22nd Time's the Charm: The 2015 Revisions to Summary Judgment in Louisiana

Author:Garrett Filetti
Position:J.D./D.C.L., 2017, Paul M. Hebert Law Center, Louisiana State University.
Pages:479-511
 
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22nd Time’s the Charm: The 2015 Revisions to
Summary Judgment in Louisiana
INTRODUCTION
Since its inception, the motion for summary judgment has progressed
from rarely utilized to a commonplace procedural occurrence.1 In 2015
alone, Louisiana appellate courts decided well over 400 appeals
concerning motions for summary judgment.2 In 2014, the number of
appeals reached more than 500.3 This number stands in stark contrast to
the six summary judgment appeals heard in 1996 and the 14 summary
judgment appeals heard in 1997.4 As cases continue to grow in size and
complexity, summary judgment and related appeals will likely maintain
this commonplace status and may occur even more frequently.
Louisiana Code of Civil Procedure Article 966 governs motions for
summary judgment in Louisiana state courts.5 As the frequency and
complexity of motions for summary judgment increased over time,6 the
Louisiana legislature attempted to keep the article, and the motion practice
it governs, in line with the current needs of litigation. As a result, Article
966 has undergone repeated revisions.7 Yet another attempt at updating
Article 966 took place in 2015, when the Louisiana legislature, in
Copyright 2016, by GARRETT FILETTI.
1. Brooke D. Coleman, Summary Judgment: What We Think We Know v.
What We Ought to Know, 43 LOY. U. CHI. L.J. 705, 708–09 (2012); see, e.g., infra
notes 2–4.
2. This number is based on a LexisNexis search of summary judgment cases,
limited to cases heard by Louisiana appellate courts between January 1, 2015 and
December 31, 2015. This search does not include cases that were disposed of on
summary judgment at the trial court level that were not appealed.
3. This number is based on a LexisNexis search of summary judgment cases,
limited to cases heard by Louisiana appellate courts between January 1, 2014 and
December 31, 2014. This search does not include cases that were disposed o f on
summary judgment at the trial court level that were not appealed.
4. These numbers are based on a LexisNexis search o f summary judgment
cases heard between January 1, 1996 and December 31, 1996 and January 1, 1997
and December 31, 1997, respectively. This search does not include cases that were
disposed of on summary judgment at the trial court level that were not appealed.
5. LA. CODE CIV. PROC. art. 966 (2016).
6. See supra notes 1–4.
7. See, e.g., LA. CODE CIV. PROC. art. 966 (1996); LA. CODE CIV. PROC. art.
966 (1997); LA. CODE CIV. PROC. art. 966 (1998); LA. CODE CIV. PROC. art. 966
(1999); LA. CODE CIV. PROC. art. 966 (2000); LA. CODE CIV. PROC. art. 966
(2001). The preceding list contains only some of the prior versions of Article 966.
All archived versions of the code article are available on WestLaw or LexisNexis.
480 LOUISIANA LAW REVIEW [Vol. 77
conjunction with the Louisiana Law Institute (the “Law Institute”),
comprehensively rewrote Article 966.8 The 2015 revisions were intended
to reconstruct the article9 and included changes to the layout and language
of the article in general, the deadlines for timing and briefing, the required
evidentiary procedure, the effects of partial motions for summary
judgment, and the process for appealing trial court rulings on motions for
summary judgment.10 This Comment argues that the 2015 revisions to
Article 966 successfully remedied the practical problems that existed in
the article. However, a few concerns still remain—namely problems with
delay and increasing complexity of the summary judgment process—and
care should be taken to ensure that these problems do not undermine the
changes that were made by the revisions.
Part I of this Comment provides a brief overview of summary
judgment, the process for making the motion, and the history of the
procedure in both federal and Louisiana state courts. Part II discusses the
revisions made to Article 966 during the 2015 legislative session, focusing
in particular on the changes to the timing and briefing deadlines, the
