Supreme Court of Florida
____________
No. SC20-1490
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IN RE: AMENDMENTS TO FLORIDA RULE OF CIVIL
PROCEDURE 1.510.
April 29, 2021
PER CURIAM.
This Court recently amended Florida Rule of Civil Procedure
1.510 to “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.” In re
Amends. to Fla. Rule of Civ. Pro. 1.510, 309 So. 3d 192, 192 (Fla.
2020). We gave the amended rule a prospective effective date of
May 1, 2021. Having received comments and heard oral argument,
we now further amend rule 1.510.
1
1. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R.
Gen. Prac. & Jud. Admin. 2.140(d).
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We are persuaded that the best way for Florida to adopt the
federal summary judgment standard is to adopt the text of the
federal summary judgment rule itself. Accordingly, with some
exceptions for timing-related issues, the amendments we adopt
today will largely replace the text of existing rule 1.510 with the text
of Federal Rule of Civil Procedure 56. The effective date of these
amendments remains May 1, 2021.
I.
Rather than make substantial changes to the text of rule
1.510, our decision of December 31, 2020, adopted the federal
summary judgment standard by adding this sentence to the text of
existing rule 1.510(c): “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).” In re Amends. to Fla. Rule of Civ. Pro.
1.510, 309 So. 3d at 196. These cases are commonly referred to as
the Celotex trilogy.
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In anticipation of the amendment’s effective date, we sought
public comment and specifically invited responses to the following
questions: whether any ancillary changes were necessary to
effectively implement the amendment; whether specific provisions of
federal rule 56 should be added to rule 1.510; and indeed whether
rule 1.510 should be replaced in its entirety with the text of federal
rule 56. Id. at 194.
Nearly all the commenters supported the Court’s decision to
adopt the federal summary judgment standard. However, even the
supportive comments reflected a consensus that additional changes
to rule 1.510 are necessary. Specifically, there was widespread
agreement that the Court should amend rule 1.510 to include the
substance of federal rule 56(c), which tells parties how to present
their assertions about whether material facts are in dispute. The
commenters also agreed that, while Florida should still tie filing
deadlines to a hearing date, the Court should amend rule 1.510’s
timing-related provisions to allow for more deliberative
consideration of summary judgment motions.
Beyond those areas of agreement, the commenters were
divided over how far the Court should go toward incorporating text
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from federal rule 56. A majority of the commenters asked that we
keep to a minimum any other changes to rule 1.510. But a sizeable
minority recommended that the Court adopt federal rule 56
wholesale.
2
For several reasons, we are persuaded that the best way
forward is to largely adopt the text of federal rule 56 as a
replacement for rule 1.510. Doing so makes it more likely that
Florida’s adoption of the federal summary judgment standard will
take root. Textual overlap between the Florida and federal rules will
provide greater certainty and eliminate unproductive speculation
and litigation over differences between those rules. And Florida
litigants and judges will get the full benefit of the large body of case
law interpreting and applying federal rule 56.
The remainder of this opinion will discuss the highlights of the
changes to rule 1.510 and address key issues raised by the
commenters. But first we thank all those who submitted comments
2. For example, although a majority of The Florida Bar’s Civil
Procedure Rules Committee (by a vote of 21-16) supported only
adopting federal rule 56(c), 14 of the 16 members who voted against
the majority position preferred the wholesale adoption of federal
rule 56 with minor variations for Florida-timing issues.
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or appeared at oral argument. We especially acknowledge the hard
work and valuable contributions of The Florida Bar’s Civil
Procedure Rules Committee.
II.
The Summary Judgment Standard
The amendment we adopt today largely replaces the text of
existing rule 1.510 with the text of federal rule 56. New Rule
1.510(a) will also include the following sentence: “The summary
judgment standard provided for in this rule shall be construed and
applied in accordance with the federal summary judgment
standard.”
In our December 31, 2020, decision amending rule 1.510, we
made it clear that adopting the federal summary judgment standard
means that Florida will now adhere to the principles established in
the Celotex trilogy. In the broadest sense, those cases stand for the
proposition that “[s]ummary judgment procedure is properly
regarded not as a disfavored procedural shortcut, but rather as an
integral part” of rules aimed at “the just, speedy and inexpensive
determination of every action.” Celotex, 477 U.S. at 327 (quoting
Fed. R. Civ. P. 1). More specifically, though, embracing the Celotex
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trilogy means abandoning certain features of Florida jurisprudence
that have unduly hindered the use of summary judgment in our
state. In re Amends. to Fla. Rule of Civ. Pro. 1.510, 309 So. 3d at
192-93. The key points are worth reiterating here.
