2. Docket entry 2.0 at A.3. The document is at A.7-31.
3. Docket entry 3.0 at A.3.
4. Docket entry 4.0 at A.3.
5. Docket entry 5.0 at A.3.
6. See ¶¶ 152-154 at A.27.
7. Docket entries 6.0, 7.0, 8.0 and 11.0 at A.3.
8. Un-numbered 02/23/1999 docket entry at A.3 and docket entry 12.0 at A.4.
9. Docket entry 9.0 at A.3. The initially-filed version of this document was captioned for Middlesex Superior Court, but was replaced the following day by a "corrected" version captioned for the federal court, which is at A.32-50.
10. The libel counterclaim is at A.48-50.
11. Docket entry 10.0 at A.3. The plaintiff's answer to the libel counterclaim is at A.51-54.
12. Docket entry 14.0 at A.4.
13. Docket entries 15.0 through 19.0 at A.4.
14. Docket entry 20.0 at A.4. The offer of judgment is at A.55-56, and the plaintiff's acceptance is at A.57-58.
15. Un-numbered 09/07/1999 docket entry at A.4.
16. Docket entry 21.0 at A.4. The judgment is at A.60, and the Clerk's Notice to the parties is at A.59.
17. Docket entry 22.0 at A.5. The plaintiff's motion is at A.61-72 and the defendants' opposition is at A.73-78.
18. Docket entries 23.0 and 24.0 at A.5. The complete summary judgment package is in the Appendix at A.79-398, with all exhibits and submissions by both sides.
19. Docket entry 25.0 at A.5. The motion is at A.399-401.
20. Un-numbered 01/24/2000 docket entry at A. 5. The notice is at A.402.
21. Reproduced at A.403-451. The plaintiff' opposition was not docketed until the defendants' motion for voluntary dismissal without prejudice was resubmitted--unchanged--on February 24, 2000 (A.453-455), and both were docketed as of that date as docket entries 26.0 and 27.0.
22. At A.409-413.
23. See A.454 and the Clerk's Notice to the parties at A.456, the un-numbered 03/15/2000 docket entry at A.5.
24. Docket entry 29.0 at A.5. That judgment is at A.457.
25. Docket entries 30.0 at A.5 (the Restated Notice of Appeal--a notice of appeal had been filed on March 24, 2000, prior to the entry of judgment) and 31.0 and A.6 (the Revised Restated Notice of Appeal, which corrected the date stated for the summary judgment hearing).
26. Amended Complaint, ¶ 5 at A.8. admitted at A.33.
27. Statement of Material Facts ("Statement"), ¶ 2 at A.115, admitted at A.310.
28. Statement ¶ 3, at A.116, admitted at A.310.
29. Amended Complaint, ¶ 21 at A.10, admitted at A.34.
30. Statement ¶ 5, at A.116, admitted at A.310.
31. Statement ¶ 7, at A.116, admitted at A.310.
32. Statement ¶ 8, at A.116, admitted at A.310.
33. Silverstein Affidavit ¶ 6 at A.185.
34. Statement ¶ 9, at A.116, admitted at A.311.
35. Statement ¶ 9, at A.116, admitted at A.311.
36. Statement ¶ 10, at A.116, admitted at A.311.
37. Prescription by Dr. Gordin at A.268.
38. Silverstein deposition, day two, A.216 ln.2 to A.217 ln. 13. Larry Mason deposition, A.384, ln.3 to A.387, ln.23.
39. Amended Complaint, ¶ 33 at A.11, admitted at A.35.
40. Silverstein deposition, day 2, A.219, ln. 15 to A.221, ln. 16.
41. Deposition of Debra Gorgens, A.231, ln. 6 to 16.
42. Statement ¶ 16, at A.118, admitted at A.31.
43. Statement ¶ 18, at A.118, admitted at A.313.
44. Statement ¶ 19, at A.118, admitted at A.313.
45. Richard Gorgens deposition, A.227, lines 3-11.
46. Mason deposition, A.233, ln. 3-11, and A.325-326, the two versions of the letter given to the plaintiff by Dr. Gordin. When MSI objected that the first version's statement that he needed to be "away from keyboard" didn't entitle him to time off, Dr. Gordin revised that letter to say "away from work." (MSI has been shown both signed originals.)
