United States Court of Appeals
                      For the First Circuit


No. 22-1313

                          CYNTHIA FOSS,

                      Plaintiff, Appellant,

                                v.

                    EASTERN STATES EXPOSITION,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Timothy S. Hillman, U.S. District Judge]


                              Before

                       Barron, Chief Judge,
              Howard and Montecalvo, Circuit Judges.


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


                           May 10, 2023
            BARRON, Chief Judge.        This case concerns Cynthia Foss's

appeal from an order that dismissed on claim preclusion grounds

her claims against Eastern States Exposition ("Eastern") in which

she alleged violations of federal copyright infringement law and

the U.S. Visual Artists Rights Act (“VARA”).                 She contends that

the order cannot stand because it gives claim preclusive effect to

a dismissal in a prior action that she brought, even though that

dismissal rested on multiple grounds of which one would not in and

of itself have rendered that dismissal claim preclusive.                    She

relies for this argument on the contention that federal res

judicata law recognizes the "alternative-determinations" doctrine,

which (at least as a general matter) strips a dismissal of claim

preclusive effect if the dismissal rests on multiple grounds, not

all   of   which   would   on   their   own   render   the    dismissal   claim

preclusive.

            We have not had occasion in any prior case to address

whether    federal   res   judicata     law   recognizes     the   alternative-

determinations doctrine.         But, we must do so here, as we agree

with Foss that the assertedly preclusive dismissal rested on one

ground that on its own could not permit the dismissal to be claim

preclusive, notwithstanding that the dismissal also rested on two

other grounds that could have.           Moreover, we conclude both that

federal    res     judicata     law   does    recognize      the   alternative-

determinations doctrine and that this doctrine applies here. Thus,
because Eastern does not contend on appeal that there is any ground

other than claim preclusion for the dismissal of the claims at

issue, we vacate the judgment dismissing those claims and remand

for further proceedings consistent with this decision.

                                   I.

           The lengthy path to this appeal begins with the complaint

that Foss filed in January 2018 -- and amended in February 2018 --

against Eastern and five other parties1 in federal district court

in the District of Massachusetts.           The amended complaint in that

action, which we will refer to as "Action 1," alleged that the

defendants had, in connection with their use of artwork that they

had commissioned from Foss for an exhibit at a fair, committed

"plagiarism" and "copyright infringement" in violation of "

, 504 or 1125" by taking actions that "violated

[Foss's]   rights,    breach[ed]   .    .    .   contractual   obligations,

creat[ed] and maintain[ed] conflict, resistance and failure to

mitigate   damages,   substantially     affecting     the   Artist's   right

[sic]."




     1 Foss filed the initial complaint against Eastern and two
other parties and added three more parties to the amended
complaint. The five parties other than Eastern included in the
amended complaint were Joseph's Abbey ("the Abbey"), a monastery;
Spencer Brewery, a brewery owned by the monastery; Cup of Julie
Show, a Massachusetts syndicate of Eastern; William J. Ritter,
Esq., a lawyer representing Spencer Brewery; and James C. Duda,
Esq., a lawyer representing Eastern and Cup of Julie Show.
            In Action 1, the district court dismissed Foss's state

law claims with prejudice.     See Foss v. Eastern States Exposition,

, 2 (D. Mass. 2022).            But, the district court

dismissed her federal copyright infringement claims in that action

without prejudice, 

 in part on the ground that she had failed

to plead adequately that she had fulfilled a precondition to suit

for federal copyright infringement that 

(a) sets

forth.   

            Section 411(a) provides that a party bringing a federal

copyright infringement suit must show that the party had either

registered its copyright with the U.S. Copyright Office or that

the U.S. Copyright Office had refused to register the copyright

after the party had delivered the proper deposit, application, and

fee to that office.     Section 411(a) further provides that, in the

case of a refused registration, the party also must show as a

precondition to suit for federal copyright infringement that it

had given proper notice of the suit and served a copy of its

complaint on the Register of Copyrights.

            In   dismissing   Foss's   federal   copyright   infringement

claims without prejudice in Action 1, the district court held that

Foss had not adequately pleaded either that she had registered her

copyright or that her copyright registration had been refused and

she had taken the requisite steps following refusal as required by

§ 411(a).    But, as that dismissal was "without prejudice," it did
not prevent Foss from seeking to cure the § 411(a)-related defect

in that same action by filing an amended complaint.

