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Oregon Rules of Civil Procedure (2005)Download Full 2005 Oregon Revised Statutes (coming soon!)
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Oregon Rules
of Civil Procedure (2005)
OREGON RULES OF CIVIL PROCEDURE
OREGON RULES OF CIVIL PROCEDURE
SCOPE; CONSTRUCTION; APPLICATION; RULE;
CITATION
1 A Scope
1 B Construction
1 C Application
1 D “Rule”
defined and local rules
1 E Use
of declaration under penalty of perjury in lieu of affidavit; “declaration”
defined
1 F Citation
FORM OF ACTION
2 One
form of action
COMMENCEMENT
3 Commencement
of action
JURISDICTION
(Personal)
4 Personal
jurisdiction
4 A Local
presence or status
4 B Special
jurisdiction statutes
4 C Local
act or omission
4 D Local
injury; foreign act
4 E Local
services, goods, or contracts
4 F Local
property
4 G Director
or officer of a domestic corporation
4 H Taxes
or assessments
4 I Insurance
or insurers
4 J Securities
4 K Certain
marital and domestic relations actions
4 L Other
actions
4 M Personal
representative
4 N Joinder
of claims in the same action
4 O Defendant
defined
(In Rem)
5 Jurisdiction
in rem
(Without Service)
6 Personal
jurisdiction without service of summons
SUMMONS
7 A Definitions
7 B Issuance
7 C(1) Contents
7 C(1) (a)
Title
7 C(1) (b)
Direction to defendant
7 C(1) (c)
Subscription; post office address
7 C(2) Time
for response
7 C(3) Notice
to party served
7 C(3) (a)
In general
7 C(3) (b)
Service for counterclaim
7 C(3) (c)
Service on persons liable for attorney fees
7 D Manner
of service
7 D(1) Notice
required
7 D(2) Service
methods
7 D(2) (a)
Personal service
7 D(2) (b)
Substituted service
7 D(2) (c)
Office service
7 D(2) (d)
Service by mail
7 D(2) (d)(i)
Generally
7 D(2) (d)(ii)
Calculation of time
7 D(3) Particular
defendants
7 D(3) (a)
Individuals
7 D(3) (a)(i)
Generally
7 D(3) (a)(ii)
Minors
7 D(3) (a)(iii)
Incapacitated persons
7 D(3) (a)(iv)
Tenant of a mail agent
7 D(3) (b)
Corporations and limited partnerships
7 D(3) (b)(i)
Primary service method
7 D(3) (b)(ii)
Alternatives
7 D(3) (c)
State
7 D(3) (d)
Public bodies
7 D(3) (e)
General partnerships
7 D(3) (f)
Other unincorporated association subject to suit under a common name
7 D(3) (g)
Vessel owners and charterers
7 D(4) Particular
actions involving motor vehicles
7 D(4) (a)
Actions arising out of use of roads, highways, streets, or premises open to the
public; service by mail
7 D(4) (b)
Notification of change of address
7 D(5) Service
in foreign country
7 D(6) Court
order for service; service by publication
7 D(6) (a)
Court order for service by other method
7 D(6) (b)
Contents of published summons
7 D(6) (c)
Where published
7 D(6) (d)
Mailing summons and complaint
7 D(6) (e)
Unknown heirs or persons
7 D(6) (f)
Defending before or after judgment
7 D(6) (g)
Defendant who cannot be served
7 E By
whom served; compensation
7 F Return;
proof of service
7 F(1) Return
of summons
7 F(2) Proof
of service
7 F(2) (a)
Service other than publication
7 F(2) (a)(i)
Certificate of service when summons not served by sheriff or deputy
7 F(2) (a)(ii)
Certificate of service by sheriff or deputy
7 F(2) (b)
Publication
7 F(2) (c)
Making and certifying affidavit
7 F(2) (d)
Form of certificate, affidavit or declaration
7 F(3) Written
admission
7 F(4) Failure
to make proof; validity of service
7 G Disregard
of error; actual notice
7 H Telegraphic
transmission
PROCESS
8 A Process
8 B Where
county is a party
8 C Service
or execution
8 D Telegraphic
transmission of writ, order, or paper, for service; procedure
8 E Proof
of service or execution
SERVICE AND FILING OF PLEADINGS AND OTHER
PAPERS
9 A Service;
when required
9 B Service;
how made
9 C Filing;
proof of service
9 D When
filing not required
9 E Filing
with the court defined
9 F Service
by telephonic facsimile communication device
TIME
10 A Computation
10 B Unaffected
by expiration of term
10 C Additional
time after service by mail
11 (Reserved
for Expansion)
PLEADINGS LIBERALLY CONSTRUED; DISREGARD OF
ERROR
12 A Liberal
construction
12 B Disregard
of error or defect not affecting substantial right
KINDS OF PLEADINGS ALLOWED; FORMER PLEADINGS
ABOLISHED
13 A Pleadings
13 B Pleadings
allowed
13 C Pleadings
abolished
MOTIONS
14 A Motions;
in writing; grounds
14 B Form
TIME FOR FILING PLEADINGS OR MOTIONS
15 A Time
for filing motions and pleadings
15 B Pleading
after motion
15 C Responding
to amended pleading
15 D Enlarging
time to plead or do other act
FORM OF PLEADINGS
16 A Captions;
names of parties
16 B Concise
and direct statement; paragraphs; separate statement of claims or defenses
16 C Consistency
in pleading alternative statements
16 D Adoption
by reference
SIGNING OF PLEADINGS, MOTIONS AND OTHER
PAPERS; SANCTIONS
17 A Signing
by party or attorney; certificate
17 B Pleadings,
motions and other papers not signed
17 C Certifications
to court
17 D Sanctions
17 E Rule
not applicable to discovery
CLAIMS FOR RELIEF
18 Claims
for relief
RESPONSIVE PLEADINGS
19 A Defenses;
form of denials
19 B Affirmative
defenses
19 C Effect
of failure to deny
SPECIAL PLEADING RULES
20 A Conditions
precedent
20 B Judgment
or other determination of court or officer; how pleaded
20 C Private
statute; how pleaded
20 D Corporate
existence of city or county and of ordinances or comprehensive plans generally;
how pleaded
20 E Libel
or slander action
20 F Official
document or act
20 G Recitals
and negative pregnants
20 H Fictitious
parties
20 I Designation
of unknown heirs in actions relating to property
20 J Designation
of unknown persons
DEFENSES AND OBJECTIONS; HOW PRESENTED; BY PLEADING OR MOTION; MOTION
FOR JUDGMENT ON THE PLEADINGS
21 A How
presented
21 B Motion
for judgment on the pleadings
21 C Preliminary
hearings
21 D Motion
to make more definite and certain
21 E Motion
to strike
21 F Consolidation
of defenses in motion
21 G Waiver
or preservation of certain defenses
COUNTERCLAIMS, CROSS-CLAIMS, AND THIRD PARTY
CLAIMS
22 A Counterclaims
22 B Cross-claim
against codefendant
22 C Third
party practice
22 D Joinder
of additional parties
22 E Separate
trial
AMENDED AND SUPPLEMENTAL PLEADINGS
23 A Amendments
23 B Amendments
to conform to the evidence
23 C Relation
back of amendments
23 D How
amendment made
23 E Supplemental
pleadings
JOINDER OF CLAIMS
24 A Permissive
joinder
24 B Forcible
entry and detainer and rental due
24 C Separate
statement
EFFECT OF PROCEEDING AFTER MOTION OR
AMENDMENT
25 A Amendment
or pleading over after motion; non-waiver of defenses or objections
25 B Amendment
of pleading; objections to amended pleading not waived
25 C Denial
of motion; non-waiver by filing responsive pleading
REAL PARTY IN INTEREST; CAPACITY OF
PARTNERSHIPS AND ASSOCIATIONS
26 A Real
party in interest
26 B Partnerships
and associations
MINOR OR INCAPACITATED PARTIES
27 A Appearance
of minor parties by guardian or conservator
27 B Appearance
of incapacitated person by conservator or guardian
JOINDER OF PARTIES
28 A Permissive
joinder as plaintiffs or defendants
28 B Separate
trials
JOINDER OF PERSONS NEEDED FOR JUST
ADJUDICATION
29 A Persons
to be joined if feasible
29 B Determination
by court whenever joinder not feasible
29 C Exception
of class actions
MISJOINDER AND NONJOINDER OF PARTIES
30 Misjoinder
and nonjoinder of parties
INTERPLEADER
31 A Parties
31 B Procedure
31 C Attorney
fees
CLASS ACTIONS
32 A Requirement
for class action
32 B Class
action maintainable
32 C Determination
by order whether class action to be maintained
32 D Dismissal
or compromise of class actions; court approval required; when notice required
32 E Court
authority over conduct of class actions
32 F Notice
and exclusion
32 G Commencement
or maintenance of class actions regarding particular issues; subclasses
32 H Notice
and demand required prior to commencement of action for damages
32 I Limitation
on maintenance of class actions for damages
32 J Application
of sections H and I of this rule to actions for equitable relief; amendment of
complaints for equitable relief to request damages permitted
32 K Limitation
on maintenance of class actions for recovery of certain statutory penalties
32 L Coordination
of pending class actions sharing common question of law or fact
32 M Form
of judgment
32 N Attorney
fees, costs, disbursements, and litigation expenses
32 O Statute
of limitations
INTERVENTION
33 A Definition
33 B Intervention
of right
33 C Permissive
intervention
33 D Procedure
SUBSTITUTION OF PARTIES
34 A Nonabatement
of action by death, disability, or transfer
34 B Death
of a party; continued proceedings
34 C Disability
of a party; continued proceedings
34 D Death
of a party; surviving parties
34 E Transfer
of interest
34 F Public
officers; death or separation from office
34 G Procedure
35 (Reserved
for Expansion)
GENERAL PROVISIONS GOVERNING DISCOVERY
36 A Discovery
methods
36 B Scope
of discovery
36 B(1) In
general
36 B(2) Insurance
agreements or policies
36 B(3) Trial
preparation materials
36 C Court
order limiting extent of disclosure
PERPETUATION OF TESTIMONY OR EVIDENCE BEFORE ACTION OR PENDING APPEAL
37 A Before
action
37 A(1) Petition
37 A(2) Notice
and service
37 A(3) Order
and examination
37 B Pending
appeal
37 C Perpetuation
by action
37 D Filing
of depositions
PERSONS WHO MAY ADMINISTER OATHS FOR DEPOSITIONS; FOREIGN DEPOSITIONS
38 A Within
Oregon
38 B Outside
the state
38 C Foreign
depositions
DEPOSITIONS UPON ORAL EXAMINATION
39 A When
deposition may be taken
39 B Order
for deposition or production of prisoner
39 C Notice
of examination
39 C(1) General
requirements
39 C(2) Special
notice
39 C(3) Shorter
or longer time
39 C(4) Non-stenographic
recording
39 C(5) Production
of documents and things
39 C(6) Deposition
of organization
39 C(7) Deposition
by telephone
39 D Examination;
record; oath; objections
39 D(1) Examination;
cross-examination; oath
39 D(2) Record
of examination
39 D(3) Objections
39 D(4) Written
questions as alternative
39 E Motion
for court assistance; expenses
39 E(1) Motion
for court assistance
39 E(2) Allowance
of expenses
39 F Submission
to witness; changes; statement
