holding, the

district court referenced allegations from Foss's earlier suits

against Eastern, noting that Foss had specifically referenced

those previous lawsuits in her operative complaint and that the

allegations in the earlier suits were therefore subject to judicial

notice.4 The district court also considered correspondence between


     3 Foss does not now raise any claim of error as to that
determination.
     4 In response to Eastern's motion to dismiss, Foss also filed
a motion to strike and, in the alternative, a motion for discovery
on "prejudice, burden, and limitations." She argued that Eastern
relied on "matters outside the complaint" in its motion and that
that material should be disregarded.     In the alternative, she
requested   discovery   relevant   to  "prejudice,   burden,   and
limitations," arguing that "essential facts as [would] be
disclosed by discoverable information [we]re presently unavailable
to her." The district court determined that the majority of the
outside materials Eastern cited were susceptible to judicial
notice and were permissible but that some other materials,
including screenshots of social media posts, were not needed to
resolve the dispute and were thus stricken.        As to allowing
discovery, the district court denied the request without


                                - 7 -
Foss and Eastern referenced in Foss's original complaint in this

action.

           As a reminder, the operative complaint in this case

merely alleges, without specifying when, that Eastern created

marketing videos that included shots of Foss's work and posted

those videos on its Facebook and YouTube accounts, encouraging

viewers to share the videos (there are no allegations that Facebook

or   YouTube   users   ever   shared   the   videos).     However,   Foss's

complaint in the Second Action provided some additional detail:

there, she alleged that Eastern posted videos depicting Foss's

work online beginning in September 2016 and again in the spring of

2017 to advertise for the 2017 "Big E."                 The Second Action

complaint also alleged that Foss sent a letter to Eastern in early

2017 demanding Eastern remove the videos.         The original complaint

in this action similarly alleged that Foss notified Eastern that

she believed it to be infringing her copyright at around this time.

           Accordingly, the district court reasoned that, "given

Foss's own allegations and documentation from the various cases

she has filed against Eastern, it is clear that she knew or should

have known of her cause of action well before December 4, 2017"

(the date three years prior to the initiation of this suit).5           The


explanation.   On appeal, Foss only argues that it was error to
deny discovery with respect to the claim preclusion issue.
      Foss has not clearly raised any claim of error with respect
      5

to the district court's consideration of the facts alleged in


                                  - 8 -
district court then concluded that Foss's "claims [we]re barred by

the statute of limitations."              Foss timely appealed.

                              II. Standard of Review

             "We review the district court's grant of [the] motion to

dismiss de novo," Wadsworth v. Nguyen, 

129 F.4th 38, 61

 (1st Cir.

2025) (cleaned up) (quoting Torres-Estrada v. Cases, 

88 F.4th 14, 23

 (1st Cir. 2023)), "accept[ing] as true all well-pleaded facts

[and]    'indulging        all   reasonable       inferences    in    [appellant's]

favor,'" Fantini, 

557 F.3d at 26

 (quoting Nisselson, 

469 F.3d at 150

).    And it is "well settled in this circuit that a motion to

dismiss may be granted on the basis of an affirmative defense,

such    as   the    statute      of   limitations,     as   long     as   'the   facts

establishing        the    defense     [are]   clear    "on    the    face    of     the

plaintiff's pleadings."'"              Álvarez-Maurás v. Banco Popular of

P.R., 

919 F.3d 617, 628

 (1st Cir. 2019) (second alteration in

original) (quoting Blackstone Realty LLC v. FDIC, 

244 F.3d 193, 197

 (1st Cir. 2001)).

                                  III. Discussion

             Foss    now    argues     that    the   district      court     erred   in

determining        that   the    Second    Action    precluded       this    case    and



Foss's earlier lawsuits. To the extent she seeks to so argue, any
such argument is deemed waived.    United States v. Zannino, 

895 F.2d 1, 17

 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived.").


                                          - 9 -
separately erred in concluding that the statute of limitations

barred the suit.    We find that Foss has failed to establish, at

least, that the district court erred in dismissing her case as

untimely.    And because untimeliness alone is a sufficient basis

for dismissal, we need not consider the claim preclusion issue.

