Introduction
Every law student will learn that a plaintiff does not get “two bites at the apple.”2See generally McCoy v. Tolar, 90 So. 628, 629 (Miss. 1921). This, of course, refers to the fact that once a plaintiff’s case is adjudicated, that case is finished.3See id. Intuitively, this makes a lot of sense—plaintiffs should not be able to continue to sue on the same case until they win.4Stephen N. Subrin, et al., Civil Procedure: Doctrine, Practice, and Context 987 (6th ed. 2020). Once a matter is litigated and a court has made a final determination, that matter should be put to rest.5Id. This is the motivation behind the doctrine of claim preclusion.6Id. A plaintiff has one shot to litigate their case.7Id. If they lose, they cannot simply try the case again, hoping for a better result.8Id. Without the doctrine of claim preclusion, courts and defendants could be forced to participate in cases that were already adjudicated.9See id. Certainly, this kind of frivolous litigation has no place in the court system.10Subrin, et al.,supra note 4, at 987. While this rule may seem black and white, claim preclusion law has developed over time to include some exceptions.11Restatement (Second) of Judgments § 20 (Am. L. Inst. 1982). One such exception is the “alternative-determinations doctrine.”12Id. § 20 cmt. e.
This Comment will argue that while the First Circuit was correct in deciding to adopt the alternative-determinations doctrine as part of federal res judicata law in Foss v. Eastern States Exposition, the Court failed to adequately recognize the potential for inefficiencies in district courts and was incorrect in applying the doctrine to the plaintiff-appellant’s claim. Part I of this Comment provides the relevant background information in federal claim preclusion law and federal copyright law. Part II reviews the facts, procedural history, and the First Circuit’s analysis and holding in Foss v. Eastern States Exposition. Part III argues that while adopting the alternative-determinations doctrine could result in judicial efficiency in some instances, it can create inefficiencies in others. Part IV argues that the First Circuit should not have applied the alternative-determinations doctrine to the plaintiff-appellant. Instead, the Court could have distinguished her case from previous cases or, alternatively, adopted or created a framework to distinguish more meritorious cases from less meritorious ones.
I.Background
A. Federal Claim Preclusion
1. Background of Federal Claim Preclusion
In federal question cases, courts apply federal claim preclusion (“claim preclusion”) law.13Blonder-Tongue Lab’ys, Inc. v. Univ. of Ill. Found., 402 U.S. 313, 324 n.12 (1971). In order for a party to successfully show that claim preclusion should apply, it 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.”14Mass. Sch. of L. at Andover v. Am. Bar Ass’n, 142 F.3d 26, 37 (1st Cir. 1998) (quoting Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 755 (1st Cir. 1994)). Furthermore, dismissals pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) are usually merits-based and, therefore, claim preclusive.15Federated Dep’t Stores v. Moitie, 452 U.S. 394, 399 n.3 (1981). These dismissals are typically claim preclusive because dismissals pursuant to Rule 12(b)(6) are for failure to state a claim.16 Fed. R. Civ. P. 12(b)(6). In these circumstances, typically: 1) the plaintiff has failed to allege enough specific facts to show that each element of a particular claim is obvious on its face;17Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009) (raising the pleading standard of Twombly and preventing plaintiffs from proceeding on a claim by simply alleging legal conclusions); see Fed. R. Civ. P. 8(a)(2). 2) the plaintiff has not alleged a cognizable cause of action; or 3) the facts the plaintiff has alleged do not add up to the alleged cause of action.18Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007);& Fed. R. Civ. P., 8(a)(2). However, dismissals for failure to state a claim under Rule 12(b)(6) are not claim preclusive when the dismissals are based on a failure to allege a precondition for suit19Lebrón-Ríos v. U.S. Marshal Serv., 341 F.3d 7, 13–14 (1st Cir. 2003) (citing Costello v. United States, 365 U.S. 265, 284–88 (1961)); Restatement (Second) of Judgments § 20(2) (Am. L. Inst. 1982). This is because dismissals under Rule 12(b)(6) that are based on a failure to allege a precondition for suit turn “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.”20Foss v. E. States Exposition, 67 F.4th 462, 467 (1st Cir. 2023). Whether a court dismisses a case “with prejudice” will not always determine whether a dismissal is claim preclusive.21See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 503–05 (2001). While a dismissal “without prejudice” will usually not prevent a plaintiff from bringing the same claim in the same or another court, the without-prejudice label primarily relates to the dismissing court itself.22See id.
