Effective May 1, 2021, Florida state courts will apply a new summary judgment standard that breaks with Florida’s historically restrictive reading of the summary judgment rule. On April 29, 2021, the Florida Supreme Court advised that Florida will adopt, wholesale, the federal summary judgment standard of Fed. R. Civ. P. 56. Florida Rule of Civil Procedure 1.510(a) will be amended to provide as follows: “The court shall grant 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.” Likewise, the amended rule expressly provides that “[t]he summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard.” Fla. R. Civ. P. 1.510(a).
Three noteworthy substantive changes arise based on the new standard. First, Florida courts must recognize the fundamental similarities between motions for directed verdict and motions for summary judgment, and courts must analyze the motions under the same standard. Second, movants without a burden of persuasion at trial are no longer required to disprove a non-movant’s theory of the case. “[I]f the nonmoving party must prove X to prevail [at trial], the moving party at summary judgment can either produce evidence that X is not so or point out that the nonmoving party lacks the evidence to prove X.” Bedford v. Doe, 880 F.3d 993, 996-97 (8th Cir. 2018). Third, under the new standard, the correct test to identify a genuine factual dispute is whether “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). It will no longer be sufficient for the non-moving party to maintain that any competent evidence may create an issue of fact. Instead, the new standard will require counter-evidence to be credible and significantly probative, such that a reasonable jury could return a verdict for the non-movant.
In addition to these substantive differences, the new rule also contains significant procedural differences. Movants must now serve the summary judgment motion and its “factual position” (i.e., summary judgment evidence) at least 40 days before the hearing. Non-movants must serve their responses and “supporting factual position” at least 20 days before the hearing. In granting or denying the motion, “[t]he court shall state on the record the reasons for granting or denying the motion.” Fla. R. Civ. P. 1.510(a).
The new standard applies to any summary judgment motion decided on or after May 1, 2021. Litigants who have had a summary judgment motion denied under the old standard may seek reconsideration after the new standard becomes effective. See Wilsonart, LLC v. Lopez, 308 So. 3d 961, 964 (Fla. 2020); Bettez v. Miami, 510 So. 2d 1242, 1242-43 (Fla. 3d DCA 1987). In cases where a summary judgment motion has been briefed under the old standard, courts should provide the parties time to re-brief the issues under the new standard.
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