In Re: Amendments to Florida Rule of Civil Procedure 1.510

I
          Supreme Court of Florida
                                   ____________

                                  No. SC20-1490
                                  ____________


 IN RE: AMENDMENTS TO FLORIDA RULE OF CIVIL PROCEDURE
                         1.510.

                                December 31, 2020

PER CURIAM.

      The Court, on its own motion, amends Florida Rule of Civil Procedure 1.510

(Summary Judgment). 1 Effective May 1, 2021, the amended rule adopts the

summary judgment standard 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 Electric Industrial Co. v. Zenith Radio Corp.,

475 U.S. 574 (1986) (together, the “federal summary judgment standard”).

Through this amendment, we align Florida’s summary judgment standard with that

of the federal courts and of the supermajority of states that have already adopted

the federal summary judgment standard. See Zachary D. Clopton, Procedural



      1. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin
2.140(d).
Retrenchment and the States, 106 Calif. L. Rev. 411, 432 (2018) (identifying

thirty-seven states as having adopted the federal standard in whole or in part; since

then a thirty-eighth state (Utah) has embraced the federal standard).

      The Florida and federal rules of civil procedure share the same overarching

purpose: “to secure the just, speedy, and inexpensive determination of every

action.” Fla. R. Civ. P. 1.010; cf. Fed. R. Civ. P. 1. Moreover, as a purely textual

matter, the critical sentences in Florida’s summary judgment rule and in the federal

summary judgment rule are materially indistinguishable. Specifically, Florida’s

rule 1.510(c) requires summary judgment where the record shows “that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Federal Rule of Civil Procedure 56(a), in turn,

requires 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.”

      Despite this consistency of purpose and text, Florida and federal courts have

not been aligned in their summary judgment jurisprudence. Three particularly

consequential differences stand out. (The following explains these key differences;

the discussion is not intended to limit the scope of the rule amendment that we

adopt today.)

      First, “Florida courts [have] repeatedly declined to recognize the

fundamental similarity between a motion for directed verdict and a motion for

                                         -2-
summary judgment.” Thomas Logue & Javier Alberto Soto, Florida Should Adopt

the Celotex Standard for Summary Judgment, 76 Fla. Bar J. Feb. 2002, at 20, 22.

By contrast, the Supreme Court has held that the federal summary judgment

standard “mirrors” the standard for a directed verdict. Anderson, 477 U.S. at 250.

Although it recognized that there are procedural differences in the two motions

(one is made before trial and the other during trial), the Supreme Court concluded

that “the inquiry under each is the same: whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.” Id. at 251-52.

      Second, since this Court’s decision in Holl v. Talcott, 191 So. 2d 40 (Fla.

1966), Florida courts have required the moving party conclusively “to disprove the

nonmovant’s theory of the case in order to eliminate any issue of fact.” Logue &

Soto, supra, at 24. By contrast, the Supreme Court has held that there is “no

express or implied requirement in Rule 56 that the moving party support its motion

with affidavits or other similar materials negating the opponent’s claim.” Celotex,

477 U.S. at 323. Rather, the Supreme Court explained that “the burden on the

moving party may be discharged by ‘showing’—that is, pointing out to the district

court—that there is an absence of evidence to support the nonmoving party’s

case.” Id. at 325. Upon motion and provided there has been an “adequate time for

discovery,” the Supreme Court has held that summary judgment should be entered

                                        -3-
“against a party who fails to make a showing sufficient to establish the existence of

an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.” Id. at 322. In other words, under the federal summary

judgment standard, “the extent of the moving party’s burden varies depending on

who bears the burden of persuasion at trial.” Salo v. Tyler, 417 P. 3d 581, 587

(Utah 2018).

      Third, Florida courts have adopted an expansive understanding of what

constitutes a genuine (i.e., triable) issue of material fact. While the caselaw is not

entirely uniform, a leading treatise characterizes the Florida standard this way:

“[T]he existence of any competent evidence creating an issue of fact, however

credible or incredible, substantial or trivial, stops the inquiry and precludes

summary judgment, so long as the ‘slightest doubt’ is raised.” Bruce J. Berman &

Peter D. Webster, Berman’s Florida Civil Procedure §1.510:5 (2020 ed.). By

contrast, the Supreme Court has described the federal test as whether “the evidence

is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson, 477 U.S. at 248. “If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Id. at 249-50

(citations omitted). A party opposing summary judgment “must do more than

simply show that there is some metaphysical doubt as to the material facts.”