We turn now to the specifics of Foss's statute of limitations

arguments, first setting forth some basic guiding principles.

            Copyright-infringement claims must be "commenced within

three years after the claim [has] accrued."        

17 U.S.C. § 507

(b).

"[T]he limitations period generally begins to run at the point

when 'the plaintiff can file suit and obtain relief.'       A copyright

claim thus arises or 'accrues' when an infringing act occurs."

Petrella v. Metro-Goldwyn-Mayer, Inc., 

572 U.S. 663, 670

 (2014)

(cleaned up) (quoting Bay Area Laundry and Dry Cleaning Pension

Trust Fund v. Ferbar Corp. of Cal., 

522 U.S. 192, 201

 (1997)).

"Under   [§ 507(b)]'s   three-year    provision,   an   infringement   is

actionable within three years, and only three years, of its

occurrence."    Id. at 671.     Importantly, copyright-infringement

claims are subject to the separate-accrual rule, which provides

that a new statute of limitations begins to run with every separate

instance of infringement.     Id.    This means that "[i]f a defendant

reproduces or sells an infringing work on a continuing basis, a

plaintiff can sue every [three] years until the copyright term

expires."    Id. at 689 (Breyer, J., dissenting).         And the Court


                                - 10 -
emphasized that the separate-accrual rule applied to "discrete

infringing acts."    Id. at 672 & n.7.

          Foss makes three specific arguments on appeal: first,

that the district court misunderstood the importance of when

Eastern's violations ceased for the purposes of the statute of

limitations; second, that it misunderstood the moment that she was

able to "come to court to seek relief"; and, third, even if her

suit was untimely, that the district court erred in not equitably

tolling the statute of limitations.           Before we address -- and

reject -- each of these contentions, we note that Foss, both in

the operative complaint in this case and the complaints in her

previous suits, alleges that Eastern posted infringing videos

online in 2016 and in 2017 during the lead-up to each respective

year's Big E.    And Foss does not contest on appeal the district

court's consideration of prior litigation documents showing that

she was aware of these videos by early 2017 at the latest.               In

other   words,   unless     Foss   prevails   on   her     arguments,   our

understanding, like that of the district court, is that the statute

of limitations began to run in or around spring 2017, making her

December 4, 2020 complaint untimely.

                         A. Separate-Accrual Rule

          Foss first argues that the district court erred in not

applying the separate-accrual rule, under which "[e]ach time an

infringing   work   is    reproduced   or   distributed,    the   infringer


                                   - 11 -
commits a new wrong" and a new limitations period begins.                   See

Petrella, 572 U.S. at 670–71.           Below and in her opening brief, she

claimed    that      the   allegedly     infringing    posts    "constitute[d]

infringing displays unless and until they were taken down," and

that because Eastern did not establish that end-date, it failed to

show that the statute of limitations had even begun to run for all

Foss's claims.       But in Petrella, the Supreme Court made clear that

"[s]eparately accruing harm should not be confused with harm from

past violations that are continuing."            Id. at 671 n.6.     And Foss's

argument      that       Eastern's     posts    "constitute[d]       infringing

displays . . . until they were taken down" would seem to identify

a continuing harm from Eastern's original decision to post the

videos -- not a string of new violations that might implicate the

separate-accrual rule.         See id.

           In her reply brief and then at oral argument, Foss

introduced a new argument to fill this gap.                Her new position is

that a video posted on the internet results in a string of

successive    violations,      as    opposed    to   one   single,   continuing

violation. See Bell v. Wilmott Storage Servs., LLC, 

12 F.4th 1065, 1072

   (9th       Cir.     2021)     (discussing      display     element    of

copyright-infringement claim for online content and explaining

that "a person displays a photographic image by using a computer

to fill a computer screen with a copy of the photographic image

fixed in the computer's memory" (quoting Perfect 10, Inc. v.


                                       - 12 -
Amazon.com, Inc., 

508 F.3d 1146, 1160

 (9th Cir. 2007))).   So, says

Foss, every day the videos remained online, a new statute of

limitations period began to run.   In her view, that means that if

the videos remained up until at least December 5, 2017, there was

at least one timely infringement claim when she filed suit on

December 4, 2020.

