United States Court of Appeals
`For the First Circuit
`
`
`
`
`No. 20-1008
`
`CYNTHIA FOSS,
`
`Plaintiff, Appellant,
`
`v.
`
`MARVIC INC., d/b/a Brady-Built Sunrooms,
`
`Defendant, Appellee.
`
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`[Hon. Timothy S. Hillman, U.S. District Judge]
`
`
`
`
`
`
`
`Before
`
`Lynch and Selya, Circuit Judges,
`and Katzmann,* Judge.
`
`
`
`
`Andrew Grimm, with whom Gregory Keenan and Digital Justice
`
`Foundation were on brief, for appellant.
`
`James M. McLaughlin, with whom David F. Hassett, Sarah B.
`Christie, Melina M. Garland, and Hassett & Donnelly, P.C. were on
`brief, for appellee.
`
`
`
`
`
`April 12, 2021
`
`
`
`
`
`
`* Of the United States Court of International Trade, sitting
`by designation.
`
`
`
`

`

`LYNCH, Circuit Judge. Cynthia Foss is a graphic designer
`
`who, in 2006, created a brochure for Marvic d/b/a Brady-Built
`
`Sunrooms ("Marvic") to use in marketing its sunrooms and for which
`
`she was paid. Twelve years later, she filed a complaint in federal
`
`district court on January 19, 2018, alleging a federal claim for
`
`copyright infringement and pendent state law claims. The district
`
`court entered three separate rulings at issue in this appeal. On
`
`March 19, 2019, it granted Marvic's motion to dismiss Foss's
`
`copyright claim. See Foss v. Marvic, 365 F. Supp. 3d 164, 167 (D.
`
`Mass. 2019). On September 30, 2019, it denied Foss's motion to
`
`withdraw certain statements that the court had deemed admitted.
`
`See Order Den. Mot. for Recons., Foss v. Marvic, No. 4:18-cv-
`
`40010-TSH, (D. Mass. Sept. 30, 2019), ECF No. 74. On December 5,
`
`2019, it granted Marvic's motion for summary judgment on Foss's
`
`state law claims. See Foss v. Marvic, 424 F. Supp. 3d 158, 163
`
`(D. Mass. 2019). Foss appeals from these rulings. We affirm.
`
`
`
`I. Facts
`
`In June 2006, Foss, acting through Hunter Foss Design
`
`Inc., of which she is the President and Creative Director, provided
`
`Marvic with an estimate of $3,000 for work in designing a twenty-
`
`page brochure. The estimate said that this cost would include the
`
`"usual and customary fees for research and design of (1) 20 page
`
`brochure only; presentation of up to 3 comprehensive designs
`
`showing style; 1 final layout showing format; 2 rounds of
`
`
`
`

`

`revisions; pdf files for email proofs; all file preparation for
`
`printer, and permanent file archiving." Marvic engaged Foss and
`
`paid her for her work. Marvic began using the brochure around
`
`that time.
`
`Foss alleges that ten years later, in 2016, she
`
`discovered that Marvic had begun using a modified version of the
`
`brochure she had designed in print and online without asking for
`
`or receiving her permission. In November 2017, she sent a letter
`
`to Marvic demanding payment for lost wages and copyright
`
`infringement. She also sent Marvic an invoice for $264,000 seeking
`
`compensation for Marvic's alleged copyright infringement over an
`
`eleven-year period. She alleges that Marvic did not pay this
`
`invoice.
`
`
`
`II. Procedural History
`
`Foss filed suit pro se against Marvic on January 19,
`
`2018, in federal district court in Massachusetts. Her complaint
`
`alleged that Marvic had infringed on her copyright and alleged,
`
`inaccurately, that she had "applied for official U.S. Copyright
`
`Registrations" for the brochure.
`
`Marvic filed an answer on May 9, 2018, denying Foss's
`
`allegations and asserting several affirmative defenses, including
`
`that Foss's claims were time barred and that she presented no
`
`evidence that she applied for copyright registration. Marvic filed
`
`a motion to dismiss on August 7, 2018.
`
`
`
`

