On December 31, 2020, the Supreme Court of Florida, on its own motion, amended Florida Rule of Civil Procedure 1.510, adopting the federal summary judgment standard articulated by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (together, the “federal summary judgment standard”). See 309 So. 3d 192 (Fla. 2020). The court noted that through this amendment, the court was aligning Florida’s summary judgment standard with that of the federal courts and of the supermajority of states. But what really changed—or was supposed to change? Despite the arguments of some lawyers to the contrary, the correct answer is “not much.”

The court noted that the Florida and federal rules of civil procedure share the same overarching purpose: “to secure the just, speedy, and inexpensive determination of every action.” Fla. R. Civ. P. 1.010; cf. Fed. R. Civ. P. 1. Moreover, noted the court, as a purely textual matter, the critical sentences in Florida’s summary judgment rule and in the federal summary judgment rule are materially indistinguishable. Specifically, Florida’s rule 1.510(c) requires summary judgment where the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Federal Rule of Civil Procedure 56(a), in turn, requires 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.”

That should have been the end of it. The plain language of the rules shows that they create the same standard.

Despite this consistency of purpose and text, however, the Supreme Court of Florida claimed that “Florida and federal courts have not been aligned in their summary judgment jurisprudence.” The court continued:

Three particularly consequential differences stand out. (The following explains these key differences; the discussion is not intended to limit the scope of the rule amendment that we adopt today.)

First, “Florida courts [have] repeatedly declined to recognize the fundamental similarity between a motion for directed verdict and a motion for summary judgment.” Thomas Logue & Javier Alberto Soto, Florida Should Adopt the Celotex Standard for Summary Judgment, 76 Fla. Bar J. Feb. 2002, at 20, 22. By contrast, the Supreme Court has held that the federal summary judgment standard “mirrors” the standard for a directed verdict. Anderson, 477 U.S. at 250, 106 S.Ct. 2505. Although it recognized that there are procedural differences in the two motions (one is made before trial and the other during trial), the Supreme Court concluded that “the 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.” Id. at 251-52, 106 S.Ct. 2505.

Second, since this Court’s decision in Holl v. Talcott, 191 So. 2d 40 (Fla. 1966), Florida courts have required the moving party conclusively “to disprove the non-movant’s theory of the case in order to eliminate any issue of fact.” Logue & Soto, supra, at 24. By contrast, the Supreme Court has held that there is “no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim.” Celotex,477 U.S. at 323, 106 S.Ct. 2548. Rather, the Supreme Court explained that “the burden on the moving party may be discharged by `showing’ —that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548. Upon motion and provided there has been an “adequate time for discovery,” the Supreme Court has held that summary judgment should be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322, 106 S.Ct. 2548. In other words, under the federal summary judgment standard, “the extent of the moving party’s burden varies depending on who bears the burden of persuasion at trial.” Salo v. Tyler, 417 P. 3d 581, 587 (Utah 2018).

Third, Florida courts have adopted an expansive understanding of what constitutes a genuine (i.e., triable) issue of material fact. While the caselaw is not entirely uniform, a leading treatise characterizes the Florida standard this way: “[T]he 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.” Bruce J. Berman & Peter D. Webster, Berman’s Florida Civil Procedure § 1.510:5 (2020 ed.). By contrast, the Supreme Court has described the federal test as whether “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson,477 U.S. at 248, 106 S.Ct. 2505. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50, 106 S.Ct. 2505 (citations omitted). A party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. More recently, the Supreme Court explained that “[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, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

The Florida Supreme Court concluded that the federal summary judgment standard better comports with the text and purpose of rule 1.510 and that adopting that standard is in the best interest of our state. The court reasoned that Florida’s rules of civil procedure are meant “to secure the just, speedy, and inexpensive determination of every action.” Fla. R. Civ. P. 1.010. Yet, concluded the court, “Florida courts’ interpretation of our summary judgment rule has unnecessarily failed to contribute to that objective. Overall and especially as to each of the key areas described above, the federal summary judgment standard is more rational, more fair, and more consistent with the structure and purpose of our rules of civil procedure.”

