Motions to strike sham pleadings and summary judgment motions: is there a difference?

• Author: Santini, Sean R.
• Position: Trial Lawyers Forum

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 More often than not 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. 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) whereas 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...