           Foss did not avail herself of that option, however.

Instead, in July 2018, Foss initiated a new action, this time in

Massachusetts state court, in which she named Eastern and five

other parties2 as the defendants.   The defendants then removed that

case to federal district court in the District of Massachusetts,

and that federal district court thereafter docketed two separate

federal actions.3

           Foss's claims in each of these two new federal actions

-- which we will refer to as "Action 2" and "Action 3" -- were

based on the same facts as she had pleaded in Action 1.          Foss

alleged in Actions 2 and 3 that the defendants had "wilfully [sic]

and knowingly infringed upon Foss's copyright protection under USC

[sic];"   violated   Foss's   "constitutionally   created   individual

property rights" under, inter alia, "

;" and

violated numerous state law provisions.

           The defendants in Actions 2 and 3 thereafter filed

motions to dismiss all the claims in each of these two cases.      The


     2 Three of the parties to this second action -- the Abbey,
Spencer Brewery, and Cup of Julie Show -- were also defendants in
the initial action. Foss also sued Northeastern University and
Ruggles Media, a syndicate marketing program of Northeastern
University.
     3 It is not clear from the record of this case why two federal
court cases were docketed.
defendants contended in their motions to dismiss that "any state-

law claims asserted in Plaintiff's Complaint are equivalent to and

preempted by Plaintiff's copyright infringement claim."                They

further    contended   in   the   motions   that   the   federal   copyright

infringement claims failed to state claims on which relief could

be granted due to Foss's failure to allege adequately that she had

complied with the copyright registration-related precondition set

forth in § 411(a).

            The district court in both Actions 2 and 3 granted the

defendants' motions to dismiss.        But, although the district court

in those actions dismissed the state law claims in the two actions

"with prejudice," it dismissed the federal copyright infringement

claims "without prejudice."

            Soon thereafter, the district court consolidated Actions

1, 2, and 3.     We will refer to the consolidated action just as

"Action 3."

            In April 2019, Foss filed an amended complaint in Action

3 against Eastern and two other parties,4 in which she alleged that

they had "infringed upon rights of Foss's copyright work" and that

she was entitled to relief under, inter alia, 

,

106A, 202, 411, 501(a), 502(a), 504(c)-(d), and 505. Eastern moved

to dismiss the claims "with prejudice" pursuant to Federal Rule of



     4   The other parties were the Abbey and Spencer Brewery.
Criminal Procedure 12(b)(6) on multiple independent grounds: that

Foss had (1) failed to describe the allegedly infringed work; (2)

failed    to    allege   plausibly   that   Eastern   had   copied   original

elements of the work; and (3) repeatedly failed to allege that she

had fulfilled the copyright registration precondition set forth in

§ 411(a).

               The district court in Action 3 granted Eastern's motion

and   dismissed       "with   prejudice"     Foss's    federal       copyright

infringement claims, as set forth in the amended complaint, via an

electronic order.        The order explained that the motion to dismiss

with prejudice was granted "for the reasons stated in [Eastern's]

supporting memorandum."5

               In 2020, Foss filed what we will refer to as "Action 4"

in federal district court in the District of Massachusetts.              This

is the action from which the present appeal arises.           The complaint

in this action is based on the same set of facts that formed the

basis for the complaints described above and names only Eastern as

the defendant. It alleges that Eastern committed federal copyright

infringement in violation of 17 U.S.C § 106(1)-(3), (5) and

violated VARA, 

(a)(1)(A).


      5Less than three weeks after this case was dismissed, Foss
brought a suit arising out of the same copyright dispute against
Spencer Brewery in state court. That action was removed to federal
district court, which dismissed the case on res judicata grounds,
finding that the previous actions, including the amended complaint
in Action 3, were adjudicated "on the merits."
              Eastern moved to dismiss the claims in Action 4 in part

on the ground that they were subject to claim preclusion due to

the dismissal with prejudice of the federal copyright infringement

claims that Foss had asserted in her amended complaint in Action

3.   The District Court granted Eastern's motion and dismissed the

complaint "with prejudice."           It held that the claims in Action 4

were       precluded    by    the   dismissal   of    the   federal   copyright

infringement claims in Action 3 and that, even though Foss had not

previously alleged a violation under VARA, such a claim was "barred

by res judicata as [it] should have been asserted in the prior

action(s)."      Foss timely appealed.

