August 8, 2023

“Does Lack of a Response Indicate There is ‘No Genuine Issue of Material Fact’ ”

Fla. R. Civ. P. 1.510’s Requirement to Respond to a Motion for Summary Judgment 

By: Nurelys Pereiro  

Effective May 1, 2021, pursuant to In re Amendments to Florida Rule of Civil Procedure 1.510, 309 So. 3d 192 (Fla. 2020), Florida became the 39th state to adopt the federal summary judgment standard established by the U.S. Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986).  

The Florida Supreme Court points to three factors to consider when analyzing the possibility of summary judgment under the new rule. First, the Court points to recognizing the fundamental similarity between the summary judgment standard and the directed verdict standard. The bottom line in both standards is “whether the evidence presents a sufficient disagreement to require submission to a jury.”  

The second point made by the Court rests on the issue of burden. Under the new rule it must be recognized that a moving party that does not bear the burden of persuasion at trial and can obtain summary judgment without disproving the nonmovant’s case. Finally, the correct test for the existence of a genuine factual dispute is whether “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”  

So, how does this differ from how we used to handle things? 

The Old v. The New  

Pursuant to the prior Florida Rule of Civil Procedure 1.510(c) a party filing for summary judgment was entitled to summary judgment “if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” In contrast, under the federal rule, “the court shall grant summary judgment if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Although they seem virtually identical, as written, the Florida Courts and federal courts differed in their interpretation of the text 

Florida courts interpreted the rule to impose on the moving party the burden of conclusively “proving a non-existence of a genuine issue of material fact.” The burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden. To do so, the moving party was required to “specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence… on which the movant relies” to negate the opposing party’s claims.  

Under the federal rule, the moving party is not required to support its motion with affidavits or other materials negating the opponent’s claim. Instead, “the burden on the moving party may be discharged by ‘showing’ that there is an absence of evidence to support the nonmoving party’s case.”  

The rules also differed in their definition of a ‘genuine’ issue of material fact. Under Florida’s old standard, if the record reflected the existence of any genuine issue of material fact, the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment was not proper. Under the federal standard, ‘the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.”  

The new rule also imposed some important timing constraints on the moving and nonmoving parties. Under the new rule, a motion for summary judgment must be filed at least forty days before the time fixed for a hearing. The nonmovant must respond with its supporting factual position at least twenty days before the hearing.  

What if the nonmovant fails to respond?  

Failure to Timely File a Response to a Motion for Summary Judgment  

Florida Rule of Civil Procedure 1.510(c)(5) states that the nonmovant’s response to the motion for summary judgment, and its supporting facts, must be served at least twenty days before the time fixed for the hearing. The language of this provision must be deemed mandatory by the legislature’s use of the word ‘must.’ Florida’s 4th District Court of Appeals reiterated this mandatory requirement in Lloyd S. Meisels, P.A. v. Dobrofsky, in which the court held that where the nonmoving party failed to respond to the motion for summary judgment, as required by the rule, the trial judge did not abuse his discretion by considering the moving party’s facts as undisputed and granting summary final judgment.  

The mandatory requirement of a response to a motion for summary judgment forces the nonmoving party to take a definite and detailed position which allows the court to give proper consideration to the motion and subsequently reach a decision. Without filing a response, a nonmoving party runs the risk of leaving the trial court to mine for triable facts that would preclude summary judgment. Instead, the party opposing summary judgment must direct the court’s attention to specific triable facts which would deem a motion for summary judgment improper.  

However, it is disputed whether failure to respond to a motion for summary judgment, on its own, would warrant summary judgment in favor of the moving party. Where federal rule 56(a) says that the court should state on the record its reasons for granting or denying a summary judgment motion, new rule 1.510(a) says that the court shall do so.  

In Fuentes v. Luxury Outdoor Design, Inc., Florida’s Fourth District Court of Appeals reversed summary judgment where the trial court’s reasoning behind granting summary judgment was solely plaintiff’s failure to respond to the motion for summary judgment, stating it had “no alternative but to find that” the facts were undisputed. The Court further explained that “the rule provides that “if a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by rule 1.510(c), the court may,” among other things, “consider the fact undisputed for purposes of the motion,” or “grant summary judgment if the motion and supporting materials – including the facts considered undisputed – show that the movant is entitled to it[.]” However, the trial court was to analyze whether the “supporting materials – including the facts considered undisputed,” would necessarily result in the defendant’s entitlement to summary judgment based on any of the defendant’s myriad arguments in support of summary judgment, and there was no indication that the trial court considered these arguments.  

In a similar case, Full Pro Restoration a/a/o Placido Fernandez v. Citizens Property Ins. Corp., Florida’s Third District Court of Appeals agreed with the trial court that the nonmovant’s party late filing of its response to the movant party’s motion for summary judgment should not be considered. In this case, Citizens filed for summary judgment alleging that there was no genuine issue of material fact. Full Pro Restoration failed to file documentary evidence in opposition until just six days prior to the summary judgment hearing and a response to the motion for summary judgment just four days before the hearing. The Court held that the trial court did not abuse its discretion by denying Full Pro’s proffer of the late-filed discovery and in granting summary judgment for Citizens.  

How Does This Affect How We Handle Your Case? 

You may ask, “is a response to a motion for summary judgement required?” According to the current case law, it is mandatory. This is evidenced by the legislature’s use of the word “must” file a response at least twenty days prior to the hearing on the motion for summary judgment. Not only do we believe it is mandatory, but we also believe it is in our clients’ best interests-it’s our chance to make a case on your behalf. 

But, what about the fact that the failure to file a response may not create a presumption that the facts raised in summary judgment are undisputed? The Court is granted discretion to give an opportunity to a nonmoving party to properly support or address the fact, consider the fact undisputed for purposes of the motion, grant summary judgment if warranted, and issue any other appropriate order. When it comes to defending you, we don’t believe in leaving things up to chance. We feel the best defense is one that is proactive, clean, and complete and, in nearly every case, that would include filing a response to a motion for summary judgment.  

The court is required to make findings on the record that there is no genuine issue of material fact that would necessitate a jury trial. This also creates grounds for appeal, in some cases. We want to put the judge in the position of telling us-and you-why a motion for summary judgment was or wasn’t granted. It’s how we know exactly how to guide your next steps.  


In conclusion, understanding the requirements and processes around summary judgment motions and responses in PIP (Personal Injury Protection) cases is essential for claims professionals. By familiarizing yourself with the criteria set forth by the courts, you can better partner with us, which produces stronger defense strategies and an increased likelihood of favorable outcomes.  

As your trusted PIP defense attorney, I am here to support you every step of the way. If you have any questions or need assistance with summary judgment motions or other PIP matters, please contact me. Together, we can build a strong defense and protect your company’s interests.  

Contact me today and let’s work toward achieving successful resolutions!  

Nury Pereiro
Partner, Personal Injury Protection
Kelley Kronenberg-Fort Lauderdale, FL.
(954) 370-9970