`

`On August 9, 2018, Foss filed an amended complaint. She
`
`stated six causes of action: (1) copyright infringement; (2)
`
`tortious interference with advantageous business relations; (3)
`
`conversion; (4) unfair and deceptive business practices; (5)
`
`breach of contract; and (6) fraud and breach of fiduciary duty.
`
`Foss also stated that she had registered the brochure with the
`
`U.S. Copyright Office on February 13, 2018 and February 28, 2018.
`
`In fact, she had only applied for registration.
`
`Marvic filed an amended motion to dismiss Foss's
`
`copyright and breach of contract claims for failure to state a
`
`claim on September 11, 2018. Foss did not oppose the motion, and
`
`the district court dismissed the case on October 3, 2018.
`
`On October 19, 2018, Foss filed a motion to reopen the
`
`case and a motion for a preliminary injunction, both of which
`
`Marvic opposed. The district court granted the motion to reopen
`
`the case on January 9, 2019, and Foss filed an opposition to
`
`Marvic's motion to dismiss that same day. Foss then retained
`
`counsel, who entered an appearance on her behalf on February 22,
`
`2019, the day the court held a hearing on Marvic's motions.
`
`One of Marvic's arguments in support of dismissing
`
`Foss's copyright claim was that Foss failed to establish that she
`
`had registered her copyright, as required under 17 U.S.C. § 411(a).
`
`Marvic noted the existence of a circuit split about whether 17
`
`U.S.C. § 411(a) required the U.S. Copyright Office to grant an
`
`
`
`

`

`application or whether the submission of the application alone
`
`sufficed. Marvic maintained that regardless of which standard
`
`applied, Foss's "conclusory statements" merely asserting the
`
`brochure was "registered" failed to meet either standard.
`
`On February 26, 2019, the district court stayed the case
`
`pending the Supreme Court's decision in Fourth Estate Public
`
`Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019), which
`
`addressed the meaning of the phrase "registration . . . has been
`
`made" in 17 U.S.C. § 411(a).1 That decision issued on March 4,
`
`2019, and held that registration occurs "not when an application
`
`for registration is filed, but when the Register has registered a
`
`copyright after examining a properly filed application." Fourth
`
`Est., 139 S. Ct. at 892. The district court lifted its stay and
`
`entered an order on March 19, 2019, granting Marvic's motion to
`
`dismiss in part. Relying on Fourth Estate, it dismissed Foss's
`
`copyright claim because "the Copyright Office has not acted upon
`
`[Foss's] application for a copyright." Foss, 365 F. Supp. 3d at
`
`167. The district court did not dismiss Foss's breach of contract
`
`claim because she had "done enough to summarize the contract's
`
`purported legal effect and provide Defendant notice of the nature
`
`of the claim." Id.
`
`
`1
`At the hearing on February 22, 2019, the court asked the
`parties whether they thought the case should be stayed pending the
`Supreme Court's decision. Foss opposed the stay, while Marvic
`supported it.
`
`
`
`

