Every member of the class submitted the practical project in a timely fashion. I was very pleased with the quality of your work. Let me take this opportunity to discuss some of the more important issues raised by the project. Students wishing to review their individual document, may see me during my regular office hours as well.
Jurisdiction. The complaint had to include jurisdictional allegations. For example:
- At all times pertinent hereto, plaintiff was a citizen of the state of Florida.
- At all times pertinent hereto, defendant was a citizen of the state of Georgia.
- The amount in controversy herein exceeds $50,000.00 exclusive of interest and costs.
Many students included all jurisdictional allegations in a single paragraph, consistent with Form 2 at page 241 of your Rules Supplement. That is perfectly acceptable.
Venue. The complaint could also have included allegations of where the accident occurred. This establishes the court's VENUE, i.e., that this particular U.S. District Court is one in which the matter may be resolved. See 28 USC § 1391. One edited example was: "At all times mentioned, NW 34th Street was a public street in the County of Alachua, State of Florida, and intersected with Archer Road, another public street in the county." The fact-pattern indicated that this was in Gainesville, and you could allege it that way. However, 34th and Archer is outside city limits.
Negligence. As to allegations of Negligence, the simple notice pleading requirement of Rule 8 gives plaintiff great leeway. For example: "On June 25, 1995, in a public highway called Archer Road in Gainesville, Florida, Defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway." By way of alternative allegations, some students pleaded, also properly, that defendant could have been negligent for: (1) Running a red light; (2) Failing to keep a proper lookout; (3) Failing to yield the right of way; (4) failing to ascertain that going through the intersection safely was not possible.
Damages. The laws of Florida make damages allegations in tort cases generally, and in automobile accidents specifically, somewhat difficult. Florida generally subscribes to the "Impact Rule," i.e., no claim for emotional trauma may be pursued unless it is related to physical injury. There are few exceptions to the general rule. For a good discussion of the matter, see R.J. and P.J., v. Humana Of Florida, Inc., 652 So. 2d 360 (1995). In automobile cases, the law is also quite strict. See Fla. Stat § 627.737. Without getting into the specifics of Florida law, in our example, Plaintiff could claim damages for:
Prayer. The complaint should end with the request that judgment be entered in favor of Plaintiff for the requested amount, or for an appropriate amount of damages, and costs.
The answer depended on the allegations of the complaint of course. Generally, the Answer includes the replies to the allegations of the complaint, and then defenses. The defenses relevant to our project can be categorized as affirmative defenses, Rule 12 defenses and general defenses.
Jurisdiction. Although many of you chose to accept my statement of citizenship -and that is fine-, under normal circumstances, the answering party is unlikely to have the facts required to admit an allegation of the plaintiff's residence. Denial of the Plaintiff's citizenship for lack of information would generally be appropriate. You should, of course, know what state your client is a citizen of, therefore, you should admit that your client is a citizen of Georgia. Denial of the jurisdictional amount would also be appropriate. First you deny that plaintiff is entitled to any damages at all, and second, under normal circumstances, you lack information to admit the allegation of jurisdictional amount. If the party alleged that the car cost $56,000.00, counter that you do not know how much it was worth at the time of the accident, as some students did.
General Warnings. Some students used a single sentence to deny or to admit several allegations, e.g., "Allegations 1, 3, and 5 are admitted or denied." This is acceptable, but I caution you against it as a practical matter. You run the risk of missing something. Remember, allegations that are not denied are deemed admitted! Some students recognized this risk and incorporated language such as a general statement at the close of the answer stating: "Defendant denies any and all other allegations included in the complaint." Along the same lines, some answers were carefully phrased to "Deny each and every allegation contained in paragraph number __".
Complex Allegations. In general, most answers properly admitted or denied the allegations of the complaint. Many answers to complex paragraphs properly chose to admit and deny in part, using explanatory language. For example: "The defendant admits that plaintiff was traveling South on NW 34th Street on Sunday, June 25, 1995, at approximately 11:00 p.m. and that defendant was involved in an automobile accident with plaintiff, but denies that she negligently ran a red light hitting plaintiff's car." One error I did note was one answer that admitted that plaintiff was struck by defendant's car, but denied negligence. A more appropriate response would have been to admit that a collision occurred, but that it was the result of the negligence of plaintiff. Defendant's version of the accident has to be that she was struck by plaintiff. Admitting that you struck, under the facts of this case, is probably fatal to your defenses or counter-claims.
Defenses. In your answer, you can raise your defenses. Under Rule 8(c) Affirmative defenses are waived if not raised in your responsive pleading. The obvious one here was contributory negligence. Some students also raised possible assumption of risk and statute of limitations affirmative defenses. The latter is not really supported by the facts of the case. Another defense under Florida law is comparative negligence, even if defendant was negligent, plaintiff was more negligent, thus precluding recovery by plaintiff. That the accident was the sole result of plaintiff's own negligence is also a defense, although this would also come out in your denials. Rule 12 defenses that could also be raised: lack of subject matter jurisdiction; failure to state a claim. Some students also requested a more definite statement as to vague damages allegations. Note that a request for amore definite statement must be made by motion under Rule 12(e), and not in the answer. This is the difference between Rule 12(b) and 12(e). Rule 12(b) defenses can be raised by motion, or in the answer.
