The Supreme Court Overhauls Florida’s Summary Judgment Rule: What Are the Top Ten Most Significant Changes in the New Rule?
Effective May 1, 2021, the Florida Supreme Court adopted substantial revisions to the rule governing motions for summary judgment.[1] While the rule number (i.e., 1.510) remains the same, Florida’s high court otherwise overhauled the rule in its entirety, including adopting the federal standard for summary judgment that has applied in federal court for 35 years.[2]
In adopting the federal summary judgment standard, the Florida Supreme Court reasoned that both the Florida and federal rules of civil procedure aim “to secure the just, speedy, and inexpensive determination of every action,” and that adopting the federal standard “means abandoning certain features of Florida jurisprudence that have unduly hindered the use of summary judgment in our state.”[3] Thus, the high court concluded, “the best way forward is to largely adopt the text of federal rule 56 as a replacement for rule 1.510.”[4]
In sum, the Florida Supreme Court’s adoption of the new rule (“New Rule”) has materially changed the standard, procedure, and form for summary judgment practice in Florida. Among the many changes, the top ten most significant changes in the New Rule are as follows:
- The New Rule Aligns the Summary Judgment Standard with the Directed Verdict Standard. In adopting the New Rule, the Florida Supreme Court intends to align Florida’s standard for a motion for summary judgment with that for a motion for directed verdict made at trial. The inquiry for each motion is the same–whether the evidence presents a sufficient disagreement to require submission to a jury or it is so one-sided that one party must prevail as a matter of law.[5]
- The Moving or Nonmoving Party May Raise Evidentiary Objections on Summary Judgment. Under the New Rule, a party may object that the material cited by the adverse party to support or oppose a motion for summary judgment cannot be presented in a form that would be admissible at trial.[6]
- The Court May Grant or Defer Summary Judgment When a Party Has Failed to Support or Rebut an Assertion of Fact. Under the New Rule, if the movant fails to support an assertion of fact, or the nonmovant fails to rebut an assertion of fact, by citing to particular record evidence, the court may: (i) give either party an opportunity to support or address the fact; (ii) consider the fact undisputed for purposes of the motion; (iii) grant summary judgment if the motion and supporting materials show the movant is entitled to summary judgment; or (iv) issue any other appropriate order.[7]
- The Court May Grant Summary Judgment on Grounds Not Raised by the Moving Party with Reasonable Notice. The court, after giving reasonable notice and a reasonable time to respond, may now grant a motion for summary judgment on grounds not raised by either party. The court may also, after providing reasonable notice and time to respond, consider and grant summary judgment sua sponte (on its own), after the court identifies for the parties the material facts that may not be genuinely in dispute.[8]
- The Moving and Nonmoving Parties Must Cite to Particular Record Evidence to Support or Oppose a Motion. In support or opposition of a motion, the New Rule requires that the moving and nonmoving parties must cite to: (i) particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, interrogatory answers, or other materials; or (ii) must show the materials cited by the adverse party do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce evidence to support a fact.[9]
- Federal Case Law is Guiding Authority Under the New Rule. The New Rule states: “The summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard.”[10] This means that Florida “courts applying the new rule must be guided not only by the Celotex trilogy, but by the overall body of case law interpreting federal rule 56.”[11]
- The Court Must State on the Record its Reasons for Granting or Denying Summary Judgment. It is now mandatory that the court state on the record its reasons for granting or denying a motion for summary judgment. Further, the court cannot state its grounds in a conclusory manner. Instead, the court “must state the reasons for its decision with enough specificity to provide useful guidance to the parties and, if necessary, to allow for appellate review.”[12] Thus, a court may no longer deny summary judgment by simply stating the motion is “denied.”
