1. MSI and TLC misstate both the facts and the law in their brief.

The libel plaintiffs, Microsystems Software, Inc. ("MSI") and The Learning Company ("TLC"), argue that no appeal can lie from a court's refusal to rule on a motion for summary judgment, that the Superior Court's action here can only be appealed on an abuse of discretion standard, and that some unspecified issue in this appeal was not presented below. None of those arguments is correct, either factually or legally.

  1. There is a reviewable judgment in this case. 
    MSI and TLC start by saying that the refusal of the Superior Court to rule on William Silverstein's summary judgment motion means there's no judgment to be appealed.

    That argument ignores that the Superior Court in fact entered not one but two judgments: one in September of 1999 under Rule 68 (at A.60 and Add.3) -- which gave William Silverstein judgment against the defendants on all claims, including their libel counterclaim -- and one in April of 2000 (at A.457 and Add.2), at the instance of MSI and TLC over William Silverstein's objection, dismissing their libel counterclaim without prejudice.

    While the parties disagree about whether any part of the case remained alive after the September 1999 judgment, all parties agree that nothing remained before the Superior Court after the April 2000 judgment. Clearly, this isn't an interlocutory appeal. The defendants suggest that one cannot appeal from the Superior Court's refusal to rule on a motion for summary judgment -- but they cite no case that says that. (1)

  2. The Superior Court had no discretion to refuse to rule on summary judgment.

    MSI and TLC don't contend that no appeal can lie from a judgment entered under Rule 41. In fact, they cite several appellate decisions dealing with the propriety of Rule 41 dismissals in their brief. They argue, however, that a Superior Court's dismissal under Rule 41 is reviewable only on an abuse of discretion standard. (2)

    What they ignore is that before it could even address the motion under Rule 41, the Superior Court had to first rule on the motion for summary judgment.

    The third sentence of Rule 56(c) makes it clear that, when the record supports the motion, the grant of summary judgment is mandatory, not discretionary:

    "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

    [emphasis added] (3)

    Thus, contrary to MSI's and TLC's suggestion that what is being appealed from was a purely discretionary decision, what Silverstein is appealing is the refusal of the Superior Court to make an entry of judgment that Rule 56(c) goes so far as to say is not only mandatory but must be made forthwith.

    This aspect of the case shows the difference between this case and those submitted by MSI and TLC: since the motion for summary judgment was in the middle of being argued when the motion under Rule 41 was submitted, an affirmative denial, on the merits, of the motion for summary judgment -- after completed argument on that motion -- was a condition precedent to even considering a motion for dismissal without prejudice. (4) Once a motion for summary judgment has been disposed of, the Superior Court may have some discretion in ruling on a motion to dismiss (discussed infra), but it has no discretion to even entertain it while summary judgment is before it.

    The cases MSI and TLC cite do not dispute this.

    There was no summary judgment motion in Puerto Rico Maritime Shipping Authority v. Leith, 668 F.2d 46, 48 (1981), in which a plaintiff's motion to dismiss without prejudice under Rule 41 was allowed to a plaintiff who argued -- as the defendant had as well, in its own motion to dismiss -- that the court lacked subject matter jurisdiction over the case. Of course, in the absence of subject matter jurisdiction, dismissal without prejudice is mandatory.

    In United States of America v. All Funds, Monies, Securities, Mutual Fund Shares and Stocks Held in Fidelity Investments, et al., 81 F.3d 147, 1996 WL 141789 at **1 to **2 (1st Cir. 1996), summary judgment had already been denied -- repeatedly -- before the government moved to dismiss without prejudice. Renewing a motion for summary judgment which had already been denied -- a month after the government moved to dismiss voluntarily -- is qualitatively different from what occurred here, where MSI and TLC moved to dismiss in the middle of the hearing on William Silverstein's motion for summary judgment.

    In Less v. Berkshire Housing Services, Inc., 2000 WL 1349252 (D. Mass. 2000), the defendant didn't serve its summary judgment motion until seven weeks after the plaintiff's Rule 41 motion -- and expressly consented to the court's deciding the Rule 41 motion first by saying that the plaintiff needn't respond to the summary judgment motion until after the Rule 41 motion had been decided (at *5).

