Tennessee now has its own ‘summary judgment trilogy’: Byrd, Hannan, Rye.

It can now be said that, like good judgment, good summary judgment comes from experience. The Tennessee Supreme Court has just overruled the summary judgment standard set up seven years ago in Hannan v. Alltel Publishing Co.,[1] because experience has shown that standard to be “unworkable” and even antithetical to the purposes of summary judgment.[2] And like the Phoenix, the federal summary judgment standard rises again from the ash-heap to which Hannan had doomed it. Effective immediately, Rye v. Women’s Care Center of Memphis MPLLC[3] brings Tennessee’s summary judgment jurisprudence full circle, rejecting as problematic the idiosyncratic Hannan standard and reinstating[4] as tried-and-true the familiar federal summary judgment standard.

Rule 56 of the Tennessee Rules of Civil Procedure, like Rule 56 of the Federal Rules of Civil Procedure on which it is patterned, governs summary judgments. It directs that a summary judgment shall be granted “forthwith” if the pleadings, discovery responses, admissions and affidavits, all taken together, show (1) that no material fact is genuinely in dispute and (2) that the moving party is entitled to a judgment as a matter of law. The party moving for summary judgment bears the burden of convincing the court that there is no genuine dispute about any fact material to the case and, of course, must then persuade the court that, based on those undisputed facts, the movant is entitled to judgment in its favor as a matter of law.

A summary judgment “standard” addresses the highly consequential question of what exactly the movant has to do to satisfy the court that no material fact is in dispute. Must the movant itself affirmatively negate an essential element of the nonmovant’s claim? Or may the movant simply rely on the nonmovant’s failure to have come forward with evidence sufficient to support its claim?

On the federal front, the U.S. Supreme Court answered this question definitively in 1986 in its “Celotex trilogy.”[5] Under the federal approach, the movant may either rely on evidence adduced through discovery or presented by affidavit, or may just point to the nonmovant’s lack of any evidence creating a genuine dispute for the jury to resolve. By pointing to the nonmovant’s lack of evidence, the movant challenges the nonmovant to “put up or shut up,”[6] i.e., causes the burden of going forward (= the burden of production) to shift to the nonmovant to produce evidence, at the summary judgment stage, that raises a genuine dispute as to a material fact. If the nonmovant does not “put up” that evidence, it must shut up; its case is over and summary judgment will be granted (assuming its legal position is correct).

On the Tennessee front, by contrast, the answer to the summary-judgment-standard question has been less definitive. First (22 years ago) there was Byrd v. Hall, in which the Tennessee Supreme Court aimed to “establish a clearer and more coherent summary judgment jurisprudence” by setting out the basic principles to be applied in deciding a motion for summary judgment.[7] Although Byrd was widely understood to track the federal approach pioneered in the Celotex trilogy, it was susceptible of being read — and sometimes was read — to set a higher bar for summary judgment movants than does the federal standard.

Next came Hannan, which was intended to “clarify” the disarray generated by Byrd. According to Hannan, Tennessee had never followed the federal standard and had “not adopt[ed] a ‘put up or shut up’ approach to burden-shifting in Byrd or in subsequent cases.”[8] Instead, Hannan articulated a standard under which a summary judgment movant was no longer able to shift the burden of production to the nonmovant by demonstrating that the nonmovant’s evidence was insufficient, as a matter of law, to establish an essential element of its claim. This “clarification” made it virtually impossible for the movant to get a summary judgment even if the nonmovant had zero evidence to support its claims. Justice Koch predicted in his dissent in Hannan that the court’s departure from the federal standard would undermine the salutary use of the summary judgment process to avoid unnecessary trials.