- The Movant Must Serve its Motion and Supporting Facts 40 Days Before the Hearing, and the Nonmovant Must Serve its Response and Supporting Facts 20 Days Before the Hearing. The moving party must serve its motion for summary judgment and supporting factual position at least 40 days before the hearing on the motion.[13] Likewise, the nonmovant must serve its response to the motion and supporting factual position at least 20 days before the hearing.[14] Both deadlines are a major departure from the prior rule, which allowed the movant to serve a motion and supporting evidence up until 20 days before the hearing, and the nonmovant to serve opposing affidavits and supporting evidence up until 2 business days before the hearing.[15]
- If a Reasonable Jury Cannot Return a Verdict for the Nonmovant, the Court Must Grant Summary Judgment. Courts applying the New Rule “must recognize that the correct test for the existence of a genuine factual dispute is whether ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’”[16] It is not sufficient in opposing summary judgment to maintain that “the existence of any competent evidence creating an issue of fact, however credible or incredible, substantial or trivial, stops the inquiry and precludes summary judgment, so long as the slightest doubt is raised.”[17]
- The Moving Party No Longer Needs to Prove the Negative to Obtain Summary Judgment. To prevail on a motion for summary judgment, the movant no longer needs to conclusively negate the nonmovant’s case to eliminate any issue of fact. Under the New Rule, “a moving party that does not bear the burden of persuasion at trial can obtain summary judgment without disproving the nonmovant’s case.”[18] For example, if the nonmoving party has the burden of persuasion to prove X at trial, the movant can either produce evidence on summary judgment that X is not so, or can allege that the nonmoving party lacks the evidence needed to prove X at trial.[19] Either way, the movant would be entitled to summary judgment.
Conclusion
In sum, the likely impact of the New Rule on summary judgment practice in Florida cannot be understated. If a party opposing summary judgment cannot prove an essential element of its claim or defense such that “a reasonable jury could return a verdict for the nonmoving party,” the trial courts will now be required to grant summary judgment to the moving party. This is a monumental shift from the prior version of the rule, where Florida courts had long interpreted the movant as having to conclusively negate the nonmovant’s case. With this clear message from the Florida Supreme Court embracing summary judgment, we should expect that cases will begin to resolve more frequently before calendar call.
[1] See In re Amends. to Fla. Rule of Civ. Pro. 1.510, 309 So. 3d 192 (Fla. 2020). The high court further amended its initial version of the amended rule on April 29, 2021. See generally, In re Amends. to Fla. Rule of Civ. Pro. 1.510, No. SC20-1490, 2021 WL 1684095 (Fla. Apr. 29, 2021) (explaining additional amendments to rule 1.510 after receiving public comments).
[2] See generally, Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (collectively, defining the federal summary judgment standard). These cases are referred to as the “Celotex trilogy.” See 2021 WL 1684095 at *1.
[3] See 2021 WL 1684095 at *2.
[4] Id.
[5] Id.
[6] See Fla. R. Civ. P. 1.510(c)(2).
[7] See Fla. R. Civ. P. 1.510(e).
[8] See Fla. R. Civ. P. 1.510(f).
[9] See Fla. R. Civ. P. 1.510(c)(1).
[10] See Fla. R. Civ. P. 1.510(a).
[11] 2021 WL 1684095 at *3; see also Fla. R. Civ. P. 1.510, Ct. Notes.
[12] 2021 WL 1684095 at *4.
[13] See Fla. R. Civ. P. 1.510(b).
[14] See Fla. R. Civ. P. 1.510(c)(5).
[15] The New Rule eliminates the reference from the prior rule that the movant must serve, together with the motion, “any summary judgment evidence on which the movant relies that has not already been filed with the court.” The intent of the New Rule, nonetheless, appears to be the same that any evidence not already in the record must be served together with the motion or response. See Fla. R. Civ. P. 1.510(c)(1)(A) (“A party asserting a fact … must support the assertion by … citing to particular parts of materials in the record ….”); Fla. R. Civ. P. 1.510(c)(5) (“At the time of filing a motion … the movant must also serve the movant’s supporting factual position as provided in subdivision (1) above … [T]he nonmovant must serve a response that includes the nonmovant’s supporting factual position as provided in subdivision (1) above.”). (Emphasis added).
[16] See id. at *3 (quoting Anderson, 477 U.S. at 248).
[17] Id. (quoting Bruce J. Berman & Peter D. Webster, Berman’s Florida Civil Procedure § 1.510:5 (2020 ed.) (quotations omitted).
[18] Id. at *2.
[19] Id.
