FIRM NEWS
Motions for summary judgment are perhaps one of the most filed pleadings in civil litigation. In Louisiana, the procedure governing the motion is found in Article 966 of Louisiana’s Code of Civil Procedure. In June 2023, Act 317 of the 2023 Louisiana Legislative session made important changes to Louisiana’s summary judgment procedure effective August 1, 2023. This article explores those changes.
New evidence may now be considered:
Before the 2023 amendments, Article 966 included a narrow list of documents that could be filed in support or opposition of a motion for summary judgment: namely, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions.
The 2023 amendments add further documents to the list of appropriate summary judgment evidence:
The 2023 amendments also provide that any appropriate summary judgment evidence previously filed into the record may be referenced and considered in a motion or opposition if the referencing party furnishes a copy of the document to the court and opposing party (with the pertinent part designated and with the filing information).
Electronic service of pleadings is now required:
Subparagraphs (B)(1), (2), and (3) now require that summary judgment motions, oppositions, and reply memoranda all be served electronically in accordance with Article 1313(A)(4) of the Code of Civil Procedure.
Legal holidays are included in the calculation of time to file a reply memorandum:
Article 966 provides that the mover has five days before the hearing on the motion to file a reply memo. Before 2023, Article 966 was silent on how legal holidays affect calculating this five-day period. Article 5059 of the Code of Civil Procedure suggested that one would not include legal holidays in the calculation. Now, Article 966(B)(3) specifically states the five-day calculation is “inclusive of legal holidays notwithstanding Article 5059(B)(3) . . .”
So, if a summary judgment hearing is set for Monday, the reply memorandum must be filed the prior Wednesday, regardless of the legal holidays lying between those dates. If a hearing is set for Friday, the fifth day to file the reply memorandum falls on the preceding Sunday. Accordingly, under Subparagraph (B)(4) (which was not changed by these recent amendments), the mover would have the entirety of the following Monday to file the reply memorandum.
The court may not reconsider granting of a partial summary judgment because a document was not timely filed and served with an opposition:
Subparagraph (B)(5) is new and changes the result reached by the Louisiana Supreme Court in Zapata v. Seal, 2020-01148 (La. 09/30/21), 330 So. 3d 175, where a partial summary judgment on medical causation was later vacated when the plaintiff produced an expert affidavit based on evidence that was previously available in advance of the original hearing.
This new subparagraph reads: “Notwithstanding Article 1915(B)(2), the court shall not reconsider or revise the granting of a motion for partial summary judgment on motion of a party who failed to meet the deadlines imposed by this Paragraph, nor shall the court consider any documents filed after those deadlines.”
Expert qualifications or methodologies may be challenged, heard, and decided before the hearing on a motion for summary judgment:
Subparagraph (D)(3) is also new and provides that if a “timely objection is made to an expert’s qualifications or methodologies in support of or in opposition to a motion for summary judgment, any motion in accordance with Article 1425(F) to determine whether the expert is qualified or the expert’s methodologies are reliable shall be filed, heard, and decided prior to the hearing on the motion for summary judgment.”
Article 966 does not state what constitutes a timely objection, but Article 1425(F) states that a motion to determine whether a witness qualifies as an expert or whether the expert’s methodologies are reliable must be filed not later than 60 days before trial.
Article 966 still provides that motions for summary judgment must be filed at least 65 days before trial. So, a scenario can now arise where the challenge of a witness’s expertise or methodologies must be made within only five days following receipt of a motion for summary judgment.
If a summary judgment is granted finding someone not negligent/at fault, and the ruling is later reversed, the reversal applies to all parties, not just the party who appealed:
Paragraph G provides that if the trial court renders judgment finding a person (party or non-party) is not negligent, not at fault, or did not cause in whole or in part the injury or harm alleged, the fault of that person shall not be considered or referred to at trial.
The amendments to paragraph G clarify what perhaps is obvious: if a summary judgment is reversed, the above does not apply. Further, if “the judgment is reversed by an appellate court, the reversal applies to all parties.” Thus, for example, if a defendant successfully appeals a summary judgment dismissing a co-defendant, the plaintiff may then collect damages against the previously released co-defendant, even if the plaintiff failed to appeal that same summary judgment.
In Amedee v. Aimbridge Hosp. LLC, 2021-01906 (La. 10/21/22), 351 So. 3d 321, the City of New Orleans argued that although evidence of the City’s fault may be admissible at trial, the City should not be held liable for any damages to the plaintiffs because the plaintiffs did not appeal the judgment dismissing the City and thus that the judgment is final as to the City. The Supreme Court declined to rule on this argument, but the 2023 amendments to paragraph G are clear that such arguments would now fail.
These amendments and additions are the first changes to Article 966 since 2016. These changes are important to know for Louisiana litigators and companies involved in litigation. For further questions regarding the topic of this blog, contact Gordon Arata attorney J.P. Graf.