`

`On May 2, 2019, Marvic served Foss, then represented by
`
`counsel, with a request for production of documents and request
`
`for admissions pursuant to Federal Rules of Civil Procedure 34 and
`
`36. Foss did not respond to either request, so on June 21, 2019,
`
`Marvic moved to compel a response to the request for documents
`
`and, on July 8, 2019, filed a motion for discovery asking that the
`
`statements in its request for admissions be deemed admitted. The
`
`district court granted both motions on August 13, 2019.
`
`The district court held a status conference attended by
`
`counsel for all parties on August 21, 2019. At this conference,
`
`Marvic told the court that it intended to file a dispositive motion
`
`on Foss's remaining claims based on the statements the court had
`
`deemed admitted.
`
`On August 28, 2019, Foss's counsel moved to withdraw
`
`from the case as of September 9, 2019.2 The court granted this
`
`motion on September 5, 2019.
`
`In late August and early September 2019, Foss, again
`
`proceeding pro se, filed a series of motions requesting, among
`
`other things,3 that the court reconsider its order deeming admitted
`
`
`2
`Foss's attorney had been suspended from the practice of
`law in Massachusetts.
`
`3
`Foss also requested that the court compel arbitration,
`appoint a law student to represent her pro bono, and "[o]rder a
`special subpoena authority" she said was warranted under Federal
`Rule of Civil Procedure 34. The court denied the first two
`requests on September 25, 2019. It denied her third request
`
`
`
`

`

`the statements in Marvic's request for admissions; that her time
`
`to respond to Marvic's request for admissions be extended; and
`
`that the court not grant summary judgment in Marvic's favor. She
`
`also filed a motion captioned that the court should enter summary
`
`judgment in her favor, but she provided no evidence or developed
`
`argumentation in support of that contention. Marvic opposed these
`
`motions and filed its own motion for summary judgment on September
`
`13, 2019. Foss did not argue that her state law claims should be
`
`dismissed without prejudice given the dismissal of her federal
`
`claim. See 28 U.S.C. § 1367.
`
`On September 25, 2019, the district court denied Foss's
`
`request for more time to answer Marvic's request for admissions.
`
`On September 30, 2019, it denied her request for reconsideration
`
`of the court's order deeming certain statements admitted.
`
`The court held a hearing on the parties' motions for
`
`summary judgment on November 5, 2019. Foss attended this hearing
`
`and argued pro se. On December 5, 2019, the court granted Marvic's
`
`motion, denied Foss's motion, and entered judgment in Marvic's
`
`favor. In doing so, it referred in part to the statements in
`
`Marvic's request for admissions that were deemed admitted. First,
`
`on Foss's tortious interference claim, it held that she could not
`
`establish a prima facie case because she "has not identified any
`
`
`without prejudice on September 30, 2019, and instructed her to
`comply with Local Rule 37.1.
`
`
`
`

`

`advantageous relation with a third party or submitted any evidence
`
`showing that Defendant knew of such a relation and intentionally
`
`interfered with it" and because Foss had conceded that she had no
`
`evidence showing that Marvic interfered with her business. Foss,
`
`424 F. Supp. 3d at 161. Second, on her conversion claim, the court
`
`explained that no reasonable juror could find in Foss's favor
`
`because she "conceded that she did not inform Defendant that she
`
`owned all rights to the graphic images or that Defendant needed
`
`her permission to modify the work" and offered no evidence to
`
`support the conclusion that Marvic "intended to deprive her of her
`
`property." Id. Third, on her unfair and deceptive business
`
`practices claim, the court held that because Foss "conceded that
`
`she did not inform Defendant in 2006 that she owned all rights to
`
`her work or that Defendant needed her permission to modify it," no
`
`reasonable jury could find in her favor. Id. at 162. Fourth, on
`
`her breach of contract claim, it granted summary judgment to Marvic
`
`because Foss conceded that the contract did not require Marvic to
`
`obtain Foss's consent before using or modifying the brochure. Id.
`
`Finally, on Foss's fraud claim,4 the district court ruled in
`
`Marvic's favor because of Foss's earlier-described concessions and
`
`because she had offered no evidence that Marvic knew it was making
`
`
`4
`Foss initially brought a breach of fiduciary duty claim
`but had withdrawn it before the district court ruled on Marvic's
`summary judgment motion. Foss, 424 F. Supp. 3d at 162.
`
`
`
`