First, those applying new rule 1.510 must recognize the
fundamental similarity between the summary judgment standard
and the directed verdict standard. See Anderson, 477 U.S. at 251
(noting that “the inquiry under each is the same”). Both standards
focus on “whether the evidence presents a sufficient disagreement
to require submission to a jury.” Id. at 251-52. And under both
standards “[t]he substantive evidentiary burden of proof that the
respective parties must meet at trial is the only touchstone that
accurately measures whether a genuine issue of material fact exists
to be tried.” Thomas Logue & Javier Alberto Soto, Florida Should
Adopt the Celotex Standard for Summary Judgments, 76 Fla. Bar J.,
Feb. 2002, at 26; see also Anderson, 477 U.S. at 255.
Second, those applying new rule 1.510 must recognize that a
moving party that does not bear the burden of persuasion at trial
can obtain summary judgment without disproving the nonmovant’s
case. Under Celotex and therefore the new rule, such a movant can
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satisfy its initial burden of production in either of two ways: “[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). “A
movant for summary judgment need not set forth evidence when
the nonmovant bears the burden of persuasion at trial.” Wease v.
Ocwen Loan Servicing, L.L.C., 915 F.3d 987, 997 (5th Cir. 2019).
And third, those applying new rule 1.510 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.” Anderson, 477 U.S. at 248.
Under our new rule, “[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 Florida it
will no longer be plausible 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
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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.) (describing Florida’s pre-amendment
summary judgment standard).
The Celotex Trilogy and Other Case Law
It would be “difficult to overstate how important the [Celotex]
trilogy remains for summary-judgment practice today.” 2 Steven S.
Gensler & Lumen N. Mulligan, Federal Rules of Civil Procedure,
Rules and Commentary rule 56 (2021 ed.). Nonetheless, some of the
commenters questioned the wisdom of specifically naming the
Celotex trilogy in the text of our rule. They noted that the text of
federal rule 56 has changed since those cases and that case law
interpreting and applying the federal rule has developed
significantly since 1986. These commenters also expressed concern
our new rule be interpreted only in light of those cases.
The new rule will continue to require adherence to “the federal
summary judgment standard,” which itself cannot be understood
apart from the Celotex trilogy. But we have removed the textual
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reference to the cases themselves.
3
We recognize that “30 years of
practice under the trilogy has refined and added to the trilogy.”
Gensler & Mulligan, supra. And naturally, courts applying the new
rule must be guided not only by the Celotex trilogy, but by the
overall body of case law interpreting federal rule 56.
In any event, adopting the text of federal rule 56 almost
verbatim has made it unnecessary to list specific cases in new rule
1.510. That is because our act of transplanting federal rule 56
brings with it the “old soil” of case law interpreting that rule. See
Fla. Hwy. Patrol v. Jackson, 288 So. 3d 1179, 1183 (Fla. 2020) (“[I]f
a word is obviously transplanted from another legal source, whether
the common law or other legislation, it brings the old soil with it.”
(quoting Felix Frankfurter, Some Reflections on the Reading of
Statutes, 47 Colum. L. Rev. 527, 537 (1947))).
3. A Court Note will instead explain that “[t]he ‘federal
summary judgment standard’ refers to the principles announced 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), and more generally
to case law interpreting Federal Rule of Civil Procedure 56.”
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The Movant’s Burden of Production
One commenter recommended that the Court amend rule
1.510 to elaborate on what the parties litigating a summary
judgment motion must do to meet their respective burdens under
the rule. In a proposal derived from the decision in Fitzpatrick v.
City of Atlanta, 2 F.3d 1112 (11th Cir. 1993), this commenter
suggested text that goes well beyond the level of specificity found in
federal rule 56. On balance, we believe that there is greater benefit
in maintaining consistency between rule 1.510 and federal rule 56
than in addressing this issue more thoroughly in the new rule’s
text.