The Florida Supreme Court agreed with the United States Supreme Court’s view that “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of [our rules] as a whole.” Celotex, 477 U.S. at 327, 106 S.Ct. 2548. The Supreme Court’s reasoning underlying the federal summary judgment standard, concluded the Florida Supreme Court, is compelling: “One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose.” Id. at 323-24, 106 S.Ct. 2548.

In adopting the amendment, the Florida Supreme Court also:

… reaffirmed the bedrock principle that summary judgment is not a substitute for the trial of disputed fact issues. As the Supreme Court itself has emphasized, the summary judgment rule must be implemented “with due regard … for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury.” Id. at 327, 106 S.Ct. 2548. Our goals are simply to improve the fairness and efficiency of Florida’s civil justice system, to relieve parties from the expense and burdens of meritless litigation, and to save the work of juries for cases where there are real factual disputes that need resolution.

Judge Labarga issued a compelling dissenting opinion, arguing that the decision infringed upon the role of the jury in deciding disputes in civil cases. Judge Labarga observed:

Because of its preclusive effect, a grant of summary judgment warrants great caution. Indeed, “[c]aution and discernment should go hand in hand where the power to enter summary judgment or decree is exercised, for such a power wields a dangerous potential which could have the effect of trespass against fundamental and traditional processes for determining the rights of litigants.” Humphrys v. Jarrell, 104 So. 2d 404, 408 (Fla. 2d DCA 1958). Vital to carrying out these fundamental and traditional processes is the jury which, in its role as finder of fact, hears evidence presented at trial and decides questions of fact raised by a litigant’s claim.

The moving party’s intent in filing a motion for summary judgment is to dispose of a litigant’s claim on the basis that no genuine issue of material fact exists. For decades, Florida courts have been judicious in granting summary judgment because, as observed by one of our district courts, “a motion for summary judgment is not a substitute for a trial on the merits.” Hervey v. Alfonso, 650 So. 2d 644, 646 (Fla. 2d DCA 1995). However, when the more relaxed federal interpretation is applied to a motion for summary judgment, the trial court’s analysis goes far beyond evaluating whether an issue of material fact is in dispute. Instead, the trial court assumes a role traditionally reserved for a jury and engages in weighing evidence.

Judge Labarga took issue with the majority’s description of the former Florida standard as requiring only “some metaphysical doubt as to the material facts”:

I emphasize that it is not the dispute of any fact that precludes summary judgment, but the dispute of a genuine issue of material fact. Thus, the issue of fact must be of such import that it is dispositive of the litigant’s claim. Far from being an innocuous requirement, this language sets a much higher bar than what the majority describes as “some metaphysical doubt as to the material facts.” Majority op. at 193 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

Judge Labarga continued by citing one of the founding fathers, concluding that the jury’s role is “sacred”:

For more than two hundred years, this country has preserved the right to trial by jury in civil cases. George Mason, one of this country’s founding fathers, said: “That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.”

ATTORNEY JEFF DONNER’S VIEW: ANOTHER DEFENSE LAWYER MYTHOLOGY PUSH

Not only is Judge Labarga’s dissent well taken, but there is more. A careful review of actual federal district court decisions the past 30 years reveals that the standard has not really been all that different all along. That’s because, contrary to the mythology pushed by the insurance defense bar since the Florida Supreme Court amended the rule, this careful caselaw review shows that federal courts have not been busy handing out summary judgments to defendants like candy. In other words, despite the statements made by the Florida Supreme Court—mainly citing Florida courts’ supposed pronouncements on the federal standard—the fact is that in federal court, it is and has always been exceedingly difficult for a party to prevail on summary judgment.

In both Florida and federal courts, there is, and has always been, a strong presumption in favor of letting the jury decide. What the federal courts have actually done in real life, in other words, is apply the same exacting standard that Florida courts have applied: essentially, showing that there is a colorable issue of fact is enough for the nonmoving party to survive summary judgment. To prevail on summary judgment in federal court, the moving party must, indeed, show that there is “no” genuine issue of material fact. Just as it has always been in Florida. The issue of fact asserted by the nonmoving party must be “genuine”—as it has always been, in both Florida and federal courts.

