Every member of the class submitted the practical project in a timely fashion. 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.
The documents you all submitted were for the most part very good. As you read this memorandum, you will probably identify 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.
I have attached hereto the impleader and jurisdiction handout that I used earlier in the semester. It covers many of the intricacies of the Rules and of the Subject-Matter Jurisdiction provisions. 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. (Mr. Anderson 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, the defendant was a citizen of the state of Florida.
c. The amount in controversy herein[, as to each defendant, if you sued more than one] exceeds $75,000.00 exclusive of interest and costs.
I noted that several people made the mistake of using $50,000.00 as the jurisdictional amount. This is probably because you used older forms which did not reflect the amendment of section 1332 to increase the jurisdictional amount to $75,000.00 in 1995.
One person sued Chester Charles. This is wrong for two reasons, as the overwhelming majority of the class noted: (1) Mr. Charles is a citizen of Georgia, therefore, if Mr. Anderson were to sue him, the court would lack diversity jurisdiction; (2) the second reason is a practical one, related to the way in which this project was designed, if Mr. Charles was already a defendant, there would be no need to implead him!
Venue. I instructed you to include venue allegations. Since the defendant I wanted you to focus on was Ms. Bowers, and she is a resident of the Middle District of Florida (she is 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. I saw one citation to section 1331, which was clearly not applicable in Ms. Bowers' case.
Parties. The overwhelming majority of students sued only Ms. Bowers. A couple of people sued the City of Gainesville, on a failure to maintain the intersection theory. At least one person sued an insurance company, as identified in the police report. Subject-matter jurisdiction was maintained by assuming Florida citizenship for the corporation. One student had the Ford Motor company as a defendant as well and a couple of people sued the cyclist as a "John Doe" defendant. 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. I have to say, however, that given the facts of the case, I do not see any claim against the city in this scenario. Suing the cyclist was a nice touch.
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, many alternative allegations were pleaded.
Damages. (1) Destruction of the Car. The value of the car at the time of the accident is what is recoverable. 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: There were significant amounts of expenditures for several categories of medical expenses. (3) 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 permanent 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, particularly as to insured losses. While serious injury was clear, it might not be that the injury was permanent as required by Florida law.
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.
Other matters: Verification. One nice touch that many students added was a verification of the complaint by the plaintiff himself. Jury Demand. Many included a jury demand in their complaints. This is a very good idea. Certificate of Service. Several complaints had certificates of service. Keep in mind that the complaint is served with a summons, and it really does not include a certificate of service.
The answer depended on the allegations of the complaint of course. Generally, the Answer includes: (1) the replies to the allegations of the complaint, and (2) defenses. The defenses relevant to our project can be categorized as affirmative defenses, Rule 12 defenses and general defenses.
Multiple-Clients. Even if multiple clients were sued, defense counsel represented only Ms. Bowers. To do otherwise, given your fact-pattern, would raise serious conflict-of-interest problems.
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. Alternatively, you can admit the jurisdictional amount for jurisdictional purposes only, given how forgiving the test for that amount is. You certainly have not reason to know, at the time you answer the complaint, how much plaintiff has spent in hospital bills or the true value of assets.
General Warnings. 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 __".
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 (although I must confess that I do not see how that one applies to our facts). 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. Some students also raised superseding cause, alleging that one of the other parties was responsible for the damages, including the cyclist. Rule 12 defenses that could also be raised: lack of subject matter jurisdiction; failure to state a claim upon which relief can be granted. Many students caught the possibility that having a claim under Florida law was difficult and thus a 12(b)(6) defense was very appropriate. Many students also argued that Charles was a Rule 19 compulsory party and therefore raised the failure to join defense. This also begged for a lack of subject-matter jurisdiction defense to be tied to the joinder of Mr. Charles. Many students quickly identified these defenses. Ultimately, I had told you that there is joint and several liability, therefore the Rule 19 matter would probably fail. Nevertheless, preserving the defense is fine pleading.
