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Friday, January 15, 2021

As Published in Law360: New Fla. Summary Judgment Rule Will Deter Forum Shopping

By: Walter Latimer and Guy Noa

As Published in Law360 | January 14, 2021

On Dec. 31, 2020, the Florida Supreme Court altered the litigation landscape in Florida when it amended the summary judgment standard to align with that of the federal courts and of the supermajority of other states.[1] The court amended Florida Rule of Civil Procedure 1.510 to adopt the summary judgment standard articulated by the U.S. Supreme Court in 1986's Celotex Corp. v. Catrett decision[2] and its progeny.

The amended rule goes into effect on May 1. The adoption of the federal summary judgment standard will indeed bring Florida's currently unworkable standard in line with federal courts and with the purpose and intention of Rule 1.510.

It will prevent forum shopping by those who file dubious claims in Florida state courts rather than federal courts, because they are unlikely to face summary disposition of their claims. Eliminating untenable claims early can dramatically reduce the cost and uncertainty of protracted litigation. Finally, the new standard will improve judicial efficiency by timely disposing of claims or defenses lacking factual support.

The court amended Rule 1.510 on its own motion, but the impetus was Wilsonart LLC v. Lopez, decided in 2019.[3] Wilsonart concerned a deadly trucking accident where video footage from the truck's dash camera directly contradicted the plaintiff's version of events, and clearly showed that the truck driver was not negligent.

The trial court granted summary judgment based on the video evidence, but the Fifth District Court of Appeal reversed it. The appellate court understood the existing rule to require denial of summary judgment "if the record raises the slightest doubt that material issues could be present." It certified the case to the Florida Supreme Court as one of great importance.

The Florida Supreme Court agreed to hear the case, and invited parties to brief the question of whether Florida should adopt the federal summary judgment standard. Recognizing the significance of a rule change, numerous interest groups from Florida's legal and business communities responded with amicus briefs, many in support of a rule change.

The court ultimately affirmed the lower court's decision in Lopez. It was persuaded Florida should adopt the federal summary judgment standard, but through the "right way" — a rule amendment. The court contemporaneously issued a separate opinion announcing the prospective change to Rule 1.510.

In its analysis, the court noted the nearly identical language of Rule 1.510 and Federal Rule of Civil Procedure 56, on which Rule 1.510 is based.[4] Despite the consistency of the purpose and text of the two rules, the court recognized the divergence in summary judgment jurisprudence between the Florida and federal courts, and addressed three "particularly consequential differences."[5]

First, the court recognized that Florida courts routinely refuse to recognize the similarity between a motion for directed verdict and a motion for summary judgment, even though the Supreme Court has held that the summary judgment standard mirrors that of a directed verdict: "[T]he 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."[6]

Second, since the Florida Supreme Court's decision in Holl v. Talcott,[7] Florida courts have required movants to disprove the opponent's claim. The Supreme Court, however, held that the federal summary judgment standard, based on the language of Rule 56, does not require that a moving party produce evidence to negate an opponent's claim.[8]

Finally, the court examined Florida's expansive view of what constitutes a genuine issue of material fact, including the mere possibility of any issue.[9] By contrast, parties opposing summary judgment in federal court must do more than show a speculative doubt as to material facts.[10] The court determined that Florida courts' interpretation of Florida's summary judgment rule failed to serve the purpose of the rule, and that adopting the federal summary judgment standard was in the best interest of the state.[11]

The significance of the rule change cannot be overstated. Obtaining summary judgment under the current standard is notoriously difficult, requiring the moving party to conclusively demonstrate the nonexistence of any genuine issue of material fact.

Essentially, the standard requires the moving party to disprove the nonmovant's theory of the case in order to eliminate any possible issue of fact. But "if the record raises even the slightest doubt that an issue might exist, summary judgment is improper."[12]

As a result, "the 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."[13] Critics argued that this high standard virtually eliminated any chance of obtaining summary judgment and undermined the purpose of Rule 1.510: the adjudication of claims where there is no genuine issue of material fact.

Under the rule change, the moving party will no longer be required to disprove the opposing party's theory. Instead, as under the federal summary judgment standard, a moving party need only prove the absence of evidence in support of the nonmoving party's claim. The nonmoving party must then set forth specific facts showing there is indeed a genuine issue for trial.[14]

Where a nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case," summary judgment is appropriate.[15] Parties opposing summary judgment will no longer be able to rely on their initial pleadings, the possibility of the existence of a material factual issue, or mere speculation.

Instead, the evidence must be such that a reasonable jury could return a verdict for the nonmoving party.[16] Evidence that is not significantly probative will not save a party from summary judgment.

