Chapter 12-2 The Summary Judgment Rule Amendment Effective May 1, 2021
12-2 The Summary Judgment Rule Amendment Effective May 1, 2021
On December 31, 2020, the Florida Supreme Court amended Florida Rule of Civil Procedure 1.510 ("Fla. R. Civ. P.") governing summary judgments, to be effective May 1, 2021, by inserting one sentence at the end of subsection (c), namely: 'The summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard articulated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)."2 The Court articulated its reasons for adopting the federal standard in its opinion announcing the rule amendment, but invited public comment "not just on this amendment, but also on whether the effective implementation of the amendment requires any additional, ancillary amendments to rule 1.510[,]" and also invited "comments on whether there are specific textual provisions of federal rule 56 that should be added to rule 1.510, and indeed whether rule 1.510 should be replaced in its entirety with the text of rule 56."3
The case that hastened the amendment, which was also decided the same day as the above announcement, is Wilsonart, LLC v. Lopez.4 In Wilsonart, the Florida Supreme Court accepted jurisdiction to answer a certified question of great public importance, to wit:
Should there be an exception to the present summary judgment standards that are applied by state courts in Florida that would allow for the entry of final summary judgment in favor of the moving party when the movant's video evidence completely negates or refutes any conflicting evidence presented by the non-moving party in opposition to the summary judgment motion and there is no evidence or suggestion that the videotape evidence has been altered or doctored?5
The Court implicitly found the question asked if Florida should adopt the federal summary judgment standard.6 The Court ruled in Wilsonart that the current jurisprudence was not clearly erroneous and said "no" to the certified question, and therefore affirmed the Fifth District's denial of summary judgment, but it also specifically invited the petitioner to try for summary judgment again on remand under the new standard it separately announced that day.7
In the Court's opinion amending Fla. R. Civ. P. 1.510, it observed that most states had already adopted the federal summary judgment standard8 and believed the new standard would encourage a more just, speedy and economical determination in every action.9 Before the amendment, Florida jurisprudence interpreting Fla. R. Civ. P. 1.510 expressly rejected incorporating the directed verdict standard for reviewing summary judgment motions, required moving parties to disprove non-moving parties claims or defenses (those the non-moving party would have the burden to prove at trial), and made courts deny summary judgment if there was the "slightest doubt"10 there was a genuine issue of material fact, thus defeating Rule 1.510's use as a procedural vehicle to avoid unnecessary expense, delay and time.11
After hearing oral argument from a few of the many pubic commenters on April 8, 2021,12 on April 29, 2021, the Court further amended Fla. R. Civ. P. 1.510 by essentially replacing it with the text of Fed. R. Civ. P. 56, but still retained the effective date of May 1, 2021.13
The new rule took effect on May 1, 2021 and governs adjudication of all motions for summary judgment decided on or after that date.14 The Court in its opinion announcing the rule amendment encouraged lower courts to allow parties who were denied summary judgment to be permitted to file a renewed summary judgment motion under the new rule and to let parties amend pending summary judgment motions.15However, pending motions for rehearing of a motion decided under the prior rule were to be decided under the old standard.16
12-2:1 Text of New Rule 1.510
Currently, Fla. R. Civ. P. 1.510 states in full:
(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The 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. The court shall state on the record the reasons for granting or denying the motion. The summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard.
(b) Time to File a Motion. A party may move for summary judgment at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party. The movant must serve the motion for summary judgment at least 40 days before the time fixed for the hearing.
(c) Procedures.
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
(5) Timing for Supporting Factual Positions. At the time of filing a motion for summary judgment, the movant must also serve the movant's supporting factual position as provided in subdivision (1) above. At least 20 days before the time fixed for the hearing, the non-movant must serve a response that includes the non-movant's supporting factual position as provided in subdivision (1) above.
(d) When Facts Are Unavailable to the Non-movant. If a non-movant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by rule 1.510(c), the court may:
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or
(4) issue any other appropriate order.
(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:
(2) grant the motion on grounds not raised by a party; or
(3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute. If it appears from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact—including an item of damages or other relief—that is not genuinely in dispute and treating the fact as established in the case.
(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court—after notice and a reasonable time to respond—may order the submitting party to pay the other party the reasonable expenses, including attorney's fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.
12-2:2 Comparison of New Rule 1.510 With Federal Rule 56
The only three textual differences between the Florida and federal rules, after this amendment, are (1) trial courts "shall state on the record the reasons for granting or denying the motion" (under Fed. R. Civ. P. 56(a),17 courts "may" state those reasons);18 (2) the time periods for filing a motion for summary judgment and the response to that motion are tied to the hearing thereon (the federal rule is not tied to a hearing date, because hearings are much rarer in federal court);19 and (3) the Florida rule expressly mandates that the summary judgment standard be construed and applied as interpreted by federal courts (which would be a superfluity were it in Federal Rule 56).20
In the Florida Supreme Court's opinion, there are three especially far-reaching differences between the prior Florida and current federal summary judgment standard. First, Florida courts...
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