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.
Jurisdiction. In this case, the court would clearly have 1332(a)(1) jurisdiction over Ms. Bowers' claims against Mr. Anderson. The question remains, however, if she is required to plead jurisdiction. Prior to the enactment of section 1367, an independent basis of subject-matter jurisdiction was not required for compulsory counterclaims. This is not to say that rule 13(a) provides jurisdiction, as one counterclaim seemed to suggest. The rules govern the procedure for joinder of claims and parties, they do not provide subject-matter jurisdiction. There used to be a recognized exception to the strict subject-matter jurisdiction provisions to cover compulsory counterclaims. Now, Rule 8(a)(1) requires the pleading party to justify jurisdiction over the subject matter of each claim with no exceptions, i.e., the language starting with "unless" is probably no longer relevant, for the most part. This is the fallout from Finley and the enactment of section 1367. Most federal courts now interpret Section 1367 as applying to all counterclaims, compulsory or otherwise (this also illustrates that the commonality test of 1367(a) is broader than the "same transaction or occurrence" test of 13(a)).
Parties. The only appropriate parties to the counter-claim were Ms. Bowers as counter-claimant and Mr. Anderson as Counter-defendant. Rule 13(h) allows people to join as claimants in a counterclaim. For example, if Ms. Bowers had children who arguably suffered injury because of her damages, she would join them as counterclaimants under 13(h). It would be inappropriate, however, to use 13(h) to join claims against other parties. If you want new people from whom to claim, you must use Rule 14 impleader. [Actually, this is wrong. 13(h) does allow you to join a new party opposite to you when you make them the object of the same compulsory counterclaim you have against the original Plaintiff. However, if you want to join someone for contribution, the proper procedural device is in fact Rule 14(a). The defendant then is given a greal deal of flexibility on this.]
Damages. Basically the same categories as discussed above, although the amounts vary. I did add a quantifiable claim for lost wages. Some students also argued that there was a loss in value of the law firm. This was nice. The argument goes that this is a solo practice and that the absence of the lawyer not only produces lost income, but also reduces the value of the practice as an asset.
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.
Instead of the traditional request for admissions, I chose to have you craft a Third-Party Complaint. This made the exercise much more useful to put together the pleading rules and the jurisdictional provisions of Title 28.
Contribution Claim. Most people took to heart my advice that the third-party complaint is a complaint by someone who lost the race to the courthouse. However, some took this too literally. In order for the party to be brought into the case, there must be at least a 14(a)[1] contribution claim against them. Many people forgot to make such a claim. Once you can get them in under 14(a)[1] you can then add other claims against the party, such as direct claims of damages and negligence against Ms. Bowers, but not before.
Jurisdiction. What was the proper basis of jurisdiction over claims by Bowers against Charles: (1) 1332 original jurisdiction, given Bowers is a citizen of Florida and Charles a citizen of Georgia; or (2) 1367 Supplemental Jurisdiction? To the extent that we focus only on the claim between Bowers and Charles, there is original diversity jurisdiction under 28 USC § 1332 given that they are from different states. However, if there was some defect in original jurisdiction we would have to go to Supplemental Jurisdiction, using the claims between Anderson and Bowers as anchor claims. Under this scenario, there would clearly be supplemental jurisdiction over Ms. Bowers' claims arising out of the accident. However, in this situation, you should plead section 1332 original diversity jurisdiction as to the claims from Ms. Bowers against Mr. Charles. Absent a realignment of both Bowers and Charles as defendants to this claim, which the court has the discretion to do, the court would look at the claim between Bowers and Charles as Plaintiff Bowers vs. Defendant Charles. There is diversity. The problem then arises when Charles and the original Plaintiff try to make claims against each other. Again, we look at the claims individually, unless the complexity of the case requires us to do otherwise. Therefore, Charles and Anderson lack diversity and their claims can only come in under Supplemental Jurisdiction. This raises the 1367(b) problem we discussed in class.
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.