Louisiana Code of Civil Procedure art. 966 has undergone significant edits in the past year, and the “new” article will take effect on January 1, 2016. The article will not affect any Motions for Summary Judgment (“MSJ”) pending adjudication or appeal on that date. The “new” article will only affect Motions filed after January 1, 2016.
The noteworthy changes include the specific types of evidence allowed in support of an MSJ, the time periods for filing or opposing an MSJ, hearing date time periods, requirements for court rulings on an MSJ, and appeal specifications for an MSJ.
Supporting Documents, Paragraph (A):
The first major change involves the list of documents that may be filed in support of an MSJ. The list includes: pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. This is the exclusive list of documents that may be filed in support of or in opposition to a motion for summary judgment. It intentionally does not allow the filing of documents that are not included in the list, such as photographs, pictures, video images, or contracts, unless they are properly authenticated by an affidavit or deposition to which they are attached.
Supporting the Motion, Paragraph (D):
The court can consider only those documents filed in support of or in opposition to the motion. The provision changes prior law by specifically removing the motion to strike as a means of raising an objection to a document offered in support of an MSJ. This also makes explicit that an oral objection to any document cannot be raised at the hearing on the MSJ and that a court must consider all documents to which there is no objection. This adds the provision that the court shall specifically state either on the record or in writing what evidence it deems to be inadmissible or declines to consider.
Filing Time Periods, Paragraph (B):
The time periods for filing an MSJ and filing opposition to an MSJ have been updated. An MSJ, and all supporting documents, must be filed and served on all parties not less than 65 days prior to the trial date. Any opposition to the MSJ, and supporting documents, must be filed and served not less than 15 days prior to the MSJ hearing. Any reply memo shall be filed not less than 5 days prior to the hearing (no supporting documents are allowed). If any of these dates falls on a legal holiday, then the filing and serving is still timely if done no later than the next day that is not a legal holiday. These are new time periods and they supersede Rule 9.9 of the District Court Rules, but at the same time they recognize the ability of the trial court and all of the parties to enter into a case management or scheduling order or other order to establish deadlines different from those provided by this Article. (Nevertheless, these orders may not shorten the period of time allowed).
Hearing Date Time Periods, Paragraph (C):
An MSJ shall be set for a hearing at least thirty days after the filing date. The hearing on the motion shall also be set at least thirty days prior to the trial date. If a party has a good cause for failing to meet this deadline, the court may order a continuance of the hearing on the motion so that the parties and the court can comply with the applicable deadlines.
Requirements on the Court, Paragraph (C):
This updated article requires the court to rule on an MSJ at least 20 days before the trial date.
The court shall state either on the record or in writing the reasons for granting or denying the motion. Nevertheless, the court does not have to address every reason or argument, and the form and detail of the reasons are left to the discretion of the court. A court can consider only the issues raised in the motion or opposition filed by the parties. The court cannot rule on issues not raised by the parties.
Finding of No Fault, Paragraph (G):
Paragraph G, adopts the rule from former Article 966 that if a person is found in summary judgment to be not negligent, not at fault, or not to have caused the injury or harm, then that person cannot be considered in any allocation of fault. The requirement of former Article 966 is removed in that the trial judge does not have to specifically provide in the judgment on the motion that the person is not to be part of any allocation of fault at trial for this rule to apply—the no allocation provision applies automatically. It also establishes the rule 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 jury verdict form.
Appeal Specifications, Paragraph (H):
Paragraph H is new. This provision requires the appellate court to assign the matter for briefing and to permit the parties an opportunity to request oral argument if the court intends to reverse a lower court decision that denied an MSJ. If a summary judgment is granted at the trial level dismissing a party or a case, the losing party is entitled to an appeal. However, under prior law, if the appellate court, on a supervisory writ, reversed the lower court and granted the MSJ dismissing a party or the case, the losing party was denied an appeal.
Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.