2. The Alternative-Determinations Doctrine
A court cannot predetermine the claim-preclusive nature of a judgment.23See Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 396 (1996) (Ginsburg, J., concurring in part and dissenting in part); 7AA Charles Alan Wright, et al., Federal Practice and Procedure § 1789 (3d ed. 2023). Whether a judgment is claim preclusive can be determined only in later actions.24See Matsushita, 516 U.S. at 396; Wright, et al.,& supra note 23, § 1789. The First Circuit looks to the Restatement (Second) of Judgments (“the Restatement”) as the “preeminent authority” on issues of claim preclusion.25Andrew Robinson Int’l, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48, 57 (1st Cir. 2008). The “alternative-determinations doctrine” provides a way to consider whether a court’s dismissal of a claim that is based on multiple reasons is claim preclusive for a plaintiff.26Restatement (Second) of Judgments § 20 cmt. e (Am. L. Inst. 1982). The alternative-determinations doctrine is set forth as follows:
One purpose of the doctrine is to discourage “appellate hoop-jumping” to keep potentially meritorious claims alive.28Id. at 470. Litigants, under this doctrine, do not need to appeal their cases to fix non-merits-based defects of their claims that caused earlier dismissals.29See Restatement (Second) of Judgments § 20 cmt. e.
B. Federal Copyright Law
Federal copyright law protects original works of authorship, such as literary works, musical works, and works of art.3017 U.S.C. § 102(a) (2022). To bring a civil lawsuit for federal copyright infringement, a plaintiff must prove that they either registered their federal copyright or they completed all the requirements for registering their copyright but were refused.31Id. § 411(a). If refused, the plaintiff must serve the Register of Copyrights, the “principal advisor to Congress on national and international copyright matters.”32Id.; U.S. Copyright Office, Overview, Copyright.gov, https://perma.cc/Y3PD-C5TY (last visited Apr. 1, 2025). Taking either of these two courses of action will allow the plaintiff to bring their claim for federal copyright infringement and meet the precondition for suit in 17 U.S.C § 411(a).3317 U.S.C. § 411(a); Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157 (2010).
C. History of Judicial Reform in Federal Courts
Over a century ago, Judge Learned Hand stated that, if the documents of Hammurabi were available to humankind, they would reveal that people had been complaining about the inefficiency of court proceedings for five millennia.34 Learned Hand, The Deficiencies of Trials to Reach the Heart of the Matter in 3 Lectures on Legal Topics: 1921–1922, at 87, 89 (1926) reprinted in 31 Int’l Soc’y of Barristers Q. 309, 309 (1996). Though those documents may never be recovered, Congress has tried to address capacity issues in the federal judiciary since the First Congress in 1789.35Peter S. Menell & Ryan Vacca Revisiting and Confronting the Federal Judiciary Capacity “Crisis”: Charting a Path for Federal Judiciary Reform, 108 Calif. L. Rev. 789, 796–98 (2020); see Hand supra note 34 at 87, 89. By the 1960s, federal law had expanded greatly and, as a result, more cases were flooding federal courts.36Menell & Vacca, supra note 35, at 813. Members of the legal community called for judicial reform to deal with these changes in the legal environment.37Menell & Vacca, supra note 35, at 813. In response, a study group created by Chief Justice Burger and a commission created by Congress proposed several changes intended to help alleviate the extra pressure on all levels of federal courts.38See generally Menell & Vacca, supra note 35 at 814–21 (stating the purposes of the two groups and their suggestions for judicial reform). Both groups argued for creating another appellate court—the National Court of Appeals (“NCA”).39Menell & Vacca, supra note 35, at 814, 817. The NCA would have functioned to alleviate the strain on the existing courts of appeals and the Supreme Court.40Menell & Vacca, supra note 35, at 817. Though there was initially support for the NCA, appellate judges opposed its creation and killed its momentum.41Menell & Vacca, supra note 35, at 822–23. Though the early- and mid-1970s did not contain significant changes for the federal appellate courts, district courts did see some reform.42Menell & Vacca, supra note 35, at 819–21, 823. Congress ended most applications of three-judge courts and expanded the authority of magistrate judges, which helped increase efficiency of federal district courts.43Menell & Vacca, supra note 35, at 820-21 However, Congress also passed the Speedy Trial Act of 1974.44Menell & Vacca, supra note 35, at 819 The statutory time limits for beginning criminal trials protected defendants’ Sixth Amendment rights, but the added pressure on district courts from these strict limits caused delay in civil cases.45Menell & Vacca, supra note 35.
