Rules, rules and more rules!

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 49

DECEMBER 6, 2024

SUPREME COURT ADOPTS NEW RULES

In Re: Amendments to Rules of Civil Procedure. 49 Fla. L. Weekly S289 (Fla. Dec. 5, 2024):

The court began by noting that earlier in 2024, it adopted amendments to rules 1.200 (Case Management; pretrial procedure), 1.201 (Complex Litigation); 1.280 (General Provisions Governing Discovery); 1.440 (Setting Action for Trial) and 1.460 (Motions to Continue Trial). The amendments created a framework for the active case management of civil cases, focusing on adhering to deadlines established early based on the complexity of a case while providing room for customization by the judicial circuits. The amendments also incorporated the proportionality language (meaning that discovery is tailored to the needs of the case) of Federal Civil Procedure 26(b)(1).

The court advised that it kept in place all of the amendments as adopted by its decision of May 23, 2024, but also adopted additional amendments to make the May 2024 proportionality and discovery changes more effective and to resolve inconsistencies.

As to Rule 1.280, the court has adopted almost all the text of Federal Rule 26(b)(1), to be construed and applied in accordance with the Federal proportionality standard. The court urged practitioners and judges to look to the federal history and precedents when applying proportionality.

The court amended Rules 1.340 and 1.350 to require that objections are made with specificity and include the reasons. Standard interrogatories must be adjusted for proportional discovery.

Rule 1.350 was amended to include language that an objection must state whether any responsive materials are being withheld on the basis of the objection. The court added that it makes no sense for resources to be needlessly wasted on objections where no materials are being withheld.

Rule 1.380 was amended to provide an enforcement mechanism for the initial discovery disclosure and supplemental discovery obligations that the court added in Rule 1.280. There are also sanctions available under 1.380.

Rule 1.280 is amended to read that a party may not seek discovery from any source before that party’s initial disclosure obligations are satisfied except when authorized by the rules, stipulation, or court order.

There is also a sanction for violating discovery certification as added in 1.280.

The court adopted language to Rule 1.201 to clarify that while Rule 1.202 requires conferral before a motion is filed, Rule 1.201(c)(4) is intended to require conferral closer to the hearing date to ensure that the reserved hearing time is still necessary.

Finally, the court exempts trial continuances and extensions of deadlines in case management orders from the general extension of time set forth in Rule 1.090.

AMENDMENTS TO RULE 1.510 (SUMMARY JUDGMENT)

In Re Cohen: Amendments to Florida Rule of Civil Procedure 1.510 and Rule 1.202, 49 Fla. L. Weekly S291 (Fla. Dec. 5, 2024):

The court changed Rule 1.510 to require that a response to a motion for summary judgment be served no later than 40 days after the service of the motion. The rule also specifies that any hearing on a motion for summary judgment must be set for a date at least 10 days after the deadline for serving a response unless the parties stipulate or the court orders otherwise.

For Rule 1.202, the court expands the motions that are exempt from the duty to confer and lists them in the subdivision. There is also a place for sanctions.

A DEFENDANT IS NOT REQUIRED TO FILE A MOTION FOR SUMMARY JUDGMENT WITH EVIDENCE DEMONSTRATING ENTITLEMENT TO SUMMARY JUDGMENT AS A MATTER OF LAW–A MOVANT WITHOUT THE BURDEN AT TRIAL IS NOT REQUIRED TO COME FORWARD WITH EVIDENCE TO ESTABLISH AN ABSENCE OF EVIDENCE, AND MAY RELY ON THE MATERIALS IN THE FILE, PROVIDED THE NON-MOVANT HAS HAD TIME FOR DISCOVERY.

Cory v. City of Tampa 49 Fla. L. Weekly D2376 (Fla. 2d DCA Nov. 27, 2024):

The case arose from an incident that occurred in the summer of 2020 in downtown Tampa after George Floyd’s death sparked nationwide protests. A City of Tampa police officer fired rubber bullets into a crowd of peaceful protesters, hitting the plaintiff in the back of the head and injuring him. The plaintiff sued, alleging the city failed to properly vet, train, supervise, and direct its police officers, and that this failure caused injury and damages.

The parties exchanged written discovery, but none of it was in the record. The City denied the majority of the plaintiff’s requests for admissions, including requests asking the City to admit it was negligent. The City also responded to most of the plaintiff’s requests for production while objecting to three of them. The plaintiff did not move to compel responses to those requests and neither party served additional discovery after their initial exchanges.

The parties deposed the officer involved in the incident and the City’s police chief. Neither party timely filed the transcripts.

The trial court entered a case management order establishing deadlines and set the case for trial. There was also a dispositive motion date.

More than 2 years after the plaintiff filed suit, the City filed its motion for summary judgment arguing that it should be granted because the plaintiff did not have evidence to prove his claim. The City argued that the plaintiff had no evidence to support any of his claims.

The plaintiff timely filed a response to the City’s motion but did not address the arguments regarding the absence of evidence to prove the claims. The plaintiff argued that the City failed to provide any evidence in accordance with Rule 1.510 and that the plaintiff didn’t have to rebut the City’s motion until there was evidence.

The entire basis of the City’s argument was the lack of support for the elements of the plaintiff’s claim and the plaintiff’s failure to file anything in response. The plaintiff also argued that deposition testimony from the officer and the chief of police supported his claim and that he intended to call multiple witnesses, including a law enforcement expert. But when asked by the trial court where that evidence was in the record, the plaintiff responded that he didn’t move for summary judgment, so he didn’t put it in the record.

The court granted the City’s motion for summary judgment, finding that there was an absence of record evidence to allow the court to conclude that the plaintiff’s claim had factual support. Before Rule 1.510 was changed, a defendant seeking summary judgment had to conclusively disprove the plaintiff’s case with evidence, effectively requiring a defendant to prove a negative. That is no longer the case.

Under the amended rule, a moving party that does not bear the burden of persuasion at trial can obtain summary judgment without disproving the non-movant’s case and it can discharge its burden in one of two ways: (1) If the non-moving party must prove X to prevail, the moving party at summary judgment can either produce evidence that X is not so, or (2) point out that the non-moving party lacks the evidence to prove X.

When the movant does not bear the burden of persuasion at trial, the movant’s initial burden of production is not onerous and can be easily discharged as long as there has been adequate time for discovery.

The trial court’s task here was to determine whether there was a genuine issue for trial.

The test it had to apply was whether the evidence was such that a reasonable jury could return a verdict for the plaintiff. Unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party, there is no genuine issue for trial because no reasonable jury could have returned a verdict for the plaintiff on this record and the trial court did not err in entering summary judgment for the City.