By Daniel Horwitz:
Concluding in Rye v. Women’s Care Ctr. of Memphis that the seven-year-old summary judgment standard established by the Tennessee Supreme Court in Hannan v. Alltel Publ’g Co. had proven to be “unworkable” and “functioned in practice to frustrate the purposes for which summary judgment was intended,” the Court has officially overruled Hannan effective immediately.[1] In its place, the Court “fully embrace[d]” the summary judgment standard that has been used in federal cases since 1986.[2]
The federal summary judgment standard empowers litigants to force their opponents to “put up [evidence] or shut up” before trial.[3] If, in response to a properly supported motion for summary judgment, the responding (“nonmoving”) party is unable to muster sufficient evidence to demonstrate that there is a genuine dispute of a material fact that requires a trial, then summary judgment must be granted in favor of the moving party. In contrast, under the prior Hannan standard, several courts had concluded that “it is not enough to rely on the nonmoving party’s lack of proof even . . . after the deadline for discovery ha[s] passed. Under Hannan, we are required to assume that the nonmoving party may still, by the time of trial, somehow come up with evidence to support [a] claim.”[4] After determining that this standard was “unworkable and inconsistent with the history and text of Tennessee Rule [of Civil Procedure] 56,”[5] a majority of the Court concluded that Hannan should be overruled.
In all likelihood,[6] the immediate effect of the Court’s decision in Rye will be to increase the number of cases that are decided at the summary judgment stage. Thus, fewer cases will end up going to trial and being decided by a jury, and litigants are less likely to settle claims. Helpfully, the Tennessee Supreme Court’s “full[] embrace” of the federal summary judgment standard also harmonizes state and federal civil procedure, and it finally settles an area of law that had created a substantial degree of confusion among both lower courts and the Justices of the Tennessee Supreme Court themselves.[7]
Under the new summary judgment standard announced in Rye, when a party does not bear the burden of proof on an issue at trial, the party may support a motion for summary judgment “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.”[8] However, the party seeking summary judgment must make more than “a conclusory assertion” that summary judgment is warranted.[9] Instead, the moving party must support its motion for summary judgment with “a separate concise statement of material facts as to which the moving party contends there is no genuine issue for trial.”[10] Additionally, each fact must be set forth in a separate, numbered paragraph and supported by a specific citation to the record.
Thereafter, the burden shifts to the nonmoving party to identify or come forward with evidence indicating that there is a genuine dispute of a material fact that requires a trial. To survive the moving party’s motion for summary judgment and thus be allowed to proceed to trial, “[t]he nonmoving party must demonstrate [with affirmative evidence, such as affidavits, interrogatories, or deposition testimony,] the existence of specific facts in the record which could lead a rational trier of fact to find in favor of the nonmoving party.”[11] If the nonmoving party fails to make this showing after a sufficient opportunity for discovery, then the moving party’s motion for summary judgment will be granted, and the case is over.
Notably, the Court’s decision in Rye also effectively sidesteps – or, as Justice Wade’s dissenting opinion suggests, cravenly shies away from[12] – a looming conflict between the Tennessee Supreme Court and the Tennessee General Assembly over which branch of government has the constitutional authority to determine the standard for summary judgment in Tennessee. In 2011, the legislature enacted Tenn. Code Ann. § 20–16–101 in a direct response to Hannan,[13] which was perceived to be an insufficient gatekeeper against frivolous claims. In full, Tenn. Code Ann. § 20-16-101 provides that:
In motions for summary judgment in any civil action in Tennessee, the moving party who does not bear the burden of proof at trial shall prevail on its motion for summary judgment if it:
(1) Submits affirmative evidence that negates an essential element of the nonmoving party’s claim; or
(2) Demonstrates to the court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.
Although Justice Bivins’ concurring opinion suggests that the Court “may yet face a challenge to this constitutionally-suspect statute . . . to determine if the two approaches are consistent,”[14] there appears to be vanishingly little daylight between the judicial Rye standard and the legislative standard for resolving summary judgment motions set forth in Tenn. Code Ann. § 20–16–101. Given the near-verbatim identity between the two standards, a future separation-of-powers showdown (or, at least, a conflict of practical consequence) over the constitutionality of Tenn. Code Ann. § 20–16–101 is unlikely. See generally, Daniel A. Horwitz, Twelve Angry Hours: Improving Domestic Violence Holds in Tennessee Without Risk of Violating the Constitution, 10 Tenn. J.L. & Pol’y 215, 230 (2015) (summarizing the Tennessee Constitution’s separation of powers doctrine, and noting that “the judiciary customarily defers even to legislative enactments that regulate practices and procedures of the judiciary if such laws: (1) are reasonable and workable within the framework already adopted by the judiciary, and (2) work to supplement the rules already promulgated by the Supreme Court.”) (internal quotation marks omitted).
Read the Tennessee Supreme Court’s majority opinion in Rye v. Women’s Care Ctr. of Memphis, MPLLC here. Chief Justice Lee’s concurring opinion is accessible here, Justice Bivins’ concurring opinion is accessible here, and Justice Wade’s opinion concurring in part and dissenting in part is accessible here.
Questions about this article? Email Daniel Horwitz at [email protected].
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[1] Rye v. Women’s Care Ctr. of Memphis, MPLLC, No. W-2013-00804-SC-R-11-CV, 2015 WL 6457768, at *19-22 (Tenn. Oct. 26, 2015) (citing Hannan v. Alltel Publ’g Co., 270 S.W.3d 1 (Tenn. 2008)).
[2] Id. The federal summary judgment standard was established by the U.S. Supreme Court in Celotex Corp. v. Catrett 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
[3] Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989).
[4] White v. Target Corp., No. W2010–02372–COA–R3–CV, 2012 WL 6599814, at *7 n.3 (Tenn. Ct. App. Dec. 18, 2012).
[5] Rye, 2015 WL 6457768, at *22.
[6] Astoundingly, at least to this author, there is apparently “no [] data [about the frequency that summary judgment is granted in Tennessee] because that information is not collected at the trial court level.” Rye, 2015 WL 6457768, at *31 (Bivins, J., concurring).
[7] Rye, 2015 WL 6457768, at *33 (Wade, J., dissenting) (noting the “faulty interpretation of Hannan that appears to have originated in an unpublished decision by [the Tennessee] Court of Appeals”).
[8] Id. at *22.
[9] Id.
[10] Id. (quoting Tenn. R. Civ. P. 56.03).
[11] Id. (quoting Tenn. R. Civ. P. 56.06).
[12] Id. at *45 (“I fear that today my colleagues have preempted our consideration of this important principle by surrendering the constitutional authority of this Supreme Court to establish summary judgment standards for the judiciary.”).
[13] See Andrée Blumstein, Summary Judgment Comes Full Circle: Tennessee now has its own ‘summary judgment trilogy’: Byrd, Hannan, Rye., Tennessee Bar Journal (Dec. 1, 2015), available at http://www.tba.org/journal/summary-judgment-comes-full-circle (“In 2011 the Tennessee General Assembly passed Tenn. Code Ann. § 20-16-101 specifically to counteract Hannan.”).
[14] Rye, 2015 WL 6457768, at *31 (Bivins, J., concurring).