`

`a false representation or that she relied on any false
`
`representation to her detriment. Id. at 162-63.
`
`On December 13, 2019, Foss pro se filed a notice of
`
`appeal from the orders described earlier. She later retained
`
`appellate counsel who entered an appearance on February 20, 2020,
`
`and filed her briefs in this appeal.
`
`
`A. The District Court Did Not Err in Granting Marvic's Motion to
`Dismiss Foss's Copyright Claim.
`
`III. Analysis
`
`
`
`We review a grant of a motion to dismiss for failure to
`
`state a claim de novo. See Alston v. Spiegel, 988 F.3d 564, 571
`
`(1st Cir. 2021). We find no error.
`
`In Fourth Estate, the Supreme Court held that
`
`registration occurs when the Copyright Office registers a
`
`copyright, not when a copyright owner applies for a copyright.
`
`139 S. Ct. at 888. "[R]egistration is akin to an administrative
`
`exhaustion requirement that the owner must satisfy before suing to
`
`enforce ownership rights." Id. at 887. Under 17 U.S.C. § 411(a),
`
`"no civil action for infringement of the copyright in any United
`
`States work shall be instituted" until "registration of the
`
`copyright claim has been made." Here, Foss admits that she did
`
`not register her copyright before filing suit. The district
`
`court's dismissal of the suit under Fourth Estate was proper. See
`
`Cortés-Ramos v. Martin-Morales, 956 F.3d 36, 43 (1st Cir. 2020)
`
`
`
`

`

`(applying Fourth Estate and holding that because the plaintiff
`
`"conceded that he had not secured registration before filing [the]
`
`action," the district court was correct to dismiss the plaintiff's
`
`complaint).
`
`Foss makes two main arguments against this conclusion,
`
`neither of which is persuasive.5 First, she argues that the
`
`district court erred because, instead of dismissing her copyright
`
`claim, it should have stayed her claim pending the U.S. Copyright
`
`Office's decision on registration and copyrightability. But Foss
`
`never asked the district court for any such stay and so has waived
`
`this argument. See CMM Cable Rep., Inc. v. Ocean Coast Props.,
`
`Inc., 48 F.3d 618, 622 (1st Cir. 1995) ("A party who neglects to
`
`ask the trial court for relief that it might reasonably have
`
`thought would be available is not entitled to importune the court
`
`of appeals to grant that relief."); Teamsters, Chauffeurs,
`
`Warehousemen & Helpers Union, Local No. 59 v. Superline Transp.
`
`Co., 953 F.2d 17, 21 (1st Cir. 1992) ("[A]bsent the most
`
`extraordinary circumstances, legal theories not raised squarely in
`
`the lower court cannot be broached for the first time on appeal.").
`
`
`5
`Foss submitted her opening brief on March 27, 2020,
`before this court decided Cortés-Ramos on April 13, 2020. To the
`extent she argues that her submission of a complaint did not
`"institute" proceedings and trigger § 411(a), that argument is
`barred by Cortés-Ramos. See 956 F.3d at 42-43.
`
`
`
`

`

`Next, Foss argues that her failure to register her
`
`copyright before filing suit could be and later was cured, making
`
`dismissal improper.6 This argument fails. She asserts that her
`
`copyright registration must be deemed to be effective as of
`
`December 3, 2018, which predates the district court's dismissal of
`
`her claim on March 19, 2019. But Foss did not present this argument
`
`to the district court. She learned that the Copyright Office had
`
`registered her copyright on December 13, 2019, almost nine months
`
`after the district court had dismissed her case, and did not move
`
`for any relief from the district court's judgment. Instead, she
`
`filed this appeal on December 13, 2019. In addition to her failure
`
`to diligently pursue this issue, "[i]t is elementary . . . that we
`
`review the record as it existed at the time the district court
`
`rendered its ruling." Lewis v. City of Boston, 321 F.3d 207, 214
`
`
`6
`The district court dismissed Foss's copyright claim
`pursuant to Federal Rule of Civil Procedure 12(b)(6) without
`stating whether the dismissal was with or without prejudice.
`Generally, when the district court is "silent on the issue of
`prejudice," we "presume that such a dismissal was with prejudice."
`Claudio-De León v. Sistema Universitario Ana G. Méndez, 775 F.3d
`41, 49 (1st Cir. 2014). In Cortés-Ramos, this court held that a
`plaintiff's failure to register a copyright before filing suit
`warranted dismissal but held that the district court should have
`dismissed the claim without prejudice. 956 F.3d at 43. Foss
`discusses Cortés-Ramos in her reply brief but does not argue that
`the district court should have dismissed her claim without
`prejudice. Instead, she argues that Cortés-Ramos supports her two
`main arguments that "a rush-to-dismiss approach is not mandatory"
`and that the registration of her copyright after dismissal cured
`any defect in her failure to register her copyright before filing
`suit. We therefore do not address whether her claim should have
`been dismissed without prejudice.
`
`
`
`