Nonetheless, as to a summary judgment movant’s initial
burden of production,
4
we emphasize that “[w]here the nonmovant
bears the ultimate burden of persuasion [at trial] on a particular
issue . . . the requirements that Rule 56 imposes on the moving
party are not onerous.” Modrowski v. Pigatto, 712 F.3d 1166, 1168
4. The movant’s initial burden of production is distinct from
the movant’s burden of persuasion on the summary judgment
motion and from a party’s burden of persuasion at trial. See, e.g,
Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d
1099, 1102 (9th Cir. 2000) (explaining the various burdens and the
“vocabulary used for discussing summary judgments”).
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(7th Cir. 2013). We echo the Eighth Circuit Court of Appeals’
observation that the movant’s initial burden of production in this
circumstance is “far from stringent” and that it can be “regularly
discharged with ease.” Bedford, 880 F.3d at 996 (citation omitted).
Of course, it is equally important to emphasize that, before being
subjected to summary judgment because of the absence of
evidence, the nonmovant must have been afforded “adequate time
for discovery.” Celotex, 477 U.S. at 322.
The Trial Court’s Reasons for Granting or Denying Summary
Judgment
Where federal rule 56(a) says that the court should state on
the record its reasons for granting or denying a summary judgment
motion, new rule 1.510(a) says that the court shall do so. The
wording of the new rule makes clear that the court’s obligation in
this regard is mandatory.
To comply with this requirement, it will not be enough for the
court to make a conclusory statement that there is or is not a
genuine dispute as to a material fact. The court must state the
reasons for its decision with enough specificity to provide useful
guidance to the parties and, if necessary, to allow for appellate
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review. On a systemic level, we agree with the commenters who
said that this requirement is critical to ensuring that Florida courts
embrace the federal summary judgment standard in practice and
not just on paper.
Time for Filing and Responding to Summary Judgment Motions
The Attorney General and other commenters encouraged the
Court to amend the timing-related aspects of rule 1.510 to reduce
gamesmanship and surprise and to allow for more deliberative
consideration of summary judgment motions. Most commenters
also told us that the deadlines for filing and responding to summary
judgment motions should stay tied to a hearing date—a feature of
Florida practice that contrasts with federal practice, where
summary judgment hearings are much less frequent.
We believe that these comments have merit. New rule 1.510
therefore says that a summary judgment motion must be filed at
least 40 days before the time fixed for a hearing. The new rule
further says that the nonmovant must respond with its supporting
factual position at least 20 days before the hearing.
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The New Rule’s Application to Pending Cases
New rule 1.510 takes effect on May 1, 2021. This means that
the new rule must govern the adjudication of any summary
judgment motion decided on or after that date, including in pending
cases. Cf. Love v. State, 286 So. 3d 177, 187-88 (Fla. 2019).
In cases where a summary judgment motion was denied under
the pre-amendment rule, the court should give the parties a
reasonable opportunity to file a renewed summary judgment motion
under the new rule. See Wilsonart, LLC v. Lopez, 308 So. 3d 961,
964 (Fla. 2020). In cases where a pending summary judgment
motion has been briefed but not decided, the court should allow the
parties a reasonable opportunity to amend their filings to comply
with the new rule. Any pending rehearing of a summary judgment
motion decided under the pre-amendment rule should be decided
under the pre-amendment rule, subject of course to a party’s ability
to file a renewed motion for summary judgment under the new rule.
Conclusion
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
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amendments shall become effective May 1, 2021, at 12:01 a.m.
Rehearing does not affect the effective date.
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.
For the reasons expressed in my dissenting opinion in In re
Amendments to Florida Rule of Civil Procedure 1.510, 309 So. 3d 192
(Fla. 2020), I adhere to my dissent to the adoption of the federal
summary judgment standard in Florida’s state courts. Thus, I
respectfully dissent to the Court’s adoption of the amendments to
rule 1.510, Florida Rules of Civil Procedure.