39 F(1) Necessity
of submission to witness for examination
39 F(2) Procedure
after examination
39 F(3) No
request for examination
39 G Certification;
filing; exhibits; copies
39 G(1) Certification
39 G(2) Filing
39 G(3) Exhibits
39 G(4) Copies
39 H Payment
of expenses upon failure to appear
39 H(1) Failure
of party to attend
39 H(2) Failure
of witness to attend
39 I Perpetuation
of testimony after commencement of action
DEPOSITIONS UPON WRITTEN QUESTIONS
40 A Serving
questions; notice
40 B Officer
to take responses and prepare record
EFFECT OF ERRORS AND IRREGULARITIES IN
DEPOSITIONS
41 A As
to notice
41 B As
to disqualification of officer
41 C As
to taking of deposition
41 D As
to completion and return of deposition
42 (Reserved
for Expansion)
PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION
AND OTHER PURPOSES
43 A Scope
43 B Procedure
43 C Writing
called for need not be offered
43 D Persons
not parties
PHYSICAL AND MENTAL EXAMINATION OF PERSONS; REPORTS OF EXAMINATIONS
44 A Order
for examination
44 B Report
of examining physician or psychologist
44 C Reports
of examinations; claims for damages for injuries
44 D Report;
effect of failure to comply
44 D(1) Preparation
of written report
44 D(2) Failure
to comply or make report or request report
44 E Access
to individually identifiable health information
REQUESTS FOR ADMISSION
45 A Request
for admission
45 B Response
45 C Motion
to determine sufficiency
45 D Effect
of admission
45 E Form
of response
45 F Number
FAILURE TO MAKE DISCOVERY; SANCTIONS
46 A Motion
for order compelling discovery
46 A(1) Appropriate
court
46 A(1) (a)
Parties
46 A(1) (b)
Non-parties
46 A(2) Motion
46 A(3) Evasive
or incomplete answer
46 A(4) Award
of expenses of motion
46 B Failure
to comply with order
46 B(1) Sanctions
by court in the county where the deponent is located
46 B(2) Sanctions
by court in which action is pending
46 B(3) Payment
of expenses
46 C Expenses
on failure to admit
46 D Failure
of party to attend at own deposition or respond to request for inspection or to
inform of question regarding the existence of coverage of liability insurance
policy
SUMMARY JUDGMENT
47 A For
claimant
47 B For
defending party
47 C Motion
and proceedings thereon
47 D Form
of affidavits and declarations; defense required
47 E Affidavit
or declaration of attorney when expert opinion required
47 F When
affidavits or declarations are unavailable
47 G Affidavits
or declarations made in bad faith
47 H Multiple
parties or claims; limited judgment
48 (Reserved
for Expansion)
49 (Reserved
for Expansion)
JURY TRIAL
50 Jury
trial of right
ISSUES; TRIAL BY JURY OR BY THE COURT
51 A Issues
51 B Issues
of law; how tried
51 C Issues
of fact; how tried
51 D Advisory
jury and jury trial by consent
POSTPONEMENT OF CASES
52 A Postponement
52 B Absence
of evidence
CONSOLIDATION; SEPARATE TRIALS
53 A Joint
hearing or trial; consolidation of actions
53 B Separate
trials
DISMISSAL OF ACTIONS; COMPROMISE
54 A Voluntary
dismissal; effect thereof
54 A(1) By
plaintiff; by stipulation
54 A(2) By
order of court
54 A(3) Costs
and disbursements
54 B Involuntary
dismissal
54 B(1) Failure
to comply with rule or order
54 B(2) Insufficiency
of evidence
54 B(3) Dismissal
for want of prosecution; notice
54 B(4) Effect
of judgment of dismissal
54 C Dismissal
of counterclaim, cross-claim, or third party claim
54 D Costs
of previously dismissed action
54 E Compromise;
effect of acceptance or rejection
54 F Settlement
conferences
SUBPOENA
55 A Defined;
form
55 B For
production of books, papers, documents, or tangible things and to permit
inspection
55 C Issuance
55 C(1) By
whom issued
55 C(2) By
clerk in blank
55 D Service;
service on law enforcement agency; service by mail; proof of service
55 D(1) Service
55 D(2) Service
on law enforcement agency
55 D(3) Service
by mail
55 D(4) Service
by mail; exception
55 D(5) Proof
of service
55 E Subpoena
for hearing or trial; prisoners
55 F Subpoena
for taking depositions or requiring production of books, papers, documents, or
tangible things; place of production and examination
55 F(1) Subpoena
for taking deposition
55 F(2) Place
of examination
55 F(3) Production
without examination or deposition
55 G Disobedience
of subpoena; refusal to be sworn or answer as a witness
55 H Individually
identifiable health information
55 H(1) Definitions
55 H(2) Mode
of compliance
55 H(3) Affidavit
or declaration of custodian of records
55 H(4) Personal
attendance of custodian of records may be required
55 H(5) Tender
and payment of fees
55 H(6) Scope
of discovery
TRIAL BY JURY
56 Trial
by jury defined
56 A Twelve-person
juries
56 B Six-person
juries
JURORS
57 A Challenging
compliance with selection procedures
57 A(1) Motion
57 A(2) Stay
of proceedings
57 A(3) Exclusive
means of challenge
57 B Jury;
how drawn
57 C Examination
of jurors
57 D Challenges
57 D(1) Challenges
for cause; grounds
57 D(2) Peremptory
challenges; number
57 D(3) Conduct
of peremptory challenges
57 D(4) Challenge
of preemptory challenge exercised on basis of race, ethnicity or sex
57 E Oath
of jury
57 F Alternate
jurors
TRIAL PROCEDURE
58 A Manner
of proceedings on trial by the court
58 B Manner
of proceedings on jury trial
58 C Separation
of jury before submission of cause; admonition
58 D Proceedings
if juror becomes sick
58 E Failure
to appear for trial
INSTRUCTIONS TO JURY AND DELIBERATION
59 A Proposed
instructions
59 B Charging
the jury
59 C Deliberation
59 C(1) Exhibits
59 C(2) Written
statement of issues
59 C(3) Copies
of documents
59 C(4) Notes
59 C(5) Custody
of and communications with jury
59 C(6) Separation
during deliberation
59 C(7) Juror’s
use of private knowledge or information
59 D Further
instructions
59 E Comments
on evidence
59 F Discharge
of jury without verdict
59 F(1) When
jury may be discharged
59 F(2) New
trial when jury discharged
59 G Return
of jury verdict
59 G(1) Declaration
of verdict
59 G(2) Number
of jurors concurring
59 G(3) Polling
the jury
59 G(4) Informal
or insufficient verdict
59 G(5) Completion
of verdict; form and entry
59 H Necessity
of noting exception on error in statement of issues or instructions given or
refused
59 H(1) Statement
of issues or instructions given or refused
59 H(2) Exceptions
must be specific and on the record
MOTION FOR DIRECTED VERDICT
60 Motion
for a directed verdict
VERDICTS, GENERAL AND SPECIAL
61 A General
verdict
61 B Special
verdict
61 C General
verdict accompanied by answer to interrogatories
61 D Action
for specific personal property
FINDINGS OF FACT
62 A Necessity
62 B Proposed
findings; objections
62 C Entry
of judgment
62 D Extending
or lessening time
62 E Necessity
62 F Effect
of findings of fact
JUDGMENT NOTWITHSTANDING THE VERDICT
63 A Grounds
63 B Reserving
ruling on directed verdict motion
63 C Alternative
motion for new trial
63 D Time
for motion and ruling
63 E Duties
of the clerk
63 F Motion
for new trial after judgment notwithstanding the verdict
NEW TRIALS
64 A New
trial defined
64 B Jury
trial; grounds for new trial
64 C New
trial in case tried without a jury
64 D Specification
of grounds of motion; when motion must be on affidavits or declarations
64 E When
counteraffidavits or counterdeclarations are allowed; former proceedings
considered
64 F Time
of motion; counteraffidavits or counterdeclarations; hearing and determination
64 G New
trial on court’s own initiative
REFEREES
65 A In
general
65 A(1) Appointment
65 A(2) Compensation
65 A(3) Delinquent
fees
65 B Reference
65 B(1) Reference
by agreement
65 B(2) Reference
without agreement
65 C Powers
65 C(1) Order
of reference
65 C(2) Power
under order of reference
65 C(3) Record
65 D Proceedings
65 D(1) Meetings
65 D(2) Witnesses
65 D(3) Accounts
65 E Report
65 E(1) Contents
65 E(2) Filing
65 E(3) Effect
SUBMITTED CONTROVERSY
66 A Submission
without action
66 A(1) Contents
of submission
66 A(2) Who
must sign the submission
66 A(3) Effect
of the submission
66 B Submission
of pending case
66 B(1) Pleadings
deemed abandoned
66 B(2) Provisional
remedies
JUDGMENTS
67 A Definitions
67 B Judgment
for less than all claims or parties in action
67 C Demand
for judgment
67 D Judgment
in action for recovery of personal property
67 E Judgment
in action against partnership, unincorporated association, or parties jointly
indebted
67 E(1) Partnership
and unincorporated association
67 E(2) Joint
obligations; effect of judgment
67 F Judgment
by stipulation
67 F(1) Availability
of judgment by stipulation
67 F(2) Filing;
assent in open court
67 G Judgment
on portion of claim exceeding counterclaim
ALLOWANCE AND TAXATION OF ATTORNEY FEES AND COSTS AND DISBURSEMENTS
68 A Definitions
68 A(1) Attorney
fees
68 A(2) Costs
and disbursements
68 B Allowance
of costs and disbursements
68 C Award
of and entry of judgment for attorney fees and costs and disbursements
68 C(1) Application
of this section to award of attorney fees
68 C(2) Alleging
right to attorney fees
68 C(3) Proof
68 C(4) Procedure
for seeking attorney fees or costs and disbursements
68 C(4) (a)
Filing and serving statement of attorney fees and costs and disbursements
68 C(4) (b)
Objections
68 C(4) (c)
Hearing on objections
68 C(4) (d)
No timely objections
68 C(4) (e)
Findings and conclusions
68 C(5) Judgment
concerning attorney fees or costs and disbursements
68 C(5) (a)
As part of judgment
68 C(5) (b)
By supplemental judgment; notice
68 C(6) Avoidance
of multiple collection of attorney fees and costs and disbursements
68 C(6) (a)
Separate judgments for separate claims
68 C(6) (b)
Separate judgments for the same claim
DEFAULT ORDERS AND JUDGMENTS
69 A Entry
of order of default
69 A(1) In
general
69 A(2) Certain
motor vehicle cases
69 B Entry
of default judgment
69 B(1) By
the court or the clerk
69 B(2) By
the court
69 B(3) Amount
of judgment
69 B(4) Non-military
affidavit or declaration required
69 C Setting
aside default
69 D Plaintiffs,
counterclaimants, cross-claimants
69 E “Clerk”
defined
RELIEF FROM JUDGMENT OR ORDER
71 A Clerical
mistakes
71 B Mistakes;
inadvertence; excusable neglect; newly discovered evidence, etc.