`

`n.7 (1st Cir. 2003) (citing Crawford v. Lamantia, 34 F.3d 28, 31
`
`(1st Cir. 1994)). Because there was no evidence in the record
`
`that Foss had registered her copyright when the court issued its
`
`order of dismissal on March 19, 2019, there was no error in its
`
`ruling.
`
`B. The District Court Did Not Abuse its Discretion in Denying Foss's
`Motion to Withdraw Her Deemed Admitted Statements.
`
`
`
`Under Federal Rule of Civil Procedure 36(a), after a
`
`party serves a written request for admission, "[a] matter is
`
`admitted unless, within 30 days after being served, the party to
`
`whom the request is directed serves on the requesting party a
`
`written answer or objection . . . ." Rule 36(b) provides a
`
`mechanism for withdrawing admissions after they have been deemed
`
`admitted, and "[d]istrict courts have considerable discretion over
`
`whether to permit withdrawal or amendment of admissions made
`
`pursuant to Rule 36." Farr Man & Co. v. M/V Rozita, 903 F.2d 871,
`
`876 (1st Cir. 1990) (citing Bergemann v. United States, 820 F.2d
`
`1117 (10th Cir. 1987); Brook Village N. Assocs. v. General Elec.
`
`Co., 686 F.2d 66, 70 (1st Cir. 1982); 4A J. Moore & J. Lucas,
`
`Moore's Federal Practice ¶ 36–08 at 36–80 (2d ed. 1990)). We
`
`
`
`

`

`review a denial of a request to withdraw admissions for abuse of
`
`discretion and find none here.7 Cf. id.
`
`Under Rule 36(b), a district court "may permit
`
`withdrawal or amendment" if two conditions are met: (1) doing so
`
`"would promote the presentation of the merits of the action" and
`
`(2) "the court is not persuaded that it would prejudice the
`
`requesting party in maintaining or defending the action on the
`
`merits." Foss argues that the district court abused its discretion
`
`because it denied her motion through "two perfunctory orders on
`
`the docket" and did not properly engage with the standard in Rule
`
`36(b).
`
`We may "affirm a district court's ruling for any reason
`
`supported by the record," Victim Rts. L. Ctr. v. Rosenfelt, 988
`
`F.3d 556, 563 (1st Cir. 2021) (citing Miles v. Great N. Ins. Co.,
`
`634 F.3d 61, 65 n.5 (1st Cir. 2011)), and "in the context of review
`
`for abuse of discretion, . . . this court offers deference to the
`
`district court's decisionmaking to the extent its 'findings or
`
`reasons can be reasonably inferred.'" Id. (quoting Cotter v. Mass.
`
`
`7
`Foss requested withdrawal of the statements the court
`had deemed admitted in a "Motion for Reconsideration" that did not
`mention Federal Rule of Civil Procedure 36 or the standard under
`which it is permissible for a party to seek withdrawal of
`statements deemed admitted under Rule 36(a). Because she was
`acting pro se when she filed this motion, and because "[a] document
`filed pro se is 'to be liberally construed,'" Erickson v. Pardus,
`551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
`106 (1976)), we construe her motion as a motion under Rule 36(b).
`
`
`
`

