As I anticipated in the Syllabus, each student will be responsible for drafting a simple pleading. This practical project will account for 10% of your testing score and will be graded on a pass/fail basis. You will work in small work-groups designated in the chart attached hereto. Each member of the work-group will be responsible for one document only, as indicated in the attached chart, and shall be graded accordingly. However, group members must coordinate to produce the pertinent documents: the answer produced by the group member designated to write that document, must be an answer to the complaint drafted by the group member assigned to write the complaint; the counterclaim and third-party complaint must be tailored to that complaint as well. After the documents are turned-in, I will be happy to meet with each group to give you some feedback on your work.
The Complaint must be served on the other members of the group on or before Friday, March 16, 2001. All other documents will be due on or before 5:00 PM, Friday, March 23, 2001. You may turn them in to me after class or in my office any day prior to the deadline, or you may turn them in to my secretary, Ms. Betty Donaldson in the secretarial pool office.
FACTS RELEVANT TO THE DRAFTING OF THE COMPLAINT:
On Tuesday, September 12, 2000, at approximately 8:10 AM, Ms. Suzanne Peters, a citizen of Louisiana, was driving her 1997 Honda automobile traveling South on NW 51st in Gainesville, Florida. At approximately the same time, Mr. David Davidson, a citizen of Florida, was driving his 1995 Mazda Pick-Up coupe in the same direction. Ms. Wendy Travis, a citizen of Louisiana, was following in her Chevrolet Suburban. As the three cars reached the intersection of NW 23rd Avenue and prepared to make a left turn onto the Eastbound lanes of NW 23rd, there was a collision involving the last two of the above-described persons and their vehicles. The only witnesses to the collision that have been found and interviewed are the drivers involved. The police were unable to find anyone else driving or walking in that area at the time of the accident, or any other independent witness.
As a result of the accident, Ms. Peters suffered no physical injuries and her car was undamaged. Ms. Peters is a Physician who practices in New Orleans, Louisiana. She is an Ophthalmologist. Mr. Davidson's Mazda Pick-Up, which cost $16,500.00, was a total loss. He suffered many serious bodily injuries, and remained in the hospital for ten weeks following the accident. He will not be able to work again for at least six months (Mr. Davidson had a part-time position at a local accounting firm, which paid him about $400.00 per week). His medical treatment has cost $216,800.86 so far. His doctors anticipate that he will have to spend another $1,050,000.00 for treatment of physical injuries. Mr. Davidson is a student at the University of Florida. He is studying accounting. Ms. Travis's Suburban, suffered damages that cost $12,675.00 to repair. She also spent $71,500.00 in medical bills. Ms. Travis is a Contractor from Louisiana, she was unable to work for about four weeks following the accident and required physical therapy for about four months. Her doctors advice her that she has made a complete recovery and that they anticipate no further medical problems related to the accident.
You are a lawyer and Mr. Davidson has asked you to represent him. He has informed you of the above facts and has asked you to draft a complaint to be filed in the U.S. District court for the Northern District of Florida. He has indicated that he was not at fault for the accident, that he simply stopped when Ms. Peters came to a sudden stop in front of him, and that although he was travelling at high speed, he was able to make a controlled stop, as shown by the fact that he did not hit Ms. Peters. Then, the Suburban rear-ended his Mazda Pick-Up.
While conducting your own investigation of the case, you discover that the Louisiana residents were in Gainesville for a sporting event and had stayed a few extra days. You also obtain a copy of a one page police report. The police report, dated September 13, 2000, is attached hereto. The police filed no charges against Ms. Peters. Officers filed charges against Mr. Davidson and Ms. Travis. Both were charged with traffic violations. The police alleged that Mr. Davidson had been traveling at an excessive rate of speed at the time of the accident. They also charged Ms. Travis with reckless driving for traveling at an excessive rate of speed and for failing to keep proper distance from the traffic ahead of her. Both drivers pleaded "no contest" to the charges and each paid the corresponding $1000.00 fines. (You should assume that there is no res judicata or issue preclusion resulting from the criminal proceedings.) You did not represent Mr. Davidson in the traffic matter.
You also go the intersection and observe the layout of the intersection and the functioning of the traffic light.
