New Year, New Florida Summary Judgment Standard
New Year, New Florida Summary Judgment Standard
It’s Time to Adapt Your Litigation Strategy to a More Flexible Summary Judgment Standard
On the final day of 2020, the Florida Supreme Court waived adieu to the past in two related decisions on the summary judgment standard. One decision declined to create a special exception for video evidence but concluded that Florida’s current standard is unreasonably restrictive, and the other decision amended the summary judgment rule to adopt the less rigid Federal standard. Wilsonart, LLC, et. al., v. Miguel Lopez, etc., No. SC19-1336, 2020 WL 7778226 (Fla. Dec. 31, 2020); In Re: Amendments to Florida Rule of Civil Procedure 1.510, No. SC20-1490, 2020 WL 7778179 (December 31, 2020). The Court made clear that Florida jurists should no longer view summary judgment as a “disfavored procedural shortcut.”
The Wilsonart case involved a fatal truck crash. The trial judge concluded that dash cam video depicted facts contrary to plaintiff’s eyewitness and expert testimony and justified summary judgment in defendants’ favor. Florida’s Fifth District Court of Appeal reversed the summary judgment on the grounds that the judge weighed conflicting evidence and usurped the role of a jury. However, it asked the Florida Supreme Court to decide whether an exception to the summary judgment standard should be created for video evidence, certifying the issue as having great public importance. The Supreme Court accepted the District Court’s invitation to review the certified question, but also requested legal briefing on whether to adopt the more flexible summary judgment standard used in Federal court as articulated by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). The Court also asked for briefing on whether Florida Rule of Civil Procedure 1.510 must be amended to reflect any change in the summary judgment standard. See Wilsonart, LLC, et. al. v. Miguel Lopez, etc., 2019 WL 5188546 (Fla. October 15, 2019). (For additional background and analysis of the underlying case, see “Video Evidence Sets the Stage for Florida’s Highest Court to Expand Summary Judgment Opportunities.”)
Three Consequential Differences Between the Prior Florida and Federal Summary Judgment Standards
After receiving briefs from both parties and ten amicus curiae briefs, the Court heard oral argument on October 8, 2020. On December 31, 2020, the Court prospectively amended Rule 1.510(c) and adopted the Federal standard, rectifying what it described as an unreasonable judicial definition of a “genuine issue” of fact. The amendment, which takes effect May 1, 2021, consists of changing the phrase “genuine issue” to “genuine dispute” to mirror the Federal terminology, and adding a statement requiring Courts to construe and apply the rule consistent with United States Supreme Court jurisprudence. In the Wilsonart case, the Court declined to create an exception to the summary judgment standard for video evidence. And given the Wilsonart defendants’ right to refile their summary judgment motion under the newly amended standard, the Supreme Court declined to review and reverse the Fifth District Court of Appeal’s application of the prior standard to the video evidence.
In adopting the Federal summary judgment standard, the Court identified three consequential differences between the state and Federal jurisprudence. First, Florida courts have been reluctant to recognize the fundamental similarities between a motion for directed verdict and a motion for summary judgment. Even when a judge believed a claim or defense would not survive a directed verdict motion at trial, the judge often felt obligated to deny summary judgment. By contrast, the Federal courts believe the same standard applies to both motions. Effective May 1, 2021, a claim or defense which cannot survive a directed verdict motion also should not survive a summary judgment motion.
Second, the adoption of the Federal rule will impact the burden placed on both the moving and nonmoving parties. While the parties’ summary judgment burdens vary depending on who bears the burden of persuasion at trial, the moving party will no longer be required to conclusively disprove or negate the nonmovant’s case theory. Instead, the moving party must show an “absence of evidence” to support the nonmovant’s claim or defense. The nonmoving party must then respond and show that “sufficient” evidence exists to establish elements essential to its case.
