Resources

Client Alerts, News Articles, Blog Posts, & Multimedia

Everything you need to know about BMD and the industry.

The New Rule 1.510 - Radical Change for Summary Judgement Procedure in Florida

Client Alert

In civil litigation, where both sides participate actively, trial is usually required at the end of a long, expensive case to determine a winner and a loser. In federal and most state courts, however, there are a few procedural shortcuts by which parties can seek to prevail in advance of trial, saving time, money and annoyance. The most common of these is the “motion for summary judgment”: a request to the court by one side for judgment before trial, generally on the basis that the evidence available reflects that a win for that party is legally inevitable and thus required. Effective May 1, 2021, summary judgment procedure in Florida has radically changed.

Like most states, Florida’s Rules of Civil Procedure are patterned on the Federal Rules. The summary judgment standard under Rule 1.510 allowed for summary judgment only in the absence of a “genuine issue as to any material fact”. This articulation of the summary judgment standard was nearly identical to federal Rule 56, which references any “genuine dispute as to any material fact…” (emphasis supplied). Under the Florida standard, the trial court would evaluate the “summary judgment evidence” of record as of the hearing to determine whether any genuine factual issues existed. The judge looked at the evidence on the hearing date; the judge was not to weigh the evidence or evaluate the credibility of witnesses at summary judgment.

Florida courts interpreted this standard as requiring the movant to disprove the opponent’s case in order to prevail at summary judgment. The courts also defined “genuine issue” of material fact to emphasize that virtually any suggestion that the summary judgment opponent could plausibly offer any evidence in opposition would suffice to defeat the motion. This allowed summary judgment opponents to overcome the motion in the great majority of cases by filing any evidence in advance of the hearing. Even preposterous claims and ludicrous defenses could usually survive summary judgment and force trial.

By contrast, the federal courts interpreted the Rule 56 standard as mirroring the one judges use in deciding motions for directed verdict—in which the court considers, at the end of the evidence, whether to submit the case to the jury or instead, whether the evidence so overwhelmingly favors one party that as a matter of law, that side must prevail. In making this determination at the earlier summary judgment stage, federal courts necessarily engage in more discretionary evaluation of the evidence and its ultimate persuasive effect, rather than simply a quantitative measuring whether any evidence exists in favor of the non-movant. For decades, scholars and many practitioners have expressed frustration with Florida summary judgment practice and suggested that the federal standard be adopted.

That day has come: on December 31, 2020, The Florida Supreme Court issued In Re: Amendments to Florida Rule of Civil Procedure 1.510, Case No. SC20-1490. On April 29, 2021, the Court further altered its opinion following input from the legal community. The Court amended the rule specifically to adopt the United States Supreme Court’s summary judgment standard articulated in three opinions from 1986 known as “the Celotex trilogy”. The majority opinion reviewed the history of Florida and federal practice and the divergence between them despite the near identical language in the Florida and federal rules.

The Court rewrote Rule 1.510 to track federal Rule 56 almost completely. It mandated trial courts state on the record the reasons for granting or denying motions for summary judgment. The Court increased the time periods for filing motions and filing oppositional materials, and pinpointed the precise means by which the movant, opponent and trial judge may reference the summary judgment evidence in the record. The Court clarified that the trial court can consider things in the record beyond what the parties argued, or even render an order granting summary judgment for a party who had not sought it or on grounds not raised, even on the trial judge’s own initiative. The Court gave trial judges authority to sanction summary judgment opponents who file materials in bad faith or solely for delay, through an award of attorneys’ fees or contempt.

Justice Labarga dissented, cautioning that loosening the standard would likely impair the constitutional right to trial and noting that “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.” SC20-1490 at 9 (Labarga, J., dissenting).

The rule change is effective May 1 and applies to motions filed and pending but not yet ruled upon as of that date: within the past week, a trial judge rendered an order on a summary judgment motion I had argued in March, still pending as of May 1, declining to rule and ordering resubmissions under the new standard. That will be only the first of many unexpected and significant effects of this new rule for me and for all civil practitioners in Florida.

For additional questions, please contact Litigation Member Scott Rost at srrost@bmdllc.com.


Telehealth Flexibility Updates: HIPAA, DEA, and CMS

The Covid-19 Public Health Emergency (PHE) officially ended on May 11, 2023. But what does that mean for telehealth, a field that expanded exponentially during the PHE? Fortunately, many of the flexibilities will remain intact, at least temporarily. This client alert presents a brief overview of the timelines that providers need to follow, but for a more comprehensive review of telehealth flexibilities and when they will end

WEBINAR SERIES RECAP | Ending the Public Health Emergency + Post-Pandemic Check-Up

Some may take the position that the rest of the country already returned to a new “normal” following the COVID-19 pandemic.  But healthcare providers continue to implement COVID protocols and navigate the ever-changing healthcare regulations at both the federal and state levels.  It is important for healthcare providers to take time for a “Healthcare Check-Up” with the start of 2023 and the ending of the Public Health Emergency (“PHE”).

Sharp Rise in False Claims Act Cases - Navigating the FCA Waters

Recently, on April 18, 2023, the United States Supreme Court heard arguments regarding the FCA’s scienter, or mental state, requirement. To prove violation of the FCA, the statute requires that a defendant “knowingly” file false claims for payment. The term “knowingly” is defined within the statute to mean a person that acts with actual knowledge, deliberate ignorance, or reckless disregard. Circuit courts are split on how to interpret and apply the knowledge element of the FCA, and based on the Supreme Court’s decision, there will be a large impact on healthcare defendants and their businesses as well as anyone who contracts with, or receives money from, a federal program. A broader interpretation of the FCA would unnecessarily target and stifle healthcare, and other businesses, for simple errors in daily operations. This goes against the intended application of the FCA, which was to prevent fraudulent activity.

Areas of Opportunity in Columbus: Highlights from the Columbus Opportunity Summit

On April 27, 2023 Columbus Business First held its annual Columbus Opportunity Summit, bringing together business and economic development leaders to provide an update on how Central Ohio is preparing for expected growth in the coming years, an issue heightened by the arrival of Intel at its 1,000 acre site in Licking County, just outside of Columbus. The site will be home to two new chip factories with room to grow to a total of eight factories and is a $20 Billion investment.

BREAKING: Biden Administration Has Officially Ended the Two Remaining COVID Vaccine Mandates

As of May 1, 2023, the Biden Administration has officially ended the two remaining COVID vaccine mandates: (1) the Federal Contractor Mandate, and (2) the CMS Healthcare Provider Vaccine Mandate.