An Updated Cheat Sheet for Practitioners: The New, New Florida Summary Judgment Rule: 10 Things to Know (Revised)

By Jocelyne A. Macelloni

On April 29, 2021, the Florida Supreme Court adopted a revised summary judgment standard, aligning it closely with the federal standard. On May 23, 2024, further amendments to Rule 1.510 were announced, followed by additional updates on December 5, 2024. This overview highlights 10 key points that every practitioner and judge should know about the evolving summary judgment rule in Florida state courts.

The first two points address the newly announced changes which are effective January 1, 2025:

1. TIMING

• Under the 2021 Rule, a Motion for Summary Judgment (MSJ) had to be served at least 40 days before the hearing, with responses due 20 days prior. There was no specific deadline for filing replies.
• The 2025 amendment changes these timelines. The MSJ must now be filed and served in accordance with any court-ordered deadlines. Responses are due no later than 40 days after the MSJ is served. As with the previous rule, no specific deadline is set for replies. The hearing on the MSJ must occur at least 10 days after the deadline for serving a Response, unless otherwise agreed by the parties or directed by the court.

2. EFFECT ON PENDING CASES.

• The new Rule 1.510 takes effect on January 1, 2025, and applies to MSJs filed on or after that date. For MSJs filed before the end of 2024, hearings and responses should follow the timelines outlined in the current 2021 Rule. The updated Rule 1.510 explicitly states that MSJs must be filed and served “consistent with any court-ordered deadlines.”
• Court-ordered deadlines will likely be outlined in case management orders (CMOs). However, the term ‘case management order’ has been removed from the latest version of the rule announced on December 5. Therefore, practitioners must also review any other applicable court orders in the division or circuit where the case is pending. For example, deadlines set by Complex Business Divisions in various circuits may affect the timing for filing a motion for summary judgment (MSJ) or a response.

The following points are consistent with the 2021 version of the Rule, as outlined in the original Cheat Sheet published on July 23, 2021:

3. BURDEN – Directed Verdict Standard.

• The summary judgment standard remains aligned with the directed verdict standard.
• As some practitioners may recall, previously, the moving party had the burden of establishing, conclusively, that there was no genuine issue of material fact as to the claim or case, including disproving the other party’s theory of the case. For instance, the plaintiff would not only have to establish their own case (for which they had the burden of proving at trial), but also disprove the defendant’s affirmative defenses.
• Now, the burden on summary judgment lies with the party that has the burden of proof at trial.
• In other words: if the nonmoving party must prove the fact to prevail at trial, the moving party at summary judgment can either produce evidence that the fact is not so or point out that the nonmoving party lacks the evidence to prove the fact. To avoid dismissal of the claim or defense, the nonmoving party must then come forth with the evidence to establish a genuine issue of fact for trial.
• Key Case: A directed verdict would be proper at trial “when the evidence and all inferences from the evidence, considered in light most favorable to the non-moving party, support the movant’s case as a matter of law and there is no evidence to rebut it.” Wald v. Grainger, 64 So. 3d 1201, 1205 (Fla. 2011) (citing State Farm Mut. Auto. Ins. Co. v. Orr, 660 So. 2d. 1061, 1062 (Fla. 4th DCA 1995)).

4. Weighing the evidence

• Now, courts can weigh the evidence as a reasonable jury to determine the plausibility of inferences relied upon by the non-moving party.

5. MATERIAL FACTS IN DISPUTE.

• A mere “scintilla of evidence” or raising the “slightest doubt” is no longer sufficient to create a disputed material fact.
• There must be evidence strong enough that a reasonable jury could find in favor of the nonmoving party.
• Florida cases discussing what facts are material to a claim or defense remain applicable.

6. EVIDENCE MUST BE ADMISSIBLE AT TRIAL.

• All evidence submitted for or against an MSJ must still be admissible at trial.
• Summary judgment can be granted if the moving party proves that the non-moving party, who has the burden of proof on the claim or defense at trial, cannot produce admissible evidence to support a fact material to their claim or defense. Likewise, summary judgment can be obtained by showing that the non-movant cannot bring forth evidence to refute a claim or defense asserted against them.

7. Completion of Discovery.

• While the pre-2021 Rule allowed for an affidavit explaining why more discovery was needed before responding to an MSJ, the current Rule contemplates adequate time for discovery as one of the prerequisites to a summary judgment.

8. Judge’s Findings.

• Judges must continue to make explicit findings, both when granting and denying entitlement to summary judgment.

9. Attorney’s fees for bad faith affidavits.

• Courts can now order a party who submits an affidavit in bad faith or solely for delay to pay the other party’s reasonable expenses, including attorney’s fees, incurred as a result.
• The court may also hold an offending party or attorney in contempt or impose other appropriate sanctions.

10. Federal Summary Judgment case law.

• The new rule states that the summary judgment standard shall be “construed and applied in accordance with the federal summary judgment standard.” Thus, Florida practitioners can rely on the 30+ years of Celotex progeny because the “act of transplanting federal rule 56 brings with it the ‘old soil’ of case law interpreting that rule.”
• However, since the original Cheat Sheet was published, a slew of cases have been published by the Appellate Courts applying the new summary judgment standard. Here are a few for reference: Fuentes v. Link, 49 Fla. L. Weekly 1319, June 19, 2024 (Fla. 3d DCA 2024); Bechor v. Simcenter, Inc., 49 Fla. L. Weekly 1282, June 12, 2024 (Fla. 3d DCA 2024); Lassiter v. Citizens Prop. Ins. Co., 386 So 3d 646 (Fla. 2d DCA 2024).

[1] Updated December 9, 2024, to reflect additional changes per In re Amendments to Fla. Rule of Civil Procedure 1.510 & New Fla. Rule of Civil Procedure 1.202, No. SC2024-0662, 2024 Fla. LEXIS 1917 (Dec. 5, 2024).

 

Jocelyne A. Macelloni is a partner at the Coral Gables law firm of Barakat + Bossa and an adjunct professor of law at Nova Southeastern University Shepard Broad College of Law. Ms. Macelloni represents businesses and business owners in state and federal courts throughout the country and in various practice areas including corporate disputes, asset recovery, secured transactions, factoring and other UCC-related disputes. Ms. Macelloni can be reached at jmacelloni@b2b.legal or (305) 444-3114.