71 B(1) By
motion
71 B(2) When
appeal pending
71 C Relief
from judgment by other means
71 D Writs
and bills abolished
STAY OF PROCEEDINGS TO ENFORCE JUDGMENT
72 A Immediate
execution; discretionary stay
72 B Other
stays
72 C Stay
or injunction in favor of public body
72 D Stay
of judgment as to multiple claims or multiple parties
JUDGMENTS BY CONFESSION
73 A Judgments
which may be confessed
73 A(1) For
money due; where allowed
73 A(2) Consumer
transactions
73 B Statement
by defendant
73 C Application
by plaintiff
73 D Confession
by joint debtors
74 (Reserved
for Expansion)
75 (Reserved
for Expansion)
76 (Reserved
for Expansion)
77 (Reserved
for Expansion)
ORDER OR JUDGMENT FOR SPECIFIC ACTS
78 A Judgment
requiring performance considered equivalent thereto
78 B Enforcement;
contempt
78 C Application
TEMPORARY RESTRAINING ORDERS AND PRELIMINARY
INJUNCTIONS
79 A Availability
generally
79 A(1) Circumstances
79 A(2) Time
79 B Temporary
restraining order
79 B(1) Notice
79 B(2) Contents
of order; duration
79 B(3) Hearing
on preliminary injunction
79 B(4) Adverse
party’s motion to dissolve or modify
79 B(5) Temporary
restraining orders not extended by implication
79 C Preliminary
injunction
79 C(1) Notice
79 C(2) Consolidation
of hearing with trial on merits
79 D Form
and scope of injunction or restraining order
79 E Scope
of rule
79 F Writ
abolished
RECEIVERS
80 A Receiver
defined
80 B When
appointment of receiver authorized
80 B(1) Provisionally
to protect property
80 B(2) To
effectuate judgment
80 B(3) To
dispose of property, to preserve during appeal or when execution unsatisfied
80 B(4) Creditor’s
action
80 B(5) Attaching
creditor
80 B(6) Protect,
preserve, or restrain property subject to execution
80 B(7) Corporations
and associations; when provided by statute
80 B(8) Corporations
and associations; to protect property or interest of stockholders or creditors
80 C Appointment
of receivers; notice
80 D Form
of order appointing receivers
80 E Notice
to persons interested in receivership
80 F Special
notices
80 F(1) Required
notice
80 F(2) Request
for special notice
80 F(3) Form
and service of notices
80 G Termination
of receiverships
DEFINITIONS; SERVICE; ADVERSE CLAIMANTS
81 A Definitions
81 A(1) Attachment
81 A(2) Bank
81 A(3) Clerk
81 A(4) Consumer
goods
81 A(5) Consumer
transaction
81 A(6) Issuing
officer
81 A(7) Levy
81 A(8) Plaintiff
and defendant
81 A(9) Provisional
process
81 A(10) Security
interest
81 A(11) Sheriff
81 A(12) Writ
81 B Service
of notices or orders; proof of service
81 B(1) Service
81 B(2) Proof
of service
81 C Adverse
claimants
81 C(1) Summary
release of attachment
81 C(2) Continuation
of attachment
SECURITY; BONDS AND UNDERTAKINGS;
JUSTIFICATION OF SURETIES
82 A Security
required
82 A(1) Restraining
orders; preliminary injunctions
82 A(2) Receivers
82 A(3) Attachment
or claim and delivery
82 A(4) Other
provisional process
82 A(5) Form
of security or bond
82 A(6) Modification
of security requirements by court
82 B Security;
proceedings against sureties
82 C Approval
by clerk
82 D Qualifications
of sureties
82 D(1) Individuals
82 D(2) Corporations
82 E Affidavits
or declarations of sureties
82 E(1) Individuals
82 E(2) Corporations
82 E(3) Service
82 F Objections
to sureties
82 G Hearing
on objections to sureties
82 G(1) Request
for hearing
82 G(2) Information
to be furnished
82 G(3) Surety
insurers
PROVISIONAL PROCESS
83 A Requirements
for issuance
83 B Provisional
process prohibited in certain consumer transactions
83 C Evidence
admissible; choice of remedies available to court
83 D Issuance
of provisional process where damage to property threatened
83 E Restraining
order to protect property
83 F Appearance;
hearing; service of show cause order; content; effect of service on person in
possession of property
83 G Waiver;
order without hearing
83 H Authority
of court on sustaining validity of underlying claim; provisional process;
restraining order
ATTACHMENT
84 A Actions
in which attachment allowed
84 A(1) Order
for provisional process
84 A(2) Actions
in which attachment allowed
84 A(3) Exception
for financial institution
84 B Property
that may be attached
84 C Attachment
by claim of lien
84 C(1) Property
subject to claim of lien
84 C(2) Form
of claim; filing
84 C(2) (a)
Form
84 C(2) (b)
Filing
84 D Writ
of attachment
84 D(1) Issuance;
contents; to whom directed; issuance of several writs
84 D(2) Manner
of executing writ
84 D(2) (a)
Personal property not in possession of third party
84 D(2) (b)
Other personal property
84 D(3) Notice
to defendant
84 D(4) Return
of writ; inventory
84 D(5) Indemnity
to sheriff
84 E Disposition
of attached property after judgment
84 E(1) Judgment
for plaintiff
84 E(2) Judgment
not for plaintiff
84 F Redelivery
of attached property
84 F(1) Order
and bond
84 F(2) Defense
of surety
CLAIM AND DELIVERY
85 A Claim
and delivery
85 B Delivery
by sheriff under provisional process order
85 C Custody
and delivery of property
85 D Filing
of order by sheriff
85 E Dismissal
prohibited
Note: The Oregon Rules of Civil Procedure set
forth below are printed and published in Oregon Revised Statutes pursuant to
ORS 1.750.
Rules 1 through 64 were promulgated
originally on December 2, 1978, and submitted to the Legislative Assembly at
its 1979 Regular Session by the Council on Court Procedures pursuant to ORS
1.735. Rules 65 through 85, and amendments of previously adopted rules, were
promulgated originally on December 13, 1980, and submitted to the Legislative
Assembly at its 1981 Regular Session by the Council. Some of the rules have
been amended by the Legislative Assembly.
The source of each rule is indicated in a
bracketed notation following the text of the rule. For example:
[CCP 12/2/78] indicates the rule was
promulgated by the Council on Court Procedures on December 2, 1978.
[CCP 12/13/80] indicates the rule was
promulgated by the Council on December 13, 1980.
[CCP 12/2/78; amended by CCP 12/13/80]
indicates the rule was promulgated by the Council on December 2, 1978, and
amended by the Council by promulgation on December 13, 1980.
[CCP 12/2/78; amended by 1979 c.284 §7; §D
amended by 1981 c.898 §3] indicates that the rule was amended by section 7,
chapter 284, Oregon Laws 1979, and that section D of the rule was amended by
section 3, chapter 898, Oregon Laws 1981.
[CCP 12/2/78; §K amended by 1979 c.284 §8;
§M amended by CCP 12/13/80] indicates that section K of the rule was amended by
section 8, chapter 284, Oregon Laws 1979, and that section M of the rule was
amended by the Council on December 13, 1980.
[CCP 12/2/78; amended by CCP 12/13/80;
1981 c.912 §1]
indicates
that the rule was amended by the Council on December 13, 1980, and by section
1, chapter 912, Oregon Laws 1981.
[CCP 12/2/78; amended by 1979 c.284 §9; §D
amended by CCP 12/13/80; §D amended by 1981 c.898 §4] indicates that the rule
was amended by section 9, chapter 284, Oregon Laws 1979, that section D of the
rule was amended by the Council on December 13, 1980, and that section D of the
rule was amended by section 4, chapter 898, Oregon Laws 1981.