Because that prediction proved accurate, we now have Rye, the third case in Tennessee’s very own “summary judgment trilogy”: Byrd, Hannan, Rye. Rye explicitly and probingly reconsiders Hannan and concludes “that the standard adopted in Hannan is incompatible with the history and text of Tennessee Rule 56 and has functioned in practice to frustrate the purposes for which summary judgment was intended — a rapid and inexpensive means of resolving issues and cases” when the material facts are not in dispute.[9] Since experience has shown the Hannan standard to be “unworkable” and since legal analysis reveals no support for the Hannan standard in either the policy or the text of Tennessee’s Rule 56, the Supreme Court took Rye as an “opportunity to correct course, overrule Hannan, and fully embrace the standards articulated in the Celotex trilogy.”[10]

The demise of Hannan did not come in response to a request by the parties in Rye to reverse Hannan; rather, the court, all on its own initiative, seized upon Rye as an appropriate vehicle with which to steer summary judgment back on the proper course. Even though the parties had not raised the issue, the Supreme Court specifically directed them to address, “in addition to the issues raised in the [defendants’ Rule 11] application … the question of whether the summary judgment standard articulated in Hannan should be reconsidered.”[11]

Reconsideration led the court to overrule Hannan and to “hold … that a moving party may satisfy its initial burden of production and shift the burden of production to the nonmoving party by demonstrating that the nonmoving party’s evidence is insufficient as a matter of law at the summary judgment stage to establish the nonmoving party’s claim or defense.”[12]

So with Rye, the Tennessee Supreme Court has explicitly and unreservedly held that the federal summary judgment standard, as articulated in the Celotex trilogy, is from now on Tennessee’s summary judgment gold standard. It therefore stands to reason that the Tennessee bench and bar may and should look to the Celotex trilogy and its federal progeny as applicable precedent when applying or construing Tennessee’s Rule 56. But perhaps the best starting point when it comes to the implementation of the federal approach in Tennessee courts is Section II. B. 2. of the Rye opinion itself. Consult those six and a half pages carefully. The detailed exegesis of the Celotex trilogy provided in those pages doubtless best — and for now most authoritatively — reflects the court’s view of the summary judgment standard it is embracing.

In addition to providing an in-depth analysis of the Celotex trilogy, the Rye opinion helpfully includes a brief “recap” of what its holding should mean in actual practice and implementation. It means “that in Tennessee, as in the federal system, when the moving party does not bear the burden of proof at trial, the moving party may satisfy its burden of production 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.”[13] The court stresses that, when you ask for summary judgment by attacking the sufficiency of the other side’s evidence, you must do more than make a conclusory assertion that the evidence is insufficient. You must follow to the letter the Rule 56.03 requirements: support your motion with a separate, concise statement of the material facts that you say are undisputed; set forth each fact in a separate, numbered paragraph; and validate each fact with a specific citation to the record.[14] Only then will you have shifted the burden of going forward to the nonmovant.

Once the burden has been shifted to the nonmovant, the focus “is on the evidence the nonmoving party comes forward with at the summary judgment stage, not on hypothetical evidence that theoretically could be adduced, despite the passage of discovery deadlines, at a future trial.”[15] Therein lies a major difference between the federal/Rye summary judgment standard and the Hannan standard, which would have allowed the nonmovant to defeat a motion for summary judgment based on the mere possibility that evidence supporting its claims might later be developed at trial.

If you are the party opposing a motion for summary judgment and the burden has been shifted to you, you now have to demonstrate the existence of specific facts in the record that could lead a rational trier of fact to find in your favor.[16] It is no longer enough “simply [to] show that there is some metaphysical doubt as to the material facts.”[17] You now have to “put up.” To do so, you, too, must hew to the Rule 56.03 requirements. You must respond to each allegedly undisputed fact relied on by the movant. You may not rest solely on the allegations or denials in your pleadings. Rather, through affidavits, depositions, answers to interrogatories, admissions or other means permitted by Rule 56, you must set forth specific facts showing that there is a genuine issue for trial.