Original Proceeding – Florida Rules of Civil Procedure
Evelyn Fletcher Davis on behalf of Hawkins Parnell & Young LLP,
Atlanta, Georgia; Jennifer Marie Voss, Tampa, Florida, and Daniel
B. Rogers on behalf of Shook, Hardy & Bacon, LLP, Miami, Florida;
Patrick F. Clark of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.,
Atlanta, Georgia; Charles E. Bailes III on behalf of ABC Fine Wine &
Spirits, Orlando, Florida; Frank Cruz-Alvarez of Shook, Hardy &
Bacon, LLP on behalf of Associated Industries of Florida, Florida
Insurance Council, Federation of Defense & Corporate Counsel,
NFIB Small Business Legal Center, Coalition for Litigation Justice,
Inc., American Property Casualty Insurance Association,
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Washington Legal Foundation, AdvaMed--Advanced Medical
Technology Association, Florida Defense Lawyers Association, DRI-
The Voice of the Defense Bar, International Association of Defense
Counsel, Association of Defense Trial Attorneys, American Tort
Reform Association, National Association of Mutual Insurance
Companies, Product Liability Advisory Council, Inc., Miami, Florida;
Derek J. Angell on behalf of Bell & Roper, P.A., Orlando, Florida;
Charles S. Caulkins on behalf of Fisher & Phillips LLP, Fort
Lauderdale, Florida; Matthew Penland on behalf of Cypress Truck
Lines, Jacksonville, Florida; Dinah Stein and Mark Hicks of Hicks,
Porter, Ebenfeld & Stein, P.A., on behalf of The Doctors Company
and the Florida Medical Association, Miami, Florida; Rafael E.
Martinez, Thomas Earle Dukes III, Mary Jaye Hall, and Philip F.
Moring on behalf of McEwan, Martinez, Dukes & Hall, P.A.,
Orlando, Florida; Scott A. Cole on behalf of Cole, Scott & Kissane,
P.A., Miami, Florida; Kenneth S. Armstrong on behalf of Florida
Trucking Association, Tallahassee, Florida; Scott B. Albee on behalf
of Fulmer, LeRoy & Albee, PLLC, St. Petersburg, Florida; Peter R.
Goldman of Nelson Mullins Broad and Cassel, Fort Lauderdale,
Florida; John W. Weihmuller and Matthew J. Lavisky on behalf of
Butler Weihmuller Katz Craig LLP, Tampa, Florida; Jimmy Davis on
behalf of Davis Express, Starke, Florida; Philip Fulmer on behalf of
Carroll Fulmer Logistics Corporation, Groveland, Florida; Timothy
J. Ferguson and Eduardo J. Medina on behalf of Foley & Mansfield,
P.L.L.P., Miami, Florida; Karina Bodnieks and Lars O. Bodnieks of
Quintairos, Prieto, Wood & Boyer, P.A., Miami, Florida; Daniel J.
Santaniello and Daniel S. Weinger on behalf of Luks, Santaniello,
Petrillo & Cohen, Fort Lauderdale, Florida; Dr. Frank Gable, Estero,
Florida; Jason M. Hand on behalf of Florida Senior Living
Association, Tallahassee, Florida; Kimberly K. Berman, Ryan D.
Burns, Alan C. Nash, and Michael A. Packer, Fort Lauderdale,
Florida, Bradley P. Blystone and Thomas F. Brown, Orlando,
Florida, Michael Archibald and James Patrick Hanratty on behalf of
Marshall Dennehey Warner Coleman & Goggin, Jacksonville,
Florida; Ashley Moody, Attorney General, Amit Agarwal, Solicitor
General, James H. Percival, Chief Deputy Solicitor General, and
Jason H. Hilborn, Assistant Solicitor General, on behalf of the State
of Florida, Tallahassee, Florida; Austin Carr of Parafinczuk Wolf,
Fort Lauderdale, Florida; Carol M. Bishop and Rhonda B. Boggess
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on behalf of Marks Gray, P.A., Jacksonville, Florida; Daniel A. Rock
on behalf of Bowman and Brooke LLP, Miami, Florida; Samuel A.
Danon, Gustavo J. Membiela, and Jamie Zysk Isani on behalf of
Hunton Andrews Kurth LLP, Miami, Florida; Gabrielle R.
Mercadante, Eugene P. Murphy, Audrey Elizabeth Dias, and
Stephanie N. Williams of Robinson & Cole, Miami, Florida; James C.