The problem this move by the Florida Supreme Court has created is—like the similar issue regarding the “Daubert” test being adopted for the admission of scientific expert evidence—a problem for “the little guy” (i.e., individual plaintiffs with limited resources attempting to protect their rights against large, powerful corporations). In the area of first-party property insurance litigation, we have seen the problem ever since this supposedly “new” standard was adopted. The defense bar, of course, jumped on the opportunity to publish self-serving articles in The Florida Bar Journal, similar publications, and in motions and memoranda filed in actual court cases. The defense Bar, just as it did with the “Daubert test” issue, has created with some judges a misguided view that the “new” federal standard somehow instructs judges to severely lower the standard for granting summary judgment. This view, of course, usually favors large corporations and insurance companies, and defendants in general, because these well-funded litigants are the parties most often moving for summary judgment. The standard in both federal and Florida court is supposed to be—as it has always been—that if the nonmoving party shows there is a “genuine” issue of material fact, the motion for summary judgment must be denied. This standard does not allow the nonmoving party to survive summary judgment by raising “some metaphysical doubt” in a conclusory fashion, and it never did in Florida, at least not when the court applied the law correctly.

As the Second District recently observed, the trial court must avoid speculating that an expert’s report is the product of speculation. See Cole v. Plantation Palms, No. 2D22-3068 (Fla. 2d DCA Sept. 27, 2023) (reversing trial court’s entry of summary judgment, accusing trial court of speculating that an expert’s report was speculation); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations . . . are jury functions, not those of a judge . . . [when] ruling on a motion for summary judgment . . . .”); Ilias v. USAA Gen. Indem. Co., 61 F.4th 1338, 1350 (11th Cir. 2023) (“[M]atters of credibility are for a jury to settle at trial, not a trial court on summary judgment.”); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 135 (2000) (“[T]he court must review all of the evidence in the record, drawing all reasonable inferences in favor of the nonmoving party, but making no credibility determinations or weighing any evidence.”).

Question: if the trial court is not permitted to weigh any evidence, how can it decide what a reasonable jury could decide? (Remember: under the supposedly new “federal standard,” the ultimate question the trial court is supposed to be asking itself when deciding a motion for summary judgment is whether a reasonable jury could find in favor of the nonmoving party.) Obviously, if a court is deciding whether the nonmoving party has presented sufficient evidence (not merely conclusory statements) such that a reasonable party could find in favor of the nonmoving party, the court has to be weighing evidence, at least a little bit, in order to make that determination.

The real real problem—a full discussion of which is outside the scope of this blog post—is that explained in some of the federal cases cited by the Florida Supreme Court: the modern “notice pleading” change in the way law is practiced changed the real “summary judgment” standard in a confusing way, because what we are really talking about is getting the pleadings in order so that they sufficiently define a controversy to be tried by a jury. In the old days, a plaintiff had to state his claim with much more detail, in accordance with strict formalities. To challenge a plaintiff’s complaint, the defendant would file a motion to dismiss. A ruling on that motion used to be more of a fact-finding mission akin to what modern lawyers think of as a summary judgment motion, not just a “four corners” inquiry that modern lawyers know today. Summary judgment in the “notice pleading” era has replaced the “motion to dismiss” as it was used in a time before notice pleading. What this means is that, indeed, it is supposed to be rather easy for the nonmoving party to survive a motion for summary judgment. Raising “any colorable issue of fact” in a near-conclusory manner, actually, is supposed to be enough to survive summary judgment, which is the new “motion to dismiss” in the “notice pleading” era. If the nonmoving party has “stated” a viable claim, then the case is supposed to be decided by a jury. In other words, as the Second District recently reiterated, we are not supposed to have trial courts usurping the role of the jury by weighing evidence and making credibility determinations that are supposed to be made by the jury. That has always been the law, in both Florida and federal courts.

Further reading: see also Whitlow v. Tallahasse Memorial Healthcare, Inc., in which the First District includes a very thoughtful discussion of the constitutional implications of entry of summary judgment and its history, as it relates to a person’s constitutional right to a jury trial, which is one of the bedrock, critical foundational principals of the United States. The very existence of a procedure that allows a trial court to enter summary judgment—taking away a litigant’s right to have his case decided by a jury—is, some say, in conflict with the constitutional right to a jury trial. The argument that summary judgment should not exist at all is one that many thoughtful lawyers have made. The constitutional right to a jury trial is substantive, while modern summary judgment is a procedural convenience concerned with things like judicial economy.