Congress made further changes to the judiciary in the late-1970s and early-1980s.46See generally Menell & Vacca, supra note 35, at 823–31 (describing Congress’ changes to the judiciary in the late-1970s and early-1980s). It added judge slots to federal district and appellate courts; reformed the bankruptcy court system; split the Fifth Circuit into the “new Fifth Circuit” and the Eleventh Circuit; and established the Federal Circuit, primarily to deal with patent law.47Menell & Vacca, supra note 35, at 823–28. Caseloads continued to grow, and Congress passed the Civil Justice Reform Act of 1990 to deal with increased costs and delay in civil litigation.48Menell & Vacca, supra note 35, at 836, 839. Congress also created additional seats for judges at the trial and appellate levels.49Menell & Vacca, supra note 35, at 839–40.
Congress and the judiciary cooperated throughout the latter half of the 20th century in an attempt to alleviate some of the strain on federal courts caused by increased caseloads.50See generally Menell & Vacca, supra note 35, at 813–41 (demonstrating the extent to which Congress, the judiciary, and other members of the legal community worked together to alleviate judicial capacity issues). However, at the turn of the 21st century, the pressure on the judiciary dissipated, and Congress expanded the scope of federal jurisdiction.51Menell & Vacca, supra note 35, at 841. Although caseloads continued to increase, Congress created no additional circuit judgeships since 1990 and added only twenty-five judges to district courts since 2000.52Menell & Vacca, supra note 35, at 842. This is in stark contrast to the efforts of judicial reform that marked the last few decades of the 20th century.53Menell & Vacca, supra note 35, at 843.
II. The Court’s Opinion
A. Facts and Procedural History
1. Action 1
This case’s path to the First Circuit began as a lawsuit filed about five years before this decision was issued.54Foss v. E. States Exposition, 67 F.4th 462, 464 (1st Cir. 2023). Plaintiff Cynthia Foss filed a complaint in federal district court in the District of Massachusetts (“District Court”) in January 2018; she later amended that complaint in February 2018.55Id. In her complaint, she alleged that Eastern States Exposition (“Eastern”) and five other parties committed plagiarism and copyright infringement.56Id. at 464 n.1 (stating that the five defendants besides Eastern 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.”). Foss’s artwork, entitled “Refectory Long Stain Glass Wall,” was based on concept photography of a stained glass wall in a monastery owned by two of the defendants, the Abbey and Spencer Brewery.57Foss v. Spencer Brewery, 365 F. Supp. 3d 168, 170 (D. Mass 2019). A contract between the parties authorized the Abbey and Spencer Brewery to display Foss’s work at two shows at Eastern’s fair.58Id. Foss argued that the defendants infringed on her copyright when they photographed, filmed, and uploaded videos of the work to Facebook and YouTube.59Id. at 170–71. Foss alleged that she registered the work with the United States Copyright Office (“Copyright Office”) and paid the necessary fees; but the work that she registered was titled “Spencer Trappist Beer Experience,” a name different from the work that was allegedly infringed.60Id. at 170 n.4. The defendants argued that Foss did not include a copy of her application for registration of the copyright, nor did she allege that the Copyright Office accepted or rejected her registration of the work.61Id. at 171. Therefore, the defendants moved to dismiss because Foss had not properly shown that she filed for a federal copyright as required by 17 U.S.C. § 411(a).62Id.; see 17 U.S.C. § 411(a) (2008). Specifically, they argued that the work she claimed to have registered was different than the work that was allegedly infringed in this case.63Spencer Brewery, 365 F. Supp. 3d at 171. The District Court agreed with the defendants.64Id. at 171–72. The court dismissed Foss’s state law claims with prejudice, but dismissed her federal copyright claims without prejudice.65Id. at 172. This complaint is what the First Circuit refers to as “Action 1.”66Foss v. E. States Exposition, 67 F.4th 462, 464 (1st Cir. 2023). The other actions referenced in this case arise out of the same facts noted in Action 1, but raise different claims.67Id. at 465–66.
2. Actions 2 and 3
Instead of amending the complaint in Action 1 to demonstrate that she had tried to register a copyright and the Copyright Office accepted or rejected that application, Foss filed a new action in Massachusetts state court in July 2018.68Id. at 464; see generally 17 U.S.C. § 411(a). The defendants subsequently removed the new action to the District Court.69Foss, 67 F.4th at 465. Foss sued Eastern, three of the parties from Action 1, and two new parties.70Id. at 464 n.2 (explaining that the Abbey, Spencer Brewery, and Cup of Julie Show were kept as defendants and Northeastern University and Ruggles Media were added). In the District Court, Foss’s action was filed as two federal actions (called “Action 2” and “Action 3”).71Id. at 465. Foss proceeded pro se in Action 3.72Foss v. Spencer Brewery, 365 F. Supp. 3d 168, 169 (D. Mass. 2019). She alleged that the defendants had infringed on her copyright and violated other state law claims.73Foss, 67 F.4th at 465.
