Smoother Sailing on Summary Judgment: Practical Implications of Florida Adopting the Federal Summary Judgment Standard

Summary judgment in Florida is back in a big way. On the last day of 2020, the Florida Supreme Court announced that, effective May 2021, the Florida summary judgment standard will mirror its federal counterpart. Aligning the Florida and federal summary judgment standards is far more than an interesting law review footnote — the decision carries enormous practical implications for those litigating in Florida state courts. Simply put, state court litigation should become fairer, faster, and more efficient for savvy litigators.

Florida’s Summary Judgment Status Quo

As it stands, summary judgment in Florida is often dead letter. Florida state court litigants must meet an almost insurmountable burden to obtain summary judgment: conclusively “prov[ing] a negative, that is, the nonexistence of a genuine issue of material fact.”[1] As the Florida Supreme Court put it, the “burden of a party moving for summary judgment” under the current standard is “greater, not less, than that of the plaintiff at [] trial.”[2]

This often makes winning summary judgment — even against unmeritorious claims — practically impossible. Because movants must prove more on summary judgment than at trial, claims and defenses that are likely to fail at trial can still squeak past summary judgment. Thus, under Florida’s (soon to be retired) summary judgment standard, undeserving claims often survive to trial, driving up litigation costs, extracting unjustified settlements, and amplifying defense-side risk.

Wilsonart v. Lopez, which drove the Florida Supreme Court’s decision, is a case in point. Wilsonart turned on whether a trucker negligently veered into another driver’s lane.[3] On summary judgment, the trucking company offered objective video evidence showing that the truck never left its lane. Yet because the plaintiff offered a single eyewitness to the contrary, the Fifth District Court of Appeals felt compelled to deny summary judgment under Florida’s existing summary judgment standard. In other words, even overwhelming, conclusive evidence often isn’t enough to obtain summary judgment in Florida.

Rather than carve out a video evidence-specific exception from the current summary judgment standard, the Florida Supreme Court decided to simply synchronize Florida’s standard with its federal analog.[4]

The Federal Celotex Standard

Summary judgment in federal court is more sensible. Under the familiar Celotex burden-shifting framework, movants must first show there is no genuine issue of material fact as to the elements of a claim.[5] Yet a moving party need not produce evidence or conclusively disprove the other side’s claim.[6] If the movant makes that showing, the burden shifts to the nonmoving party, which must marshal specific, evidence-backed facts showing genuine and disputed issues for trial; in other words, they must offer more than a mere scintilla of evidence.[7]

This burden shifting gives federal summary judgment teeth: If “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,” federal district courts must grant summary judgment.[8] Unlike Florida’s almost-out-the-door standard, federal summary judgment is therefore appropriate even “[w]hen opposing parties tell two different stories” if one side’s story “is blatantly contradicted by the record.”[9]

The rub: Federal summary judgment was often viable where Florida summary judgment was not.

Practical Implications

No longer. Once May 1, 2021, rolls around, litigating in Florida state court should get fairer, more predictable, and more efficient. Florida’s revitalized summary judgment standard should make it easier for courts and litigants alike to weed out unmeritorious cases earlier — saving the bench and bar significant time and money. Plaintiffs should find it harder to extract exorbitant pre-trial settlements from defendants. At the same time, plaintiffs should welcome the Celotex standard, which promises faster, cleaner judgments for truly meritorious cases. Harmonizing state and federal summary judgment rules also disincentivizes forum shopping and, albeit less so, removals.

Realizing these benefits in the short and medium term will require counsel — and their clients — to think more strategically about summary judgment. Take four concrete examples. First, there might be short-term pain before long-term gain. As the summary judgment standard shifts, relying on pre-May 2021 state court summary judgment precedent becomes riskier. Counsel should retool, re-sharpen, and re-research their summary judgment briefing, perhaps folding in more federal precedent in the short term. After all, the amended summary judgment rule, 1.510, directly cites the Celotex trio of federal cases.

Second, state court litigants — especially on the defense side — need to rethink when and where to use summary judgment. For the last five decades, the cost of summary judgment often outweighed its benefits. Because it usually failed, summary judgment could be cost prohibitive. That should change. But for the new summary judgment standard to matter, litigants must move for summary judgment more often and more vigorously.

Third, claim-specific evidentiary burdens are more important. Under the old standard, movants had to prove the conclusive nonexistence of a claim, not whether the “mere preponderance of the evidence” supported or foreclosed it.[10] Now Florida judges must consider relevant burden of proof. Why does this matter? Summary judgment might be even more feasible against claims requiring higher burdens, like claims for civil theft, punitive damages, promissory estoppel, and the like. The upshot: Even if final summary judgment isn’t always available, partial summary judgment might be.

Fourth, and of most immediate import, the new standard likely applies to all cases pending on or after May 1, 2021. Put simply, current litigants have a real shot at availing themselves of the amended summary judgment standard. While it isn’t always clear whether amended rules control active cases — those filed before an amendment takes effect — two clues from the Florida Supreme Court suggest this change does. Most directly, the WilsonArt Court openly invited those parties “to seek summary judgment under Florida’s new summary judgment standard, once [the] rule amendment takes effect.”[11] On top of that, the Florida Supreme Court has applied similar rule changes to all cases pending when the changes took effect.[12] Shrewd litigants should therefore consider how the rule might impact their ongoing cases.

Conclusion

Florida’s summary judgment sea change is long overdue. While Florida adopting the federal summary judgment standard is a welcome development, litigants will need to navigate the upcoming standard shift strategically and carefully. That said, Florida’s “new” summary judgment standard offers significant upside for thoughtful, aggressive litigators and their clients.

[1] Fla. Atlantic Uni. Bd. of Trustees v. Lindsey 50 So. 3d 1205, 1206 (Fla. 4th DCA 2010).

[2] Visingardi v. Tirone, 193 So. 2d 601, 604 (Fla. 1966) (emphasis added).

[3] Lopez v. Wilsonart, LLC, 275 So. 3d 831, 832-34 (Fla. 5th DCA 2019).

[4] Wilsonart, LLC v. Lopez, SC19-1336, 2020 WL 7778226 (Fla. Dec. 31, 2020); In re: Amendments to Florida Rule of Civil Procedure 1.510, SC20-1490, 2020 WL 7778179 (Fla. Dec. 31, 2020).

[5] Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

[6] Id.

[7] Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

[8] Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

[9] Scott v. Harris, 550 U.S. 372, 380 (2007).

[10] Visingardi, 193 So. 2d at 604.

[11] Wilsonart, 2020 WL 7778226, at *2.

[12] Montello v. Montello, 961 So. 2d 257, 258-59 (Fla. 2007).