SCOPE;
CONSTRUCTION; APPLICATION; RULE; CITATION
RULE 1
A Scope. These rules govern procedure and practice in all circuit courts of
this state, except in the small claims department of circuit courts, for all
civil actions and special proceedings whether cognizable as cases at law, in
equity, or of statutory origin except where a different procedure is specified
by statute or rule. These rules shall also govern practice and procedure in all
civil actions and special proceedings, whether cognizable as cases at law, in
equity, or of statutory origin, for the small claims department of circuit
courts and for all other courts of this state to the extent they are made
applicable to such courts by rule or statute. Reference in these rules to
actions shall include all civil actions and special proceedings whether
cognizable as cases at law, in equity or of statutory origin.
B Construction. These rules shall be construed to secure the
just, speedy, and inexpensive determination of every action.
C Application. These rules, and amendments thereto, shall
apply to all actions pending at the time of or filed after their effective
date, except to the extent that in the opinion of the court their application
in a particular action pending when the rules take effect would not be feasible
or would work injustice, in which event the former procedure applies.
D “Rule” defined and local rules. References to “these rules” shall include
Oregon Rules of Civil Procedure numbered 1 through 85. General references to “rule”
or “rules” shall mean only rule or rules of pleading, practice and procedure
established by ORS 1.745, or promulgated under ORS 1.006, 1.735, 2.130 and
305.425, unless otherwise defined or limited. These rules do not preclude a
court in which they apply from regulating pleading, practice and procedure in
any manner not inconsistent with these rules.
E Use of declaration under penalty of perjury
in lieu of affidavit; “declaration” defined. A declaration under penalty of perjury may be used in lieu of any
affidavit required or allowed by these rules. A declaration under penalty of
perjury may be made without notice to adverse parties, must be signed by the
declarant and must include the following sentence in prominent letters
immediately above the signature of the declarant: “I hereby declare that the
above statement is true to the best of my knowledge and belief, and that I
understand it is made for use as evidence in court and is subject to penalty
for perjury.” As used in these rules, “declaration” means a declaration under
penalty of perjury.
F Citation. These rules may be referred to as ORCP and may be cited, for example,
by citation of Rule 7, section D, subsection (3), paragraph (a), subparagraph
(i), as ORCP 7 D(3)(a)(i). [CCP 12/2/78; amended by 1979 c.284 §7; §D amended
by 1981 c.898 §3; §D amended by 1981 s.s. c.1 §21; §E amended by CCP 12/13/86; §A
amended by 1995 c.658 §117; amended by 2003 c.194 §1]
FORM OF
ACTION
RULE 2
One form of action. There shall be one form of action known as a
civil action. All procedural distinctions between actions at law and suits in
equity are hereby abolished, except for those distinctions specifically
provided for by these rules, by statute, or by the Constitution of this state. [CCP
12/2/78]
COMMENCEMENT
RULE 3
Commencement of action. Other than for purposes of statutes of
limitations, an action shall be commenced by filing a complaint with the clerk
of the court. [CCP 12/2/78]
JURISDICTION
(Personal)
RULE 4
Personal jurisdiction. A court of this state having jurisdiction of
the subject matter has jurisdiction over a party served in an action pursuant
to Rule 7 under any of the following circumstances:
A Local presence or status. In any action, whether arising within or
without this state, against a defendant who when the action is commenced:
A(1) Is a natural person present within
this state when served; or
A(2) Is a natural person domiciled within
this state; or
A(3) Is a corporation created by or under
the laws of this state; or
A(4) Is engaged in substantial and not
isolated activities within this state, whether such activities are wholly
interstate, intrastate, or otherwise; or
A(5) Has expressly consented to the
exercise of personal jurisdiction over such defendant.
B Special jurisdiction statutes. In any action which may be brought under
statutes or rules of this state that specifically confer grounds for personal
jurisdiction over the defendant.
C Local act or omission. In any action claiming injury to person or
property within or without this state arising out of an act or omission within
this state by the defendant.
D Local injury; foreign act. In any action claiming injury to person or
property within this state arising out of an act or omission outside this state
by the defendant, provided in addition that at the time of the injury, either:
D(1) Solicitation or service activities
were carried on within this state by or on behalf of the defendant; or
D(2) Products, materials, or things
distributed, processed, serviced, or manufactured by the defendant were used or
consumed within this state in the ordinary course of trade.
E Local services, goods, or contracts. In any action or proceeding which:
E(1) Arises out of a promise, made
anywhere to the plaintiff or to some third party for the plaintiff’s benefit,
by the defendant to perform services within this state or to pay for services
to be performed in this state by the plaintiff; or
E(2) Arises out of services actually
performed for the plaintiff by the defendant within this state or services
actually performed for the defendant by the plaintiff within this state, if
such performance within this state was authorized or ratified by the defendant;
or
E(3) Arises out of a promise, made
anywhere to the plaintiff or to some third party for the plaintiff’s benefit,
by the defendant to deliver or receive within this state or to send from this
state goods, documents of title, or other things of value; or
E(4) Relates to goods, documents of title,
or other things of value sent from this state by the defendant to the plaintiff
or to a third person on the plaintiff’s order or direction; or
E(5) Relates to goods, documents of title,
or other things of value actually received in this state by the plaintiff from
the defendant or by the defendant from the plaintiff, without regard to where delivery
to carrier occurred.
F Local property. In any action which arises out of the
ownership, use, or possession of real property situated in this state or the
ownership, use, or possession of other tangible property, assets, or things of
value which were within this state at the time of such ownership, use, or
possession; including, but not limited to, actions to recover a deficiency
judgment upon any mortgage, conditional sale contract, or other security
agreement relating to such property, executed by the defendant or predecessor
to whose obligation the defendant has succeeded.
G Director or officer of a domestic
corporation. In any action
against a defendant who is or was an officer or director of a domestic
corporation where the action arises out of the defendant’s conduct as such
officer or director or out of the activities of such corporation while the
defendant held office as a director or officer.
H Taxes or assessments. In any action for the collection of taxes or
assessments levied, assessed, or otherwise imposed by a taxing authority of
this state.
I Insurance or insurers. In any action which arises out of a promise
made anywhere to the plaintiff or some third party by the defendant to insure
any person, property, or risk and in addition either:
I(1) The person, property, or risk insured
was located in this state at the time of the promise; or
I(2) The person, property, or risk insured
was located within this state when the event out of which the cause of action
is claimed to arise occurred; or
I(3) The event out of which the cause of
action is claimed to arise occurred within this state, regardless of where the
person, property, or risk insured was located.
J Securities. In any action arising under the Oregon
Securities Law, including an action brought by the Director of the Department
of Consumer and Business Services, against:
J(1) An applicant for registration or
registrant, and any person who offers or sells a security in this state,
directly or indirectly, unless the security or the sale is exempt from ORS
59.055; or
J(2) Any person, a resident or nonresident
of this state, who has engaged in conduct prohibited or made actionable under
the Oregon Securities Law.
K Certain marital and domestic relations
actions.
K(1) In any action to determine a question
of status instituted under ORS chapter 106 or 107 when the plaintiff is a
resident of or domiciled in this state.
K(2) In any action to enforce personal
obligations arising under ORS chapter 106 or 107, if the parties to a marriage
have concurrently maintained the same or separate residences or domiciles
within this state for a period of six months, notwithstanding departure from
this state and acquisition of a residence or domicile in another state or
country before filing of such action; but if an action to enforce personal
obligations arising under ORS chapter 106 or 107 is not commenced within one
year following the date upon which the party who left the state acquired a
residence or domicile in another state or country, no jurisdiction is conferred
by this subsection in any such action.
K(3) In any proceeding to establish
paternity under ORS chapter 109 or 110, or any action for declaration of
paternity where the primary purpose of the action is to establish
responsibility for child support, when the act of sexual intercourse which
resulted in the birth of the child is alleged to have taken place in this
state.
L Other actions. Notwithstanding a failure to satisfy the
requirement of sections B through K of this rule, in any action where
prosecution of the action against a defendant in this state is not inconsistent
with the Constitution of this state or the Constitution of the United States.
M Personal representative. In any action against a personal
representative to enforce a claim against the deceased person represented where
one or more of the grounds stated in sections A through L would have furnished
a basis for jurisdiction over the deceased had the deceased been living. It is
immaterial whether the action is commenced during the lifetime of the deceased.
N Joinder of claims in the same action. In any action brought in reliance upon
jurisdictional grounds stated in sections B through L, there cannot be joined
in the same action any other claim or cause against the defendant unless
grounds exist under this rule, or other rule or statute, for personal
jurisdiction over the defendant as to the claim or cause to be joined.
O Defendant defined. For purposes of this rule and Rules 5 and 6,
“defendant” includes any party subject to the jurisdiction of the court. [CCP
12/2/78; §K amended by 1979 c.284 §8; §M amended by CCP 12/13/80; §E amended by
CCP 12/10/88 and 1/6/89; §K amended by 1993 c.33 §364; §J amended by 1995 c.79 §401;
§K amended by 1995 c.608 §40; §K amended by 2003 c.14 §13]
(In Rem)
RULE 5
Jurisdiction in rem. A court of this state having jurisdiction of
the subject matter may exercise jurisdiction in rem on the grounds stated in
this section. A judgment in rem may affect the interests of a defendant in the
status, property, or thing acted upon only if a summons has been served upon
the defendant pursuant to Rule 7 or other applicable rule or statute.
Jurisdiction in rem may be invoked in any of the following cases:
A When the subject of the action is real
or personal property in this state and the defendant has or claims a lien or
interest, actual or contingent, therein, or the relief demanded consists wholly
or partially in excluding the defendant from any interest or lien therein. This
section also shall apply when any such defendant is unknown.
B When the action is to foreclose, redeem
from, or satisfy a mortgage, claim, or lien upon real property within this
state. [CCP 12/2/78]
(Without
Service)
RULE 6
Personal jurisdiction without service of
summons. A court of this
state having jurisdiction of the subject matter may, without a summons having
been served upon a party, exercise jurisdiction in an action over a party with
respect to any counterclaim asserted against that party in an action which the
party has commenced in this state and also over any party who appears in the
action and waives the defense of lack of jurisdiction over the person,
insufficiency of summons or process, or insufficiency of service of summons or
process, as provided in Rule 21 G. Where jurisdiction is exercised under Rule
5, a defendant may appear in an action and defend on the merits, without being
subject to personal jurisdiction by virtue of this rule. [CCP 12/2/78]
SUMMONS
RULE 7
A Definitions. For purposes of this rule, “plaintiff” shall
include any party issuing summons and “defendant” shall include any party upon
whom service of summons is sought. For purposes of this rule, a “true copy” of
a summons and complaint means an exact and complete copy of the original
summons and complaint with a certificate upon the copy signed by an attorney of
record, or if there is no attorney, by a party, which indicates that the copy
is exact and complete.