The defendants moved to dismiss, arguing that Foss’s federal copyright infringement claim preempted her state law claims and that her failure to show proof of registration as required by 17 U.S.C. § 411(a) barred her ability to sue.74Id. The Court granted the motion and dismissed the state law claims with prejudice, but dismissed the federal copyright infringement claims without prejudice.75Id. The District Court consolidated Actions 1, 2, and 3, and the First Circuit thereafter referred to the consolidated cases simply as “Action 3.”76Id.
In April 2019, Foss amended the complaint in Action 3 and named Eastern, the Abbey, and Spencer Brewery as defendants.77Id. at 465 n.4 She alleged, once again, that the defendants infringed upon her copyright.78Id. at 465 Eastern moved to dismiss, arguing that Foss had 1) not described the work that Eastern allegedly infringed; 2) not plausibly alleged that Eastern copied any of the unique and original elements of Foss’s work; and 3) repeatedly failed to meet the precondition for suit as required by 17 U.S.C. § 411(a).79Foss, 67 F.4th at 465. The District Court dismissed Foss’s federal copyright infringement claims with prejudice via an electronic order for the three reasons Eastern cited in its motion.80Id.
3. Action 4
In 2020, Foss filed a new action in the District Court based on the same facts as Actions 1, 2, and 3 and was represented by counsel.81Id. at 465–66; Foss v. E. States Exposition, 593 F. Supp. 3d 1, 3 (D. Mass. 2020). The complaint named Eastern as the only defendant and alleged they had reproduced, prepared derivative works of, distributed, displayed, and claimed authorship of her copyrighted work in violation of 17 U.S.C. § 106(1)–(3), (5) and 106A(a)(1)(A).82Foss, 67 F.4th at 466; 17 U.S.C. §§ 106(1)–(3), (5), 106A(a)(1)(A). Eastern moved to dismiss the complaint based on claim preclusion.83Foss, 67 F.4th at 466. The District Court granted the motion, and dismissed the federal copyright infringement claims with prejudice; Foss appealed.84Id.
B. The First Circuit’s Analysis and Holding
1. The Alternative-Determinations Doctrine
Foss contended that the District Court erred in determining that Rule 12(b)(6) dismissals are always merits-based.85Id. at 467. She also argued that the First Circuit should adopt the alternative-determinations doctrine.86Id. at 469. If the District Court’s dismissal of Foss’s claims due to her failure to satisfy the precondition for suit set forth in 17 U.S.C. § 411(a) was considered a non-merits-based reason for dismissal and if the First Circuit decided to adopt the alternative-determinations doctrine, then Foss’s appeal would be victorious.87Id. There were two questions of first impression for the First Circuit to address.88Id. First, the Court needed to determine whether federal claim preclusion law recognized the alternative-determinations doctrine.89 Foss, 67 F.4th at 469. Second, if it did recognize the doctrine, the Court needed to determine whether the doctrine’s scope included Foss’s case.90Id.
The First Circuit also recognized that other circuit courts, including the Fourth, Sixth, and Ninth Circuits, had already adopted the alternative-determinations doctrine.91Pizlo 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); Ruiz v. Snohomish Cnty. Pub. Util. Dist. No. 1, 824 F.3d 1161, 1164–65 (9th Cir. 2016). Ultimately, the First Circuit did not find any reason to disagree with its sister circuits.92 Foss, 67 F.4th at 469. The Court leaned heavily on judicial efficiency as a basis for its decision.93See id. at 469–71. It recognized what the Restatement cautions—that the absence of the alternative-determinations doctrine encourages plaintiffs to appeal their judgments to preserve the ability to bring the same claims in future actions, which may or may not happen.94Id. at 470; see Ruiz, 824 F.3d at 1164–65; Restatement (Second) of Judgments § 20 cmt. e (Am. L. Inst. 1982).
The First Circuit recognized two downsides to the alternative-determinations doctrine: it allows the refiling of cases that had already been decided on strong merits-based reasons and the refiling of cases with defects that could have been cured at the first filing.95 Foss, 67 F.4th at 471. The Court found the benefits of the alternative-determinations doctrine to outweigh the detriments and joined its sister circuits in adopting the doctrine.96Id. While acknowledging that Foss’s case was not the “poster child” for adopting the doctrine, the Court opined that it needed to adopt the alternative-determinations doctrine in this case for it to be available to “future Fosses” that may have more meritorious cases.97See id.