required evidentiary procedure, the effects of partial summary judgment,
and the changes to the appeals process. Part III analyzes the practical
effects of the 2015 revisions on summary judgment procedure. Finally,
Part IV addresses some remaining concerns and urges Louisiana courts
and practitioners to make motions for summary judgment an integral part
of trial preparation, ensuring that the process remains efficient and that the
changes brought by the 2015 revisions are not undermined by delay.
I. HOW DID WE GET HERE? THE HISTORY AND DEVELOPMENT
OF SUMMARY JUDGEMENT IN FEDERAL COURTS
AND LOUISIANA STATE COURTS
To fully understand the changes brought about by the 2015 revisions
to Article 966, an understanding of the concept of summary judgment, its
8. Donald Price, An Update on Proposed Revisions to the Louisiana
Summary Judgment Statutes, in MOTIONS FOR SUMMARY JUDGMENT: A REPORT
TO THE LAW INSTITUTE, PROPOSED LEGISLATIVE CHANGES TO ARTICLE 966, at 1
(2015), http://www.lajudicialcollege.org/wp -content/uploads/2014/08/3Motions-
for-Summary-Judgment.pdf [https://perma.cc/L2DV-GME9].
9. The Legal Ease: Guy Holdridge, Skip Phillips & Donald Price: 6 Things to
Know about the New MSJ Article at 27:30, LA. L. REV. (November 15, 2015),
https://soundcloud.com/the-legal-ease/ep-3-hon-guy-holdridge-skip-phillips-donald-
price-6-things-you-need-to-know-about-the-new-msj-article [https://perma.cc/NW6
T-P5RG]; see also Price, supra note 8, at 5.
10. See infra Part II.
2016] COMMENT 481
purpose, and its functionality is necessary. Additionally, a review of the
history of federal summary judgment and its influence on the development
of summary judgment in Louisiana is helpful to illustrate why the 2015
revisions were necessary and whether the changes were effective.
A. The Fundamentals of Summary Judgment
Summary judgment is a procedural mechanism by which a party can
challenge the existence or legal sufficiency of another party’s claim or
defense and determine the need for a trial.11 This mechanism is intended
to remedy excessive or unnecessary delay and congestion in courts and
avoid unnecessary trials by permitting parties to seek final adjudication of
an action without a full trial.12 On a motion for summary judgment, the
trial court judge determines, on the basis of the evidence submitted by the
parties, whether there is a genuine issue of material fact that makes a trial
necessary.13 A genuine issue of material fact is a dispute over facts of
consequence to the outcome of the action under the governing law.14 For
the dispute to be genuine, the evidence must be such that a reasonable jury
could find in favor of either party.15 Summary judgment is properly
granted “only when the court determines that the [evidence] in support of
the motion demonstrate[s] that no genuine issue of material fact exists and
that the moving party is entitled to judgment as a matter of law.”16
Conversely, if a genuine issue of material fact does exist, the case is
suitable for trial and summary judgment must be denied.17
11. 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE,
FEDERAL PRACTICE AND PROCEDURE § 2711, at 191 (3d ed. 1998).
12. Id. § 2712; WILLIAM SCHWARZER ET AL., FED. JUDICIAL CTR., THE
ANALYSIS AND DECISION OF SUMMARY JUDGMENT MOTIONS: A MONOGRAPH ON
RULE 56 OF THE FEDERAL RULES OF CIVIL PROCEDURE 2, 8 (1991) (citing Charles
E. Clark & Charles U. Samenow, The Summary Judgment, 38 YALE L.J. 423
(1929)).
13. WRIGHT ET AL., supra note 11, § 2711, at 191; see also Ben R. Miller,
Summary Judgment, 21 LA. L. REV. 209, 210 (1960).
14. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Jackson v. City of New Orleans, 144 So. 3d 876, 882 (La. 20 14); Phipps v.
Schupp, 163 So. 3d 212, 224 (La. Ct. App. 2 015) (“A genuine issue of material
fact is one as to which reasonable persons could disagree. . . .”).
15. Anderson, 477 U.S. at 248.
16. STEVEN R. PLOTKIN & MARY BETH AKIN, 2 LOUISIANA PRACTICE
SERIES: LOUISIANA CIVIL PROCEDURE 231, 263 (2015); see, e.g., Jackson, 144
So. 3d at 882; Phipps, 163 So. 3d at 225.
17. Miller, supra note 13, at 211.

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