                                        II.

                                         A.

              Foss contends that the District Court in Action 4 erred

by   holding     that   the    dismissal   of   her   claims   in   her   amended

complaint in Action 3 precluded the claims before us in this appeal

and so required their dismissal. We apply federal claim preclusion

law in federal question cases like the one before us here.6                   See

Blonder-Tongue Lab'ys, Inc. v. Univ. of Ill. Found., 

,

324 n.12 (1971).




       The District Court below, and the parties on appeal, focus
       6

on the application of claim preclusion to the present case and
largely ignore issue preclusion. Our decision thus addresses only
claim preclusion.
           To establish federal claim preclusion in such a case, a

party must establish that there is “(1) a final judgment on the

merits in an earlier suit, (2) sufficient identicality between the

causes of action asserted in the earlier and later suits, and (3)

sufficient identicality between the parties in the two suits.”

Mass. Sch. of L. at Andover v. Am. Bar Assoc., 

(1st Cir. 1998) (quoting Gonzalez v. Banco Cent. Corp., 

 (1st Cir. 1994)).          Foss does not dispute that the

dismissal with prejudice of her federal copyright infringement

claims in Action 3 satisfies the second and third requirements for

claim preclusion with respect to the claims in Action 4 that are

at issue in this appeal.      She also concedes that a dismissal based

on two of the three grounds given for the dismissal in Action 3

--   namely,   the   ground   concerning   Foss's   asserted   failure   to

describe the work that had been allegedly infringed and the ground

concerning her asserted failure to plead plausibly the work's

originality -- were merits-based and thus would have satisfied the

first requirement set forth above.          Thus, she does not dispute

that had the dismissal of Action 3 been based on either or both of

those grounds, that dismissal would have been preclusive of her

claims in Action 4 that are before us in this appeal.7



      7None of the parties contend that any dismissals other than
the dismissal of the claims in the amended complaint in Action 3
preclude Foss's claims in the present action.
           The    linchpin    of    Foss's    appeal,   then,   is    that   the

dismissal in Action 3 also rested on one other ground -- her

failure to allege that she had satisfied the registration-related

precondition to copyright infringement suits under § 411(a).                 She

reasons in this regard that a dismissal that rests solely on that

ground cannot be claim preclusive because that ground is not

merits-based.     And so, she argues, the dismissal in Action 3 also

is not claim preclusive, because that dismissal was based in part

on that ground.

           Foss   relies     in    pressing   this   argument   on    what   she

contends   is    federal     res   judicata    law's    recognition    of    the

alternative-determinations doctrine.           Under that doctrine, as she

describes it, an adjudication of a claim by a court of first

instance is not claim preclusive if the court of first instance

rested that adjudication on at least one ground that would not

have made the adjudication claim preclusive if it had been the

sole ground for judgment in that case.

           We have not had occasion to decide whether federal res

judicata law recognizes the alternative-determinations doctrine.

Nor have we had occasion to address what the scope of that doctrine

is insofar as federal res judicata law recognizes it.                  We need

tackle those questions here, however, only if Foss is right that

the dismissal of her federal copyright infringement claims with

prejudice in Action 3 was based on one ground that would not on
its own have rendered that dismissal claim preclusive.                 We thus

turn first to that question, which concerns the basis for the

dismissal in Action 3.       Our review in doing so is de novo.             See

Silva v. City of New Bedford, 

 (1st Cir. 2011).

                                     B.

           Foss   contends   that    the   District     Court    in   Action   4

incorrectly based its claim preclusion ruling on the premise that

all the grounds for the dismissal were merits-based within the

meaning   of   the   first   prong   of    the   test   for     federal   claim

preclusion.    She contends that the District Court did so in Action

4 because it wrongly understood dismissals under Federal Rule of

Civil Procedure 12(b)(6) for "failure to state a claim" always to

be merits-based for the purpose of that prong of the test.                     We

agree with Foss that the District Court was in error to the extent

it labored under that understanding.8

           While dismissals for failure to state a claim under Rule

12(b)(6) usually are "merits"-based and so claim preclusive, see

Federated Dept. Stores, Inc. v. Moitie, 

, 399 n.3

(1981), such dismissals are not when they are based solely on a

failure to allege a precondition to suit.         See Lebron-Rios v. U.S.