Third, Florida courts historically have applied a much more expansive definition of what constitutes a “genuine” factual issue or dispute than the Federal courts. This difference, and the Florida Supreme Court’s decision to adopt the Federal judicial definition, sheds light on what constitutes an “absence of evidence” for purposes of the movant’s burden and what constitutes “sufficient evidence” for the nonmovant’s burden. Starting May 1, 2021, the slightest doubt about the facts, or the existence of any competent, countervailing evidence, no matter how trivial or implausible, is no longer an excuse for denying summary judgment. The nonmoving party’s evidence must be more than merely colorable. Instead, it must be significantly probative. A party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.” 2020 WL 7778179, at *2 (citing Matsushita, 475 U.S. at 586). It must show “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The Federal standard allows the court to evaluate a summary judgment motion, and the nonmovant’s response, based on the totality of the evidence and whether any countervailing evidence is significantly probative or merely trivial or implausible.
What evidence is significantly probative, and whether a reasonable basis exists to support a jury decision adverse to the movant, are impossible to define in any broad sense. But now the moving party can rely on Federal court decisions addressing similar factual records. For example, in the Wilsonart case, the Fifth District Court of Appeal faulted the trial court judge for relying on a United States Supreme Court opinion holding that summary judgment was appropriate when video evidence refuted a motorist’s version of events. But when the amended rule goes into effect and the Wilsonart defendants refile their summary judgment motion, the trial court judge may rely on the United States Supreme Court decision applying video evidence without fear of appellate disapproval. Indeed, the Florida Supreme Court described the United States Supreme Court approach to video evidence and summary judgment as “the more commonsense approach.” 2020 WL 7778226, at *2 (citing Scott v. Harris, 550 U.S. 372 (2007)).
Why did the Court Change the Summary Judgement Standard?
There is no question the Florida Supreme Court has shifted to the right ideologically and wishes to align itself with the more conservative Federal jurisprudence. In 2019, the Court reversed a 2017 decision by a previous Supreme Court panel and replaced the outdated Frye standard for admissibility of expert testimony with the Daubert standard used in Federal court. See In Re: Amendments to the Florida Evidence Code, 278 So. 3d 551 (Fla. 2019). The Supreme Court reasoned that adopting the Daubert standard “will create consistency between the state and Federal courts with respect to the admissibility of expert testimony and will promote fairness and predictability in the legal system, as well as help lessen forum shopping.” Id. at 554. Therefore, Florida’s adoption of the Federal summary judgment standard should come as no surprise.
The Court said its goal in adopting the Federal summary judgment standard is “to improve the fairness and efficiency of Florida’s civil justice system, to relieve parties from the expense and burdens of meritless litigation, and to save the work of juries for cases where there are real factual disputes that need resolution.” 2020 WL 7778179, at *3. The Federal and state rule share the same purpose: “to secure the just, speedy, and inexpensive determination of every action.” Id. at *1 (citing Fla. R. Civ. P. 1.010). Having compared the standards, the Court determined that “[t]he federal summary judgment standard better comports with the current text and purpose of rule 1.510 and that adopting that standard is in the best interest of our state.” Id. at *2. The amended rule is also consistent with thirty eight other states, moving Florida into the “supermajority of states” who have adopted the Federal standard. Id. at *1.
In the past, trial court judges regularly denied summary judgment motions on the grounds that the summary judgment standard was so inflexible that an appellate reversal of summary judgment would be almost certain. The new standard will require trial judges to more seriously consider whether summary judgment is appropriate and afford judges greater flexibility when addressing specious claims and defenses. While the Court already has amended the rule prospectively, the Court invited public comment focused on the implementation of the amendment. Specifically, the Court is asking for commentary on “whether the effective implementation of the amendment requires any additional, ancillary amendments to rule 1.510” (emphasis added), whether additional portions of Federal Rule 56 should be added to Rule 1.510, and whether “rule 1.510 should be replaced in its entirety with the text of Rule 56.” 2020 WL 7778179, at *3. Comments are due on or before March 2, 2021 with an opportunity for commenters to participate in oral argument.