Motions to Strike Sham Pleadings and Summary Judgment Motions: Is There a Difference?
An out-of-state lawyer is on the phone. One of his clients has been sued in Florida and he needs local counsel to help file a response. He assures you that the complaint’s factual allegations are demonstrably false and tells you that he wants to move for summary judgment as soon as possible. In an effort to impress, you tell him about Florida’s idiosyncratic “sham pleadings” rule, Florida Rule of Civil Procedure 1.150.1 You explain that, in Florida, a summary judgment motion is not the only vehicle for challenging the factual support of your opponent’s case; you can also move to strike as sham.
Invariably, out-of-state counsel’s response upon learning about motions to strike sham pleadings is, “How is that different from a summary judgment motion and why is it better for my client?” More often than not, the truth is that there is no real difference between the two and, to the extent there is a difference, your client may be better served by an old fashioned summary judgment motion.
First, the similarities. The filing of neither motion automatically spares you or your client any of the costs and aggravation associated with having to litigate the matter. Neither a motion to strike sham pleading nor a motion for summary judgment excuses your obligation to respond to the complaint pursuant to Rule 1.140. Likewise, neither motion excuses your obligation to respond to discovery. Of course, you are always free to move for a stay of your obligations based on the pendency of your motion. But that is true regardless of whether your motion is one to strike or for summary judgment.
The two motions are similar in another respect: they require essentially the same burden of proof. True, summary judgment motions require a showing that there be “no genuine issues as to any material fact,”2 w hereas motions to strike sham pleadings require a showing that the pleading is “a mere pretense, set up in bad faith and without color of fact,”3 or that it is “inherently false and, based on plain or conceded facts, clearly known to be false at the time the pleading was made.”4 As articulated, the two burdens seem to be quite different. The Florida Supreme Court, however, has held that such is not the case and that motions to strike sham pleadings are subject to the same burden of proof as summary judgment motions.5
These basic similarities notwithstanding, there are some differences between the two motions—differences which may make it preferable to eschew a motion to strike as sham and pursue instead a motion for summary judgment. First, a motion to strike sham pleading requires the court to conduct a full-blown evidentiary hearing that may include the taking of live testimony.6 In effect, Rule 1.150 seems to contemplate a mini-trial without the benefit of discovery.7 This may not be a problem if you have airtight proof that the complaint is false. Nonetheless, you are now in the world of surprise witnesses, never-seen-before documents, and changed recollections.
Summary judgment motions, on the other hand, can be much tidier. For one thing, they do not require an evidentiary hearing with the taking of live testimony. Indeed, Rule 1.510(c)’s text suggests that a summary judgment hearing should not be a mini-trial; rather, it should be limited to a consideration of the “pleadings, depositions, answers to interrogatories, and admissions on file together with [any] affidavits.”
As a movant, the more limited hearing contemplated by the summary judgment rule has two things to commend it. First, by being more circumscribed, it is easier to control (read, easier to account for what your opponent may do ). Second, the limited summary judgment hearing probably will take less time than the evidentiary hearing required on a motion to strike sham pleading and, therefore, may actually be heard sooner, despite the 20-day notice requirement for summary judgment motions imposed by Rule 1.510(c).8 It is certainly not a given that your motion to strike sham pleading will be heard sooner than a promptly filed summary judgment motion (an often heard justification for the filing of the former).
Even if heard sooner, there is no guarantee that a sham pleading motion will bring the case to a close. To be sure, if a motion to strike sham pleading is granted, the court may enter a default and a summary judgment on the merits for your client.9 The court, however, does not have to do so.10 The court may instead allow your opponent to file an amended pleading, one that addresses the points raised in your motion to strike as sham.11 Just think, all that work and all you have accomplished is to educate your opponent on the weaknesses of his case.
If your opponent’s case is a shameless fabrication, pure fantasy, you probably will not be all that troubled by the fact that your opponent was granted leave to amend following the granting of your motion to strike as sham. For one, the specter of personal sanctions under F.S. §57.105(1) may be enough to deter opposing counsel from filing an equally groundless amended pleading.12 Also, if your opponent’s case is pure fantasy, there is probably precious little he or she can do to keep the amended pleading from suffering the same fate as the initial pleading. However, in the event your opponent’s case falls somewhere short of “pure fantasy,” a second bite at the apple may be all that is needed to keep the case alive.
Summary judgment motions, on the other hand, ought not provide your opponent with this second bite at the apple.13 Rule 1.510(c) is clear, if you win on your summary judgment motion, you are entitled to a judgment “forthwith.” No second chances for your opponent. This having been noted, you should be aware that the court has broad discretion to grant your opponent leave to amend following the filing of, but prior to a hearing on, your summary judgment motion.14 Indeed, in some circumstances the court may allow your opponent leave to amend after the granting of your summary judgment motion.15 T hose circumstances, however, seem to be the exception, not the rule. Thus, as a general matter, your summary judgment motion should bring finality to your case, whereas your motion to strike sham pleading may not.
