Every member of the class submitted the practical project in a timely fashion, with a couple of exceptions, with which I have dealt. Every student received a passing mark. The purpose of the project is to get you to think about how to prepare a case, and to force you to turn that thinking into a tangible product. I am satisfied that you all did just that. Moreover, increasing the amount of work you put into the project, produces a corresponding improvement in the pedagogical benefit you get out of it.
I allowed this year's project to become fairly complicated. Last year I forced students to focus only on the named parties in a simple two-party hypothetical. This year, I purposely made it more complex, by adding more parties, and by suggesting that the evidence might produce some reasonable claims against unnamed persons. This produced some interesting results. Generally, every document submitted this year was long, and certainly longer than last year's submissions. This is easily explained by the added complexity and by the "Judge Keeton" scenario I set up for you.
The documents you all submitted were for the most part very good. As you read this memorandum, you will probably identify many little mistakes in your pleadings. That is the whole point. Prior to this exercise, you probably had never done a similar legal document, therefore, perfection was not expected. Hence my pass-fail system. I believe that thinking about it, doing your research, and reviewing this memo will be a helpful learning experience. The next time you draft a legal document, you will do much better. The most consistent errors in form that I saw, were failing to include a certificate of service in documents other than the complaint (which does not have one because it has yet to be served), and failing to include a title on the cover of the document. Little things, but important ones in practice.
I was especially impressed that one person actually submitted a JS-44 Civil Cover Sheet! Above-and-beyond the call duty, but, as I said, impressive diligence.
Let me take this opportunity to discuss some of the more important issues raised by the project.
Jurisdiction. The complaint had to include jurisdictional allegations. For example:
1. This court has jurisdiction over the subject matter of this complaint pursuant to 28 USC § 1332, based on the following facts:
a. At all times pertinent hereto, plaintiff was a citizen of the state of Georgia. (Daffy Duck is from Georgia, as is indicated in the text of the project, I corrected the Police Report to reflect that after I noted that I had switched the addresses).
b. At all times pertinent hereto, all defendants were citizens of the state of Florida. (Since we had multiple defendants at least both Mickey as the allegedly negligent driver, and Minnie, as the owner of the car were the logical defendants, the plural was appropriate) Alternately, however, you could have broken it up into separate allegations as to each defendant. I think this is the better practice, particularly since I told you to assume that your judge was a "Judge Keeton", meaning someone who likes heightened specificity requirement, even when the Rules do not expressly require them. Although, when referring to the married couple a court would not be snitty about this, greater care is required when suing unrelated defendants. For example:
b. (1) At all times pertinent hereto, defendant, Michael Mouse was a citizen of the state of Florida. (2) At all times pertinent hereto, defendant, Minnie Mouse, was a citizen of the State of Florida. (3) At all times pertinent hereto the Acme Traffic Light Company was a citizen of Florida and South Carolina.
c. The amount in controversy herein , as to each defendant, exceeds $75,000.00 exclusive of interest and costs.
I am not sure that a paragraph consistent with Form 2 at page 248 of your Rules Supplement really satisfies my "Judge Keeton" standard. However, note the amended language of that form, which basically says that the complete diversity requirements have been met, that Plaintiff is from one state, and all defendants are from states other than that of plaintiff's citizenship.
Venue. I instructed you to include venue allegations. Since the most likely defendants reside within the Middle District of Florida (they are from Orlando), and I asked you to file in the Northern District of Florida, venue in this case was most appropriately premised on 28 USC § 1391(a)(2). Allegations mentioning the location of the accident were appropriate in this regard. "A substantial part of the events that lead to this complaint occurred at the intersection of NW 34th Street and NW 16th Street, in the City of Gainesville, County of Alachua, State of Florida, which is within this district." A more simple "The accident occurred at ...." would have been fine as well.
Citations. Some students did not include citations in their subject-matter jurisdiction and venue allegations. That is standard practice. Other students did include specific citations to section 1332 and 1391. I like this, it makes the court's life easier. However, be sure to get them right. I saw a citation to 1391(b) instead of (a)(1). 1391(a)(1) is the one that applies to cases in which jurisdiction is based only on diversity.
Parties. As I encouraged, through carefully confusing statements, many of you found ways of suing persons other than those mentioned in the facts. For example, the City of Gainesville was a popular defendant, on a failure to maintain theory. Some people used John Doe pleading to sue the manufacturer and/or maintenance company responsible for the traffic light. John Doe or just made-up names were used to refer to the insurer of Mr. Mouse and/or Mrs. Mouse. The manufacturer of the vehicles as well persons who might have provided components or maintenance therefor, were also potential defendants. Suing the City of Gainesville might have raised some Constitutional concerns, however, the Supreme Court has held that Municipalities are generally not immunized from suits by the 11th Amendment.
Negligence. As to allegations of Negligence, the simple notice pleading requirement of Rule 8 gives plaintiff great leeway. But, I made your life hard by giving you the "Judge Keeton" scenario. This meant that I wanted to see very specific factual allegations. And you provided these in droves! However, heightened specificity is not necessarily incompatible with alternative pleading, as most of you recognized. Therefore, by way of alternative allegations, some students pleaded, 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. Additionally, suing the City of Gainesville, or the manufacturer of the traffic light suggests that in the alternative the accident might have been caused by a malfunction in the light itself. This would be reasonably supported by the statements of both parties indicating that they had a green light in their favor. (Of course there is also the possibility that one of them is lying, but remember the standards for filing).
Damages.