          But before the district court, Foss never argued that a

video posted online created multiple infringements, as opposed to

a single infringement with continuing harms.     Nor did she make

this argument in her principal brief before us.      Her principal

brief cited to Petrella (which did not address the dissemination

of copyrighted material over the internet), without providing any

analysis or citation to explain why the separate-accrual rule meant

her claim was timely.   Because Foss's argument -- that a single

online post creates multiple "display[s] and new distributions of

infringing materials" -- could not be gleaned from Foss's earlier

filings, Eastern did not have an opportunity to respond to this

contention until oral argument before us.

          Thus, because Foss did not provide this argument in her

opposition to Eastern's motion to dismiss below and did not raise

it before us until her reply brief, her argument that an allegedly

infringing video posted online begins a new limitations period

every day it remains online is waived.      See United States v.

Trahan, 

111 F.4th 185

, 193 & n.6 (1st Cir. 2024) (explaining that


                              - 13 -
an argument, which "was [not] self-evident from the beginning and

[wa]s not a natural counter to [opponent]'s position," raised for

the first time in the appellant's reply brief was both forfeited

and waived) (first citing In re Redondo Constr. Corp., 

678 F.3d 115

, 121 (1st Cir. 2012) ("It is black-letter law that arguments

not presented to the trial court are, with rare exceptions, forfeit

on appeal."); and then citing United States v. Casey, 

825 F.3d 1, 12

 (1st Cir. 2016) ("[A]rguments raised for the first time in an

appellate reply brief [are] ordinarily deemed waived.")).

            Without this necessary premise, Foss cannot establish

her contention that the district court's analysis had an "end date

problem."    So, because the separate-accrual rule does not detain

us, we turn to Foss's argument on when she "was able to come to

court to seek relief."

                       B. Ability to Seek Relief

            While   Foss's   first    argument   focuses   on   whether   the

alleged infringement here amounts to multiple violations, her

second argument centers on when a particular infringement begins

the running of the three-year statute of limitations, focusing on

what it means to be able to seek relief.          Foss contends that the

district court erred in concluding that her claims accrued at the

time of the alleged infringement (or her knowledge of the same)6


     6   We   note   that   the  discovery   rule   applies   to
copyright-infringement claims in the First Circuit, meaning that


                                     - 14 -
rather than at the moment she was "able to come to court to seek

relief." To make this argument, Foss relies on language from Green

v. Brennan, where the Supreme Court explained that the "standard"

limitations rule is that a limitations period begins to run when

"the plaintiff can file suit."          

578 U.S. 547, 554

 (2016) (quoting

Bay Area Laundry, 

522 U.S. at 201

).            She also cites to Corner Post,

Inc. v. Board of Governors of Federal Reserve System, where the

Supreme Court explained that a right does not accrue "until the

plaintiff can file suit and obtain relief."                  

603 U.S. 799

, 810

(2024) (quoting Bay Area Laundry, 

522 U.S. at 201

).

           Foss     then    points      us     to    § 411(a)'s      registration

precondition.     As we have explained, § 411(a)'s non-jurisdictional

precondition to filing a claim, Reed Elsevier, Inc. v. Muchnick,

559 U.S. 154, 166

 (2010), requires a party to plead that they have

registered their copyright or that the Copyright Office refused to

register    the       copyright         in      order       to      initiate     a

copyright-infringement        suit,          Foss,    

67 F.4th at 464

.

"[R]egistration occurs, and a copyright claimant may commence an

infringement      suit,    when   the    Copyright         Office    registers   a

copyright" -- notably,       "[u]pon     registration       of   the   copyright,

however, a copyright owner can recover for infringement that


"a claim accrues only when a plaintiff knows or has sufficient
reason to know of the conduct upon which the claim is grounded."
Warren Freedenfeld Assocs., Inc. v. McTigue, 

531 F.3d 38, 44

 (1st
Cir. 2008).


                                     - 15 -
occurred both before and after registration."                         Fourth Est. Pub.

Benefit Corp. v. Wall-Street.com, LLC ("Fourth Estate"), 

586 U.S. 296, 299

 (2019).