2. Applying the Alternative-Determinations Doctrine to Foss’s Case
Eastern argued that even if the First Circuit adopted the alternative-determinations doctrine, it should not apply to Foss’s case.98Id. at 472. They pointed out that one of the reasons for adopting the doctrine in the first place is to account for potential bias of courts of first instance.99Id. According to Eastern, the alternative-determinations doctrine exists to prevent harm to plaintiffs when a judge dismisses a claim with prejudice after allowing non-merits-based reasons for dismissal to weigh too heavily in their consideration.100Id. In other words, the doctrine protects plaintiffs when the trial court does not “‘rigorously consider’ the merits rationales upon which its adjudications were based.”101 Foss, 67 F.4th at 472. The Court found that Eastern did not offer evidence that the District Court rigorously considered the merits-based reasons for dismissal, so it did not decide whether this exception would be available in future cases.102Id. In fact, the District Court’s only reasons for dismissing were the three reasons stated in Eastern’s brief, which, according to the First Circuit, “provided no indication that [the District Court] had ‘rigorously considered’ the merits-based grounds for dismissal.”103Id.
Eastern also argued that the alternative-determinations doctrine does not apply in situations where the plaintiff’s filings result in waste, abuse of the judicial system, or unfair prejudice to the defendants.104Id. Eastern cited Browning Debenture Holders’ Committee v. DASA Corporation for this argument.105Id.; see Browning Debenture Holders’ Comm. v. DASA Corp., 605 F.2d 35, 39 (2d Cir. 1978). The First Circuit did not find waste, abuse of the judicial system, or unfair prejudice to the defendants in this case and distinguished it from Browning, where the plaintiff did not comply with a court order, and that failure to comply constituted a dismissal on the merits.106 Foss, 67 F.4th at 472–73; Browning, 605 F.2d at 39. After addressing all of Eastern’s arguments, the First Circuit concluded that the alternative-determinations doctrine applied to Foss and that claim preclusion did not bar her from bringing Action 4.107 Foss, 67 F.4th at 474.
Analysis
III. The Blanket Application of the Alternative-Determinations Doctrine Creates Judicial Inefficiency in Federal District Courts
A. Additional Inefficiencies in Federal Courts Will Exacerbate Problems Caused by the Judiciary’s Limited Capacity
In deciding whether to adopt the alternative-determinations doctrine, the First Circuit recognized that the doctrine could create inefficiencies in the judicial system.108Id. at 471. The Court stated that the doctrine “necessarily will permit” inefficiencies such as allowing cases that had been properly disposed of on merits-based grounds to be brought again.109See id. Furthermore, the doctrine as the Court applied it allows a plaintiff whose case was dismissed for “then-curable defects” to bring the case again.110Id. After a brief consideration of these inefficiencies, the First Circuit decided to adopt the doctrine, stating that it was a better policy to allow litigants the opportunity to refile their claims in a trial court to get a determination on the merits than to appeal simply to preserve the future opportunity to have the claims decided on their merits.111See id.
Though the Court does not state it explicitly, the alternative-determinations doctrine can create situations where trial courts must rehear frivolous cases. The doctrine can create efficiency, but those efficiencies are for the appellate courts. This is a problem for those concerned with protecting judicial resources and ensuring plaintiffs obtain timely decisions in their cases.112See Maggie Jo Buchanan & Stephanie Wylie, It Is Past Time for Congress to Expand the Lower Courts, Ctr. for Am. Progress (Jul. 27, 2021), https://perma.cc/7GBV-5M9C. Today, a typical plaintiff whose case makes it to trial in federal district court must wait nearly three years to have their case heard.113Table N/A – U.S. District Courts – Combined Civil and Criminal Federal Court Management Statistics (December 31, 2024), U.S. Cts. 1 (Dec. 31, 2024), https://perma.cc/E67C-TZJY. Five years ago, a plaintiff’s wait time was just over two years.114Id. One-third of cases pending in federal district courts are over three years old.115Id. The average number of pending cases that each judge handles has risen from 722 on June 30, 2018, to 1,022 on June 30, 2023, while the total number of judges in federal district courts has remained the same.116Id.
Judge Jon O. Newman of the Second Circuit commented on the inefficiencies of the federal court system before Congress passed the Civil Justice Reform Act of 1990.117Menell & Vacca, supra note 35, at 837. Later, Judge Newman observed that, by expanding opportunities for litigation to promote fairness, the courts “have unintentionally created a cumbersome process where cases languish before trial and subsequently crawl up the appellate ladder.118Jon O. Newman, The Current Challenge of Federal Court Reform, 108 Calif. L. Rev. 905, 906 (2020). The rising caseloads in district courts impede the deliberative process and provide incentives for courts to take shortcuts so that they can handle the increased volume.119Id. at 911-12. Especially if the lack of judicial reform persists, courts should be wary of decisions that increase caseloads and inefficiency in the federal court system because of impediments to a thorough decision-making process.120Id.; see Menell & Vacca, supra note 35, at 843.