B Issuance. Any time after the action is commenced, plaintiff or plaintiff’s
attorney may issue as many original summonses as either may elect and deliver
such summonses to a person authorized to serve summons under section E of this
rule. A summons is issued when subscribed by plaintiff or an active member of
the Oregon State Bar.
C(1) Contents. The summons shall contain:
C(1)(a) Title. The title of the cause, specifying the name of the court in
which the complaint is filed and the names of the parties to the action.
C(1)(b) Direction to defendant. A direction to the defendant requiring
defendant to appear and defend within the time required by subsection (2) of
this section and a notification to defendant that in case of failure to do so,
the plaintiff will apply to the court for the relief demanded in the complaint.
C(1)(c) Subscription; post office address. A subscription by the plaintiff
or by an active member of the Oregon State Bar, with the addition of the post
office address at which papers in the action may be served by mail.
C(2) Time
for response. If the summons is served by any manner other than
publication, the defendant shall appear and defend within 30 days from the date
of service. If the summons is served by publication pursuant to subsection D(6)
of this rule, the defendant shall appear and defend within 30 days from the
date stated in the summons. The date so stated in the summons shall be the date
of the first publication.
C(3) Notice
to party served.
C(3)(a) In general. All summonses, other than a summons referred to in
paragraph (b) or (c) of this subsection, shall contain a notice printed in type
size equal to at least 8-point type which may be substantially in the following
form:
______________________________________________________________________________
NOTICE TO DEFENDANT:
READ THESE PAPERS CAREFULLY!
You must “appear” in this case or the
other side will win automatically. To “appear” you must file with the court a
legal paper called a “motion” or “answer.” The “motion” or “answer” must be
given to the court clerk or administrator within 30 days along with the required
filing fee. It must be in proper form and have proof of service on the
plaintiff’s attorney or, if the plaintiff does not have an attorney, proof of
service on the plaintiff.
If you have questions, you should see an
attorney immediately. If you need help in finding an attorney, you may call the
Oregon State Bar’s Lawyer Referral Service at (503) 684-3763 or toll-free in
Oregon at (800) 452-7636.
______________________________________________________________________________
C(3)(b) Service for counterclaim. A summons to join a party to respond to a
counterclaim pursuant to Rule 22 D (1) shall contain a notice printed in type
size equal to at least 8-point type which may be substantially in the following
form:
______________________________________________________________________________
NOTICE TO DEFENDANT:
READ THESE PAPERS CAREFULLY!
You must “appear” to protect your rights
in this matter. To “appear” you must file with the court a legal paper called a
“motion” or “reply.” The “motion” or “reply” must be given to the court clerk
or administrator within 30 days along with the required filing fee. It must be
in proper form and have proof of service on the defendant’s attorney or, if the
defendant does not have an attorney, proof of service on the defendant.
If you have questions, you should see an
attorney immediately. If you need help in finding an attorney, you may call the
Oregon State Bar’s Lawyer Referral Service at (503) 684-3763 or toll-free in
Oregon at (800) 452-7636.
______________________________________________________________________________
C(3)(c) Service on persons liable for attorney fees. A summons to join a
party pursuant to Rule 22 D(2) shall contain a notice printed in type size
equal to at least 8-point type which may be substantially in the following
form:
______________________________________________________________________________
NOTICE TO DEFENDANT:
READ THESE PAPERS CAREFULLY!
You may be liable for attorney fees in
this case. Should plaintiff in this case not prevail, a judgment for reasonable
attorney fees will be entered against you, as provided by the agreement to
which defendant alleges you are a party.
You must “appear” to protect your rights
in this matter. To “appear” you must file with the court a legal paper called a
“motion” or “reply.” The “motion” or “reply” must be given to the court clerk
or administrator within 30 days along with the required filing fee. It must be
in proper form and have proof of service on the defendant’s attorney or, if the
defendant does not have an attorney, proof of service on the defendant.
If you have questions, you should see an
attorney immediately. If you need help in finding an attorney, you may call the
Oregon State Bar’s Lawyer Referral Service at (503) 684-3763 or toll-free in
Oregon at (800) 452-7636.
______________________________________________________________________________
D Manner of service.
D(1) Notice
required. Summons shall be served, either within or without this state, in
any manner reasonably calculated, under all the circumstances, to apprise the
defendant of the existence and pendency of the action and to afford a
reasonable opportunity to appear and defend. Summons may be served in a manner
specified in this rule or by any other rule or statute on the defendant or upon
an agent authorized by appointment or law to accept service of summons for the
defendant. Service may be made, subject to the restrictions and requirements of
this rule, by the following methods: personal service of summons upon defendant
or an agent of defendant authorized to receive process; substituted service by
leaving a copy of summons and complaint at a person’s dwelling house or usual
place of abode; office service by leaving with a person who is apparently in
charge of an office; service by mail; or, service by publication.
D(2) Service
methods.
D(2)(a) Personal service. Personal service may be made by delivery of a
true copy of the summons and a true copy of the complaint to the person to be
served.
D(2)(b) Substituted service. Substituted service may be made by delivering
a true copy of the summons and the complaint at the dwelling house or usual
place of abode of the person to be served, to any person 14 years of age or
older residing in the dwelling house or usual place of abode of the person to
be served. Where substituted service is used, the plaintiff, as soon as
reasonably possible, shall cause to be mailed, by first class mail, a true copy
of the summons and the complaint to the defendant at defendant’s dwelling house
or usual place of abode, together with a statement of the date, time, and place
at which substituted service was made. For the purpose of computing any period
of time prescribed or allowed by these rules or by statute, substituted service
shall be complete upon such mailing.
D(2)(c) Office service. If the person to be served maintains an office for
the conduct of business, office service may be made by leaving a true copy of
the summons and the complaint at such office during normal working hours with
the person who is apparently in charge. Where office service is used, the
plaintiff, as soon as reasonably possible, shall cause to be mailed, by first
class mail, a true copy of the summons and the complaint to the defendant at
the defendant’s dwelling house or usual place of abode or defendant’s place of
business or such other place under the circumstances that is most reasonably
calculated to apprise the defendant of the existence and pendency of the
action, together with a statement of the date, time, and place at which office
service was made. For the purpose of computing any period of time prescribed or
allowed by these rules or by statute, office service shall be complete upon
such mailing.
D(2)(d) Service by mail.
D(2)(d)(i) Generally. When required or allowed by this rule or by statute,
except as otherwise permitted, service by mail shall be made by mailing a true
copy of the summons and the complaint to the defendant by first class mail and
by any of the following: certified or registered mail, return receipt requested,
or express mail. For purposes of this section, “first class mail” does not
include certified or registered, or any other form of mail which may delay or
hinder actual delivery of mail to the addressee.
D(2)(d)(ii) Calculation of time. For the purpose of computing any period of
time provided by these rules or by statute, service by mail, except as
otherwise provided, shall be complete on the day the defendant, or other person
authorized by appointment or law, signs a receipt for the mailing, or three days
after the mailing if mailed to an address within the state, or seven days after
the mailing if mailed to an address outside the state, whichever first occurs.
D(3) Particular
defendants. Service may be made upon specified defendants as follows:
D(3)(a) Individuals.
D(3)(a)(i) Generally. Upon an individual defendant, by personal delivery of a
true copy of the summons and the complaint to such defendant or other person
authorized by appointment or law to receive service of summons on behalf of
such defendant, by substituted service or by office service. Service may also
be made upon an individual defendant to whom neither subparagraph (ii) nor
(iii) of this paragraph applies by mailing made in accordance with paragraph
(2)(d) of this section provided the defendant signs a receipt for the
certified, registered or express mailing, in which case service shall be
complete on the date on which the defendant signs a receipt for the mailing.
D(3)(a)(ii) Minors. Upon a minor under the age of 14 years, by service in the
manner specified in subparagraph (i) of this paragraph upon such minor, and
also upon such minor’s father, mother, conservator of the minor’s estate, or
guardian, or, if there be none, then upon any person having the care or control
of the minor or with whom such minor resides, or in whose service such minor is
employed, or upon a guardian ad litem appointed pursuant to Rule 27 A(2).
D(3)(a)(iii) Incapacitated persons. Upon a person who is incapacitated or
financially incapable, as defined by ORS 125.005, by service in the manner
specified in subparagraph (i) of this paragraph upon such person, and also upon
the conservator of such person’s estate or guardian, or, if there be none, upon
a guardian ad litem appointed pursuant to Rule 27 B(2).
D(3)(a)(iv) Tenant of a mail agent. Upon an individual defendant who is a “tenant”
of a “mail agent” within the meaning of ORS 646.221 by delivering a true copy
of the summons and the complaint to any person apparently in charge of the
place where the mail agent receives mail for the tenant, provided that:
(A) the plaintiff makes a diligent inquiry
but cannot find the defendant; and
(B) the plaintiff, as soon as reasonably
possible after delivery, causes a true copy of the summons and the complaint to
be mailed by first class mail to the defendant at the address at which the mail
agent receives mail for the defendant and to any other mailing address of the
defendant then known to the plaintiff, together with a statement of the date,
time, and place at which the plaintiff delivered the copy of the summons and
the complaint.
Service shall be complete on the latest
date resulting from the application of subparagraph D(2)(d)(ii) of this rule to
all mailings required by this subparagraph unless the defendant signs a receipt
for the mailing, in which case service is complete on the day the defendant
signs the receipt.
D(3)(b) Corporations and limited partnerships. Upon a domestic or foreign
corporation or limited partnership:
D(3)(b)(i) Primary service method. By personal service or office service upon
a registered agent, officer, director, general partner, or managing agent of
the corporation or limited partnership, or by personal service upon any clerk
on duty in the office of a registered agent.