                  Foss   contends       that,       because      § 411(a)    prevents   a

copyright-infringement suit before a plaintiff has registered a

copyright, she could not seek relief in court until the moment of

registration.            Thus, she argues that her copyright-infringement

claim did not accrue until she had obtained the registration

decision from the Copyright Office under § 411(a).7                         She relies in

part on Fourth Estate because the Supreme Court explained there

that       "registration        is     akin    to    an   administrative      exhaustion

requirement that the owner must satisfy before suing to enforce

ownership rights."              

586 U.S. at 301

.          In Foss's estimation, this

means that § 411(a) impacts copyright-infringement claim accrual.

Foss       does    not   cite    any    case    to     support    this   position,   and,

furthermore, her position allows for a scenario where a would-be

plaintiff delays filing for registration in order to increase their

time to bring suit, a scenario that runs against the fundamental



       Importantly, the record does not include the date the
       7

Copyright Office registered Foss's copyright -- the registration
itself reflects only the date of application. Foss argues that
she could not have sued on July 11, 2018, as demonstrated by
Eastern having successfully obtained dismissal of the complaint in
her second action filed on that date. In turn, Foss argues that
because July 11, 2018 is less than three years before she commenced
this action, this action is timely. This argument is meritless,
for the reasons we will explain.


                                              - 16 -
principles of statutes of limitation.       See, e.g., Ord. of R.R.

Telegraphers v. Ry. Express Agency, 

321 U.S. 342

, 348–49 (1944)

("Statutes of limitation, like the equitable doctrine of laches,

in their conclusive effects are designed to promote justice by

preventing surprises through the revival of claims that have been

allowed to slumber until evidence has been lost, memories have

faded, and witnesses have disappeared.").

          And, as Eastern points out, the Fourth Estate Court

considered this very scenario.      There, the plaintiff argued that

"a copyright owner may lose the ability to enforce her rights if

the Copyright Act's three-year statute of limitations runs out

before   the   Copyright   Office   acts   on    her   application   for

registration." Fourth Estate, 

586 U.S. at 309

. The Court rejected

that argument, explaining that the "fear [wa]s overstated, as the

average processing time for registration applications [was then]

currently seven months, leaving ample time to sue after the

[Copyright Office's] decision, even for infringement that began

before submission of an application."      

Id.

   After the publication

of Fourth Estate, the Court resolved a circuit split on the proper

assessment of copyright damages in circuits applying the discovery

rule (that is, holding that the statute of limitations begins to

run when the copyright holder discovers the infringement, not when

the infringement occurs).    Warner Chappell Music, Inc. v. Nealy,

601 U.S. 366, 371-74

 (2024).   The Court assumed, without deciding,


                               - 17 -
that the discovery rule could apply to copyright-infringement

claims.   

Id. at 371

.   And in so doing, the Court repeatedly cited

Petrella's holding that a "copyright claim 'accrue[s]' when 'an

infringing act occurs.'"    

Id. at 369, 371

 (alteration in original)

(emphasis added) (quoting Petrella, 

572 U.S. at 670

).        At no point

did the Court reference the moment of registration or suggest that

anything other than infringing conduct itself, or the plaintiff's

discovery of that conduct, could cause the three-year statute of

limitations to begin to run.      See id. at 369-70.      Thus, Foss has

not convinced us that the date the Copyright Office registers a

copyright is what initiates the limitations period.

          Accordingly,    Foss   has   failed   to   establish   that   the

district court erred in determining that by the time she filed

this suit in December 2020 her claims were untimely.

                         C. Equitable Tolling

          We turn then to Foss's final argument: that the district

court erred in declining to equitably toll the running of the

limitations period.8



     8 Although Foss raised equitable tolling below, the district
court's decision on the statute-of-limitations issue did not
directly address that argument.    Foss does not now advance any
claim that the court erred in not squarely addressing equitable
tolling, and we infer from the district court's silence that it
considered and rejected Foss's position. See Denson v. Marshall,

230 F.3d 1347

 (1st Cir. 2000) (unpublished table decision)
(concluding that where district court "did not explicitly mention"
an argument it "implicitly [rejected] appellant's contention").