Marshal Serv., 

, 13–14 (1st Cir. 2003) (citing Costello


     8 Insofar as Eastern argues to us, on appeal, that the
dismissal of Action 3 was based on Foss's misuse of the legal
system, we find scant evidence in the record to support this
argument.
v. United States, 

, 284–88 (1961)); cf. In re Sonus

Networks, Inc., S'holder Derivative Litig., 

(1st Cir. 2007) (finding that dismissal under Massachusetts Rule

of Civil Procedure 23.1 for failure to allege a precondition to a

derivative suit is not a bar to subsequent litigation under state

claim preclusion law).    In that event, the dismissal turns on an

issue too disconnected from the merits of the underlying claim to

constitute an adjudication of the claimed rights of the parties

sufficient to "terminat[e]" a "controversy" and preclude future

litigation of that controversy.    See Costello, 

-88

(quoting Haldeman v. United States, 

 (1875));

cf. In re Sonus Networks, Inc., S'holder Derivative Litig., 

 (explaining that "[w]hile dismissal of a derivative

suit for failure to plead demand or excuse is of course a type of

dismissal for inadequate pleadings, it is also a dismissal for

failure to accomplish a precondition" and thus is not claim

preclusive under Massachusetts law).

          Thus, insofar as the District Court deemed the dismissal

in Action 3 claim preclusive because it was ordered pursuant to

Rule 12(b)(6), see Foss, 593 F. Supp. at 3, Foss is right that the

District Court erred.    After all, the parties do not dispute that

the copyright registration requirement set forth in § 411(a) is a

precondition to federal copyright infringement suits.     See Reed

Elsevier, Inc. v. Muchnick, 

 (2010).   Nor do they
dispute   that   the    dismissal   of   Foss's   federal   copyright

infringement claims in Action 3 rested in part on her failure to

allege what was necessary with respect to that requirement.      As a

result, that dismissal, if based on that ground alone, would not

have been claim preclusive, see Lebron-Rios, 341 F.3d at 13–14,

just because it was a dismissal for failure to state a claim under

Rule 12(b)(6).

          As Eastern points out, however, the dismissal in Action

3 was "with prejudice."     But that feature of the dismissal does

not in and of itself render it claim preclusive if it otherwise

would not be. The "with prejudice" label does not itself determine

a dismissal's preclusive effect. See Semtek Int'l Inc. v. Lockheed

Martin Corp., 

 (2001) (noting that while a

dismissal "without prejudice" will "ordinarily (though not always)

have the consequence of not barring the claim from other courts,"

its "primary meaning relates to the dismissing court itself"); see

also Matsushita Elec. Indus. Co. v. Epstein, 

(1996) (Ginsburg, J., concurring in part and dissenting in part)

("A court conducting an action cannot predetermine the res judicata

effect of the judgment; that effect can be tested only in a

subsequent action.").

          We do recognize, though, as Eastern also argues, that

the motion to dismiss Foss's federal copyright infringement claims

in the amended complaint in Action 3 sought to have the claims
dismissed "with prejudice" because Foss's complaint failed to

plead satisfaction of the requirement set forth in § 411(a) after

Foss had multiple opportunities to cure the defect in the complaint

concerning the precondition.      And thus, we agree with Eastern that

the District Court may be understood to have ordered the dismissal

of that claim "with prejudice" in consequence of that failure on

Foss's part, given that the District Court granted the motion to

dismiss   "for   the    reasons   stated   in   [Eastern's]   supporting

memorandum."

