My clients who have defended against meritless claims over the last few years know why this is important. The Tennessee Supreme Court has finally restored the traditional summary judgment standard making it easier for these cases to be dismissed before trial.
Some background. After a lawsuit is filed, the defendant (and less often, the plaintiff) can file a summary judgment motion arguing that there are no real material facts in dispute, that the plaintiff cannot prove its case, and that the judge should go ahead and dismiss the case before trial. The purpose of the summary judgment motion is to avoid the expense of trial when the outcome is clear.
A simple example in the tort context is when the defendant in an automobile accident case offers proof before trial that he was not driving and did not own the car. The defendant’s summary judgment motion will be granted and the case dismissed if the plaintiff is unable, at a minimum, to raise a legitimate issue with respect to the defendant’s claim.
In the business litigation context, an example is when a commercial landlord sues the tenant for breach of a lease, but the pre-trial evidence shows the tenant did not breach the agreement. In that case, if the landlord cannot provide evidence showing the tenant breached the lease, the case will be dismissed before trial. (Most cases are never this simple. If they were, the plaintiff would never file suit.)
Up until 2008, Tennessee courts applied the “put up, or shut up” standard to summary judgment motions. Under this standard, the defendant could win on summary judgment by either (1) negating an essential element of the plaintiff’s claim, or (2) demonstrating that the plaintiff’s evidence at the time of the summary judgment motion was insufficient to support its claim.
In 2008, the Tennessee Supreme Court decided Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008), which redefined the second prong of the summary judgment standard. As a result of Hannan, it was not enough for the defendant to show that the plaintiff’s evidence at the time of the summary judgment motion was insufficient. Rather, the defendant had to prove there was no way the plaintiff could establish an essential element of its claim at trial.
What’s the difference? Under the original standard, the plaintiff had to “put up” evidence to show there was proof supporting its claim so that a trial was necessary. If the plaintiff failed to “put up” at the summary judgment stage, the case would be dismissed.
Under Hannan, the plaintiff did not have to “put up” evidence in response to the summary judgment motion, but only had to show that it may come up with some evidence by the time the case went to trial. This new standard made summary judgment almost impossible because anything could happen by the time the case wound its way through the litigation process and got to trial. New evidence supporting the plaintiff’s claim could be found, as could new witnesses.
The Hannan decision had “driven a stake through the heart of summary judgment in Tennessee,” and “‘the predominant reaction … by the trial bench and bar’ was ‘trepidation.'”
On October 26, 2015, the Tennessee Supreme Court reversed the Hannan decision, saying that it was contrary to summary judgment practice prior toHannan and to the federal law on which the Tennessee summary judgment standard was based.
As a result, we are now back to the “put up, or shut up” standard.
In response to the defendant’s summary judgment motion, the plaintiff cannot merely argue it will have evidence at trial, but must put forth evidence at the summary judgment stage showing there are, in fact, genuine issues for trial. The efficiency of the summary judgment process has been restored.
A copy of the Tennessee Supreme Court’s October 26, 2015 decision, Rye v. Women’s Care Center of Memphis, is here. For lawyers, the Rye Court articulated the summary judgment standard as follows:
7. Recap of Tennessee Summary Judgment Standards
Our overruling of Hannan means that in Tennessee, as in the federal system, when the moving party does not bear the burden of proof at trial, the moving party may satisfy its burden of production either (1) by affirmatively negating an essential element of the nonmoving party‘s claim or (2) by demonstrating that the nonmoving party‘s evidence at the summary judgment stage is insufficient to establish the nonmoving party‘s claim or defense. We reiterate that a moving party seeking summary judgment by attacking the nonmoving party‘s evidence must do more than make a conclusory assertion that summary judgment is appropriate on this basis. Rather, Tennessee Rule 56.03 requires the moving party to support its motion with ‘a separate concise statement of material facts as to which the moving party contends there is no genuine issue for trial.’ Tenn. R. Civ. P. 56.03. ‘Each fact is to be set forth in a separate, numbered paragraph and supported by a specific citation to the record.’ Id. When such a motion is made, any party opposing summary judgment party must file a response to each fact set forth by the nonmovant in the manner provided in Tennessee Rule 56.03. ‘[W]hen a motion for summary judgment is made [and] . . . supported as provided in [Tennessee Rule 56],’ to survive summary judgment, the nonmoving party ‘may not rest upon the mere allegations or denials of [its] pleading,’ but must respond, and by affidavits or one of the other means provided in Tennessee Rule 56, ‘set forth specific facts’ at the summary judgment stage ‘showing that there is a genuine issue for trial.’ Tenn. R. Civ. P. 56.06. The nonmoving party ‘must do more than simply show that there is some metaphysical doubt as to the material facts.’ Matsushita Elec. Indus. Co., 475 U.S. at 586. The nonmoving party must demonstrate the existence of specific facts in the record which could lead a rational trier of fact to find in favor of the nonmoving party. If a summary judgment motion is filed before adequate time for discovery has been provided, the nonmoving party may seek a continuance to engage in additional discovery as provided in Tennessee Rule 56.07. However, after adequate time for discovery has been provided, summary judgment should be granted if the nonmoving party‘s evidence at the summary judgment stage is insufficient to establish the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The focus is on the evidence the nonmoving party comes forward with at the summary judgment stage, not on hypothetical evidence that theoretically could be adduced, despite the passage of discovery deadlines, at a future trial.