47. Statement ¶ 23, at A.119, admitted at A.313.
48. Amended Complaint, ¶ 43 at A.12, admitted at A.36.
49. Amended Complaint, ¶ 44 at A.12, admitted at A.36.
50. Statement ¶ 26, at A.120, admitted at A.314.
51. Amended Complaint, ¶ 46 at A.12-13, admitted at A.36, and Mason deposition at A.234, lines 1-20.
52. Amended Complaint, ¶ 48 at A.13, admitted at A.36.
53. Statement ¶ 29, at A.120, admitted at A.314.
54. Silverstein Affidavit ¶ 13 at A.186.
55. Amended Complaint, ¶ 53 at A.14, admitted at A.37.
56. Statement ¶ 32, at A.121, admitted at A.314.
57. Statement ¶ 33, at A.121, admitted at A.314.
58. Amended Complaint, ¶ 56 at A.14, admitted at A.37.
59. See the report by Dr. Stirrat at A.269-272.
60. Statement ¶ 36, at A.122, admitted at A.314.
61. See SIL-0038 at A.273, 9/19 entry in Mason's surveillance log of Silverstein produced in discovery.
62. Lewis deposition, A.239, ln. 23 to A.240, ln. 24.
63. Id., A.241, ln.1-23 and A.242, ln. 11-24.
64. Richard Gorgens deposition, A.228, ln. 5-6.
65. Statement ¶ 42, at A.123, admitted at A.314.
66. Statement ¶ 43, at A.123, admitted at A.314.
67. Silverstein Affidavit ¶ 15 at A.186.
68. Statement ¶ 45, at A.123, admitted at A.315.
69. Statement ¶ 46, at A.123, admitted at A.315.
70. Statement ¶ 47, at A.123, admitted at A.315.
71. Statement ¶ 48, at A.123, admitted at A.315.
72. Lewis deposition, A.243, ln. 23 to A.244, ln. 5.
73. Statement ¶ 50, at A.124, admitted at A.315.
74. Statement ¶ 51, at A.124, admitted at A.315.
75. Statement ¶ 52, at A.124, admitted at A.315.
76. Statement ¶ 53, at A.125, admitted at A.315.
77. Statement ¶ 54, at A.125, admitted at A.315.
78. Statement ¶ 55, at A.125, admitted at A.315.
79. See Department of Industrial Agreements settlement agreement at A.274-275.
80. Amended Complaint, ¶ 85 at A.18, admitted at A.40.
81. Statement ¶ 58, at A.125, admitted at A.315.
82. Statement ¶ 60, at A.126, admitted at A.315.
83. Statement ¶ 61, at A.126, admitted at A.315.
84. Amended Complaint, ¶ 90 at A.19, admitted at A.40.
85. See Defendants' Answer to Plaintiff's Interrogatory 16 at A.276-277.
86. Statement ¶ 63, at A.126, admitted at A.315.
87. Statement ¶ 65, at A.127, admitted at A.316.
88. See postcard acknowledgment, A.278.
89. Amended Complaint, ¶ 91 at A.18, admitted at A.40.
90. Statement ¶ 69, at A.127, admitted at A.316.
91. Deposition of Dr. McKay at A.249, ln.11 to A.262, ln.6, and exhibits 5 & 8 thereto at A.263-267.
92. Statement ¶ 71, at A.128, admitted at A.316.
93. That letter carried a "cc" to Michael Rosen, the lead attorney from Foley, Hoag and Eliot who represented the defendants until recently, including at the hearing on the plaintiff's summary judgment motion. (He was the attorney who submitted the request that the case be dismissed without prejudice.)
