Appeal of the dismissal without prejudice

Appleby v. Daily Hampshire Gazette, 395 Mass. 32 (1985)	32
Brauer v. Globe Newspaper Co., 351 Mass. 53 (1966)	42
Curtis Publishing Company v. Butts, 388 U.S. 130 (1967)	42
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)	41
Godbout v. Cousens, 396 Mass. 254 (1985)	32
John J. Stone v. Essex County Newspapers, Inc., 396 Mass. 254 (1985)	32
King v. Globe Newspaper Co., 400 Mass. 705 (1987), cert. denied, 485 U.S. 940 (1988)	32, 34, 37
Lovell v. Griffin, 303 U.S. 444 (1938)	45
Macheras v. Syrmopoulos, 319 Mass. 485 (1946)	40
Nathan Friedman, et al. v. Boston Broadcasters, Inc., 402 Mass. 376 (1988)	41, 46
National Ass’n of Gov’t Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220 (1979), cert. denied, 446 U.S. 935 (1980)	32
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)	32, 42
Philadelphia Newspapers, Inc., et al. v. Hepps et al., 475 U.S. 767 (1986)	41
Reno v. ACLU, 521 U.S. 844 (1997)	44
Shaari v. Harvard Student Agencies, Inc., 427 Mass. 129 (1998)	44, 45

Middlesex Superior Court Docket Sheet	1
Amended Complaint	7
Corrected Responsive Pleading [Answer] and Counterclaim of Defendants	32
Plaintiff’s Answer to Counterclaim	51
Defendants’ Offer of Judgment Pursuant to Rule 68 [page 2]	55
Plaintiff’s Acceptance of Defendants’ Rule 68 Offer of Judgment	57
September 13, 1999 Clerk’s Notice	59
September 13, 1999 Judgment	60
Emergency Request for a Declaration that Further Discovery is Moot, Due to the Entry of Judgment in the Case (w/exhibits) September 13, 1999 Clerk’s Notice September 13, 1999 Judgment Defendants’ Offer of Judgment Pursuant to Rule 68 September 21, 1999 fax from TLC/MSI counsel September 22, 1999 fax from Philip R. Olenick to Foley Hoag notifying them of hearing on emergency motion	61
Defendants’ Opposition to Plaintiff’s Emergency Motion and Defendants’ Emergency Cross-Motion for Clarification of Judgment (w/exhibits) Defendants’ Offer of Judgment September 13, 1999 Judgment
The Rule 9A package filed in connection with William Silverstein’s Motion for Summary Judgment on the counterclaim asserted against him by Microsystems Software, Inc. and The Learning Company, Inc.: Notice of Filing Request for Hearing Motion for Summary Judgment Memorandum of Law in Support of Summary Judgment (w/exhibits) Defendants’ Offer of Judgment Pursuant to Rule 68 98 September 13, 1999 Clerk’s Notice 100 September 13, 1999 Judgment TLC/MSI Proposed Settlement Agreement September 21, 1999 fax from TLC/MSI counsel Statement of Material Facts as to Which There is No Genuine Issue to Be Tried Supporting Exhibits to Summary Judgment Motion’s Statement of Material Facts: Complaint Corrected Answer & Counterclaim Answer to Counterclaim Affidavit of William Silverstein in Support of Summary Judgment Silverstein deposition excerpt, day 1 Silverstein deposition excerpt, day 2 Silverstein deposition excerpt, day 3 Richard Gorgens deposition excerpt Debra Gorgens deposition excerpt Larry Mason deposition excerpt Reed Lewis deposition excerpt Dr. McKay deposition excerpt, with exhibits 5 and 8 Dr. Gordin prescription Dr. Stirrat’s IME report SIL-0038 Larry Mason’s log Department of Industrial Accidents settlement excerpt Defendants’ Answer to Plaintiff’s Interrogatory Postcard acknowledgment of application from TLC Email acknowledgment of inquiry about what is defamatory Announcement of discontinuance of CaLANdar Defendants’ Rule 68 Offer of Judgment Plaintiff’s Acceptance of Defendants’ Rule 68 Offer of Judgment September 13, 1999 Clerk’s Notice and Judgment TLC/MSI Proposed Settlement Agreement September 21, 1999 fax from TLC/MSI counsel
Counterclaim-Plaintiffs’ Opposition to Counterclaim Defendant’s Motion for Summary Judgment August 10, 1995 memo from Debra Gorgens January 18, 1994 memo from Dick Gorgens Affidavit of Larry Mason 8/19/96 Memo from William Silverstein August 9, 1996 letter from Dr. Gordin August 9, 1996 letter from Dr. Gordin August 21, 1996 memo from Larry Mason Partial copy of Silverstein email Report of Independent Medical Examiner Craig Stirrat Affidavit of Michael Rosen, Esquire Excerpts from William Silverstein’s document production
Motion for Leave to Respond to Summary Judgment Opposition (w/exhibits) Excerpt from William Silverstein’s deposition Medical records from China (with translation) Excerpt from Larry Mason’s deposition September 23, 1996 memo from Debra Gorgens Excerpt from Debra Gorgens’ deposition
Defendants/Counterclaim-Plaintiff’s Response to Plaintiff/Counterclaim-Defendant’s Reply to Summary Judgment Opposition	396
Counterclaim-Plaintiffs’ Motion for Voluntary Dismissal of Counterclaim	399
Notice of Returned Pleading	402
William Silverstein’s Opposition to Dismissal of Libel Action "Without Prejudice" (with exhibits)	403-452
Letter Refiling Motion for Voluntary Dismissal	453
The Superior Court’s March 15, 2000 allowance of the motion to dismiss, expressly "without prejudice" (in the left-hand margin of a copy of the first page of that motion) and the Notice of Docket Entry of that Order	454-456
The Judgment entered on April 3, 2000 dismissing the counterclaim without prejudice	457
April 21, 2000 Restated Notice of Appeal from Dismissal of Libel Claim "Without Prejudice"	458
April 28, 2000 Revised Restated Notice of Appeal from Dismissal of Libel Claim "Without Prejudice"	460
Appellate Rule 8(b)(1) Notice That No Transcripts Will Be Ordered as No Evidentiary Hearing Was Held, and Designation of Issues on Appeal	462

Table of Authorities Cited			iii
Appendix Table of Contents			iv
The Issues Presented for Review			1
Statement of The Case			2
Procedural History			2
Facts			7
Summary of Argument			30
Argument			32
	1. William Silverstein is entitled to the entry of summary judgment dismissing the libel counterclaim with prejudice		32
		a. William Silverstein is entitled to the entry of summary judgment dismissing the libel counterclaim with prejudice	38
		b. The allegations of the complaint cannot be found libelous after judgment has been entered in favor of those allegations	40
		c. The libel counterclaim is frivolous.	41
Conclusion			48

The Decision Appealed From	Add. 1
The Judgment Appealed From	Add. 2
The Prior Judgment	Add. 3
Civil Rule 68	Add.4

c. 231, § 59H	33, 34
c. 231, § 93	42

Rule 41	35-36
Rule 68	38-41

Tort Law, Ch. 7, Defamation, at § 118, Vol. 37, Massachusetts Practice	41
Tort Law, Ch. 13, Damages, at § 249, Vol. 37, Massachusetts Practice	42