IV. The Alternative-Determinations Doctrine Should Not Apply to Foss
A. The Plaintiff in Foss is Distinguishable from Plaintiffs in Alternative-Determinations-Doctrine Cases in Other Circuits
Two cases provide guidance on the treatment of the alternative-determinations doctrine in other Circuits.121Foss v. E. States Exposition, 67 F.4th 462, 469 (1st Cir. 2023). In one case, Pizlo v. Bethlehem Steel Corporation (“Pizlo III”), the plaintiffs sued Bethlehem Steel Corporation over breach of contract and estoppel claims.122Pizlo v. Bethlehem Steel Corp., 884 F.2d 116, 117 (4th Cir. 1989). The company had changed its pension policy and terminated some of the employees before their 62nd birthdays, which resulted in lower pension payouts.123Id. The plaintiffs in Pizlo III were initially two separate groups represented in two separate cases—Moyer v. Bethlehem Steel Corporation (“Moyer”) and Pizlo v. Bethlehem Steel Corporation (“Pizlo I”).124Id. at 118. In response to these complaints, the defendants filed motions to dismiss, for a more definite statement, and to disqualify the plaintiffs’ counsel.125Id. The plaintiffs obtained new counsel and filed a new action (“Pizlo II”) because they thought they had waited too long to amend their claims in Pizlo I and Moyer.126Id.
The defendants moved to dismiss all the complaints.127Id. The district court granted the motion to dismiss for all but one claim in Moyer and Pizlo I, finding that the plaintiffs had “exceeded the scope of the leaves to amend.”128Pizlo, 884 F.2d at 118. While the court based its decision to dismiss on this procedural ground, it also discussed the merits of the plaintiffs’ claims, thereby creating a decision based on two determinations—one merits based and one non merits based.129Id. The district court also dismissed all but one of the plaintiffs’ claims in Pizlo II, basing the decision on the reasoning in Pizlo I and Moyer and finding that the plaintiffs had failed to state a cause of action for some of their claims.130Id.
When the Fourth Circuit began its analysis of Pizlo III, it began by stating that the plaintiffs’ “elections not to appeal the final judgments in Pizlo I and Moyer do not preclude their litigating the substantially identical claims stated in Pizlo II” because requiring them to do so would be a waste of resources for the court and for both parties.131Id. at 119. The court also ruled that since the decisions in Moyer and Pizlo I were made on procedural grounds, the district court’s further commentary on the merits of the plaintiffs’ claims was simply dicta and, therefore, claim preclusion did not bar the claims brought in Pizlo II.132Id. However, according to the Fourth Circuit, even if the district court had based the dismissals in Moyer and Pizlo I on the procedural ground and the substantive ground, the alternative-determinations doctrine would still allow the plaintiffs to bring their claims in Pizlo II.133Id. The Pizlo III court completed the claim preclusion analysis before proceeding to consider the merits of the plaintiffs’ case.134Pizlo, 884 F.2d at 120-21.
Foss is different from Pizlo III, namely in that Foss had two opportunities to cure the deficiency in her lawsuit and the court did not use the alternative-determinations doctrine as an initial consideration to decide whether claim preclusion should bar the case before ruling on the substance of the appealed legal claims.135Foss v. E. States Exposition, 67 F.4th 462, 471 (1st Cir. 2023). Pizlo III, the plaintiffs (as a whole) brought one set of substantially similar claims in two separate cases.136Pizlo, 884 F.2d at 118. After their cases were dismissed because they needed to find new counsel, the plaintiffs’ case had a new procedural deficiency—they had exceeded the leaves to amend their original complaints.137Id. This is a very different situation from the one in Foss. Foss was notified of the defect in her complaint and had multiple chances to cure that defect, but she failed to do so.138Foss, 67 F.4th at 471. Foss was not notified of a new procedural defect; she was once again reminded of a persistent deficiency in her lawsuit.139Foss v. E. States Exposition, 593 F. Supp. 3d 1, 4 (D. Mass. 2020). In applying the alternative-determinations doctrine to Foss’s case, the First Circuit gave her another opportunity to bring her claims to the District Court to hear what it said before—that Foss must show she applied for a federal copyright and the Copyright Office took action in accepting or rejecting it.140See Foss, 67 F.4th at 473. In situations like this, the alternative-determinations doctrine creates judicial efficiency for appellate courts, but it creates inefficiencies for trial courts. Because of this, it is important to ensure that there is some benefit to the plaintiff on the other side of the scale that can justify the inefficiency.
