Louisiana Summary Judgment Changes Now in Effect
As of January 1, 2016, a number of revisions came into effect regarding Louisiana Code of Civil Procedure Art. 966. The purpose of these changes is to revise and clarify the procedure for motions for summary judgment. Despite these changes, it is important to note that the legal standard for granting a Motion for Summary Judgment does not change.
Subparagraph A(4) contains the exclusive list of documents which may be filed in support of a motion for summary judgment. No other documents may be filed, including photographs, video, or contracts, unless they are authenticated by affidavit or deposition to which they are attached. While answers to interrogatories are included in this list, in order for them to be filed in support of a motion for summary judgment, they must be answered under oath pursuant to La. C.C.P. art. 1458. These revisions do not change the rule that oral testimony is not permitted at a hearing on a motion for summary judgment, even if all parties agree.
Subparagraphs B(1), (2), and (3) establish time periods for filing and opposing motions for summary judgment – filing and serving pursuant to Article 1313 must be completed at least 65 days prior to trial for filing, 15 days prior to the hearing for oppositions, and 5 days prior to the hearing for replies. These supersede Rule 9.9 of the District Court Rules but allow the trial court and all the parties to enter into a case management or scheduling order with deadlines that deviate from those in this Article, provided that the orders do not shorted the time prior allowed for a party to file or oppose a motion for summary judgment. Subparagraph B(4), which establishes that if the date to file, oppose, or reply to a motion for summary judgment is a legal holiday, the party has until the next day that is not a legal holiday to file, is also new.
Subparagraphs C(1) and (2) state that a motion for summary judgment shall be set for hearing more than 30 days after filing, and that service of the hearing will be in accordance with Art. 1313 or 1314, so that a party will have timely notice of the hearing date. The hearing shall be set at least 30 days prior to the trial date. Subparagraph C(2) also established that if a party has good cause to miss this deadline, the court may continue the hearing so that the parties and the court can comply with the deadlines.
Subparagraph C(3) changes the law, stating that the court shall render a judgment on a motion for summary judgment not less than 20 days prior to trial, so that a party may apply for supervisory writs without disturbing the trial date. Subparagraph C(4) is new, and now requires that the court stated either on the record or in writing the reasons for granting or denying the motion (although, the court is not required to address every reason or argument).
Subparagraph D(2) clarifies that a court can consider only those documents filed in support of or in opposition to a motion for summary judgment (this is different from FRCP 56(c)(3), which allows the court to consider other materials in the record. Subparagraph D(2) also maintains the requirement that any objection to any supporting document must be raised in a timely opposition or reply memorandum; this subparagraph specifically removed the option of filing a motion to strike as a means of raising an objection to a documents offered in support of or opposition to a motion for summary judgment. This subparagraph also clarifies that an oral objection to any document cannot be raised at the hearing, and that the court must consider all documents to which there are no objections. Subparagraph D(2) adds that the court shall specifically state either on the record or in writing what evidence it deems inadmissible or declines to consider.
The only change in the law in Paragraphs E and F are that F makes it clear that a court can consider only the issues raised in the motion or opposition filed by the parties when deciding a motion for summary judgment, and cannot rule on issues not raised by the parties.
Paragraph G is new, and adopts the prior rule from Art. 966(G)(1) that is a person is found in a summary judgment not be negligent or at fault, that person cannot be considered in any allocation of fault. The former requirement of Art. 966(G)(2), that a trial judge must specifically provide in the judgment that a person is not to be part of the allocation of fault for this rule to apply, is no longer necessary. This paragraph also established that at trial, evidence of that person’s fault shall not be admitted, nor shall that person’s fault be referred to by any person or be submitted to the jury on the verdict form.
Paragraph H is also new, requiring the appellate court to assign the matter for briefing and to permit the parties to request oral argument if the court intends to reverse a lower court decision denying a motion for summary judgment. If a party is dismissed on summary judgment, they are entitled to appeal. Under prior law, if the appellate court reversed the lower court and granted a motion for summary judgment dismissing a party on supervisory writs, the losing party was denied an appeal. This new paragraph now permits a party against whom summary judgment may be rendered in appellate court an opportunity to brief the case and request oral argument.