(1) Destruction of his Harley. Some students noted the possibility that the motorcycle was not worth what it cost at the time of the accident, and chose to make general damages allegations, most simply used the cost of the "hog" as the damages measure. The Harley cost $26,000.00, it was a `97 model, and using that number was probably quite reasonable. In relation to the loss of transportation, you might have added incidental damages claims for the cost of being without a car for a few days, say, for example, taxi expenses or car rental.
(2) Medical Expenses: Pretty significant. $135,332.15 so far. The one million in expected future costs was also generally thrown in for good measure.
(3) Loss of Income. Plaintiff will never be able to work as an auto mechanic again (might he work as something else?). This suggested loss of income, naturally.
(4) Pain and suffering and Mental Anguish. I warned in the project handout that 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. However, unlike last year, this time I gave facts that establish physical injury very clearly, so this was not a problem. You could claim to your heart's content.
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.
Multiple-Clients. Many of the people drafting complaints were very creative in choosing to sue different parties. This was allowed by the parameters of the practical project. I Instructed the persons drafting answers, counterclaims and requests for admission, to answer, counterclaim and request admissions at least on behalf of Mickey, Minnie and their children. Not everyone heeded my advice in this regard, but I decided to be forgiving about it. But the possibility of a conflict of interest occurred to many of you.
Conflicts of interest are always possible when a lawyer is considering representing more than one client. Even Minnie and Mickey could have conflicting interests, although it would be very common that they would be represented by the same counsel. The situation can get considerably more complex when dealing with other parties. Keep in mind, however, that a common defense is often the best defense. Persons can waive possible conflicts, in order to present a joint defense, and this is perfectly common. See for example the tobacco companies and their joint defense strategy, which has worked for a long time, even though it now seems to be unraveling.
As to any other defendants, however, I indicated that you should answer only to the extent that no conflicts would clearly arise out of the allegations of the complaint. The documents should have clearly identified the parties whom you represented. I was not especially snitty about this, but I could have been. Careful in the real world, and in Professional Responsibility!
Jurisdiction. Denial of the Plaintiff's citizenship for lack of information will often be appropriate, when no information other than the complaint is available. However, in this case I gave you a Police Report that showed Plaintiff's address. While this is not incontrovertible proof of residence, it was a reasonable basis for alleging or for admitting citizenship, although I do not believe it is enough to preclude a lack of information denial. You should, of course, know what state your client is a citizen of, therefore, you should admit that your client is a citizen of Florida. 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 Plaintiff alleged that the hog cost $26,000.00, counter that you do not know how much it was worth at the time of the accident. Even a 97 model might lose some value when driven off a lot, although a reasonable argument can be made that in this case that does not apply. You certainly have not reason to know, at the time you answer the complaint, how much plaintiff has spent in hospital bills.
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: "Defendant Michael Mouse admits that plaintiff was traveling South on NW 34th Street on Saturday, January 18, 1997, at approximately 2:10 p.m. and that defendant was involved in an automobile accident with plaintiff, but denies that he negligently ran a red light hitting plaintiff's car."
Let me comment on one set of allegations and denials that caught my eye:
COMPLAINT: Jurisdiction is founded under 28 USC § 1332, diversity of citizenship. Plaintiff, Daffy Duck, being a citizen of Georgia, and defendant, Michael Mouse being a Citizen of Florida. The amount in controversy, exclusive of interests and costs, is in excess of $75,000.00.
ANSWER: [Defendant] Admits paragraph 5 for jurisdictional purposes only and lacks sufficient knowledge to answer the remainder of the paragraph.
The complaint is fine, however, it neglected to include allegations as to the citizenship of Mrs. Mouse and the City of Gainesville, additional defendants, in this paragraph, or elsewhere in the complaint. It is important to remember that every defendant must be covered in jurisdictional allegations.
The answer tries to be careful in denying a complex paragraph, but does so in a dangerous way. The appropriate response to the first sentence of the paragraph is that it is a legal allegation that does not require a response. The phrasing of this answer might suggest that you admit jurisdiction. In this context, in which you have a counterclaim that you want tried, this is not a big deal, but it could be! A careful answer would identify paragraph and sentence to make sure that your meaning is properly understood. I think it is best to deny the amount, for reasons explained above. As to the citizenship of Plaintiff, a lack of information denial may well be appropriate, although I do not believe it is the only reasonable alternative.
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. 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.
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. I would therefore refer you to my discussion of the complaint above. As to jurisdictional issues raised by the counterclaims, you should review the Joinder of Claims and Parties handout.
Parties. The obvious defendants, and hence counterclaimants, were Mr. and Mrs. Mouse. The little mice, the children of Minnie and Mickey, were highly unlikely defendants, given our fact-pattern. The question arises how you include them in the Counterclaim, if they are not named defendants? Well, that is what Rule 13(h) is all about, you are then allowed to join as the little mice as counter-claimants.
Damages. Basically the same categories as discussed above, although the amounts vary. I did add that Mr. Mouse earned $50,000.00 per month as an entertainer, and that he was expected to be unable to return to work for at least another six months, which gave you a quantifiable claim for lost wages, and a time-certain. Mr. Duck's situation was not as clear.
Prayer. The counterclaim should end with a request that judgment be entered in favor of defendant(s), counter-claimant(s), 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. As is indicated in your readings, the primary uses of the Request for Admission are: (1) Document-Authentication and (2)the triable issues.
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, and facsimiles of which were included in your packet. Many students did not request authentication of the judgment, probably making the tactical decision that since Mouse was charged with a crime, his acquittal in a beyond-a reasonable-doubt case was not all that helpful to your cause. The Request for Admission could also have been used to request authentication of documents such as medical records and bills, which we can easily expect will be used in this case.
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.