In Ruiz v. Snohomish County Public Utility District No. 1, the plaintiff sued her former employer and its executive for sex discrimination.141Ruiz v. Snohomish Cnty. Pub. Util. Dist. No. 1, 824 F.3d 1161, 1162–63 (9th Cir. 2016). She alleged several incidents between 2008 and 2010.142Id. Her first complaint was dismissed with prejudice and based on two grounds—lack of personal jurisdiction due to improper service (a procedural ground) and a violation of a statute of limitations (a substantive ground).143Id. at 1163-64. The plaintiff filed a new complaint and the defendants moved to dismiss due to claim preclusion, violation of a statute of limitations, and failure to state a claim.144Id. at 1164. The district court granted the motion based on claim preclusion but made no ruling on the defendants’ statute-of-limitations and failure-to-state-a-claim arguments.145Id. The plaintiff appealed.146Id.
The Ninth Circuit, in addressing the plaintiff’s appeal, held that the alternative-determinations doctrine applied, but limited its holding only to cases where the non-merits-based ground for dismissal was for a lack of personal jurisdiction.147Ruiz, 824 F.3d at 1165. It reasoned that the judgment entered by a court without personal jurisdiction over the parties is void.148Id. Therefore, the court was unable to render a valid judgment on claims that were dismissed at least in part on the lack of jurisdiction.149Id. at 1166, 1168.
While the First Circuit in Foss approached the alternative-determinations doctrine as a broadly applicable doctrine, the Ninth Circuit in Ruiz restricted its application to those cases which had lack of personal jurisdiction as the non-merits-based ground for dismissal.15067 F.4th 462, 471 (1st Cir. 2023) (applying the alternative-determinations doctrine to Foss so “future Fosses” could benefit); 824 F.3d at 1163. This is due to the unique nature of personal jurisdiction (or subject matter jurisdiction)—that the lack of jurisdiction renders the court unable to bind the parties with a valid judgment.151Ruiz, 824 F.3d at 1165. This is not the issue in Foss, where the non-merits-based ground for dismissal was failure to allege a precondition for suit.15267 F.4th at 464.
Since the facts and procedural history of Foss are distinguishable from the cases in which other circuits decided to adopt the alternative-determinations doctrine, the First Circuit did not need to adopt a blanket approach to the doctrine’s application in order to follow its sister circuits. Pizlo III and Ruiz show that an appeals court can adopt the alternative-determinations doctrine in a limited way and can still analyze the merits-based reasons for dismissal.153See, e.g., Pizlo Bethlehem Steel Corp., 884 F.2d 116, 118 (4th Cir. 1989); 824 F.3d at 1163.
B. Courts Should Apply a Multi-Factor Test When Applying the Alternative-Determinations Doctrine
The First Circuit and the Restatement both acknowledge that the alternative-determinations doctrine is not an inflexible doctrine.154Foss, 67 F.4th at 474; Restatement (Second) of Judgments § 20 cmt. n (Am. L. Inst. 1982). In order to accomplish the alternative-determinations doctrine’s goal of judicial efficiency while still protecting plaintiffs, courts should employ a more flexible approach to the doctrine’s application.155See Foss, 67 F.4th at 474; Restatement (Second) of Judgments § 20 cmt. n. Adopting a bright-line rule does have its merits: it is easy to apply and, therefore, creates more consistency among the district courts in a circuit.156See, e.g., Daniel T Gillespie, Bright-Line Rules: Development of the Law of Search and Seizure During Traffic Stops, 31 Loy. U. Chi. L.J. 1, 3 (1999). But, it sometimes results in forcing a judge to apply the doctrine in situations that are less meritorious—a likelihood that the First Circuit seemed to be confronting in Foss.15767 F.4th at 471. The case law in other circuits and the goals of the alternative-determinations doctrine warrant consideration of several factors when judges determine how the doctrine will apply. Although the First Circuit considered “rigorous consideration” and “abuse of the legal system” as limitations to the alternative-determinations doctrine’s application, a court’s assessment in applying the doctrine should not be limited to those two exceptions.158See Foss, 67 F.4th at 472–73; Pizlo, 884 F.2d at 118; Ruiz, 824 F.3d at 1163. Instead of applying the alternative-determinations doctrine to all cases as a bright-line rule, courts should consider factors such as the nature of the non-merits-based reason for dismissal, the number and nature of previous dismissals and court communications, and the protection of pro se litigants’ interests.