D(3)(b)(ii) Alternatives. If a registered agent, officer, director, general
partner, or managing agent cannot be found in the county where the action is
filed, the summons may be served: by substituted service upon such registered
agent, officer, director, general partner, or managing agent; or by personal
service on any clerk or agent of the corporation or limited partnership who may
be found in the county where the action is filed; or by mailing a copy of the
summons and complaint to the office of the registered agent or to the last
registered office of the corporation or limited partnership, if any, as shown
by the records on file in the office of the Secretary of State or, if the
corporation or limited partnership is not authorized to transact business in
this state at the time of the transaction, event, or occurrence upon which the
action is based occurred, to the principal office or place of business of the
corporation or limited partnership, and in any case to any address the use of
which the plaintiff knows or, on the basis of reasonable inquiry, has reason to
believe is most likely to result in actual notice.
D(3)(c) State. Upon the state, by personal service upon the Attorney
General or by leaving a copy of the summons and complaint at the Attorney
General’s office with a deputy, assistant, or clerk.
D(3)(d) Public bodies. Upon any county, incorporated city, school district,
or other public corporation, commission, board or agency, by personal service
or office service upon an officer, director, managing agent, or attorney
thereof.
D(3)(e) General partnerships. Upon any general partnerships by personal
service upon a partner or any agent authorized by appointment or law to receive
service of summons for the partnership.
D(3)(f) Other unincorporated association subject to suit under a common name. Upon
any other unincorporated association subject to suit under a common name by
personal service upon an officer, managing agent, or agent authorized by
appointment or law to receive service of summons for the unincorporated
association.
D(3)(g) Vessel owners and charterers. Upon any foreign steamship owner or
steamship charterer by personal service upon a vessel master in such owner’s or
charterer’s employment or any agent authorized by such owner or charterer to
provide services to a vessel calling at a port in the State of Oregon, or a
port in the State of Washington on that portion of the Columbia River forming a
common boundary with Oregon.
D(4) Particular
actions involving motor vehicles.
D(4)(a) Actions arising out of use of roads, highways, streets, or premises
open to the public; service by mail.
D(4)(a)(i) In any action arising out of
any accident, collision, or other event giving rise to liability in which a
motor vehicle may be involved while being operated upon the roads, highways,
streets, or premises open to the public as defined by law, of this state, if
the plaintiff makes at least one attempt to serve a defendant who operated such
motor vehicle, or caused it to be operated on the defendant’s behalf, by a method
authorized by subsection (3) of this section except service by mail pursuant to
subparagraph (3)(a)(i) of this section and, as shown by its return, did not
effect service, the plaintiff may then serve that defendant by mailings made in
accordance with paragraph (2)(d) of this section addressed to that defendant
at:
(A) any residence address provided by that
defendant at the scene of the accident;
(B) the current residence address, if any,
of that defendant shown in the driver records of the Department of
Transportation; and
(C) any other address of that defendant
known to the plaintiff at the time of making the mailings required by (A) and
(B) that reasonably might result in actual notice to that defendant.
Sufficient service pursuant to this subparagraph
may be shown if the proof of service includes a true copy of the envelope in
which each of the certified, registered or express mailings required by (A),
(B) and (C) above was made showing that it was returned to sender as
undeliverable or that the defendant did not sign the receipt. For the purpose
of computing any period of time prescribed or allowed by these rules or by
statute, service under this subparagraph shall be complete on the latest date
on which any of the mailings required by (A), (B) and (C) above is made. If the
mailing required by (C) is omitted because the plaintiff did not know of any
address other than those specified in (A) and (B) above, the proof of service
shall so certify.
D(4)(a)(ii) Any fee charged by the
Department of Transportation for providing address information concerning a
party served pursuant to subparagraph (i) of this paragraph may be recovered as
provided in Rule 68.
(D)(4)(a)(iii) The requirements for
obtaining an order of default against a defendant served pursuant to
subparagraph (i) of this paragraph are as provided in Rule 69.
D(4)(b) Notification of change of address. Any person who, while operating
a motor vehicle upon the roads, highways, streets, or premises open to the
public as defined by law, of this state, is involved in any accident,
collision, or other event giving rise to liability, shall forthwith notify the
Department of Transportation of any change of such defendant’s address
occurring within three years after such accident, collision or event.
D(5) Service
in foreign country. When service is to be effected upon a party in a
foreign country, it is also sufficient if service of summons is made in the
manner prescribed by the law of the foreign country for service in that country
in its courts of general jurisdiction, or as directed by the foreign authority
in response to letters rogatory, or as directed by order of the court. However,
in all cases such service shall be reasonably calculated to give actual notice.
D(6) Court
order for service; service by publication.
D(6)(a) Court order for service by other method. On motion upon a showing
by affidavit or declaration that service cannot be made by any method otherwise
specified in these rules or other rule or statute, the court, at its discretion,
may order service by any method or combination of methods which under the
circumstances is most reasonably calculated to apprise the defendant of the
existence and pendency of the action, including but not limited to: publication
of summons; mailing without publication to a specified post office address of
the defendant by first class mail and by any of the following: certified or
registered mail, return receipt requested, or express mail; or posting at
specified locations. If service is ordered by any manner other than
publication, the court may order a time for response.
D(6)(b) Contents of published summons. In addition to the contents of a
summons as described in section C of this rule, a published summons shall also
contain a summary statement of the object of the complaint and the demand for
relief, and the notice required in subsection C(3) shall state: “The ‘motion’
or ‘answer’ (or ‘reply’) must be given to the court clerk or administrator
within 30 days of the date of first publication specified herein along with the
required filing fee.” The published summons shall also contain the date of the
first publication of the summons.
D(6)(c) Where published. An order for publication shall direct publication
to be made in a newspaper of general circulation in the county where the action
is commenced or, if there is no such newspaper, then in a newspaper to be
designated as most likely to give notice to the person to be served. Such
publication shall be four times in successive calendar weeks. If the plaintiff
knows of a specific location other than the county where the action is
commenced where publication might reasonably result in actual notice to the
defendant, the plaintiff shall so state in the affidavit or declaration
required by paragraph (a) of this subsection, and the court may order
publication in a comparable manner at such location in addition to, or in lieu
of, publication in the county where the action is commenced.
D(6)(d) Mailing summons and complaint. If the court orders service by publication
and the plaintiff knows or with reasonable diligence can ascertain the
defendant’s current address, the plaintiff shall mail a copy of the summons and
the complaint to the defendant at such address by first class mail and by any
of the following: certified or registered mail, return receipt requested, or
express mail. If the plaintiff does not know and cannot upon diligent inquiry
ascertain the current address of any defendant, a copy of the summons and the
complaint shall be mailed by the methods specified above to the defendant at
the defendant’s last known address. If the plaintiff does not know, and cannot
ascertain upon diligent inquiry, the defendant’s current and last known
addresses, mailing of a copy of the summons and the complaint is not required.
D(6)(e) Unknown heirs or persons. If service cannot be made by another
method described in this section because defendants are unknown heirs or
persons as described in sections I and J of Rule 20, the action shall proceed
against the unknown heirs or persons in the same manner as against named
defendants served by publication and with like effect; and any such unknown
heirs or persons who have or claim any right, estate, lien, or interest in the
property in controversy, at the time of the commencement of the action, and
served by publication, shall be bound and concluded by the judgment in the
action, if the same is in favor of the plaintiff, as effectively as if the
action was brought against such defendants by name.
D(6)(f) Defending before or after judgment. A defendant against whom
publication is ordered or such defendant’s representatives, on application and
sufficient cause shown, at any time before judgment, shall be allowed to defend
the action. A defendant against whom publication is ordered or such defendant’s
representatives may, upon good cause shown and upon such terms as may be
proper, be allowed to defend after judgment and within one year after entry of
judgment. If the defense is successful, and the judgment or any part thereof
has been collected or otherwise enforced, restitution may be ordered by the
court, but the title to property sold upon execution issued on such judgment,
to a purchaser in good faith, shall not be affected thereby.
D(6)(g) Defendant who cannot be served. Within the meaning of this
subsection, a defendant cannot be served with summons by any method authorized
by subsection D(3) of this section if: (i) service pursuant to subparagraph
(4)(a)(i) of this section is not authorized, and the plaintiff attempted service
of summons by all of the methods authorized by subsection D(3) of this section
and was unable to complete service, or (ii) if the plaintiff knew that service
by such methods could not be accomplished.
E By whom served; compensation. A summons may be served by any competent
person 18 years of age or older who is a resident of the state where service is
made or of this state and is not a party to the action nor, except as provided
in ORS 180.260, an officer, director, or employee of, nor attorney for, any party,
corporate or otherwise. However, service pursuant to subparagraph D(2)(d)(i) of
this rule may be made by an attorney for any party. Compensation to a sheriff
or a sheriff’s deputy in this state who serves a summons shall be prescribed by
statute or rule. If any other person serves the summons, a reasonable fee may
be paid for service. This compensation shall be part of disbursements and shall
be recovered as provided in Rule 68.
F Return; proof of service.
F(1) Return
of summons. The summons shall be promptly returned to the clerk with whom
the complaint is filed with proof of service or mailing, or that defendant
cannot be found. The summons may be returned by first class mail.
F(2) Proof
of service. Proof of service of summons or mailing may be made as follows:
F(2)(a) Service other than publication. Service other than publication
shall be proved by:
F(2)(a)(i) Certificate of service when summons not served by sheriff or deputy.
If the summons is not served by a sheriff or a sheriff’s deputy, the
certificate of the server indicating: the time, place, and manner of service;
that the server is a competent person 18 years of age or older and a resident
of the state of service or this state and is not a party to nor an officer,
director, or employee of, nor attorney for any party, corporate or otherwise;
and that the server knew that the person, firm, or corporation served is the
identical one named in the action. If the defendant is not personally served,
the server shall state in the certificate when, where, and with whom a copy of
the summons and complaint was left or describe in detail the manner and
circumstances of service. If the summons and complaint were mailed, the
certificate may be made by the person completing the mailing or the attorney for
any party and shall state the circumstances of mailing and the return receipt
shall be attached.