After interviewing your client and conducting your own investigation, you believe most of Mr. Davidson's version of events and agree to represent him. Mr. Davidson wishes to sue only Ms. Travis, because she has better insurance coverage than Ms. Peters. Draft the complaint.
Naturally, the Complaint must be drafted first and it must be served upon opposing counsel in a timely fashion so that they may be afforded enough time to draft their own responses, counter-pleadings and third-party pleadings. Under no circumstances may the complaints be served later than Friday, March 16, 2001.
THE ANSWER:
Ms. Travis comes to you after being served with a copy of the complaint and asks you to represent her and file an answer and counterclaim against Mr. Davidson. She says that Ms. Peters, slammed on her breaks and she did not have enough time to stop her car, which was traveling at a normal rate of speed, within the posted speed limit. She further argues that Mr. Davidson panicked and slammed on his breaks, when the most prudent alternative would have been to go into the right hand lane and avoid a collision (assume that this argument can be reasonably pursued within the requirements of Rule 11).
You also have the police report that was described in the previous section and are aware of the result of the criminal cases. You believe that it is reasonable to believe that Ms. Peters was the proximate cause of the accident because she slammed on her breaks when she should have kept going, rather than stopping. Mr. Davidson, in your opinion, was travelling too fast and following Ms. Peters too closely. His failure to keep a proper distance was partly to blame for the accident (this, however, raises the concern that your client was likewise going to fast and/or too close to the car in front of her). Alternately, you further believe that a reasonable claim can be made that Mr. Davidson then had a clear chance to avoid the accident by going into the right hand lane. You have serious doubts, however, about your client's statement that she was traveling within the posted speed limit.
You agree to undertake Ms. Travis's representation. You believe that you can draft an answer and counterclaims to this complaint, as well as file a third-party complaint, based on the information available to you, which are consistent with your obligations to represent your client within the limits of Rule 11 and all other applicable rules and laws. Draft the answer.
THE COUNTERCLAIM:
You are co-counsel for Ms. Travis, you have been asked by your co-counsel to prepare a counterclaim against Mr. Davidson. You are aware of the facts stated herein. Draft a counterclaim against Mr. Davidson. Although counterclaims are usually included with the answer to the complaint, you should draft this as a separate document.
Additionally, Mr. Davidson owes Ms. Travis $50,000.00 that she lent him. Assume that she has a legitimate claim for this debt.
The counterclaim should include all claims Ms. Travis has against Mr. Davidson, arising out of the facts stated herein.
THE THIRD PARTY COMPLAINT:
You are co-counsel for Ms. Travis. She wishes to implead Ms. Peters, arguing that she made a sudden stop at the intersection because she was distracted speaking on her cellular telephone while she was driving, and something in the conversation caused her to become upset. You are also aware of all facts relevant to the Answer and to the Counterclaim.
Ms. Travis also tells you that she suffered a further shock upon recognizing Ms. Peters as the person who had uttered obscenities against her and shoved her during the football game that they both attended that previous Saturday afternoon. You believe that she has legitimate claims against Ms. Peters as a result of this incident.
Draft a third-party complaint. You have chosen to raise as many claims in this third-party complaint as would be allowed by the Federal Rules of Civil Procedure, given the facts stated herein.
PARAMETERS:
Assume that in drafting your pleadings you must please a federal judge who thinks like judge Keeton (see, Cash Energy, Inc. v. Weiner, casebook page 167). Make both jurisdictional and venue allegations. (See 28 USC §§ 1332, 1391).
Law. Assume that that you may make allegations regarding fault against any of the three persons involved in the accident, consistent with Rule 11 of the Federal Rules of Civil Procedure. Assume further, that there is joint and several tort liability in this case. Otherwise, assume that the applicable substantive law will be that of Florida. 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. Take this into account when drafting your complaint.
THE RULES:
It will be helpful to review the Federal Rules of Civil Procedure, particularly those applicable to pleading. You may even want to cite them in footnotes in your respective documents, by way of review.
Practical Project Group and Pleading Assignments
[I do not use students' names in the web version.]
* Students drafting the complaint must serve it upon opposing counsel no later one week before the final date, i.e., Friday, March 16, 2001, in order to afford the other students sufficient time to do their work.