By David P. Curtis

Through House Bill 589 of the 2013 Regular Session, the Louisiana legislature amended article 966 of the Code of Civil Procedure, which, as of August 1, 2013, requires additional legwork by practitioners who seek to obtain a ruling or dismissal by summary judgment. The new rule requires the moving party to formally admit its evidence into the record for the purposes of that particular summary judgment motion. Thus, unlike in years past, the practitioner may no longer rely upon evidence “on file” in the record or evidence simply attached to the motion itself. Even under the 2012 amendments with similar language to HB589, at least one circuit recently held that the movant must formally admit its evidence in support of the motion at the hearing on the motion.

Article 966(B)(2) now states in pertinent part:

(2) The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law (underlined language is added by HB589).

To clarify what “admitted for purposes of the motion” practically requires after August 1st, the new rule continues in part (F) by stating:

(F) (2) [Only evidence admitted for purposes of] Evidence cited in and attached to the motion for summary judgment [shall] or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with Subparagraph (3) of this Paragraph. Only evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion.

(F) (3) Objections to evidence in support of or in opposition to a motion for summary judgment may be raised in memorandum or written motion to strike stating the specific grounds therefor. (Underlined language is added by HB589; bold underlined language in brackets is removed by HB589.)

If the practitioner is the moving party, this means he or she will need to lodge all objections to evidence offered by the non-moving party or risk waiver and automatic admittance of the opponent’s evidence. While at the same time, the practitioner’s evidence must actually be admitted for the purposes of the motion.

Consequently, these rule changes limit a movant’s ability to move for judgment as a matter of law by incorporating by reference other evidence already set forth in the court record in the case, or by simply pointing to materials that are exhibits to the motion. Instead, one must laboriously have admitted for the purposes of the motion all evidence relating to the particular submission.

In Marengo v. Harding, 13-47 (La. App. 5 Cir. 5/16/13), — So.3d — (2013), 2013 WL 2122053, the Fifth Circuit reversed a trial court’s award of summary judgment where the movant merely relied upon evidence attached to the motion or already in the record. There, a stopped motorist brought a negligence action against an eastbound motorist and southbound motorist who collided in an intersection, resulting in the southbound motorist hitting the stopped motorist at a stop sign. In reversing the lower court’s award of summary judgment in favor of the eastbound motorist, the appellate court relied upon the 2012 amendments to article 966 (No. 257 §1, No. 741 §1) where the words “on file” were removed. The 2012 amendments also added language at the heart of the recent 2013 amendments, which were apparently issued, in part, as clarification:

(2) Only evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on the motion.

In Marengo v. Harding, the Fifth Circuit interpreted this language to mean that “only evidence formally admitted into evidence during the summary judgment hearing can be considered by the trial court.” Id. at *5. Consequently, the Fifth Circuit concluded that “[e]vidence physically attached to the motion or placed in the record cannot be considered unless it is properly introduced and admitted into evidence at the hearing.” Id.

While the 2013 changes to article 966 do not track the precise language from Marengo v. Harding, the cautious practitioner should not rely upon evidence already “on file” in the court record or upon evidence attached to his or her motion and offered into evidence by simple filing into the court record with supporting argument for its admission. Instead, after August 1st, the prudent practitioner will tailor the evidence for her instant motion and, painstakingly, formally admit each and every piece of such evidence at the hearing on the motion. As a practical matter, this may streamline the amount of evidence the trial court must consider, but it will make rule day a much longer and time consuming process, particularly in lawsuits where evidence is voluminous by the very nature of certain cases.