Getting back to the out-of-state lawyer on the phone and his question about motions to strike sham pleadings, you answer: “and large, it’s the same as a summary judgment motion and it probably won’t make a difference to your client whether we file one or the other. All else being equal, I prefer summary judgment motions.” In saying so, you will be echoing the sentiments of those who drafted Florida’s rule on motions to strike sham pleadings: “The falseness of material determinative matter is probably better determined by motion for summary judgment and in accordance with the rules pertaining to such a motion, in order to obtain a final judgment.”16
Which raises the question, why does Florida even have a rule on striking sham pleadings? Is it necessary? The Federal Rules of Civil Procedure do not have a similar rule and, yet, our federal courts seem to do just fine in disposing of factually groundless cases. Why not simply do away with Rule 1.150 and have all factual challenges to a complaint analyzed under the rubric of a Rule 1.510 summary judgment motion? Those cases involving “inherently false” allegations—the pure fantasy cases—can be dealt with on a motion for sanctions pursuant to F.S. §57.105, following the entry of summary judgment.
On the other hand, why bother doing away with Rule 1.150? Although somewhat duplicative, the rule harms nobody. Besides, it gives us Florida lawyers a chance to show off our knowledge of Florida procedural law.
1 “If a party deems any pleading or part thereof … to be a sham, that party may move to strike the pleading or part thereof before the cause is set for trial and the court shall hear the motion, taking evidence of the respective parties, and if the motion is sustained, the pleading to which the motion is directed shall be stricken.” Fla. R. Civ. P. 1.150(a).
2 Fla. R. Civ. P . 1.510(c).
3 Yunger v. Oliver , 803 So. 2d 884, 886 (Fla. 5th D.C.A. 2002), citing Ader v. Temple Ner Tamid, 339 So. 2d 268, 270 (Fla. 3d D.C.A. 1976).
4 Yunger , 803 So. 2d at 886, citing Menke v. Southland Specialties Corp. , 637 So. 2d 285 (Fla. 2d D.C.A. 1994). See also St. John’s Med. Plans, Inc. v. Physician Corp. of America, 711 So. 2d 1329, 1331 (Fla. 3d D.C.A. 1998).
5 Meadows v. Edwards , 82 So. 2d 733, 735 (Fla. 1955) (“In order to justify the striking of a pleading for being sham or false it must be shown to be so undoubtedly false as not to be subject to a genuine issue of fact. The motion should be tested by the same standards as a motion for summary judgment. . . . A motion to strike a pleading as false should not be granted under the circumstances when a motion. . . for a summary judgment could not properly be granted.”)
6 “Rule 1.150(a) contemplates a full evidentiary hearing[.]” Furst v. Blackman , 744 So. 2d 1222, 1224 (Fla. 4th D.C.A. 1999).
7 But see Meadows , 82 So. 2d at 735 (“A hearing on a motion to strike pleadings, or on a motion for summary judgment is not to try the issues, but to determine whether there are any genuine issues to be tried.”).
8 “The motion [for summary judgment] shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall be served at least 20 days before the time fixed for the hearing.” Fla. R. Civ. P. 1.510(c).
9 Fla. R. Civ. P . 1.150(a) (“Default and summary judgment on the merits may be entered in the discretion of the court.”)
11 Fla. R. Civ. P . 1.150(a) (“ or the court may permit additional pleadings to be filed for good cause shown.”).
12 This statute reads, in part: “Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or(b) Would not be supported by the application of then-existing law to those material facts.”
13 Fla. R. Civ. P. 1.510(c) (“The judgment sought shall be rendered forthwith if. . . there is no genuine issues as to any material fact.”).
14 See Dimick v. Ray , 774 So. 2d 830, 832–33 (Fla. 4th D.C.A. 2000) (“Amendments should be liberally granted, particularly when the motion is made prior to the hearing on a motion for summary judgment.”); Plyser v. Hados , 388 So. 2d 1284, 1285 (Fla. 3d D.C.A. 1980) (“leave to amend should be freely given, particularly where. . . the party seeks amendment at or before a hearing on a motion for summary judgment”).
15 See Cardona v. Benton Express, Inc., 804 So. 2d 505, 507 (Fla. 3d D.C.A. 2001) (noting that a party may, with leave of court, amend a pleading after a ruling on a summary judgment motion, but not if doing so would inject a new cause of action into the case). See also Skilled Srvs. Corp. v. Reliance Ins. Co., 763 So. 2d 1092, 1093 (Fla. 4th D.C.A. 1999).
16 Fla. R. Civ. P. 1.150, Authors’ Comments (1967).
Sean R. Santini is a shareholder in the international litigation department of Greenberg Traurig, P.A. A graduate of Stanford Law School, Mr. Santini has been practicing law in south Florida for over 13 years.
This column is submitted on behalf of the Trial Lawyers Section, Kelly G. Hamer, chair, and Thomas P. Barber, editor.