          That feature of the dismissal, however, ensured only

that Foss was denied the opportunity to try yet again to cure her

failure to allege compliance with the precondition to suit in the

action in which the claim was dismissed.        See Semtek Int'l Inc.,

.       It did not change the fact that the dismissal

was based, in part, on the failure to allege satisfaction of a

precondition to suit.9

          All that said, we are aware that, in holding that a

dismissal based on a failure to satisfy a precondition to suit is

in general not claim preclusive under Massachusetts law, we noted



     9 This, of course, is not to say that a court is prevented
from ordering a dismissal with prejudice as a sanction explicitly
based on a plaintiff's repeatedly ignoring court directives
requiring amendment or refiling to allege compliance with a
precondition to suit. As described in this opinion, however, such
a basis was not clearly set out in the district court's order of
dismissal with prejudice in Action 3.
that such a failure might be claim preclusive under Massachusetts

law if "the plaintiff's failure to satisfy [the] precondition

before bringing the first suit prejudices the defendants."            In re

Sonus Networks, Inc., S'holder Derivative Litig., 

n.8.   But, the District Court did not address whether such a

prejudice-based ground for deeming the dismissal at issue here

claim preclusive was applicable.        It instead determined that the

dismissal was claim preclusive for reasons unrelated to any showing

in that regard, because the dismissal was pursuant to Rule 12(b)(6)

and "with prejudice."     And, as we have explained, Foss is right

that the District Court erred in so ruling.

                                 III.

           As we noted at the outset, the district court's dismissal

of Foss's federal copyright infringement claims with prejudice in

Action 3 was not based solely on her failure to allege satisfaction

of the precondition to suit that § 411(a) sets forth.            It was also

based on the two other grounds that we described above.           And, even

Foss agrees that each of those grounds was independently a ground

that would have sufficed to render the dismissal preclusive if it

had been the sole basis for the dismissal.          Thus, for Foss to be

right that the dismissal with prejudice of her federal copyright

infringement claims in Action 3 is not claim preclusive just

because it rested on a ground that on its own would not have

rendered   that   dismissal   claim   preclusive,    we   must    determine
whether she is right both that federal res judicata law recognizes

the alternative-determinations doctrine and that, insofar as it

does, that doctrine's scope is such that it applies here.

            Accordingly, we now turn to those questions, which are

questions of first impression in this Circuit, although we have

recognized that the doctrine applies under Massachusetts law, at

least under certain circumstances.            See In re Baylis, 

,

71 (1st Cir. 2000).       Our review is de novo.           See Silva, 

.

                                        A.

            We start with the first of the two questions.                   Here,

Foss asks us to conclude that federal res judicata law recognizes

the alternative-determinations doctrine as it is set forth in the

Restatement (Second) of Judgments.                See Restatement (Second) of

Judgments    §   20     cmt.    e    (Am.    L.    Inst.   1982)   [hereinafter

"Restatement"].       The Restatement provides in that regard that if

an adjudication "rendered by a court of first instance" is "based

on two or more determinations, at least one of which, standing

alone, would not render the judgment a bar to another action on

the same claim," then the judgment "should not operate as a bar"

to future litigation.          Id.

            We   have    long    recognized       the   Restatement   as   "[t]he

preeminent authority" on issues of claim preclusion.                       Andrew

Robinson Int'l, Inc. v. Hartford Fire Ins. Co., 

(1st Cir. 2008). And, several of our sister circuits have followed

the   Restatement      in   concluding   that   federal   res   judicata   law

recognizes the alternative-determinations doctrine.             See Pizlo v.

Bethlehem Steel Corp., 

 (4th Cir. 1989); Remus

Joint Venture v. McAnally, 

, 184 n.5 (6th Cir. 1997);

see also Ruiz v. Snohomish Cnty. Pub. Util. Dist. No. 1, 

 (9th Cir. 2016) (adopting alternative-determinations

doctrine at least where non-merits ground is lack of personal

jurisdiction).

           We see no reason to disagree with the Restatement or our

sister circuits in this regard, at least with respect to the broad

outlines   of    the    alternative-determinations        doctrine   as    the

Restatement describes it.          Indeed, as the Restatement and our

sister circuits recognize, there are good reasons for applying the

doctrine, at least in some circumstances.

           As an initial matter, in the absence of the alternative-

determinations doctrine, a litigant whose claim has been dismissed

and wants to preserve the ability to bring the claim in a follow-

on action would need to appeal the dismissal whenever it rests on

at least one ground that would not on its own render the dismissal

preclusive.     Otherwise, the litigant would not be able to obtain

a ruling that affirmed the dismissal solely on that non-preclusive

ground.    That would be so even if the non-preclusive ground for

the dismissal were indisputably sound, such that the appellant
would have no shot in the appeal of that dismissal of reviving the

claim in that same action, no matter how successful an appeal of

the other grounds would be.

