Can We Talk? –Florida’s New Conferral Rule for Non-Dispositive Motions in State Court

Under new Florida Rule of Civil Procedure 1.202, the moving party must 1) confer in good faith with the opposing party prior to filing a non-dispositive motion; and 2) file a statement certifying that the movant has conferred with the opposing party and state whether the opposing party agrees on the resolution of the motion.

With the constraints of available hearing times, the parties are expected to confer and attempt to resolve some or all the issues raised in the motion before filing the motion.  The rule aims to reduce the workload of the courts by encouraging parties to resolve minor issues before seeking judicial intervention.  The new rule intends to reduce the number of motions set for hearing dockets, or at least shorten the hearings by narrowing the issues.

Previously, pursuant to Fifteenth Judicial Circuit Local Rule 4, the moving party was required to attempt to resolve the motion only prior to setting the matter for hearing.  Under Local Rule 4, the notice of hearing was to contain a certification that either 1) the movant’s attorney has spoken with the attorney(s) for all parties who may be affected by the relief sought in the motion in a good faith effort to resolve or narrow the issues raised; 2) the movant’s attorney has attempted to speak with the attorney(s) for parties who may be affected by the relief sought in the motion; or 3) one or more of the parties who may be affected by the motion are self-represented.

Pursuant to Rule 1.202, however, the motion itself must include a certificate of conferral that contains specific statements as follows:

“I certify that prior to filing this motion, I discussed the relief requested in this motion by [method of communication and date] with the opposing party and [the opposing party (agrees or disagrees) on the resolution of all or part of the motion] OR [the opposing party did not respond (describing with particularity all of the efforts undertaken to accomplish dialogue with the opposing party prior to filing the motion)].”

Alternatively, if the type of motion to be filed is not subject to the conferral requirement, the moving party must instead certify in the motion: “I certify that conferral prior to filing is not required under rule 1.202.” A pre-filing conferral is not required prior to filing the following motions:

• For time to extend service of initial process
• For default
• For injunctive relief
• For judgment on the pleadings
• For summary judgment
• To dismiss for failure to state a claim on which relief can be granted
• To permit maintenance of a class action
• To involuntarily dismiss an action
• To dismiss for failure to prosecute
• For directed verdict and motions filed under rule 1.530
• For garnishment, attachment or other motions for enforcement of a judgment under rule 1.570
• For writ of possession under rule 1.580
• Filed in actions proceeding under section 51.011, Florida Statutes
• That do not require notice to the other party under statute or rule
• Movant is not represented by counsel

Failure to comply with the requirements of Rule 1.202 may result in sanctions, including denial of a motion without prejudice.

Overall, the Florida state courts have now raised the bar for attorneys to “meet and confer” in a more meaningful way than the rules previously required. This should have a positive impact on mooting unnecessary motions before they are filed or, at a minimum, help frame motions so they are limited to the issues truly in contention between the parties.

If you have a matter in which there are complex claims or discovery issues that require an attorney who can work with opposing counsel to reduce unnecessary motions and expense, call the attorneys at Rabin Kammerer Johnson at 561-659-7878.