1. Whether the trial court correctly permitted the matter below to proceed on Microsystems' (1) counterclaim after Silverstein accepted Microsystems' Mass. R. Civ. P. 68 offer of judgment, which offer was silent as to the counterclaim?
  2. Whether the trial court abused its discretion in granting Microsystems' motion to dismiss its counterclaim without prejudice even though Silverstein had a pending summary judgment motion against the counterclaim?



Months after the trial court entered judgment for Silverstein on his claims pursuant to a Mass. R. Civ. P. 68 offer of judgment, the trial court allowed Microsystems' motion to dismiss its own counterclaim without prejudice. By this appeal, Silverstein asks the Court to manufacture finality against Microsystems' libel counterclaim by either: (1) rewriting Microsystems' offer of judgment on Silverstein's wrongful termination theories to include the libel counterclaim; or (2) grant (or remand with instructions to grant) Silverstein's motion for summary judgment on Microsystems' libel counterclaim.

Silverstein presents no law that would require the trial court to imply that Microsystems' offer of judgment resolved Microsystems' counterclaim. In addition, Silverstein, apparently jilted by the dismissal of Microsystems' counterclaim without a ruling on his summary judgment motion, seeks to argue on appeal the merits of that motion. (3) But, as set forth in the margin, there can be no appeal of a non-existent summary judgment ruling and Silverstein ignores his burden of demonstrating an abuse of discretion by the trial court.


  1. The Offer Of Judgment Resolved Only Silverstein's Claims And Not Microsystems' Counterclaim

Massachusetts Rule of Civil Procedure 68 permits only defendants or counterclaim defendants to make offers of judgment. Mass. R. Civ. P. 68 ("a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him . . . "); Gentili v. Colonial Motel. Inc., 27 Mass. App. Ct. 1150, 1151 (1989) (defining plaintiff as "party defending against a claim" for purpose of defendant's counterclaim). (4)

As the Supreme Judicial Court explained, defendants are entitled to pursue counterclaims after resolution of plaintiffs' claims against them:

A counterclaim in an answer constitutes a separate and distinct cause of action. Thus, a defendant is entitled to a determination of his counterclaim even though there is a dismissal or a discontinuance of the original bill of complaint.

New England Merchants Nat'l Bank of Boston v. Kann, 363 Mass. 425, 427 (1973) (resolving counterclaim where it presented the "only justiciable issue" in the case).

Here, Microsystems made an offer of judgment against the complaint and Silverstein accepted that offer (Record on Appeal "RA." at 55-60). 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). Accordingly, the entry of judgment properly disposed of Silverstein's claims against Microsystems only, leaving alive Microsystems' counterclaim against Silverstein. This fact was confirmed by the trial court's later ruling on Silverstein's motion to quash, which permitted Microsystems additional discovery on its counterclaim (RA at 61). Silverstein's arguments on appeal identify no law to hold otherwise.

  1. There Was No Abuse Of Discretion In Granting Microsystems' Motion To Dismiss Without Prejudice

Dismissal without prejudice pursuant to a motion under Mass. R. Civ. P. 41 is reviewable only for abuse of discretion. Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641 (1986) (affirming dismissal under Rule 41); Puerto Rico Maritime Shipping Authority v. Leith, 668 F.2d 46, 49 (1st Cir. 1981) (affirming dismissal without prejudice over defendants' request that the dismissal be with prejudice and in spite of defendants' pending motion to dismiss).

Rule 41 motions should be allowed unless the court finds that the defendant will suffer "plain legal prejudice" other than the risk of another lawsuit. See United States v. All Funds, Monies. Securities. Mut. Fund Shares & Stocks Held in Fidelity Investments, 81 F.3d 147, 1996 WL 141789 at **2 (1st Cir. 1996)

(affirming dismissal with prejudice and citing 9 Charles A. Wright et al., Federal Practice andProcedure: 2d, 2364 (2d Ed. 1994)) (5)

To determine whether the defendant will suffer "plain legal prejudice" courts typically look to the parties' progress toward trial, any undue delay, the moving party's explanation for its need to take a dismissal and the procedural posture of the case. Less v. Berkshire Housing Services, Inc., 2000 WL 1349252 *5

(D. Mass. 2000) (granting Rule 41(a)(2) motion notwithstanding pending summary judgment motion). However, such considerations are "simply a guide for the trial judge, in whom the discretion ultimately rests." Id. "Neither the prospect of a second suit nor a technical advantage to the plaintiff should bar the dismissal." Puerto Rico Maritime Shipping Auth., 668 F.2d at 51.

Silverstein contends on appeal, at most, that he suffered just such a technical disadvantage:

(1) the dismissal without prejudice leaves open the possibility of a second trial, thereby denying him res judicata on the counterclaim; and

(2) there was no ruling on his summary judgment motion.

(P1. Brief, at 34-37). Neither of these claimed ill effects of the trial court's dismissal without prejudice meets the plain legal prejudice standard. Less, 2000 WL 1349252 at ** 5; Puerto Rico Maritime Shipping Auth., 668 F.2d at 51. Moreover, the fact that there was a pending summary judgment motion does not change the analysis, especially where resolution of the motion would involve "complicated legal question[s]" as well as resolution of "factual issue[s]". Puerto Rico Maritime Shipping Auth., 668 F.2d at 50; Less, 2000 WL 1349252 at **5.


For the foregoing reasons, Microsystems respectfully requests that this Court affirm the trial court's dismissal of Microsystems' counterclaim without prejudice.

Respectfully submitted,

Laura N. Kling

Irwin B. Schwartz (BBO#548763)
Laura N. Kling BBO#638313

419 Boylston Street
Boston, Massachusetts 02116
(617) 421-1800
(617) 421-1810 (fax)

Counsel for Plaintiffs-in

Microsystems Software, Inc.
and The Learning Company, Inc.

Dated: February 28, 2001