Pointdexter on behalf of National Employment Lawyers Association
- Florida Chapter, Jacksonville, Florida; Eric B. Jontz of Fishback
Dominick, Winter Park, Florida; Jennifer Miller of Hamilton, Miller
& Birthisel, LLP, Miami, Florida; Amanda Bowen on behalf of
Manufacturers Association of Florida, Tallahassee, Florida; Michael
R. D’Lugo and Richards H. Ford of Wicker, Smith, O’Hara, McCoy &
Ford, P.A., Orlando, Florida; Kansas R. Gooden on behalf of Boyd &
Jenerette, P.A., Miami, Florida; Jennifer L. Hall on behalf of
American Trucking Associations, Arlington, Virginia; Peter W.
Zinober on behalf of Ogletree, Deakins, Nash, Smoak & Stewart,
P.C., Tampa, Florida; William Roppolo, Jodi Avila, and Benjamin
Davis on behalf of Baker & McKenzie, LLP, Miami, Florida; David
Armellini on behalf of Armellini Express Lines Inc, Palm City,
Florida; Edward G. Guedes of Weiss Serota Helfman Cole &
Bierman, P.L., on behalf of Publix Super Markets, Inc., Coral
Gables, Florida; Sylvia H. Walbolt, Douglas J. Chumbley, Jeffrey A.
Cohen, and Thomas J. Meeks of Carlton Fields Jorden Burt, P.A.,
Miami, Florida; Wendy F. Lumish of Bowman and Brooke LLP,
Miami, Florida, and Quentin F. Urquhart Jr., on behalf of Lawyers
for Civil Justice, Arlington, Virginia; Ceci Culpepper Berman, Chair,
Civil Procedure Rules Committee, Tampa, Florida, Joshua E. Doyle,
Executive Director, and Mikalla Andies Davis, Bar Liaison, The
Florida Bar, Tallahassee, Florida; Jonathan Lee Blackmore on
behalf of GrayRobinson, P.A., Fort Lauderdale, Florida; William W.
Large on behalf of Florida Justice Reform Institute, Tallahassee,
Florida; William T. Cotterall on behalf of Florida Justice Association,
Tallahassee, Florida; Troy A. Fuhrman on behalf of Hill Ward
Henderson, Tampa, Florida, and Brian Charles Lea on behalf of
Jones Day, Atlanta, Georgia; Anne-Marie Estevez of Morgan, Lewis
& Bockius LLP on behalf of Retail Litigation Center, Inc., Miami,
Florida; George N. Meros Jr. of Shutts & Bowen, Tallahassee,
Florida; Reed W Grimm on behalf of Taylor, Day, Grimm & Boyd,
Jacksonville, Florida; Joseph S. Van de Bogart of Van de Bogart
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Law, P.A., and James Burton Murphy, Jr. of James B. Murphy Jr.
Mediations on behalf of the Business Law Section of The Florida
Bar, Fort Lauderdale, Florida; Frederick Charles Morello on behalf
of Frederick C. Morello, P.A., Daytona Beach, Florida; Mark Wilson
on behalf of Florida Chamber of Commerce Litigation and
Regulatory Reform Center and Harold Kim on behalf of U.S.
Chamber Institute for Legal Reform, Washington, District of
Columbia; and Scott M. Edson, Washington, District of Columbia,
William L. Durham II and Val Leppert of King & Spalding LLP,
Atlanta, Georgia,
Responding with comments
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APPENDIX
Rule 1.510. Summary Judgment
(a) For Claimant.Motion for Summary Judgment or Partial Summary
Judgment. A party may move for summary judgment, identifying each claim or
defense—or the part of each claim or defense—on which summary judgment is
sought. 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. The court shall state on the record the reasons for granting or
denying the motion. The summary judgment standard provided for in this rule shall
be construed and applied in accordance with the federal summary judgment
standard. A party seeking to recover on a claim, counterclaim, crossclaim, or third-
party claim or to obtain a declaratory judgment may move for a summary judgment
in that party’s favor on all or any part thereof with or without supporting affidavits
at any time after the expiration of 20 days from the commencement of the action or
after service of a motion for summary judgment by the adverse party.