But this does not mean that you, as the nonmovant, will be required to “put up or shut up” before you have been given adequate time for discovery. Rule 56.07 does allow the nonmovant to seek a continuance to engage in additional discovery if a summary judgment motion is filed before discovery is complete. However, once there has been adequate time for discovery, “summary judgment should be granted” if the nonmovant’s “evidence at the summary judgment stage is insufficient to establish the existence of a genuine issue of material fact for trial.”[18]

The return to the federal “put up or shut up” standard made a difference in the outcome in Rye. The plaintiffs had asserted a variety of claims in this health care liability action. The defendants moved for summary judgment. The complaint had been filed in 2009, so the Court of Appeals appropriately applied the Hannan summary judgment standard, which had been adopted in 2008. The Court of Appeals granted summary judgment on some of the plaintiffs’ various claims, but application of the Hannan standard led it to deny summary judgment on one claim because it found that the summary judgment movants — the defendants — had failed to disprove certain facts material to that claim. The Court of Appeals also denied summary judgment on another claim, reasoning that, even though the plaintiffs had not come forward with the expert testimony necessary to prevail at trial on that claim, Hannan allowed for the possibility that the plaintiffs would have the necessary expert proof at trial. Of course, application of the federal “put up or shut up” standard changed this. Because the plaintiffs had not carried their burden of producing evidence — at the summary judgment stage — sufficient to support any of their claims, the Supreme Court determined that the defendants were entitled to summary judgment.

Four days after the decision in Rye was filed, the Supreme Court reaffirmed that summary judgment in Tennessee has indeed come full circle with the return to the federal summary judgment standard. In Tatham v. Bridgestone Americas Holding Inc., a products liability case involving an allegedly defective or unreasonably dangerous tire, the court stated that it had overruled the summary judgment framework developed in Hannan and had “reinstated summary judgment standards consistent with Rule 56 of the Federal Rules of Civil Procedure and the Celotex trilogy of cases.”[19]

The Supreme Court is not the only institution to have corrected course by offloading Hannan. In 2011 the Tennessee General Assembly passed Tenn. Code Ann. § 20-16-101 specifically to counteract Hannan. Section 20-16-101 provides that if you move for summary judgment in a case filed on or after July 1, 2011, you can prevail on your motion for summary judgment if you: (1) submit affirmative evidence that negates an essential element of the nonmoving party’s claim; or (2) demonstrate to the court that the nonmoving party’s evidence is insufficient to establish an essential element of its claim. In short, the statute enacted a summary judgment standard that mirrors the federal standard and made it applicable to all civil actions filed in Tennessee state courts on or after July 1, 2011. The Tennessee Court of Appeals has characterized Rye as “judicially adopting a summary judgment parallel to the statutory version contained in Tenn. Code Ann. § 20-16-101.”[20]

Because Rye was filed before the effective date of the statute, the statute did not apply at all in Rye. Although Tenn. Code Ann. § 20-16-101 played no role in the Rye decision,[21] it drew quite a bit of attention from the court. The court suggests that it might in the future be asked to determine if the statutory standard and the Rye standard “are consistent,”[22] or to rule on the constitutionality of the statute when and if it is challenged as violative of the doctrine of separation of powers,[23] but it remains sensitive to the fact that Rye does not and cannot raise any of those issues since the statute does not apply. The court purposely did not wait, as it might have, to take a post-2011 case in which it could deal squarely with the potential separation-of-powers issue created by the legislative enactment of a summary judgment standard, because it was “unwilling to saddle litigants with a summary judgment standard that is unworkable” while it waited for such a vehicle.[24] Instead, it “chose[] to stake out [its] constitutional duty to interpret [its] rules irrespective of the legislature’s action,”[25] particularly given its duty not “to follow ‘unworkable’ or ‘badly reasoned’ precedent.”[26]

Given that things have now come full circle with the well-considered and welcome return to the federal summary judgment standard in Tennessee, maybe Holden Caulfield, the would-be catcher in the rye, had it right:

Certain things they should stay the way they are. You ought to be able to stick them in one of those big glass cases and just leave them alone. I know that’s impossible, but it’s too bad anyway.[27]

Notes

1. Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008).
2. Rye v. Women’s Care Center of Memphis MPLLC, 2015 Tenn. LEXIS 906 at *102 (W2013-00804-SC-R11-CV, Tenn. October 26, 2015), Lee, J., concurring (“[A]fter observing the application of the unique Hannan standard over the past seven years, I conclude that the Hannan standard is unworkable and should be replaced.”); and at *68, n. 8 (noting that the “Hannan standard actually is antithetical to” determining cases on their merits in a speedy and inexpensive way); and at *65 (noting that Hannan “frustrate[s] the purposes for which summary judgment was intended”).
3. Rye v. Women’s Care Center of Memphis MPLLC, 2015 Tenn. LEXIS 906 (W2013-00804-SC-R11-CV, Tenn. October 26, 2015).
4. Hannan maintained that Tennessee had never adopted the federal standard, but Rye makes clear that the federal summary judgment standard it embraces is not new to Tennessee. The Rye opinion talks in terms of a “return” to the federal standard, id. at *2. Similarly, in Tatham v. Bridgestone Americas Holding Inc., 2015 Tenn. LEXIS 911 at *32 (W2013-02604-SC-R11-CV, October 30, 2015), the Court notes that with Rye it has “reinstated” the federal summary judgment standard.
5. The trilogy consists of Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); and Anderson v. Liberty Lobby Inc., 477 U.S. 242 (1986).
6. Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007); accord Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989).
7. Byrd v. Hall, 847 S.W.2d 208, 208 (Tenn. 1993).
8. 270 S.W.3d 1 (Tenn. 2008).
9. Rye v. Women’s Care Center of Memphis MPLLC, 2015 Tenn. LEXIS 906 at *64.
10. Id. at *73. Rye was decided by a majority of three. The majority opinion was delivered by Justice Clark, joined by Chief Justice Lee and Justice Bivins, both of whom also filed concurring opinions. Justice Wade dissented. Justice Kirby did not participate in the decision.
11. Id. at *34.
12. Id. at *2.
13. Id. at *73-74 (emphasis in original).
14. Id at *74-75.
15. Id.
16. Id.
17. Id. at *75.
18. Id. (emphasis is the Court’s).
19. Tatham v. Bridgestone Americas Holding Inc., 2015 Tenn. LEXIS 911 at *32 (W2013-02604-SC-R11-CV, October 30, 2015).
20. SNS Electrical Inspections P.C. v. State of Tennessee, 2015 Tenn. App. LEXIS 893 at *8, (W2015-00145-COA-R3-CV W.D., Nov. 4, 2015).
21. Rye v. Women’s Care Center of Memphis MPLLC, 2015 Tenn. LEXIS 906 at *70-76, footnotes 7, 9, 10, 11, 12; and at *101-102 (Bivins, J., concurring); and *104 (Lee, CJ, concurring).
22. Id.
23. Id. at *71-72, footnote 10.
24. Id. at *104 (Lee, CJ, concurring).
25. Id. at *101-102 (Bivins, J., concurring).
26. Id. at *69.
27. J.D. Salinger, The Catcher in the Rye, chap. 16.

ANDRÉE SOPHIA BLUMSTEIN is the solicitor general for the State of Tennessee. The Office of the Solicitor General oversees all appellate litigation, both state and federal, for the state. During 2012-2014 she served as chief justice of the Special Supreme Court appointed by the governor to hear Hooker v. Haslam. As a member of Sherrard & Roe PLC, (1993-2014) she focused her practice on appellate litigation and has been recognized as Nashville Antitrust Lawyer of the Year 2015.  She is the recipient of the 2012 Justice Joseph W. Henry Award for Outstanding Legal Writing and has chaired the Editorial Board of the Tennessee Bar Journal since 2003.