94. See this correspondence at A.278-281.
95. Statement ¶ 73, at A.129, admitted at A.316.
96. See ¶¶ 127-132 of the Amended Complaint, at A.24-25.
97. See the plaintiff's Amended Complaint at A.7-31.
98. See ¶¶ 7-9 of the defendants' Corrected Answer and Counterclaim at A.48-49.
99. Silverstein Affidavit ¶ 21 at A.186.
100. Silverstein Affidavit ¶ 22 at A.186.
101. See Defendants' Answer to Plaintiff's Interrogatory 16 at A.276-277.
102. See announcement web page at A.283-284.
103. Lewis deposition, A.236, ln. 13 to A.237, ln. 6.
104. Docket entries 15.0 through 19.0 at A.4.
105. This was by no means a "nuisance" settlement, being several times his lost wages. To have exceeded that recovery and avoided a potential offset under Rule 68 would have required recovering punitive damages in addition.
106. Docket entry 20.0 at A.4. The offer of judgment is at A.55-56, and the plaintiff's acceptance is at A.57-58.
107. Un-numbered 09/07/1999 docket entry at A.4.
108. Docket entry 21.0 at A.4. The judgment is at A.60, and the Clerk's Notice to the parties is at A.59.
109. See fn.1 to the Emergency Request for Declaration that Further Discovery is Moot, Due to the Entry of Judgment in the Case, at A.61.
110. See A.102-110.
111. See ¶¶ 1, 2, 3, and 10 at A.104-108.
112. That letter is at A.111-113.
113. Docket entry 22.0 at A.5. The plaintiff's motion is at A.61-72 and the defendants' opposition is at A.73-78.
114. TLC (which by that point owned MSI) was merged into Mattel in May of 1999, and was merely a division of Mattel, rather than being a separate company. See the defendants' response to the plaintiff's Interrogatory 16, at A.276-277.
115. Docket entries 23.0 and 24.0 at A.5. The complete summary judgment package is in the Appendix at A.79-398, with all exhibits and submissions by both sides.
116. Docket entry 25.0 at A.5. The motion is at A.399-401.
117. Un-numbered 01/24/2000 docket entry at A. 5. The notice is at A.402.
118. Reproduced at A.403-451. The plaintiff' opposition was not docketed until the defendants' motion for voluntary dismissal without prejudice was resubmitted--unchanged--on February 24, 2000 (A.453-455), and both were docketed as of that date as docket entries 26.0 and 27.0.
119. At A.409-413.
120. See A.454 and the Clerk's Notice to the parties at A.456, the un-numbered 03/15/2000 docket entry at A.5.
121. Docket entry 29.0 at A.5. That judgment is at A.457.
122. Docket entries 30.0 at A.5 (the Restated Notice of Appeal--a notice of appeal had been filed on March 24, 2000, prior to the entry of judgment) and 31.0 and A.6 (the Revised Restated Notice of Appeal, which corrected the date stated for the summary judgment hearing).
123. RULE 41. DISMISSAL OF ACTIONS
(a) Voluntary Dismissal: Effect thereof.
(1) By Plaintiff; By Stipulation. Subject to the provisions of these rules and of any statute of this Commonwealth, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any other state an action based on or including the same claim.
(2) By Order of Court. Except as provided in paragraph (1) of this subdivision (a), an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed upon the plaintiff's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
(b) Involuntary Dismissal: Effect Thereof.
. . .
(c) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone shall be made before a responsive pleading or a motion for summary judgment is served, whichever first occurs, or, if there is none, before the introduction of evidence at the trial or hearing.
(d) Costs of Previously-Dismissed Action.
. . .
124. This court has before it the entire summary judgment record that was presented to the court below. The brief's statement of facts is updated to reflect admissions made in that proceeding, and William Silverstein therefore asks that, in the interests of judicial economy and freedom of speech, this Court end this litigation with finality by holding that he was and is entitled to the entry of summary judgment on the libel counterclaim. Failing that, he asks that the case be remanded to the court below for decision on his summary judgment motion.
125. Merrimack Valley National Bank v. Baird, 372 Mass. 721, 724 (1977). (See also Schaffer v. Hobel & Railroad News Co., 266 Mass. 276, 277 (1929), citing N.Y. Central R. Co. v. Stoneman, 233 Mass. 258, 262 (1919) and Morse v. Boston, 260 Mass. 255, 262 (1927).)
