MEMORANDUM
TO: ASSOCIATE
FROM: PARTNER
RE: MISSY STEP vs STAGE FREIGHT CHURCH
We have accepted the defense of Stage Fright Church, and I have met with them to discuss this case. In any event, Stage Fright Church stated that they own the stage that was involved in an accident on the date in question, but they purchased it from eBay in 2019. It contains several large pieces that must be assembled to construct the sage, and it’s been used before for church events. Stage Fright Church reported the fall to its insurance company, National Casualty. What we were able to find out is that at the time of the accident, Missy Step, age 60, was helping to set up a for an annual event, Pardi Gras, at the church. While she was hanging balloons, she stepped off the stage and fell. The stage may have had a dark border around the edges that showed where the stage came to an end, but it was not bright yellow tape. The stage was about 16 inches high, but was otherwise in good condition. At the time of her fall, the stage was fully assembled. According to Mr. Owner, there were other church volunteers present that saw Plaintiff fall, and one, Lucinda Moles, provided a statement that it appeared that Missy Step did not see the edge of the stage when she suddenly stepped off and fell, although nobody else has fallen off the stage in the past, and the lights were on at the time she fell. Stage Fright is going to get us a copy of documents they believe are relevant in the next couple of weeks. We probably will not be able to review these documents until after we answer the complaint.
After quickly reviewing the complaint, I think we have enough information to answer it without asking Plaintiff’s counsel for an extension. In that regard, please draft an answer to the complaint. As you prepare to draft our answer to the complaint on behalf of Stage Fright Church, I wanted to review some of the steps (no pun intended!) you must take before and during the drafting process.
You may need to do some preliminary legal research to make sure you understand the claims asserted and the defenses to those claims. A good place to start is to look at the Uniform Jury Instructions to determine if the allegations are sufficient to support a claim. Rule 1-008(C) lists affirmative defenses. In addition to those listed, consider raising the following defense to any punitive damage claims.
That the claims of the Plaintiff herein for punitive damages are barred by the Fifth and Fourteenth Amendments to the Constitution of the United States of America, as well as Article I, §10; Article II, §13; and Article II, §19 of the Constitution of the State of New Mexico, inasmuch as under the facts of this case, and an award of punitive damages would constitute a denial of equal protection, a denial of due process, and/or the imposition of an excessive fine.
Keep in mind the above wording is not absolute, but only intended to give you an idea as to what an affirmative defense to punitive damages might look like.
Rules 1-007, 1-008, 1-009, 1-010 and 1-011 NMRA are applicable and you may want to re-read them to become familiar with them.
Remember that you need to answer the complaint carefully as anything not expressly admitted or denied is deemed an admission that can be used against Stage Fright Church throughout the litigation. If you don’t know a fact, use the terminology in Rule 1-008(B) (This Defendant “is without knowledge or information sufficient to form a belief as to the truth of the allegations in [Paragraph ___ of the Complaint],” and, therefore, denies the same.). With regard to any allegations that are legal conclusions as opposed to factual conclusions, please state the allegations are legal conclusions to which no response is needed. Please further state that to the extent a response is needed, that we are without sufficient information.
Something that we need to keep in mind as the litigation proceeds is whether we will want to amend our answer to include a cross-claim or a counterclaim. Based on the currently known facts, I do not see the need to do so, but be prepared to discuss what claims we could bring against either the plaintiff or another unnamed party in the future.
As an aside, we have already filed an entry of appearance (EOA) in this case. We decided not to file a motion to dismiss (12(B)(6)) based on the allegations in this case, but that may be a possibility in other cases. It is also important to note that in more complex cases that we would try to remove the case to Federal Court if there was a basis to do so. That is a discussion for another time. While you are drafting an answer to the complaint, please keep track of your time. This firm bills its clients in six (6) minute increments. Since this is your first time drafting an answer, don’t worry about how long it takes to draft the answer to the complaint as I will cut your time before submitting the final bill to the client, if needed.