          In this respect, the alternative-determinations doctrine

usefully protects litigants who have claims that may well be

meritorious10 -- but that were dismissed in part for a reason

disconnected from their merits -- from having to engage in what

appears to be mere appellate hoop-jumping to keep alive the

possibility of bringing the claim. The doctrine does so by sparing

such litigants from having to appeal the dismissals of their claims

while knowing that the appeals are sure to result in the claims

remaining dismissed just to preserve their opportunity to pursue

the claims in future actions in which the non-merits-based defects

that caused the claims' earlier dismissals could easily be cured.


     10 We note that, based on this reasoning, it might seem that
the value of the alternative-determinations doctrine may be
diminished in a case in which a claim was previously adjudicated
in part based on a merits determination that is indisputably
correct. However, requiring courts to determine whether the merits
of a claim are indisputably correct in order to decide whether the
alternative-determinations doctrine applies in any given case
would effectively require courts to make the kind of merits-based
determination that res judicata is meant to protect them from
having to make in order to determine whether res judicata applies.
To avoid that situation, we conclude that the alternative-
determinations doctrine applies even when a claim has previously
been adjudicated based in part on a merits-based ground that is
indisputably correct. But, for the reasons we explain below, we
refrain from ruling on whether the alternative-determinations
doctrine applies in the separate but related scenario in which a
merits-based ground for adjudicating a claim in a prior action was
"rigorously considered."
See Restatement § 20 cmt. e; see Ruiz, 

 ("It

would be an inefficient use of judicial resources to encourage

litigants to appeal judgments for the sole purpose of preserving

their ability to potentially bring the same claims again, in a

hypothetical future action.").

            In sparing litigants from having to secure a pyrrhic

victory, the alternative-determinations doctrine does something

more than saving litigants from having to endure such rigamarole.

It spares appellate courts from having to weigh in on cases that,

in practical reality, may be of no real consequence to the parties

or to the appeal itself beyond making way for a mere contingent

future action in which those merits issues could be addressed in

a case in which their resolution would matter.             See 

            Finally, holders of claims that have been dismissed may

often choose to forego the option-preserving appeal.              They may do

so, moreover, even though they later decide to bring the follow-

on action.        The alternative-determinations doctrine in this way

avoids giving preclusive effect to a merits-based ground for the

dismissal in cases in which the decision not to appeal was based

on a calculation wholly unrelated to an assessment of the soundness

of the ruling as to any merits-based ground.               See Costello, 

; see also Huntley v. United States, 

   (Ct.   Cl.    1983)   (noting   that   when   faced   with   alternative

determinations, losing parties might "be unlikely to seek an appeal
because of the likelihood that the decision would be upheld on at

least one of the alternative grounds," and claim preclusion in

such a case could result in the "freezing in place [of] potentially

bad law").

           To be sure, in preserving the resources of appellate

courts by disincentivizing wasteful appeals, the alternative-

determinations doctrine can lead to inefficiencies of its own.                It

necessarily will permit, in some cases, the refiling of claims

that were already disposed of on strong merits-based grounds in an

earlier action.     And, depending on the scope of this doctrine, it

may also permit -- as this case suggests -- the refiling of claims

that were dismissed for then-curable defects.

           But, we are not alone in following the Restatement in

opting for an approach that requires a litigant to call upon

judicial resources to be expended only to ensure that relief can

be granted on the claim that is being brought and not solely for

the purpose of preserving the option of seeking relief on a claim

that may never be brought at all.        See Pizlo, 

;

Remus Joint Venture, 

 n.5; see also Ruiz, 

 (adopting the alternative-determinations doctrine at

least    where    the   non-merits    ground   is   lack        of     personal

jurisdiction); cf. Johnson v. Spencer, 

, 719 n.16 (10th

Cir.    2020)    (declining   to   determine   whether     to        adopt   the

alternative-determinations doctrine); Dozier v. Ford Motor Co.,


 (D.C. Cir. 1983) (same).11                        And, for the

reasons given above, we see no reason on balance to depart from

that approach.

              We realize in so concluding that this case is hardly a

poster child for the alternative-determinations doctrine.                           Foss

had numerous chances to cure the defect in the prior action, and

it is not evident that the passage of time would have enabled her

to cure the defect in a way that she could not have earlier.                         Cf.