126. Tupper v. Hancock, 319 Mass. 105, 108 (1946), citing National Shawmut Bank of Boston v. Joy, 315 Mass. 457, 466 (1944). See also Crimmins & Pierce v. The Kidder Peabody Acceptance Corporation, et al., 282 Mass. 367, 375 (1933).
127. See Macheras v. Syrmopoulos, 319 Mass. 485, 486 (1946)--in which an agreed-upon judgment between the plaintiff and defendant in one case barred relitigation of the same issues between the same parties in another case--and the cases cited therein.
128. "A person is actionably defamed when he is exposed to public hatred, ridicule or contempt to a considerable and respectable class in the community." Tort Law, Ch. 7, Defamation, at § 118, Vol. 37, Massachusetts Practice--the precise formulation used in paragraph 9 of the instant counterclaim.
129. Nathan Friedman, et al. v. Boston Broadcasters, Inc., 402 Mass. 376 (1988). See also Philadelphia Newspapers, Inc., et al. v. Hepps et al., 475 U.S. 767 (1986). These cases make it clear that it is the plaintiff's burden to prove falsity, not the defendant's burden to prove truth, contrary to older cases. Nonetheless, Silverstein has here documented the truth of his statements.
130. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
131. New York Times Company v. Sullivan, 376 U.S. 254 (1964), and Curtis Publishing Company v. Butts, 388 U.S. 130 (1967). Proof of malice must by clear and convincing evidence, under New York Times v. Sullivan, 376 U.S. at 286-286 and Gertz v. Robert Welch, Inc., supra 418 U.S. at 342 (1974).
132. Brauer v. Globe Newspaper Co., 351 Mass. 53 (1966).
133. G.L. c. 231, § 93, prohibits the awarding of punitive or exemplary damages for defamation:
" . . . In no action of slander or libel shall exemplary or punitive damages be allowed, whether because of actual malice or want of good faith or for any other reason. Proof of actual malice shall not enhance the damages recoverable for injury to the plaintiff's reputation."
This is, of course, in line with the general rule in this Commonwealth that punitive damages are available only where specifically provided for by statute. See Tort Law, Ch. 13, Damages, at § 249, Vol. 37, Massachusetts Practice.
The limitation of defamation damages--in any and all circumstances--to actual damages was reaffirmed in John J. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 860 (1975).
134. The defendants did not show any concrete losses due to the plaintiff's web site. Their only showing of harm was to quote from a small number of comments made to the plaintiff about them by e-mail or through a questionnaire on his web site (which he was compelled to produce to them, even though he objected that these were work product, being in the nature of mock jury research). However, as there was no evidence about what these individuals thought before reading the plaintiff's web site (many of them were embroiled in similar situations), this did not constitute meaningful evidence of harm.
Significantly, the questionnaire responses (which appear at A.350-351) were not entirely one-sided, showing that the plaintiff's site was, in fact, a fair and honest presentation:
"You have no case. If you were a good employee; they probably would've been smart to give you re-hiring preference" "Today's society is too litigious as it is. Make your living the old fashioned way; rather than trying to cash in through a lawsuit" at A.350
"Very interesting and informative site. Good luck with the case. I'm going to go back to work (at a small college) and make sure I do everything to accommodate a lady who is having RSI." at A.351
"If it really was causing damage you should've gotten a new job." "No one forced you to work for the firm. Employment is a choice. I know repetitive stress injuries are real. Chinese treatments are not, your reliance on them shows the psychological nature of the problem. You had responsibility to mitigate the damages you incurred by getting a new job that didn't require using a keyboard as much. The defendants actions may have been irresponsible; but; frankly; you started the whole deal."
at A.352
"Fake Diagnosis" "You will lose if you have an intelligent jury!" at A.352
135. In addition to being run by users on their own machines, Cyber Patrol is run by America Online (AOL) on its servers, with parents being able to assign their childrens' sessions to pre-defined age-groupings with progressively fewer types of sites blocked.
136. In her deposition, Debra Gorgens, Vice President and Human Resources Director of MSI, admitted that MSI knew that the trip to China was two days each way, that MSI had decided, before Silverstein left, that if he did go to China he would be fired for being absent for more than three days, and that they took his keys away in preparation to fire him (Debra Gorgens deposition, A.390-391 and A.392-395).