  3. No basis was shown for the exercise of discretion to grant the motion to dismiss without prejudice -- the reason given for moving to dismiss was, in fact, a reason to dismiss with prejudice.

    This case did not meet the test MSI and TLC draw from Less: Whether the party opposing a Rule 41 motion would suffer "plain legal prejudice" from its allowance. On page 5 of their brief, MSI and TLC attempt to suggest that no such prejudice occurred here, but to do so they left off their list of Silverstein's claimed prejudices the most important prejudice that Silverstein points to:

    That cannot be called a mere "technical disadvantage." (5)

    All of the cases cited by MSI and TLC on the question of discretion under Rule 41 showed some weighing of competing prejudices and some reason for doing what the court did:

    In Less the reason for granting dismissal without prejudice was to allow the case to be brought in the MCAD or EEOC -- the plaintiff had made it clear from the outset that his only reason for filing in court was to obtain a protective injunction in the meantime. No prejudice was shown by the defendant, since discovery in the case hadn't even begun. (*3 to *4).

    In Bucchiere, supra n. 2, the reason for allowing dismissal with prejudice for failure to prosecute was that almost seven years after filing their complaint, the plaintiffs had taken no affirmative steps to prosecute their claimed class action against the defendants: they had taken no discovery and had not even sought to have a class certified. (369 Mass. at 640)

    In United States of America v. All Funds, Monies, Securities, Mutual Fund Shares and Stocks Held in Fidelity Investments, the court dismissed a civil forfeiture proceeding in deference to a parallel criminal forfeiture proceeding that was already going on, noting that the defendant lost nothing and actually had better procedural protections in the criminal proceeding. (**2)

    The quotes in MSI's and TLC's brief from Puerto Rico Maritime Shipping Authority v. Leith about avoiding deciding "complicated legal question[s]" and resolving "factual issue[s]" dealt with avoiding the futilty of litigating all that if the outcome could be that the court had no jurisdiction -- better to let the plaintiff take the case to state court where jurisdiction was clear. No countervailing prejudice was shown. (668 F.2d at 50)

    In the instant case, however, MSI and TLC showed no reason to make the dismissal be "without prejudice." At the hearing on William Silverstein's motion for summary judgment, they said they wanted to dismiss "to allow the parties to get on with their lives." In their motion they said -- to the same effect -- that they "wish to spare the parties the additional inconvenience and expense of continued litigation." (See Add.1 or A.400)

    On its face, that is a reason for dismissal with prejudice. It certainly did not justify the prejudice to William Silverstein that resulted from dismissing the libel claim without prejudice. (6)

  4. MSI and TLC misrepresent William Silverstein's Brief.

    As to MSI's and TLC's arguments about whether the Rule 68 Judgment gave William Silverstein judgment against them on all claims, including the libel claim, William Silverstein refers this Court back to his principal brief -- except that he must take issue with the claim in the MSI/TLC brief that:

    "As Silverstein admits, Microsystems' offer of judgment expressly encompassed only Silverstein's claims against it and was silent as to Microsystems' counterclaim against Silverstein (Id.; P1. Brief at 4)."

    (MSI/TLC Brief at pp. 3-4)

    William Silverstein's principal brief "admits" no such thing but argues vigorously to the contrary, at pages 38 to 40. Page 4 quotes the nearly-identical language of the Rule 68 offer and the judgment based on it -- but, being a factual recitation, that page does not take any position about what either of those documents meant. However, it is clear on their face that the wording MSI's and TLC's counsel chose -- judgment in the case -- gave William Silverstein judgment on the case as a whole, not just on his own claims. (7)


A ruling on -- and denial of -- summary judgment on the libel counterclaim was a condition precedent even to consideration of MSI's and TLC's motion to voluntarily dismiss the libel counterclaim without prejudice.

William Silverstein asks that the April 2000 judgment dismissing the libel counterclaim without prejudice be vacated, and that the libel counterclaim be dismissed with prejudice by the grant of summary judgment in his favor by this Court -- or that the summary judgment motion be remanded to the Superior Court for decision at the trial court level. (8)

Respectfully submitted,

William Silverstein

By his attorney,
Philip R. Olenick
BBO No. 378605
101 Tremont Street-Suite 801
Boston, Massachusetts 02108
(617) 356-5660