In re Sonus Networks, Inc., S'holder Derivative Litig., 

.     Adding to the sense that Foss need not be given another

bite at the apple is the possibility that her present claims would

be   barred      by    collateral    estoppel      had    any    defense     of    issue

preclusion been asserted.

              But,     those    quirks    of    this   case     aside,    without    the

alternative-determinations           doctrine,         future    Fosses     with    less

capacity    to    cure    the    defect    in    the   initial     action    would    be

encouraged to appeal dismissals that they could not overturn just

to preserve their option of bringing future actions that they might

never bring.          We see little sense in creating such an incentive



      11We note that, in Herrera v. Wyoming, Justice Alito,
dissenting, rejects the alternative-determinations doctrine as it
applies to issue preclusion. See 

 (2019).
However, none of his arguments for doing so provide grounds for
rejecting the reasons we give for applying the doctrine to claim
preclusion here, insofar as they even apply to claim preclusion at
all.
structure by holding that federal res judicata does not recognize

the alternative-determinations doctrine.12

                                       B.

           There remains the distinct question of what the scope of

the alternative-determinations doctrine is and whether that scope

encompasses this case.      In contending that, even if federal res

judicata law recognizes the alternative-determinations doctrine,

it should not apply here, Eastern argues that the doctrine has no

application in cases -- such as Eastern contends this one is -- in

which the court of first instance that adjudicated the allegedly

preclusive claims did "rigorously consider" the merits rationales

upon which its adjudications were based.         Eastern argues in this

regard that, "as understood by [Foss]" herself, the Restatement

adopts the alternative-determinations doctrine in part out of a

"concern   that   courts   may   not    'rigorously   consider'   a   merits

rationale when there is a threshold non-merits question that

efficiently disposes of the case."           Eastern thus contends that

even if federal res judicata law does recognize the alternative-




     12Eastern contends that Foss had an incentive to appeal the
dismissal in Action 3 because, "by her own logic," one ground for
that dismissal was "not 'clearly correct.'" That is so, Eastern
contends, because Foss claims that she had in fact registered the
infringed work prior to filing her amended complaint in Action 3.
But, Eastern does not dispute that Foss failed to allege that she
had registered the infringed work whether or not she had in fact
registered it. Thus, we do not see this as a case in which the
non-preclusive ground for the dismissal was less than ironclad.
determinations     doctrine        in   some    circumstances,      it     has    no

application here.13

          But,    whether     or    not   Eastern      is   right   that   such    a

limitation may apply in some cases -- a contention that we take no

position on at present -- Eastern is wrong to conclude that it

would apply here.     And that is because Eastern provides no support

for the contention that the District Court, in dismissing Foss's

federal copyright infringement claims in Action 3, "rigorously

considered" the merits-based grounds for that dismissal.

          In     dismissing    Action      3,    the    District     Court,      via

electronic order, gave as its only explanation for the dismissal

"the reasons stated in [Eastern's] supporting memorandum."                        In

that order, the District Court provided no indication that it had

"rigorously considered" any of the reasons given by Eastern in its

memorandum, including the merits-based grounds for dismissal.

And, Eastern's contentions that the District Court had "discussed



     13The Second Circuit, for example, has declined to apply the
doctrine where a litigant was "prosecuting both [the preclusive
and precluded] actions at once," and so any appeal taken on the
preclusive action would not have been taken only in the service of
preserving the opportunity to file potential but uncertain future
litigation. Williams v. Ward, 

 (2d. Cir. 1977);
see Winters v. Lavine, 

 (2d Cir. 1978) (relying
on Williams in declining to apply the alternative-determinations
doctrine when the litigant was pursuing both the preclusive and
precluded action at the same time). But cf. Pizlo, 

. We are not faced with such a circumstance in the present
case, however, and so do not address whether the alternative-
determinations doctrine applies to such a circumstance.
[Foss's] copyright infringement claim[s] with [Foss] at a motion

hearing" in Action 1; "discussed the registration precondition"

with Foss at a status conference in Action 1; issued a written

opinion dismissing          without prejudice          Foss's federal copyright

infringement claims as set forth in a complaint filed prior to the

amended complaint in Action 3; and ruled on the "res judicata

effect" of the dismissal in Action 3 on a separate action, all

pertain to the District Court's consideration of claims other than

the federal copyright infringement claims set forth by Foss in the

amended complaint in Action 3.

