1. Pursuant to Mass. R. A. P. 16(d), defendants/plaintiffs-in- counterclaim/appellees Microsystems Software, Inc. and The Learning Company, Inc. are referred to herein as "defendants" or "Microsystems" and plaintiff/defendant-in-counterclaim/appellant William Silverstein is referred to herein as "plaintiff" or "Silverstein".

2. Pursuant to Mass. R. A. P. 16(b), Microsystems respectfully refers the court to the "Procedural History" section of Silverstein's brief ("P1. Brief") at 2-7 and notes that the content of Silverstein's "Facts" section (P1. Brief, at 7-30) is irrelevant to any issue on appeal.

3. The bulk of Silverstein's brief is addressed to the merits of his motion for summary judgment (P1. Brief at 32-33,40-48). The trial court never decided that motion and, therefore, Silverstein cannot now argue its merits. Moran v. Dist. of Cent. Middlesex, 347 Mass. 241, 241-2 (1964) (dismissing appeal where no "judgment" existed to appeal); EHS v. KES, 424 Mass. l0ll, 1011-2 (1997) (affirming trial court where claim was not raised below or preserved for appeal).

4. See also 8A James W. Smith and Hiller B. Zobel, Massachusetts Practice, §§ 68.1, 68.4 (1981) ("Because it refers to any 'party defending a claim', Rule 68 therefore applies to a party opposing a counterclaim or cross-claim."); 12 Arthur R. Miller et al., Federal Practice and Procedure: Civil 2d, § 3002 (2d Ed. 1997) ("Rule 68 has no application to offers made by the plaintiff. But a plaintiff defending against a counterclaim or other claim may, with respect to that claim, make a Rule 68 offer.").

5. This court may consider federal cases construing Fed. R. Civ. P. 41 because Mass. R. Civ. P. 41 is, in all relevant respects, identical to Fed. R. Civ. P. 41. 8 James N. Smith and Hiller B. Zobel, Massachusetts Practice, § 41.14 (1977). For the court's convenience, all unpublished decisions cited herein are attached at Tab A.