(b) For Defending Party.Time to File a Motion. A party may move for
summary judgment at any time after the expiration of 20 days from the
commencement of the action or after service of a motion for summary judgment by
the adverse party. The movant must serve the motion for summary judgment at
least 40 days before the time fixed for the hearing. A party against whom a claim,
counterclaim, crossclaim, or third-party claim is asserted or a declaratory judgment
is sought may move for a summary judgment in that party's favor as to all or any
part thereof at any time with or without supporting affidavits.
(c) Motion and Proceedings Thereon.Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot
be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
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(2) Objection That a Fact Is Not Supported by Admissible Evidence. A
party may object that the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited
materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to
support or oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.
(5) Timing for Supporting Factual Positions. At the time of filing a
motion for summary judgment, the movant must also serve the movant’s
supporting factual position as provided in subdivision (1) above. At least 20 days
before the time fixed for the hearing, the nonmovant must serve a response that
includes the nonmovant’s supporting factual position as provided in subdivision
(1) above.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 dispute 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
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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) Case Not Fully Adjudicated on Motion.When Facts Are Unavailable
to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition, the court
may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to
take discovery; or
(3) issue any other appropriate order.On motion under
this rule if judgment is not rendered on the whole case or for all the relief asked
and a trial or the taking of testimony and a final hearing is necessary, the court at
the hearing of the motion, by examining the pleadings and the evidence before it
and by interrogating counsel, must ascertain, if practicable, what material facts
exist without substantial controversy and what material facts are actually and in
good faith controverted. It must then make an order specifying the facts that appear
without substantial controversy, including the extent to which the amount of
damages or other relief is not in controversy, and directing such further
proceedings in the action as are just. On the trial or final hearing of the action the
facts so specified must be deemed established, and the trial or final hearing must be
conducted accordingly.
(e) Form of Affidavits; Further Testimony.Failing to Properly Support
or Address a Fact. If a party fails to properly support an assertion of fact or fails
to properly address another party’s assertion of fact as required by rule 1.510(c),
the court may:
(1) give an opportunity to properly support or address the
fact;
(2) consider the fact undisputed for purposes of the
motion;
(3) grant summary judgment if the motion and
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supporting materials—including the facts considered undisputed—show that the
movant is entitled to it; or
(4) issue any other appropriate order.Supporting and
opposing affidavits must be made on personal knowledge, must set forth such facts
as would be admissible in evidence, and must show affirmatively that the affiant is
competent to testify to the matters stated therein. Sworn or certified copies of all
documents or parts thereof referred to in an affidavit must be attached thereto or
served therewith. The court may permit affidavits to be supplemented or opposed
by depositions, answers to interrogatories, or by further affidavits.
(f) When Facts Are Unavailable to the Nonmovant.Judgment
Independent of the Motion. After giving notice and a reasonable time to respond,
the court may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised by a party; or
(3) consider summary judgment on its own after
identifying for the parties material facts that may not be genuinely in dispute.If it
appears from the affidavits of a party opposing the motion that the party cannot for
reasons stated present by affidavit facts essential to justify opposition, the court
may refuse the application for judgment or may order a continuance to permit
affidavits to be obtained or depositions to be taken or discovery to be had or may
make such other order as is just.
(g) Affidavits Made in Bad Faith.Failing to Grant All the Requested
Relief. If the court does not grant all the relief requested by the motion, it may
enter an order stating any material fact—including an item of damages or other
relief—that is not genuinely in dispute and treating the fact as established in the
case.If it appears to the satisfaction of the court at any time that any of the
affidavits presented pursuant to this rule are presented in bad faith or solely for the
purpose of delay, the court must immediately order the party employing them to
pay to the other party the amount of the reasonable expenses which the filing of the
affidavits caused the other party to incur, including reasonable attorneys’ fees, and
any offending party or attorney may be adjudged guilty of contempt.
(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an
affidavit or declaration under this rule is submitted in bad faith or solely for delay,
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the court—after notice and a reasonable time to respond—may order the
submitting party to pay the other party the reasonable expenses, including
attorney’s fees, it incurred as a result. An offending party or attorney may also be
held in contempt or subjected to other appropriate sanctions.
Court Notes
2021 Amendment. The rule is amended to adopt almost all the text of
Federal Rule of Civil Procedure 56. The “federal summary judgment standard”
refers to the principles announced 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), and more generally to
case law interpreting Federal Rule of Civil Procedure 56.
Committee Notes
[No Change]
