On April 29, 2021, the Florida Supreme Court adopted a new summary judgment standard aligning it closely with its federal counterpart. On May 23, 2024, the Florida Supreme Court announced changes to Rule 1.510. The following overview provides the 10 key points every busy practitioner, and judge, should know about the summary judgment rule in Florida state courts.
The first two points address the newly announced changes which are effective January 1, 2025:
1. TIMING.
– The 2021 Rule required that the Motion for Summary Judgment (“MSJ”) be served at least 40 days before the hearing, with responses due 20 days before the hearing. No specific deadline for replies was set.
– Under the 2025 amendment, the Rule eliminates any reference to a hearing. Rather, the moving party must serve the MSJ in accordance with the deadline specified in the case management order. The Response is due no later than 60 days after service of the Motion. No specific deadline for replies was set.
2. EFFECT ON PENDING CASES.
– The new Rule 1.510 takes effect on January 1, 2025 and applies to MSJs adjudicated on or after January 1, 2025.
– If you file a MSJ before the end of the year and set it for a hearing to occur after January 1 and less than 60 days after filing the MSJ, if no response has been submitted, you should reschedule the hearing.
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 1 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 nonmoving 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).
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.