JULY/AUG 2021 BAR BULLETIN July | August 2021 - Page 11

HIGHLIGHT CORNER

HIGHLIGHT CORNER

The Supreme Court Overhauls Florida ’ s Summary Judgment Rule : What Are the Top Ten Most Significant Changes in the New Rule ? ( Continued )

ADAM RABIN
2 . If a Reasonable Jury Cannot Return a Verdict for the Nonmovant , the Court Must Grant Summary Judgment . Courts applying the New Rule “ must recognize that the correct test for the existence of a genuine factual dispute is whether ‘ the evidence is such that a reasonable jury could return a verdict for the nonmoving party .’” 16 It is not sufficient in opposing summary judgment to maintain that “ 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 .” 17
1 . The Moving Party No Longer Needs to Prove the Negative to Obtain Summary Judgment . To prevail on a motion for summary judgment , the movant no longer needs to conclusively negate the nonmovant ’ s case to eliminate any issue of fact . Under the New Rule , “ a moving party that does not bear the burden of persuasion at trial can obtain summary judgment without disproving the nonmovant ’ s case .” 18 For example , if the nonmoving party has the burden of persuasion to prove X at trial , the movant can either produce evidence on summary judgment that X is not so , or can allege that the nonmoving party lacks the evidence needed to prove X at trial . 19 Either way , the movant would be entitled to summary judgment .
Conclusion In sum , the likely impact of the New Rule on summary judgment practice in Florida cannot be understated . If a party opposing summary judgment cannot prove an essential element of its claim or defense such that “ a reasonable jury could return a verdict for the nonmoving party ,” the trial courts will now be required to grant summary judgment to the moving party . This is a monumental shift from the prior version of the rule , where Florida courts had long interpreted the movant as having to conclusively negate the nonmovant ’ s case . With this clear message from the Florida Supreme Court embracing summary judgment , we should expect that cases will begin to resolve more frequently before calendar call .
Adam Rabin is shareholder with McCabe Rabin in West Palm Beach , Florida . He is Florida Bar board certified in business litigation and practices in the areas of business , securities , and whistleblower qui tam litigation . Mr . Rabin ’ s email address is arabin @ mccaberabin . com .
1
See In re Amends . to Fla . Rule of Civ . Pro . 1.510 , 309 So . 3d 192 ( Fla . 2020 ). The high court further amended its initial version of the amended rule on April 29 , 2021 . See generally , In re Amends . to Fla . Rule of Civ . Pro . 1.510 , No . SC20-1490 , 2021 WL 1684095 ( Fla . Apr . 29 , 2021 ) ( explaining additional amendments to rule 1.510 after receiving public comments ).
2
See generally , 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 ) ( collectively , defining the federal summary judgment standard ). These cases are referred to as the “ Celotex trilogy .” See 2021 WL 1684095 at * 1 .
3
See 2021 WL 1684095 at * 2 .
4
Id .
5
Id .
6
See Fla . R . Civ . P . 1.510 ( c )( 2 ).
7
See Fla . R . Civ . P . 1.510 ( e ).
8
See Fla . R . Civ . P . 1.510 ( f ).
9
See Fla . R . Civ . P . 1.510 ( c )( 1 ).
10
See Fla . R . Civ . P . 1.510 ( a ).
11
2021 WL 1684095 at * 3 ; see also Fla . R . Civ . P . 1.510 , Ct . Notes .
12
2021 WL 1684095 at * 4 .
13
See Fla . R . Civ . P . 1.510 ( b ).
14
See Fla . R . Civ . P . 1.510 ( c )( 5 ).
15
The New Rule eliminates the reference from the prior rule that the movant must serve , together with the motion , “ any summary judgment evidence on which the movant relies that has not already been filed with the court .” The intent of the New Rule , nonetheless , appears to be the same that any evidence not already in the record must be served together with the motion or response . See Fla . R . Civ . P . 1.510 ( c ) ( 1 )( A ) (“ A party asserting a fact … must support the assertion by … citing to particular parts of materials in the record ….”); Fla . R . Civ . P . 1.510 ( c ) ( 5 ) (“ At the time of filing a motion … the movant must also serve the movant ’ s supporting factual position as provided in subdivision ( 1 ) above … [ T ] he nonmovant must serve a response that includes the nonmovant ’ s supporting factual position as provided in subdivision ( 1 ) above .”). ( Emphasis added ).
16
See id . at * 3 ( quoting Anderson , 477 U . S . at
248 ).
17
Id . ( quoting Bruce J . Berman & Peter D . Webster , Berman ' s Florida Civil Procedure § 1.510:5 ( 2020 ed .) ( quotations omitted ).
18
Id . at * 2 .
19
Id .
PALMBEACHBAR . ORG 11