1. MSI and TLC claim that Lucille E. Moran v. District Court of Central Middlesex, 347 Mass. 241 (1964), is authority on this point. What Moran held was that an order of commitment under chapter 123 was not a judgment, as it did not adjudicate the individual's mental competence, only authorizing temporary restraint.

Moran held that a commitment order could be modified or dissolved in later proceedings, unlike a judgment, which can only be challenged on direct appeal. In fact, Moran observed in its first paragraph that the plaintiff there was "no longer a patient or subject to confinement or restraint" -- which suggests that another reason for dismissing that appeal was that it was moot.

Moran has no bearing on a refusal to rule on a summary judgment motion. However, while the order in Moran was subject to collateral attack, the undoing of one judgment by another (as occurred here) is a subject for direct appeal.

2. Their lead case for this proposition, Bucchiere v. New England Telephone and Telegraph Company, 396 Mass. 639 (1986), deals with a different situation from here, as it deals not with a plaintiff's motion for voluntary dismissal without prejudice but with a defendant's motion for involuntary dismissal for failure to prosecute.

3. The way Rule 56(c) is worded, there's no discretion in the grant or denial of summary judgment. Once the Court decides whether the moving party is entitled -- as a matter of law -- to judgment on the record before it, summary judgment is either required or prohibited.

4. As noted (and quoted from) on page 35 of William Silverstein's principal brief, Rule 41(a)(1) only allows a plaintiff to dismiss as of right before the defendant has answered or filed for summary judgment. The clear implication of this specific reference to summary judgment -- when taken together with the mandatory nature of summary judgment -- is that the court must first deal with an outstanding motion for summary judgment -- or secure the plaintiff's agreement to the condition that a voluntary dismissal be with prejudice, under Rule 41(a)(2).

5. This calls to mind Justice Brennan's favorite bumper sticker, which pointed out that "The Constitution is not a Technicality."

6. Rounding out their barrage of procedural challenges, MSI and TLC also argue that a party cannot appeal on the basis of an argument not made below -- but William Silverstein did argue below the issues he is arguing here. In addition to arguing the merits of his summary judgment motion below, he argued the procedural issues presented here as well.

In William Silverstein's opposition to the motion for voluntary dismissal without prejudice (reproduced in the Appendix starting at A.405), he stressed that he was entitled to consideration and decision on the merits of his motion for summary judgment to prevent First Amendment chill (at A.409), requested that his summary judgment motion be considered, in the alternative, a S.L.A.P.P. motion (at A.410-411), and stated that he would be forced to appeal if a dismissal without prejudice was entered, because it would rob him of the prior judgment in his favor on the defendants' libel counterclaim inherent in the September 1999 judgment (at A.413).

7. In fact, MSI and TLC unsuccessfully moved to have the September 1999 judgment amended to specifically exclude their counterclaim -- see A.75 (the denial of that motion is noted in the margin at A.73).

In that motion they relied on the right to move to alter or amend a judgment -- but this was a judgment that they had framed themselves in the first place!

8. Obviously, judicial economy would be best served if this Court decided the summary judgment motion on its own, as that would avoid the risk of this Court's having to entertain another appeal on that question.

That decision should not be difficult, as the fact section of William Silverstein's principal brief shows that almost everything the plaintiff said in support of his motion for summary judgment was admitted by MSI and TLC in writing or at the depositions of their managers, Richard and Debra Gorgens, Larry Mason, and Reed Lewis.

In fact, it should not even be necessary to look at the facts, as the September 1999 judgment should be held to preclude the counterclaim both procedurally, due to its wording, and logically, even if that judgment was only on William Silverstein's claims: A libel claim cannot succeed in the face of a judgment in favor of the speaker on claims based on all the same opinions.