`

`Ass'n of Minority L. Enf't Officers, 219 F.3d 31, 34 (1st Cir.
`
`2000)).
`
`Marvic argued to the district court that Foss's request
`
`to withdraw the statements deemed admitted came too late. It said
`
`that the court should not revisit its order deeming the statements
`
`admitted because Foss's motion was "long overdue" and Foss was
`
`represented by counsel during the first four months she failed to
`
`respond to Marvic's request for admissions. While the district
`
`court did not explicitly state those reasons, the potential
`
`prejudice to Marvic was obvious.8 Resolution of this case has been
`
`delayed repeatedly. Foss waited more than twelve years after she
`
`designed the brochure for Marvic to file her complaint. She
`
`alleges she did not discover Marvic's purportedly unauthorized use
`
`of the brochure until 2016, but even so waited until 2018 to bring
`
`suit. She then failed to answer Marvic's 2018 motion to dismiss,
`
`causing this case to be dismissed. She was permitted to reopen
`
`the case in 2019 and, even after retaining counsel, failed to
`
`respond to any of Marvic's discovery requests. Her failure to
`
`respond to Marvic's request for admissions resulted in Marvic's
`
`July 8, 2019, motion to deem these statements admitted, which Foss
`
`never opposed and which the court granted on August 13, 2019. Foss
`
`
`8
`On appeal, Marvic does not contest that granting the
`motion would have "promote[d] the presentation of the merits of
`the action." Fed. R. Civ. P. 36(b).
`
`
`
`

`

`then waited more than a month to request withdrawal of the
`
`statements deemed admitted.9 Given this case's long history marked
`
`by repeated delays by Foss and the erratic nature in which she
`
`chose to prosecute it, Marvic would have been prejudiced if Foss
`
`were allowed to further delay the case by withdrawing her
`
`admissions. See United States v. Kenealy, 646 F.2d 699, 703 (1st
`
`Cir. 1981) (holding that, after a notice of default had issued and
`
`the default was later removed, it was within the district court's
`
`discretion to deny a defendant's motion seeking withdrawal of
`
`statements deemed admitted when the defendant had repeatedly
`
`delayed the proceedings, had failed "to oppose [a] request for
`
`[involuntary admission]," and had engaged in "cavalier conduct" in
`
`the discovery process). On this record, the conditions of Rule
`
`36(b) were not met and the district court did not abuse its
`
`discretion.
`
`C. The District Court Did Not Err in Granting Marvic's Motion for
`Summary Judgment on Foss's Remaining Claims.
`
`
`
`We review a grant of summary judgment de novo. See
`
`Henderson v. Mass. Bay Transp. Auth., 977 F.3d 20, 29 (1st Cir.
`
`
`9
`On August 30, 2019, Foss submitted a "Motion to Extend
`Time to Answer Defendant's Requests for Admittance" and included
`answers to the original request for admissions. This filing came
`more than four months after Marvic asked for Foss's admissions,
`almost two months after Marvic filed its motion asking the court
`to deem the statements admitted, and two weeks after the district
`court had granted that motion.
`
`
`
`