1. Courts Should Consider the Nature of the Non-Merits-Based Reason for Dismissal When Applying the Alternative-Determinations Doctrine
In Ruiz, the Ninth Circuit adopted the alternative-determinations doctrine in cases where the non-merits-based reason for dismissal is lack of personal jurisdiction.159824 F.3d at 1163. The Ninth Circuit’s decision does not seem to merely be an exercise of judicial restraint when solely deciding the type of case at hand.160See id. at 1165-66. Rather, the Ninth Circuit based its decision to adopt the alternative-determinations doctrine in situations like Ruiz based on the inherent characteristic of the lack of personal jurisdiction as a reason for dismissal.161See id. If a court does not have jurisdiction over a party or a case, it cannot render a valid judgment on the merits, which is a necessary component of applying claim preclusion.162See Foss, 67 F.4th at 466. The Ninth Circuit’s application of the alternative-determinations doctrine prevents claim preclusion from applying to judgments made on alternative determinations—one of which has some inherent characteristic that would affect the court’s ability to issue a valid judgment.163See Ruiz, 824 F.3d at 1164.
2. Courts Should Consider the Basis for Prior Dismissals to Ensure Fairness in Applying the Alternative-Determinations Doctrine
One of the justifications for the alternative-determinations doctrine is that it prevents prejudice to a plaintiff if a trial court does not rigorously consider the substantive grounds for dismissal after deciding on the procedural reasons for dismissal.164See Foss, 67 F.4th at 472. It seems that with many substantive reasons for dismissal and only one procedural reason, this rationale for the doctrine becomes less weighty. For example, if a court dismisses a complaint with prejudice based on one procedural reason and one substantive reason, there is more concern that the court gave too much weight to the procedural reason than in the situation where the court dismissed the complaint based on one procedural reason and a dozen substantive reasons.
That same justification for the doctrine would also help a plaintiff (especially a pro se plaintiff) by allowing their case to be decided on its merits rather than procedure.165Restatement (Second) of Judgments § 20 cmt. e (Am. L. Inst. 1982). Pro se litigants often make mistakes regarding procedure, so it is desirable to protect their interests.166Debra Slone, 3 Ways Civil Justice Is Unequal “Justice” to Pro Se Litigants, Courtroom 5 (July 8, 2019), https://perma.cc/2228-JS2L. However, this concern diminishes when a trial court dismisses a case without prejudice, notifies the plaintiff of the complaint’s deficiency, and gives them leave to amend. Therefore, if a plaintiff has been notified of the defects in their complaint or if the dismissal is also based on multiple substantive reasons, the rationales for applying the alternative-determinations doctrine are not as strong.
3. Adoption of a Balancing Test Promotes Justice for Pro Se Litigants
Since plaintiffs in civil cases do not have a constitutional right to an attorney, those who cannot afford a lawyer often resort to filing a complaint on their own.167Turner v. Rogers, 564 U.S. 431, 448 (2011) (holding that the Due Process Clause does not always guarantee counsel to indigent individuals in civil proceedings). Pro se litigants often lack the sophistication of parties represented by attorneys, especially when it comes to procedural rules.168Slone, supra note 165.. Because of this, these plaintiffs may find their cases dismissed for failing to comply with procedural rules.169See Victor D. Quintanilla et al., The Signaling Effect of Pro Se Status, 42 Law and Soc. Inquiry 1091, 1092 (2017). Dismissals for procedural reasons can result in dismissals without prejudice, so plaintiffs are free to amend their complaints and bring their claims again so the claims can be considered on the merits.170See Cornell Law School, Dismissal, Legal Info. Inst., https://perma.cc/2YJH-CXMP (last updated Sept. 2022) (stating that dismissals without prejudice allow a plaintiff the chance to file their complaint again). Allowing judges to employ a balancing test instead of a bright-line rule will allow judges to apply the doctrine in ways that bring justice to pro se litigants while limiting other pro se plaintiffs’ ability to bring frivolous claims.
Conclusion
The alternative-determinations doctrine exists to promote judicial efficiency for appellate courts and fair judgments for plaintiffs.171Foss v. E. States Exposition, 67 F.4th 462, 470 (1st Cir. 2023). However, its application can create inefficiency for trial courts and allow opportunities for plaintiffs to waste judicial resources with a non-meritorious case. Considering the negative impacts of adding more cases to an already-busy trial court system, it is important to find some way to create a more flexible framework in the application of the doctrine. As is demonstrated by the decisions of the Fourth and Ninth Circuits, the doctrine can be applied in a more restrained way, considering the type of non-merits-based reasons for dismissal and simultaneously considering the merits-based reasons on appeal.172See Pizlo v. Bethlehem Steel Corp., 884 F.2d 116, 118 (4th Cir. 1989); Ruiz v. Snohomish Cnty. Pub. Util. Dist. No. 1, 824 F.3d 1161, 1163 (9th Cir. 2016). The analytical framework developed in this comment would allow judges more discretion in deciding how the doctrine applies, enabling them to better accomplish the goals of judicial efficiency and justice for plaintiffs.