Prayer. The answer should end with a request that the complaint be dismissed and costs awarded in favor of defendant.
The counterclaim is a complaint filed by someone who lost the race to the courthouse door. Unlike the complaint, you are not required to justify jurisdiction as to mandatory counterclaims, that is the only real difference between the complaint and the counterclaim in this case. I would therefore refer you to my discussion of the complaint above.
Damages. One important difference suggested by the facts of our project, was that defendant has more damage claims. Her claims for pain and suffering and mental anguish in particular are much stronger. I was surprised that few students made these claims on behalf of the defendant. I was also surprised that very few students claimed for her lost wages, given that she spent so much time in the hospital that would have been a logical claim. I would be interested in finding out if you thought that such a claim was precluded by Florida law, or whether you did not think of it because it was not expressly set-up in the fact pattern.
Prayer. The counterclaim should end with a request that judgment be entered in favor of defendant, counter-claimant, and for an appropriate award of costs.
The request is introduced with the prayer that it be admitted within the 30-day term of Rule 36. It requires no prayer to the court, since it is addressed to the party.
Document-Authentication. The requests for admission properly requested identification of documents. Most limited it to authentication of the police report and the judgment in the criminal case, which were mentioned in the fact-pattern. Many students did not request authentication of the judgment, probably making the tactical decision that it was not all that helpful to your cause. Other students, however, used their imagination and requested authentication of documents such as medical records and bills, which we can easily expect will be used in this case. I did note one error in this area: one student included in the request for admissions sentences that were really requests for production of documents. For example: Admit the authenticity of the following documents: "Any document related to plaintiff's damages." That is wrong. You must show a particular document to the opposing party, or make it available for inspection, so that they admit to its authenticity. This is not one of those situations in which discovery requests can be mixed. It is different from the case where an interrogatory might include a request for production, which we discussed in class.
Factual Requests. The other proper uses of the request in our project were to establish facts as to which there is no controversy, and, conversely, to limit the facts on which there is disagreement. As to the facts on which there is disagreement, some students cleverly drafted requests that would "lock-in" a particular factual version. This is important. You might thus avoid the surprise of alternative allegations at trial. For example: "Admit that the traffic light controlling your lane of traffic was green in your favor at all times pertinent hereto." This locks plaintiff in, he would then find it difficult to make alternate allegations, such as arguing that he was in the intersection first, even if the light was not green. Other students also correctly used the request to break down complex allegations into simpler sentences, thus simplifying the facts of the case.
1. In some
courts, counsel must include name, address, telephone number and
identify the client at the top of the first page of any filing,
as an administrative convenience.
2. The positioning
of the court designation in the document varies from state to
state and even among the Federal Judicial Districts.
3. In the complaint,
the case title must include the names of every party, plaintiff(s)
or defendant(s). Thereafter, a shortened case title is used. In
our example this is not a big problem, but imagine a case with
hundreds of parties.
4. The case number
is assigned by the clerk of the court. The designations typically
will indicate if the case is a civil or criminal matter. Other
sub-categories may also be used, depending on local practice.
The number usually includes the last two digits of the year in
which the matter is filed, followed by the assigned number.
5. The document
title is sometimes placed to the right of the case title, this
depends of local court practice. It is never placed before the
court designation.
6. The opening
tells the court who appears before it to request something. For
example: "NOW COMES plaintiff, Michael Mouse, through his
undersigned counsel, and to the court respectfully states and
prays:" In this case the answer, counter-claim and request
had to carefully identify which parties were being represented.
7. Most legal
documents request that the court do something, even if it is simply
to take notice of the information therein contained. The most
common exception are discovery documents, which are usually addressed
to opposing parties.
8. The complaint
will be the only document in our project without a certificate
of service. In this context, service means to give notice of the
filing to the other party. It generally means providing opposing
counsel with a copy of the document. When you file a complaint,
you generally do not know who opposing counsel will be. Notice
of the complaint is accomplished by summons. Rule 5(b) governs
service of documents filed after the complaint. Please note that
service by mail or messenger service is generally acceptable.
Service by Fax, however, does not comply with Rule 5(b) and is
unacceptable unless the court has ordered otherwise or the parties
so stipulate. See, e.g., Salley v. Board of Governors, University
of North Carolina, Chapel Hill, North Carolina, 136 F.R.D. 417
(M.D. N.C. 1991); Mushroom Associates v. Monterey Mushrooms, Inc.,
1992 U.S. Dist. LEXIS 20629, 1992 WL 442898 (N.D. Cal. 1992);
Switzer v. Sullivan, 1996 U.S. Dist. LEXIS 1249 (N.D. Ill. February
1, 1996). However, the rule appears to be different in Florida.
"Subdivisions (b) and (f) of rule 1.080 [were] amended to
allow service of pleadings and papers by facsimile ( fax)."
In Re Amendments to the Florida Rules of Civil Procedure, 604
So. 2d 1110 (1992).
9. Some imaginative
students formed firms composed of all three defense counsel, and
included them here. Some courts require that each document include
the bar number of the attorney who signs it.