F(2)(a)(ii) Certificate of service by sheriff or deputy. If the summons is
served by a sheriff or a sheriff’s deputy, the sheriff’s or deputy’s
certificate of service indicating the time, place, and manner of service, and
if defendant is not personally served, when, where, and with whom the copy of
the summons and complaint was left or describing in detail the manner and
circumstances of service. If the summons and complaint were mailed, the
certificate shall state the circumstances of mailing and the return receipt
shall be attached.
F(2)(b) Publication. Service by publication shall be proved by an
affidavit or by a declaration.
F(2)(b)(i) A publication by affidavit
shall be in substantially the following form:
______________________________________________________________________________
Affidavit of Publication
State of
Oregon )
) ss.
County of )
I, ________, being first duly sworn,
depose and say that I am the ________ (here set forth the title or job
description of the person making the affidavit), of the ________, a newspaper
of general circulation published at ________ in the aforesaid county and state;
that I know from my personal knowledge that the ________, a printed copy of
which is hereto annexed, was published in the entire issue of said newspaper
four times in the following issues: (here set forth dates of issues in which
the same was published).
Subscribed and
sworn to before me this _____ day of _____, 2_____.
_____________________
Notary
Public for Oregon
My
commission expires
___ day of _____, 2___.
______________________________________________________________________________
F(2)(b)(ii) A publication by declaration
shall be in substantially the following form:
______________________________________________________________________________
Declaration of Publication
State of
Oregon )
) ss.
County of )
I, ________, say that I am the ________
(here set forth the title or job description of the person making the
declaration), of the ________, a newspaper of general circulation
published at ________ in the aforesaid county and state; that I know from my
personal knowledge that the ________, a printed copy of which is hereto annexed,
was published in the entire issue of said newspaper four times in the following
issues: (here set forth dates of issues in which the same was published).
I hereby declare
that the above statement is true to the best of my knowledge and belief, and that
I understand it is made for use as evidence in court and is subject to penalty
for perjury.
__________________
___ day of _____, 2___.
______________________________________________________________________________
F(2)(c) Making and certifying affidavit. The affidavit of service may be
made and certified before a notary public, or other official authorized to
administer oaths and acting as such by authority of the United States, or any
state or territory of the United States, or the District of Columbia, and the
official seal, if any, of such person shall be affixed to the affidavit. The
signature of such notary or other official, when so attested by the affixing of
the official seal, if any, of such person, shall be prima facie evidence of
authority to make and certify such affidavit.
F(2)(d) Form of certificate, affidavit or declaration. A certificate,
affidavit or declaration containing proof of service may be made upon the
summons or as a separate document attached to the summons.
F(3) Written
admission. In any case proof may be made by written admission of the
defendant.
F(4) Failure
to make proof; validity of service. If summons has been properly served,
failure to make or file a proper proof of service shall not affect the validity
of the service.
G Disregard of error; actual notice. Failure to comply with provisions of this
rule relating to the form of summons, issuance of summons, or who may serve
summons shall not affect the validity of service of summons or the existence of
jurisdiction over the person if the court determines that the defendant
received actual notice of the substance and pendency of the action. The court
may allow amendment to a summons, or affidavit, declaration or certificate of
service of summons. The court shall disregard any error in the content of
summons that does not materially prejudice the substantive rights of the party
against whom summons was issued. If service is made in any manner complying
with subsection D(1) of this section, the court shall also disregard any error
in the service of summons that does not violate the due process rights of the
party against whom summons was issued.
H Telegraphic transmission. A summons and complaint may be transmitted
by telegraph as provided in Rule 8 D. [CCP 12/2/78; amended by 1979 c.284 §9; §D
amended by CCP 12/13/80; §§D,E amended by 1981 c.898 §§4,5; §§D,F amended by
CCP 12/4/82; §§D,F amended by 1983 c.751 §§3,4; §C(2) amended by CCP 12/8/84; §D(4)
amended by CCP 12/10/88 and 1/6/89; §D amended by CCP 12/15/90; §§C,E amended
by CCP 12/12/92; §D amended by 1995 c.79 §402 and 1995 c.664 §99; §§B,C,D,F,G
amended by and D(7) redesignated as D(6)(g) by CCP 12/14/96; §§D,E amended by
CCP 12/12/98; §D amended by CCP 12/9/00; amended by 2003 c.194 §5]
PROCESS
RULE 8
A Process. All process authorized to be issued by any court or officer thereof
shall run in the name of the State of Oregon and be signed by the officer
issuing the same, and if such process is issued by a clerk of court, the seal
of office of such clerk shall be affixed to such process. Summonses and
subpoenas are not process and are covered by Rules 7 and 55, respectively.
B Where county is a party. Process in an action where any county is a
party shall be served on the county clerk or the person exercising the duties
of that office, or if the office is vacant, upon the chairperson of the
governing body of the county, or in the absence of the chairperson, any member
thereof.
C Service or execution. Any civil process may be served or executed
on Sunday or any other legal holiday. No limitation or prohibition stated in
ORS 1.060 shall apply to such service or execution of any civil process on a
Sunday or other legal holiday.
D Telegraphic transmission of writ, order, or
paper, for service; procedure.
Any writ or order in any civil action, and all other papers requiring service,
may be transmitted by telegraph for service in any place, and the telegraphic
copy as defined in ORS 165.840, of such writ, order, or paper so transmitted
may be served or executed by the officer or person to whom it is sent for that
purpose, and returned by such officer or person if any return be requisite, in
the same manner and with the same force and effect in all respects as the
original might be if delivered to such officer or person. The officer or person
serving or executing the same shall have the same authority and be subject to
the same liabilities as if the copy were the original. The original, if a writ
or order, shall also be filed in the court from which it was issued, and a certified
copy thereof shall be preserved in the telegraph office from which it was sent.
In sending it, either the original or a certified copy may be used by the
operator for that purpose.
E Proof of service or execution. Proof of service or execution of process
shall be made as provided in Rule 7 F. [CCP 12/2/78]
SERVICE AND FILING
OF PLEADINGS AND OTHER PAPERS
RULE 9
A Service; when required. Except as otherwise provided in these rules,
every order, every pleading subsequent to the original complaint, every written
motion other than one which may be heard ex parte, and every written request,
notice, appearance, demand, offer of judgment, designation of record on appeal,
and similar paper shall be served upon each of the parties. No service need be
made on parties in default for failure to appear except that pleadings
asserting new or additional claims for relief against them shall be served upon
them in the manner provided for service of summons in Rule 7.
B Service; how made. Whenever under these rules service is
required or permitted to be made upon a party, and that party is represented by
an attorney, the service shall be made upon the attorney unless otherwise
ordered by the court. Service upon the attorney or upon a party shall be made
by delivering a copy to such attorney or party, by mailing it to such attorney’s
or party’s last known address or, if the party is represented by an attorney,
by telephonic facsimile communication device as provided in section F of this
rule. Delivery of a copy within this rule means: handing it to the person to be
served; or leaving it at such person’s office with such person’s clerk or
person apparently in charge thereof; or, if there is no one in charge, leaving
it in a conspicuous place therein; or, if the office is closed or the person to
be served has no office, leaving it at such person’s dwelling house or usual
place of abode with some person over 14 years of age then residing therein. A
party who has appeared without providing an appropriate address for service may
be served by placing a copy of the pleading or other papers in the court file.
Service by mail is complete upon mailing. Service of any notice or other paper
to bring a party into contempt may only be upon such party personally.
C Filing; proof of service. Except as provided by section D of this rule,
all papers required to be served upon a party by section A of this rule shall
be filed with the court within a reasonable time after service. Except as
otherwise provided in Rules 7 and 8, proof of service of all papers required or
permitted to be served may be by written acknowledgment of service, by
affidavit or declaration of the person making service, or by certificate of an
attorney. Such proof of service may be made upon the papers served or as a separate
document attached to the papers. Where service is made by telephonic facsimile
communication device, proof of service shall be made by affidavit or
declaration of the person making service, or by certificate of an attorney.
Attached to such affidavit, declaration or certificate shall be the printed
confirmation of receipt of the message generated by the transmitting machine.
D When filing not required. Notices of deposition, requests made
pursuant to Rule 43, and answers and responses thereto shall not be filed with
the court. This rule shall not preclude their use as exhibits or as evidence on
a motion or at trial.
E Filing with the court defined. The filing of pleadings and other papers
with the court as required by these rules shall be made by filing them with the
clerk of the court or the person exercising the duties of that office. The
clerk or the person exercising the duties of that office shall endorse upon
such pleading or paper the time of day, the day of the month, month, and the
year. The clerk or person exercising the duties of that office is not required
to receive for filing any paper unless the name of the court, the title of the
cause and the paper, and the names of the parties, and the attorney for the
party requesting filing, if there be one, are legibly endorsed on the front of
the document, nor unless the contents thereof are legible.
F Service by telephonic facsimile
communication device.
Whenever under these rules service is required or permitted to be made upon a
party, and that party is represented by an attorney, the service may be made
upon the attorney by means of a telephonic facsimile communication device if
the attorney maintains such a device at the attorney’s office and the device is
operating at the time service is made. Service in this manner shall be
equivalent to service by mail for purposes of Rule 10 C. [CCP 12/2/78; amended
by 1979 c.284 §10; §B amended by CCP 12/13/80; §B amended by CCP 12/4/82; §§C,D,E
amended by CCP 12/13/86; amended by 1989 c.295 §1; §C amended by 2003 c.194 §6;
§F amended by CCP 12/11/04]
TIME
RULE 10
A Computation. In computing any period of time prescribed
or allowed by these rules, by the local rules of any court or by order of
court, the day of the act, event, or default from which the designated period
of time begins to run shall not be included. The last day of the period so
computed shall be included, unless it is a Saturday or a legal holiday,
including Sunday, in which event the period runs until the end of the next day
which is not a Saturday or a legal holiday. If the period so computed relates
to serving a public officer or filing a document at a public office, and if the
last day falls on a day when that particular office is closed before the end of
or for all of the normal work day, the last day shall be excluded in computing
the period of time within which service is to be made or the document is to be
filed, in which event the period runs until the close of office hours on the
next day the office is open for business. When the period of time prescribed or
allowed (without regard to section C of this rule) is less than 7 days,
intermediate Saturdays and legal holidays, including Sundays, shall be excluded
in the computation. As used in this rule, “legal holiday” means legal holiday
as defined in ORS 187.010 and 187.020. This section does not apply to any time
limitation governed by ORS 174.120.