`

`2020). Foss argues that, even if the district court did not abuse
`
`its discretion in denying Foss's motion to withdraw the statements
`
`deemed admitted, it erred when it granted summary judgment on her
`
`conversion claim, her breach of contract claim, and her unfair and
`
`deceptive business practices claim.10 We again find no error.
`
`First, for a conversion claim to succeed under
`
`Massachusetts law, the defendant must, among other things, have
`
`intentionally and wrongfully exercised control or dominion over
`
`another's personal property. Evergreen Marine Corp. v. Six
`
`Consignments of Frozen Scallops, 4 F.3d 90, 95 (1st Cir. 1993).
`
`Foss's deemed admissions mean that she cannot satisfy that
`
`standard.11 Independently, Foss also offered no evidence that she
`
`
`10 Foss did not argue to the district court that it should
`have dismissed her state law claims without prejudice after
`dismissing her federal claim and does not make this argument on
`appeal, so the issue is waived. Even if it were not waived,
`district courts have discretion to retain pendent state law claims
`after dismissing a plaintiff's federal claim. See Rodriguez v.
`Doral Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir. 1995). There was
`no abuse of discretion in retaining the state law claims here given
`the clarity of state law, the district court's sound basis for
`disposing of the claims, and the additional time it would have
`taken to resolve the case if the court were to dismiss Foss's
`pendent claims without prejudice. See id.
`
`11 Foss made four admissions that prevent her from
`succeeding on her conversion claim: (1) she "possesses no evidence
`to support her contention . . . that [Marvic] intended 'to deprive
`[her] of her own use, display, modification, and sale of [her]
`intellectual property'"; (2) she "never informed anyone at
`[Marvic] that she owned all graphic design images in [the
`brochure]"; (3) if a contract existed, it "did not require Marvic
`. . . to obtain [Foss's consent] before using and/or modifying
`[Foss's] work"; and (4) her "work on [the brochure] was limited to
`
`
`
`

`

`in fact had the ownership interest she maintains she had in the
`
`design of the brochure. No reasonable juror could conclude that
`
`Marvic intentionally and wrongfully exercised control or dominion
`
`over Foss's personal property.
`
`Next, on Foss's breach of contract claim, her complaint
`
`stated that Marvic breached the contract because it "modifi[ed]
`
`[Foss's] copyrighted 2D visual artwork without notifying [Foss] to
`
`obtain the required consent or agreement." But Foss admitted that
`
`"if a contract or agreement existed between [Foss and Marvic], the
`
`contract or agreement did not require [Marvic] to obtain [Foss's]
`
`consent . . . before using and/or modifying the [P]laintiff's
`
`work." And she has never presented any evidence that Marvic
`
`entered into a contract with her containing such terms.
`
`Finally, on the unfair and deceptive business practices
`
`claim, "'[a]ny person who engages in the conduct of any trade or
`
`commerce and who suffers any loss of money or property, real or
`
`personal,' as a result of the unfair or deceptive act or practice,
`
`or unfair method of competition, of another person who engaged in
`
`trade or commerce" can recover under this theory. Auto Flat Car
`
`Crushers, Inc. v. Hanover Ins. Co., 17 N.E.3d 1066, 1076 (Mass.
`
`2014) (quoting Mass. Gen. Laws. ch. 93A, § 11) (alteration in
`
`original). The Massachusetts Supreme Judicial Court "has
`
`
`assembling the photographs and written content provided by Marvic
`. . . ."
`
`
`
`

`

`repeatedly held that 'mere negligence,' standing alone, is not
`
`sufficient for a violation of ch. 93A." Baker v. Goldman, Sachs
`
`& Co., 771 F.3d 37, 51 (1st Cir. 2014); see Klairmont v. Gainsboro
`
`Rest., Inc., 987 N.E.2d 1247, 1257 (Mass. 2013); Darviris v.
`
`Petros, 812 N.E.2d 1188, 1192 (Mass. 2004). Summary judgment was
`
`proper because Foss admitted that she had no evidence that Marvic
`
`intended to deprive her of property and that any agreement did not
`
`require Marvic to obtain her consent to modify or use the brochure.
`
`She also presented no evidence of any unfair or deceptive act or
`
`practice or unfair method of competition that occurred during her
`
`dealings with Marvic. No reasonable juror could find that Marvic
`
`behaved unfairly or deceptively in modifying and later using the
`
`brochure.
`
`
`
`IV. Conclusion
`
`Affirmed. Costs are awarded to Marvic.
`
`
`
`