Matsushita, 475 U.S. at 586. More recently, the Supreme Court explained that

                                         -4-
“[w]hen opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court

should not adopt that version of the facts for purposes of ruling on a motion for

summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

      In Wilsonart, LLC v. Lopez, No. SC19-1336, 2019 WL 5188546, at *1 (Fla.

Oct. 15, 2019), we invited the parties to brief the question whether Florida should

adopt the federal summary judgment standard. In addition to the Wilsonart parties’

submissions, we heard from numerous amici, who as a group articulated a range of

perspectives from Florida’s legal and business communities. What we learned in

Wilsonart supplemented our own views and experience dealing with this issue,

which has long been the subject of thoughtful commentary. See, e.g., Logue &

Soto, supra (advocating that Florida adopt the federal summary judgment

standard); Leonard D. Pertnoy, Summary Judgment in Florida: The Road Less

Traveled, 20 St. Thomas L. Rev. 69 (2007) (same); see also Debra M. Salisbury,

Trawick’s Florida Practice & Procedure § 25:5 (2020 ed.) (“Florida courts have

followed a more restrictive course than federal courts so that summary judgment

has lost some of its utility in Florida practice.”).

      We are persuaded that the federal summary judgment standard better

comports with the text and purpose of rule 1.510 and that adopting that standard is

in the best interest of our state. As we said at the outset, our rules of civil

                                           -5-
procedure are meant “to secure the just, speedy, and inexpensive determination of

every action.” Fla. R. Civ. P. 1.010. Yet Florida courts’ interpretation of our

summary judgment rule has unnecessarily failed to contribute to that objective.

Overall and especially as to each of the key areas described above, the federal

summary judgment standard is more rational, more fair, and more consistent with

the structure and purpose of our rules of civil procedure.

      We agree with the Supreme Court that “[s]ummary judgment procedure is

properly regarded not as a disfavored procedural shortcut, but rather as an integral

part of [our rules] as a whole.” Celotex, 477 U.S. at 327. The Supreme Court’s

reasoning underlying the federal summary judgment standard is compelling: “One

of the principal purposes of the summary judgment rule is to isolate and dispose of

factually unsupported claims or defenses, and we think it should be interpreted in a

way that allows it to accomplish this purpose.” Id. at 323-24.

      In adopting this amendment, we reaffirm the bedrock principle that summary

judgment is not a substitute for the trial of disputed fact issues. As the Supreme

Court itself has emphasized, the summary judgment rule must be implemented

“with due regard … for the rights of persons asserting claims and defenses that are

adequately based in fact to have those claims and defenses tried to a jury.” Id. at

327. Our goals are simply to improve the fairness and efficiency of Florida’s civil

justice system, to relieve parties from the expense and burdens of meritless

                                        -6-
litigation, and to save the work of juries for cases where there are real factual

disputes that need resolution.

      To allow an opportunity for public comments, this amendment will not take

effect until May 1, 2021. We invite comments not just on this amendment, but

also on whether the effective implementation of the amendment requires any

additional, ancillary amendments to rule 1.510. We also invite 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. Interested persons shall have sixty days from the date of this

opinion to file comments with the Court. 2 We specifically invite comments from

The Florida Bar’s Civil Procedure Rules Committee.




       2. All comments must be filed with the Court on or before March 2, 2021,
with a separate request for oral argument if the person filing the comment wishes
to participate in oral argument, which may be scheduled in this case. If filed by an
attorney in good standing with The Florida Bar, the comment must be
electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance
with In re Electronic Filing in the Supreme Court of Florida via the Florida
Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If
filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment
may be, but is not required to be, filed via the Portal. Comments filed via the
Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic
Filing in the Florida Supreme Court, Fla. Admin. Order No. AOSC17-27 (May 9,
2017). Any person unable to submit a comment electronically must mail or hand-
deliver the originally signed comment to the Florida Supreme Court, Office of the
Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional
copies are required or will be accepted.
                                          -7-
      Accordingly, the Florida Rules of Civil Procedure are amended as reflected

in the appendix to this opinion. New language is indicated by underscoring;

deletions are indicated by struck-through type. The amendments shall become

effective May 1, 2021 at 12:01 a.m.

      It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.
LABARGA, J., dissents with an opinion.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.

