Adoption By the Numbers: Two Years Later, How Should the Florida Courts Navigate the “Not-So-New” Florida Summary Judgment Rule?
On December 31, 2020, the Florida Supreme Court amended Florida Rule of Civil Procedure 1.510, which regulates summary judgment motions.[1] With the change, the Florida rule now models itself after the federal rule like most other states.[2] This amendment has been effective since May 1, 2021. Yet, an analysis of a random sample of Florida cases reveals that 21% of the courts were neither applying it correctly nor applying it at all (see Figure 1).
Before the amendment, Florida’s summary judgment standard placed a near impossible burden on the movant. The original text provided that “[a] party moving for summary judgment bears ‘the burden of proving the absence of a genuine issue of material fact.’”[3] Courts interpreted this rule plainly to mean that “[i]f the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.”[4] This high bar made it difficult, and perhaps almost impossible, for a movant to prevail through dispositive motion practice alone.
Now, the rule tracks the federal standard and states, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[5] This change allows a movant to show that the non-moving party cannot prove its claim by a preponderance of the evidence.
The Florida Supreme Court provided that the former Florida rule and federal summary judgment rule serves the same overall purpose, “to secure the just, speedy, and inexpensive determination of every action.”[6] The court’s opinion articulates three major differences that prompted alignment with the federal courts and supermajority states.
First, Florida courts previously declined to recognize the similarity between a motion for directed verdict and a motion for summary judgment. Conversely, the U.S. Supreme Court recognizes that the summary judgment standard mirrors the directed verdict standard, with the difference lying in the procedural process only.
Second, Florida courts previously placed the burden on the movant, “[to conclusively] disprove the non-moving party’s theory of the case in order to eliminate any issue of fact.”[7] By contrast federal courts hold that the movant’s burden varies depending on who bears the burden of persuasion at trial.[8]
Third, prior to Rule 1.510’s amendment, the Florida Supreme Court held 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.”[9] Contrast commentary by the U.S. Supreme Court on Federal Rule of Civil Procedure 56 noting “[t]hat the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact…. [T]he substantive law will identify which facts are material.”[10]
In amending Rule 1.510, the Florida Supreme Court highlighted that “[i]t would also be difficult to overstate how important the [Celotex] trilogy remains to summary-judgment practice today.”[11] Thus, it concluded the adaptation of the federal rule as outlined in the Celotex trilogy better agrees with the text and purpose of Rule 1.510.[12] The new rule adds the following sentence to the text of the existing Rule 1.510(a): “The summary judgment standard provided for this rule shall be construed and applied in accordance with the federal summary judgment standard.” Further, the court’s comment to the rule states that the “‘federal summary judgment standard’ refers to the principles announced in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), and more generally to case law interpreting Federal Rule of Civil Procedure 56.”
The key amendments to Rule 1.510 are:
1) The standard for summary judgment now mirrors the standard for directed verdict;
2) It recognizes that a movant that does not bear the burden of persuasion at trial can obtain summary judgment without disproving the nonmovant’s case;
3) The new test for the existence of a genuine factual dispute will be whether “the evidence is such that a reasonable jury could return a verdict for the nonmovant[;]”[13]
4) The court must state on the record with enough specificity to provide useful guidance to the parties the reason for granting or denying summary judgment;[14] and
5) At least 40 days before the time fixed for a hearing a motion for summary judgment must be filed and the nonmovant must respond with its supporting factual position at least 20 days before the hearing.[15]
As it pertains to the application of the amended rule to pending matters, Amends. to Fla. Rule of Civ. Pro. 1.510, 317 So. 3d at 77-78, provides:
The new rule will govern cases decided on or after [May 1, 2021], including in pending cases.
In cases where a summary judgment motion was denied under the pre-amendment rule, the court should give the parties a reasonable opportunity to file a renewed summary judgment motion under the new rule. In cases where a pending summary judgment motion has been briefed but not decided, the court should allow the parties a reasonable opportunity to amend their filings to comply with the new rule. Any pending rehearing of a summary judgment motion decided under the pre-amendment rule should be decided under the pre-amendment rule, subject of course to a party’s ability to file a renewed motion for summary judgment under the new rule.[16]
Practical Effects
Now, Florida lawyers are more likely to pursue summary judgment motions because the chance to prevail is significantly higher. Particular cases, such as lawsuits involving negotiable instruments, insurance, contract, and tort, are more susceptible to such motions.
