Courts can now order a party who submits an affidavit in bad faith or solely for delay to pay the other party’s reasonable expenses, including attorney’s fees, incurred as a result. ATTORNEY’S FEES FOR BAD FAITH AFFIDAVITS. The new rule requires judges to make explicit findings for both an award and a denial of an MSJ.ĩ. The new rule contemplates adequate time for discovery as one of the prerequisites to a summary judgment. Previously, a party could submit an affidavit as to why it could not adequately respond to summary judgment, including the need to conduct additional discovery. You can now obtain summary judgment by proving that the adverse party cannot produce admissible evidence to support or dispute a fact. Although the evidence attached to a summary judgement motion is no longer specifically defined in the rule, it still includes, depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials as would be admissible in evidence. The rule still remains that evidence submitted in support of or in opposition to a MSJ must be admissible in evidence. Florida cases discussing what facts are material to a claim or defense remain applicable since the materiality goes to the elements of that claim or defense. Instead, there must be evidence on which a jury could reasonably find for the nonmoving party. Unlike before, a “scintilla of evidence” or evidence raising the “slightest doubt” is no longer sufficient to create a disputed material fact. Now, courts can weigh the evidence as a reasonable jury to determine the plausibility of inferences relied upon by the non-moving party. Previously, courts could not weigh the presented evidence, no matter how trivial or incredible. However, a party can renew its MSJ under the new rule. A rehearing of an MSJs decided under the old rule should be decided under the old rule as well. Additionally, in pending cases that have already been briefed but not yet decided, the court should allow the parties to adjust the briefings to comply with the new rule. If your hearing is set less than 20 days from when you filed the MSJ and the nonmoving party has not yet filed a Response, you should reschedule your hearing. The new Rule 1.510 took effect on and applies to MSJs adjudicated on or after May 1, 2021. The new Rule 1.510 still provides for a hearing and ties the timing to the hearing on the motion, unlike Federal Rule 56, which does not automatically provide for a hearing on summary judgment. 
No express deadline has been set for filing a reply. Now, an MSJ must be served at least 40 days before the hearing and a response is due 20 days before the hearing.Previously, a party had to serve its motion for summary judgment (MSJ) 20 days before a hearing and respond 5 days before the hearing, if service was by mail, or by 5:00 p.m., 2 business days before the hearing, if service was by email.
Under the new rule, “if the nonmoving party must prove X to prevail, 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.”1.Now, the burden on summary judgment lies with the party that has the burden at trial.For instance, the plaintiff would not only have to establish their own case (for which they had the burden of proving at trial), but also disproving the defendant’s affirmative defenses. Previously, the moving party had the burden of establishing, conclusively, that there was no genuine issue of material fact as to the claim or case, in its entirety, including disproving the other party’s theory of the case.The new standard for granting summary judgment mirrors the directed verdict standard.The following overview provides 10 major changes that every busy practitioner should know about. For those litigating in federal courts, the rule is nothing new in fact, Rule 1.510 of the Florida Rules of Civil Procedure adopts most of its federal counterpart verbatim. On April 29, 2021, the Florida Supreme Court adopted a new summary judgment standard.
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