To be clear, the new standard will not eliminate meritorious claims or defenses, nor will it shut the courthouse doors on those pursuing valid claims. Indeed, while adopting the federal summary judgment standard, the court reaffirmed "the bedrock principle that summary judgment is not a substitute for the trial of disputed fact issues."[17]

The new standard will require litigants, after having an adequate time for discovery, to produce evidence that supports their claims or defenses. Where that evidence is lacking, it will now enable courts to dispose of those claims or defenses that would not prevail at trial.

The change to Rule 1.510 will align Florida's summary judgment standard with that of the federal courts and 75% of states,[18] bringing predictability and a workable framework for litigants and courts considering summary judgment.

It will prevent forum shopping by those who would seek to pursue unsupportable claims in Florida state courts rather than federal courts, knowing their claims were unlikely to be dismissed prior to trial. This has resulted in pressuring defendants to settle claims in excess of their actual value, based on the added cost of litigating the case to a jury verdict.

Most importantly, the new standard will improve judicial efficiency by removing cases whose claims or defenses will fail at trial, relieve parties from the expense of meritless litigation, and "save the work of juries for cases where there are real factual disputes that need resolution."[19]

This change follows a trend in Florida jurisprudence toward eliminating the procedural differences between litigating cases in state or federal court. When faced with a choice of forum, two of the main factors parties often considered were the availability of Daubert challenges to expert evidence and the likelihood of summary judgment. After some interesting back and forth, in 2019, the Florida Supreme Court reinstated the Daubert standard,[20] as reflected in Florida Rule of Evidence 90.702.

This now aligns with the federal standard contained in Rule 702 of the Federal Rules of Civil Procedure. The court reasoned that doing so would "create consistency between the state and federal courts with respect to the admissibility of expert testimony" and "promote fairness and predictability in the legal system, as well as help lessen forum shopping."[21]

The reinstatement of the Daubert standard provided litigants a means to challenge claims that were not supported by reliable scientific evidence. Similarly, the change to the summary judgment standard provides litigants a means to challenge claims that are not supported by credible factual evidence. With the elimination of two of the key differences between federal courts and state courts, the choice of court is now less obvious.

Evidentiary issues have not affected most Florida litigators during the past year. As Florida courts dealt with the pandemic, they tried virtually no cases. But once some semblance of normalcy returns, the courts will be faced with a large backlog of cases.

The summary judgment rule — coupled with the return to the Daubert standard — may provide some relief, along with a means of disposing of cases that lack the evidentiary basis to warrant disposition by jury verdict. We will all face the impact of these changes far beyond that, as our courts enter the modern era.

Walter G. Latimer is a shareholder and Guy Kamealoha Noa is an associate at Fowler White Burnett PA.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] In re: Amendments to Fla. Rule of Civil Procedure 1.510 , SC20-1490 (Fla. Dec. 31, 2020).

[2] Celotex Corp. v. Catrett , 477 U.S. 317 (1986). 

[3] Wilsonart LLC v. Lopez , No. SC19-1336, 2019 WL 5188546 (Fla. Oct. 15, 2019).

[4] In re: Amendments to Fla. Rule of Civil Procedure 1.510, at *2.

[5] Id.

[6] Anderson v. Liberty Lobby Inc. , 477 U.S. 242, 251-52 (1986).

[7] Holl v. Talcott , 191 So. 2d 40 (Fla. 1966).

[8] See Celotex Corp., 477 U.S. 317, 323.

[9] In re: Amendments to Fla. Rule of Civil Procedure 1.510, SC20-1490, at *4; see also e.g., Nard Inc. v. DeVito Contracting & Supply Inc. , 769 So. 2d 1138,1140 (Fla. 2d DCA 2000).

[10] See In re: Amendments to Fla. Rule of Civil Procedure 1.510, SC20-1490, at *4.

[11] See id. at *5-6.

[12] Holland v. Verheul , 583 So. 2d 788, 789 (Fla. 2d DCA 1991).

[13] Bruce J. Berman & Peter D. Webster, Berman's Florida Civil Procedure §1.510:5 (2020 ed.).

[14] Anderson, 477 U.S. at 250.

[15] See Celotex Corp, 477 U.S. at 322-25.

[16] In re: Amendments to Fla. Rule of Civil Procedure 1.510, SC20-1490 (Fla. Dec. 31, 2020).

[17] Id. at *6.

[18] See Thomas Logue & Javier Alberto Soto, Florida Should Adopt the Celotex Standard for Summary Judgments, 76 Fla. B.J. 20, 21 (2002).

[19] In re: Amendments to Fla. Rule of Civil Procedure 1.510, SC20-1490, at *6-7.

[20] See In re Amendments to Florida Evidence Code , 278 So. 3d 551 (Fla. 2019).

[21] Id. at 554.

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