As mentioned earlier, “[t]he summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard articulated in [the Celotex trilogy].”[17] Though the text of Rule 56 has changed since the Celotex trilogy, courts still interpret the federal summary judgment standard according to those cases. In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the Supreme Court substantially modified the moving defendant’s burden. The court said not only could a defendant obtain summary judgment “by offering its own undisputed proof conclusively negating the plaintiff’s ability to meet a required element of its claim” but the defendant also could “[attack] the sufficiency of the plaintiff’s proof.”[18] The movant may do this by showing that there is an absence of evidence to support the nonmovant’s case. In other words, “if the nonmoving party must prove X to prevail [at trial], the moving party at summary judgment can either produce evidence that X is not so or point out that the nonmoving party lacks the evidence to prove X.”[19] “A movant for summary judgment need not set forth evidence when the nonmovant bears the burden of persuasion at trial.”[20] Thus, summary judgment is now more attainable for a movant.
With the burden lightened for the movant, Florida courts must recognize that the amended rule has created a higher burden for non-moving parties. Once the movant satisfies their initial burden, “the nonmoving party ‘must respond by submitting evidentiary materials’ of specific facts showing the presence of a genuine issue for trial.”[21] That is, “[t]he nonmoving party must do more than raise some metaphysical doubt about the material facts and cannot rest on mere denials or allegations. The nonmoving party must instead present enough evidence that a jury could reasonably find in his favor.”[22] The trial court’s function now is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”[23]
Appellate courts have begun hearing arguments regarding the amended rule. But the bulk of cases involve disputes over the application of the new standard to pre-amendment decisions because the new rule is not retroactive. The appellate courts have just recently started to define what meets the new standard.[24]
Methodology: Understanding Florida Court Adoption of the Amended Rule
Prior to the amendment, practitioners understood the difficulties of winning a motion for summary judgment. The pre-amended Rule 1.510 set a high standard, and the change to make it consistent with the federal rule was one of necessity. The implementation of the amended Rule 1.510 contributes to the legal process being more efficient and effective. However, after reviewing a set of court opinions and orders issued since the amended rule has been in place, it is apparent that almost two years later, we are still not seeing uniformity in the use of the rule by the courts.
Using both Westlaw and Lexis databases, we retrieved a set of 1,470 cases. These cases were from different Florida courts and for the period of May 1, 2021, to January 4, 2023. From the set of cases, we chose 72 court opinions and orders at random. Our review found that 40% of courts were applying the new standard correctly, and 21% were neither applying it correctly nor applying it at all. The remaining 39% reflect court opinions and orders that require the pre-amendment rule to be applied because the cases were decided before the rule was amended.
As the judiciary and practitioners are well aware, the Florida state docket is backlogged. The good news, however, is that the proper application of the new summary judgment standard can assist with resolving cases. For example, Rule 1.150 now allows lawsuits to be whittled down to just the claims for which both sides have strong and compelling evidence to support their arguments. So, multi-count complaints can be reduced to single-count complaints, potentially changing multi-day trials to single-day trials. This greater efficiency will save everyone — the courts, the parties, and the public — limited resources like time and money. Indeed, with the new standard, juries should only be deciding civil disputes with non-frivolous claims. The precious time of jurors, and the court and parties, should be conserved. When jurors are tasked with deciding a verdict, they will need to use their practical judgment to comb through evoking evidence from each party.
Another by-product of the new summary judgment standard is the increase in settlements after a court rules on summary judgment motions. The parties alone, or with the help of a mediator, will be empowered with the knowledge of the potential liability at stake, and thus the risks associated with moving forward with trial now that only the claims with compelling evidence by the parties will go forward. In essence, this knowledge will help the attorneys and clients access their cases better. This will lead to increased pre-trial resolutions and savings resources for all.
Best Practice Recommendations
As always, lawyers should be prepared going into summary judgment hearings. Lawyers should know the facts and evidence cited by each side. Lawyers should also come armed with persuasive authority, Florida state and/or federal cases applying Florida law and the Celetox trilogy summary judgment standard, to help trial courts adjust to this new standard.
Lawyers can also help the court prevent appealable issues. Since the implementation of the amended rule, appellate courts have remanded cases because trial courts failed to state the basis for granting or denying the dispositive motion on the record.[25] Practitioners can help the court, and their clients, by reviewing the orders of the trial court and the transcripts of the hearings to ensure that courts are complying with the Rule 1.510(a) requirement. Without adequate reasoning stated in the record, the likelihood of an avoidable appeal increases.