                                 - 18 -
              "We review [the] district court's ruling rejecting the

application of the doctrine of equitable tolling for abuse of

discretion . . . ."         Abraham v. Woods Hole Oceanographic Inst.,

553 F.3d 114, 119

 (1st Cir. 2009). "Equitable tolling is available

'in   exceptional        circumstances'     to   extend     the   statute    of

limitations."     Vistamar, Inc. v. Fagundo–Fagundo, 

430 F.3d 66, 71

(1st Cir. 2005) (quoting Neverson v. Farquharson, 

366 F.3d 32, 40

(1st Cir. 2004)).

              "In order for equitable tolling to apply, the plaintiff

must show that circumstances beyond [their] control precluded a

timely filing.        However, equitable tolling is sparsely applied and

cannot   be    used    to   rescue   a   plaintiff   from   [their]   lack   of

diligence."     Abraham, 

553 F.3d at 119

 (internal citations omitted)

(first citing Monrouzeau v. Asociación del Hosp. del Maestro, Inc.,

153 F. App'x 7, 9

 (1st Cir. 2005); and then citing Cao v. Puerto

Rico, 

525 F.3d 112, 115

 (1st Cir. 2008)).

              Foss specifically references the time during which her

application was pending with the Copyright Office, contending that

equitable tolling would be appropriate for that period.               But the

record does not reveal when the Copyright Office registered Foss's

copyright, and Foss has not told us. Without any information about


     In addition, Foss lists, without further explanation or legal
support, equitable estoppel as an additional equitable basis for
reversal.   Because Foss has inadequately briefed the issue, we
deem it waived. See Zannino, 

895 F.2d at 17

.


                                     - 19 -
the length of the Copyright Office's delay and its effects on her

ability to timely assert her claims, Foss cannot show that the

district court erred in declining to equitably toll the statute of

limitations on her copyright-infringement claim due to a delay

potentially attributable to the Copyright Office.    See supra note

7.

          Foss alludes to her previous suits, contending that she

had applied for registration but was awaiting a decision such that

her lateness should not be faulted given her diligence.      Again,

Foss has not provided legal support for this position, and we are

not convinced that these circumstances were beyond her control.

She notes that, prior to Fourth Estate, the federal courts of

appeals were split as to whether a copyright plaintiff could file

suit upon submission of a registration application or instead had

to wait until the Copyright Office reviewed and registered the

copyright.   See Alicea v. Machete Music, 

744 F.3d 773, 779

 (1st

Cir. 2014) (noting circuit split and declining to take a position).

And she states that, as a result of this circuit split, "it was

unclear when she could even come to court."         Foss's problem,

however, is not that she held off on suing Eastern until the

Copyright Office registered her copyright -- which, in any event,

would have been exactly what Fourth Estate later required, see 

586 U.S. at 299

 -- but that she repeatedly filed complaints against

Eastern that failed to allege that her copyright for the supposedly


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infringed    work   had   been   registered,   never   correcting   this

deficiency despite the district court's admonitions.         See Foss,

365 F. Supp. 3d at 172

 (citing Fourth Estate and permitting Foss

leave to amend to comply with its requirements); Foss, 

67 F.4th at 464

 (noting that "Foss did not avail herself of [the] option" to

cure the § 411(a)-related defect in her first suit).         Foss could

have sued well within the limitations period had she simply taken

the first step to bringing a claim -- registering her copyright

(which need not await infringement) -- and then informed the court

that she had done so.      Equitable tolling cannot rescue Foss from

this lack of diligence in the face of clear instructions.

            Foss also argues that it would be unfair to bar her suit

as untimely when her previous cases were dismissed as "being

premature" and "coming too soon."         This argument misunderstands

§ 411(a)'s precondition-to-suit requirement and the reasons her

earlier complaints were dismissed.         The earlier suits were not

dismissed for "coming too soon" but for failing to allege facts

related to § 411(a)'s requirement that a copyright be registered

before an infringement suit can proceed.          Again, Foss has not

established that the court abused its discretion in rejecting this

basis for tolling.

                             IV. Conclusion

            For these reasons, we affirm the district court's order

dismissing Foss's case.


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