3. How should the attorney advise the driver to respond?

The pedestrian filed a negligence action against the driver in a federal district court in State B, seeking $100,000 in damages. The driver believes that the pedestrian was crossing the street illegally and is therefore responsible for the accident. The driver seeks an attorney's advice on how best to respond to the action. Assume that State B is a contributory negligence state.

A pedestrian domiciled in State A was crossing a street in State B when he was hit by a car driven by a citizen of a foreign country. Both the pedestrian and the driver suffered injuries.

File an answer raising the affirmative defense of contributory negligence and asserting a counterclaim for negligence, seeking damages for the driver’s injuries
File an answer raising the affirmative defense of contributory negligence and move for judgment on the pleadings
Move to dismiss for lack of personal jurisdiction, because the driver is not a citizen of State B
Move to dismiss for lack of subject-matter jurisdiction, because the driver is not a U.S. citizen

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A is correct. Contributory negligence is an affirmative defense. The defendant, in their answer, must state affirmative defenses. Counterclaims are claims the defendant may have against the plaintiff. If the counterclaim arises out of the same transaction or occurrence as the plaintiff's claim, it is a compulsory counterclaim and must be pleaded in the answer or the defendant will be barred from bringing it at a later time. In this case, contributory negligence is an affirmative defense that will defeat the plaintiff's claim, and so, should be asserted by the defendant in his answer. Additionally, the facts state that the defendant was also injured. If the defendant wants to bring a claim against the plaintiff for his injuries he must bring it now as a counterclaim, because it arises out of the same transaction or occurrence.

B is incorrect. Although the defendant should assert an affirmative defense for contributory negligence, a counterclaim is a more appropriate motion than a motion for judgment on the pleadings. Failure to assert a counterclaim against the pedestrian now would bar the driver from being able to bring any claim related to this accident in the future.

C is incorrect. The driver does not need to be a citizen of State B for the state to have personal jurisdiction over him. Federal courts may exert personal jurisdiction over foreign defendants in much the same way as citizens. A foreign defendant may be reached through a state's long-arm statute. In this case, the State B long-arm statute would reach the driver because he was driving in State B when he hit the pedestrian. Additionally, if the driver wishes to collect damages from pedestrian for his own injuries, he would not want to dismiss the suit, but rather he would need to consent to the court's jurisdiction.

D is incorrect. Federal law grants subject-matter jurisdiction over alienage cases, in which one party is a citizen of the United States and the other party is a foreign citizen.

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3. How should the attorney advise the driver to respond?

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