Lastly, gone are the days of surprising opposing counsel with an argument at the summary judgment hearing. Instead, lawyers defending a summary judgment motion must file a response. Failure to do so can result in a court finding that the movant’s facts are undisputed and granting summary judgment.[26]
[1] In re Amends. to Fla. Rule of Civ. Pro. 1.510, 309 So. 3d 192, 192 (Fla. 2020).
[2] These states adopted the Celotex trilogy: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Illinois, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Washington, West Virginia, Wisconsin, and Wyoming. Only Alaska, Indiana, Iowa, Kentucky, and Oklahoma, Oregon, Texas, and Virginia have not.
[3] Fla. R. Civ. P. 1.510 (1976) (repealed 2021); Norman v. DCI Biologicals Dunedin, LLC, 301 So. 3d 425, 428 (Fla. 2d DCA 2020) (quoting Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966)).
[4] Snyder v. Cheezam Dev. Corp., 373 So. 2d 719, 720 (Fla. 2d DCA 1979) (citations omitted).
[5] Fla. R. Civ. P. 1.510 (2021).
[6] Amends. to Fla. Rule of Civ. Pro. 1.510, 309 So. 3d at 192.
[7] Id. at 193.
[8] Wease v. Ocwen Loan Servicing, LLC, 915 F.3d 987, 997 (5th Cir. 2019).
[9] Bruce J. Berman & Peter D. Webster, Berman’s Florida Civil Procedure §1.510:5 (2020 ed.) (emphasis in original).
[10] Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis altered).
[11] See Steven S. Gensler & Lumen N. Mulligan, Rule 56. Summary Judgment, 2 Federal Rules of Civil Procedure, Rules and Commentary (2021).
[12] In re Amends. to Fla. Rule of Civ. Pro. 1.510, 317 So. 3d 72, 74 (Fla. 2021).
[13] Id. at 75 (quoting Anderson, 477 U.S. at 248).
[14] Currently, the appellate courts have begun hearing matters on appeal based on Fla. R. Civ. P. 1510(a). The courts are reversing and remanding these cases to allow the court the opportunity to comply with the rule.
[15] Unlike federal practice, Florida courts conduct summary judgment hearings at a much less frequent rate; thus, commenters requested that the deadline for filing and responding be tied to a hearing date. Amends. to Fla. Rule of Civ. Pro. 1.510, 317 So. 3d at 77.
[16] Internal citations omitted.
[17] Amends. to Fla. Rule of Civ. Pro. 1.510, 317 So. 3d at 74.
[18] Gensler & Mulligan, Rule 56. Summary Judgment.
[19] Bedford v. Doe, 880 F.3d 993, 996-97 (8th Cir. 2018).
[20] Wease, 915 F.3d at 997.
[21] Bedford, 880 F.3d at 997 (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)).
[22] Id.
[23] Anderson, 477 U.S. at 249.
[24] See, e.g., G & G In-Between Bridge Club Corp. v. Palm Plaza Ass’n., 356 So. 3d 292 (Fla. 2d DCA 2023) (affirming summary judgment on affirmative defenses); Ibarra v. Ross Dress for Less, Inc., 350 So.3d 465, 468 (Fla. 3d DCA 2022) (affirming summary judgment even though non-movant provided several arguments against movant’s because the non-movant’s arguments were not probative or supported by the evidence).
[25] See, e.g., Jones v. Ervolino, No. 3D21-2037, 339 So. 3d 473 (Fla. 3d DCA May 18, 2022).
[26] See Lloyd S. Meisels, P.A. v. Dobrofsky, 341 So. 3d 1131 (Fla. 4th DCA 2022).
Anitra Raiford Clement is a partner at Shook, Hardy & Bacon in Tampa. She is a litigator in commercial disputes for a variety of industries.
Ashley B. Hayes is a staff attorney at Shook, Hardy & Bacon in Washington, D.C. She works within the Data and Discovery Strategies Practice team.
Patrick Oot is a partner at Shook, Hardy & Bacon. He leads the firm’s Data and Discovery Strategies Practice Group and is a recognized leader in pre-trial litigation and government investigations.
This column is submitted on behalf of the Appellate Practice Section, Kansas Gooden, chair, and Sarah Roberge, editor.