              Eastern   separately          contends    that   the     alternative-

determinations doctrine has no application here because it does

not   apply    in   cases     in    which    a   plaintiff's      repeated    filings

constitute an "abuse" of the legal system resulting in "waste[]"

for the judiciary and "inequity" for defendants.                     As support for

this contention, Eastern looks to Browning Debenture Holders'

Comm. v. DASA Corp.           There, the Second Circuit, in finding that

res   judicata      applied    to   the     case   before   it,    noted     that   the

plaintiff-appellant in the case could not "rely upon their own

non-compliance with a court order to bootstrap themselves into

further harassing of appellees who already have borne a very

substantial burden in defending against essentially baseless and

frivolous claims."       

 (2d Cir. 1978).
            Eastern    ignores,   however,   an   essential   feature   of

Browning Debenture Holders' Comm. that distinguishes it from the

one before us.    In Browning Debenture Holders' Comm., the Second

Circuit found that the preclusive action was preclusive because it

was dismissed "for failure to comply with a court order" to "post

a bond," and such a failure "constitutes a dismissal on the

merits." 

 In the present case, by contrast, the District Court

found that the dismissal of Action 3 was based in part on a failure

to allege satisfaction of a precondition to suit, and, as we have

explained, that is not a merits-based ground.

            Moreover, to the extent Eastern means to be arguing, in

invoking Browning Debenture Holders' Comm., that the alternative-

determinations doctrine should not apply in the event that its

application would result in prejudice to the defendant, see In re

Sonus Networks, Inc., S'holder Derivative Litig., 

n.8, the District Court did not rely on this ground for dismissing

this case.    In the absence of the District Court's having made a

determination about whether such prejudice exists to bar the

present litigation, we decline to rest our ruling on that ground.

            In sum, we are not persuaded by either of the grounds

that Eastern gives for affirming the ruling below even if federal

res   judicata   law     recognizes   the    alternative-determinations

doctrine.    Accordingly, the District Court's finding that the
claims at issue on appeal before us are barred on claim preclusion

grounds cannot stand.

                                   IV.

          In   clarifying    the    circumstances   in   which   claim

preclusion applies under federal law when a dismissal is based on

multiple grounds not all of which would be claim preclusive in

their own right, we have kept alive Foss's claims for now.        But,

we do not foreclose the possibility that there are grounds not

relied on by the District Court, or Eastern on appeal to us, that

would support the dismissal of Foss's claims independent of the

merits-based grounds on which the district court in Action 3 also

relied in dismissing the claims in that action.

          Indeed, the Restatement itself contemplates that the

alternative-determinations doctrine "is not an inflexible" rule,

and, "[i]n some instances, the doctrines of estoppel or laches

could require the conclusion that it would be plainly unfair to

subject the defendant to a second action."     Restatement § 20 cmt.

n.   However, no arguments for declining to apply the alternative-

determinations doctrine in the present action on any of these

grounds were given by the District Court in dismissing the claims

at issue on appeal.     Instead, as we have noted, the claims were

dismissed solely on the ground that the dismissal in Action 3 was

claim preclusive because the dismissal in Action 3 was based on

grounds that on their own would have rendered that dismissal claim
preclusive.          Moreover,    as   we   have   already      pointed   out,   in

dismissing those claims for that reason alone, the District Court

did not make any assessment of whether, even if the dismissal in

Action 3 was not otherwise claim preclusive because it was based

partly on a failure to satisfy a precondition to suit, it must be

given claim preclusive effect nonetheless due to the prejudice to

Eastern caused by Foss's failure to allege satisfaction of the

precondition to suit.            See In re Sonus Networks, Inc., S'holder

Derivative Litig., 

 n.8.

           We therefore leave it to the parties and the District

Court to address whether any of those grounds for barring the

claims at issue here are applicable, in light of our holdings that

a dismissal for failure to state a claim that is based on a failure

to   satisfy   a     precondition      to   suit   is   not    necessarily   claim

preclusive     and    that   federal    res   judicata        law   recognizes   the

alternative-determinations doctrine (with the refinements that we

have described).        Accordingly, we vacate and remand for further

proceedings consistent with this opinion.               The parties shall bear

their own costs.