LABARGA, J., dissenting.

      Citing Florida’s interest in “secur[ing] the just, speedy, and inexpensive

determination of every action,” majority op. at 2, 5, the majority’s decision

discards long-settled law—interpreting the standard for summary judgment in

Florida’s state courts—in favor of the less restrictive federal interpretation. Under

the federal interpretation, summary judgment is appropriate if the trial court

concludes that no reasonable jury could render a verdict in favor of the nonmoving

party. Fully recognizing the imperative that Florida’s state courts operate

efficiently, I nonetheless dissent to today’s decision, which infringes upon the role

of the jury in deciding disputes in civil cases.

      Because of its preclusive effect, a grant of summary judgment warrants great

caution. Indeed, “[c]aution and discernment should go hand in hand where the
                                          -8-
power to enter summary judgment or decree is exercised, for such a power wields a

dangerous potential which could have the effect of trespass against fundamental

and traditional processes for determining the rights of litigants.” Humphrys v.

Jarrell, 104 So. 2d 404, 408 (Fla. 2d DCA 1958). Vital to carrying out these

fundamental and traditional processes is the jury which, in its role as finder of fact,

hears evidence presented at trial and decides questions of fact raised by a litigant’s

claim.

         The moving party’s intent in filing a motion for summary judgment is to

dispose of a litigant’s claim on the basis that no genuine issue of material fact

exists. For decades, Florida courts have been judicious in granting summary

judgment because, as observed by one of our district courts, “a motion for

summary judgment is not a substitute for a trial on the merits.” Hervey v. Alfonso,

650 So. 2d 644, 646 (Fla. 2d DCA 1995). However, when the more relaxed

federal interpretation is applied to a motion for summary judgment, the trial court’s

analysis goes far beyond evaluating whether an issue of material fact is in dispute.

Instead, the trial court assumes a role traditionally reserved for a jury and engages

in weighing evidence.

         I emphasize that it is not the dispute of any fact that precludes summary

judgment, but the dispute of a genuine issue of material fact. Thus, the issue of

fact must be of such import that it is dispositive of the litigant’s claim. Far from

                                          -9-
being an innocuous requirement, this language sets a much higher bar than what

the majority describes as “some metaphysical doubt as to the material facts.”

Majority op. at 4 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986)).

      For more than two hundred years, this country has preserved the right to trial

by jury in civil cases. George Mason, one of this country’s founding fathers, said:

“That in controversies respecting property, and in suits between man and man, the

ancient trial by jury is preferable to any other, and ought to be held sacred.”

Because I believe that today’s decision infringes upon the jury’s sacred role, I

respectfully dissent.

Original Proceeding – Florida Rules of Civil Procedure




                                        - 10 -
                                    APPENDIX

RULE 1.510.         SUMMARY JUDGMENT

      (a) – (b)     [No Change]

        (c) Motion and Proceedings Thereon. The motion must state with
particularity the grounds upon which it is based and the substantial matters of law
to be argued and must specifically identify any affidavits, answers to
interrogatories, admissions, depositions, and other materials as would be
admissible in evidence (“summary judgment evidence”) on which the movant
relies. The movant must serve the motion at least 20 days before the time fixed for
the hearing, and must also serve at that time a copy of any summary judgment
evidence on which the movant relies that has not already been filed with the court.
The adverse party must identify, by notice served pursuant to Florida Rule of
Judicial Administration 2.516 at least 5 days prior to the day of the hearing if
service by mail is authorized, or delivered, electronically filed, or sent by e-mail no
later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary
judgment evidence on which the adverse party relies. To the extent that summary
judgment evidence has not already been filed with the court, the adverse party
must serve a copy on the movant pursuant to Florida Rule of Judicial
Administration 2.516 at least 5 days prior to the day of the hearing if service by
mail is authorized, or by delivery, electronic filing, or sending by e-mail no later
than 5:00 p.m. 2 business days prior to the day of hearing. The judgment sought
must be rendered immediately if the pleadings and summary judgment evidence on
file show that there is no genuine issuedispute as to any material fact and that the
moving party is entitled to a judgment as a matter of law. A summary judgment,
interlocutory in character, may be rendered on the issue of liability alone although
there is a genuine issue as to the amount of damages. 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 (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).

      (d) – (g)     [No Change]

                                  Committee Notes

                                    [No Change]


                                        - 11 -

Add comment