B Unaffected by expiration of term. The period of time provided for the doing of
any act or the taking of any proceeding is not affected or limited by the
continued existence or expiration of a term of court. The continued existence
or expiration of a term of court in no way affects the power of a court to do
any act or take any proceeding in any civil action which is pending before it.
C Additional time after service by mail. Except for service of summons, whenever a
party has the right or is required to do some act or take some proceedings
within a prescribed period after the service of a notice or other paper upon
such party and the notice or paper is served by mail, 3 days shall be added to
the prescribed period. [CCP 12/2/78; §C amended by CCP 12/13/80; §A amended by
CCP 12/10/88 and 1/6/89; §A amended by 2002 s.s.1 c.10 §9]
RULE 11
(Reserved for
Expansion)
PLEADINGS
LIBERALLY CONSTRUED; DISREGARD OF ERROR
RULE 12
A Liberal construction. All pleadings shall be liberally construed
with a view of substantial justice between the parties.
B Disregard of error or defect not affecting
substantial right. The court
shall, in every stage of an action, disregard any error or defect in the
pleadings or proceedings which does not affect the substantial rights of the
adverse party. [CCP 12/2/78]
KINDS OF PLEADINGS
ALLOWED; FORMER
PLEADINGS
ABOLISHED
RULE 13
A Pleadings. The pleadings are the written statements by
the parties of the facts constituting their respective claims and defenses.
B Pleadings allowed. There shall be a complaint and an answer. An
answer may include a counterclaim against a plaintiff, including a party joined
under Rule 22 D, and a cross-claim against a defendant, including a party
joined under Rule 22 D. A pleading against any person joined under Rule 22 C is
a third party complaint. There shall be an answer to a cross-claim and a third
party complaint. There shall be a reply to a counterclaim denominated as such
and a reply to assert any affirmative allegations in avoidance of any defenses
asserted in an answer. There shall be no other pleading unless the court orders
otherwise.
C Pleadings abolished. Demurrers and pleas shall not be used. [CCP
12/2/78; amended by 1979 c.284 §11]
MOTIONS
RULE 14
A Motions; in writing; grounds. An application for an order is a motion.
Every motion, unless made during trial, shall be in writing, shall state with
particularity the grounds therefor, and shall set forth the relief or order
sought.
B Form. The rules applicable to captions, signing, and other matters of form
of pleadings, including Rule 17 A, apply to all motions and other papers
provided for by these rules. [CCP 12/2/78; amended by 1979 c.284 §12]
TIME FOR FILING
PLEADINGS OR MOTIONS
RULE 15
A Time for filing motions and pleadings. A motion or answer to the complaint or third
party complaint and the reply to a counterclaim or answer to a cross-claim
shall be filed with the clerk by the time required by Rule 7 C(2) to appear and
defend. Any other motion or responsive pleading shall be filed not later than
10 days after service of the pleading moved against or to which the responsive
pleading is directed.
B Pleading after motion.
B(1) If the court denies a motion, any
responsive pleading required shall be filed within 10 days after service of the
order, unless the order otherwise directs.
B(2) If the court grants a motion and an
amended pleading is allowed or required, such pleading shall be filed within 10
days after service of the order, unless the order otherwise directs.
C Responding to amended pleading. A party shall respond to an amended pleading
within the time remaining for response to the original pleading or within 10
days after service of the amended pleading, whichever period may be the longer,
unless the court otherwise directs.
D Enlarging time to plead or do other act. The court may, in its discretion, and upon
such terms as may be just, allow an answer or reply to be made, or allow any
other pleading or motion after the time limited by the procedural rules, or by
an order enlarge such time. [CCP 12/2/78; §A amended by 1979 c.284 §13; §A
amended by CCP 12/10/94]
FORM OF PLEADINGS
RULE 16
A Captions; names of parties. Every pleading shall contain a caption
setting forth the name of the court, the title of the action, the register
number of the cause, and a designation in accordance with Rule 13 B. In the
complaint the title of the action shall include the names of all the parties,
but in other pleadings it is sufficient to state the name of the first party on
each side with an appropriate indication of other parties.
B Concise and direct statement; paragraphs;
separate statement of claims or defenses. Every pleading shall consist of plain and concise statements in
paragraphs consecutively numbered throughout the pleading with Arabic numerals,
the contents of which shall be limited as far as practicable to a statement of
a single set of circumstances, and a paragraph may be referred to by number in
all succeeding pleadings. Each separate claim or defense shall be separately
stated. Within each claim alternative theories of recovery shall be identified
as separate counts.
C Consistency in pleading alternative statements. Inconsistent claims or defenses are not
objectionable, and when a party is in doubt as to which of two or more
statements of fact is true, the party may allege them in the alternative. A
party may also state as many separate claims or defenses as the party has,
regardless of consistency and whether based upon legal or equitable grounds or
upon both. All statements shall be made subject to the obligation set forth in
Rule 17.
D Adoption by reference. Statements in a pleading may be adopted by
reference in a different part of the same pleading. [CCP 12/2/78; §B amended by
CCP 12/8/84; §B amended by CCP 12/13/86]
SIGNING OF
PLEADINGS, MOTIONS AND OTHER PAPERS; SANCTIONS
RULE 17
A Signing by party or attorney; certificate. Every pleading, motion and other paper of a
party represented by an attorney shall be signed by at least one attorney of
record who is an active member of the Oregon State Bar. A party who is not
represented by an attorney shall sign the pleading, motion or other paper and
state the address of the party. Pleadings need not be verified or accompanied
by affidavit or declaration.
B Pleadings, motions and other papers not
signed. If a pleading,
motion or other paper is not signed, it shall be stricken unless it is signed
promptly after the omission is called to the attention of the pleader or
movant.
C Certifications to court.
C(1) An attorney or party who signs, files
or otherwise submits an argument in support of a pleading, motion or other
paper makes the certifications to the court identified in subsections (2) to
(5) of this section, and further certifies that the certifications are based on
the person’s reasonable knowledge, information and belief, formed after the
making of such inquiry as is reasonable under the circumstances.
C(2) A party or attorney certifies that
the pleading, motion or other paper is not being presented for any improper
purpose, such as to harass or to cause unnecessary delay or needless increase
in the cost of litigation.
C(3) An attorney certifies that the claims,
defenses, and other legal positions taken in the pleading, motion or other
paper are warranted by existing law or by a nonfrivolous argument for the
extension, modification or reversal of existing law or the establishment of new
law.
C(4) A party or attorney certifies that
the allegations and other factual assertions in the pleading, motion or other
paper are supported by evidence. Any allegation or other factual assertion that
the party or attorney does not wish to certify to be supported by evidence must
be specifically identified. The attorney or party certifies that the attorney
or party reasonably believes that an allegation or other factual assertion so
identified will be supported by evidence after further investigation and
discovery.
C(5) The party or attorney certifies that
any denials of factual assertion are supported by evidence. Any denial of
factual assertion that the party or attorney does not wish to certify to be
supported by evidence must be specifically identified. The attorney or party
certifies that the attorney or party believes that a denial of a factual
assertion so identified is reasonably based on a lack of information or belief.
D Sanctions.
D(1) The court may impose sanctions
against a person or party who is found to have made a false certification under
section C of this rule, or who is found to be responsible for a false
certification under section C of this rule. A sanction may be imposed under
this section only after notice and an opportunity to be heard are provided to
the party or attorney. A law firm is jointly liable for any sanction imposed
against a partner, associate or employee of the firm, unless the court
determines that joint liability would be unjust under the circumstances.
D(2) Sanctions may be imposed under this
section upon motion of a party or upon the court’s own motion. If the court
seeks to impose sanctions on its own motion, the court shall direct the party
or attorney to appear before the court and show cause why the sanctions should
not be imposed. The court may not issue an order to appear and show cause under
this subsection at any time after the filing of a voluntary dismissal,
compromise or settlement of the action with respect to the party or attorney
against whom sanctions are sought to be imposed.
D(3) A motion by a party to the proceeding
for imposition of sanctions under this section must be made separately from
other motions and pleadings, and must describe with specificity the alleged
false certification. A motion for imposition of sanctions based on a false
certification under subsection C(4) of this rule may not be filed until 120
days after the filing of a complaint if the alleged false certification is an
allegation or other factual assertion in a complaint filed within 60 days of the
running of the statute of limitations for a claim made in the complaint.
Sanctions may not be imposed against a party until at least 21 days after the
party is served with the motion in the manner provided by Rule 9.
Notwithstanding any other provision of this section, the court may not impose
sanctions against a party if, within 21 days after the motion is served on the
party, the party amends or otherwise withdraws the pleading, motion, paper or
argument in a manner that corrects the false certification specified in the
motion. If the party does not amend or otherwise withdraw the pleading, motion,
paper or argument but thereafter prevails on the motion, the court may order
the moving party to pay to the prevailing party reasonable attorney fees
incurred by the prevailing party by reason of the motion for sanctions.
D(4) Sanctions under this section must be
limited to amounts sufficient to reimburse the moving party for attorney fees
and other expenses incurred by reason of the false certification, including
reasonable attorney fees and expenses incurred by reason of the motion for
sanctions, and upon clear and convincing evidence of wanton misconduct amounts
sufficient to deter future false certification by the party or attorney and by
other parties and attorneys. The sanction may include monetary penalties
payable to the court. The sanction must include an order requiring payment of
reasonable attorney fees and expenses incurred by the moving party by reason of
the false certification.
D(5) An order imposing sanctions under
this section must specifically describe the false certification and the grounds
for determining that the certification was false. The order must explain the
grounds for the imposition of the specific sanction that is ordered.
E Rule not applicable to discovery. This rule does not apply to any motion,
pleading or conduct that is subject to sanction under Rule 46. [CCP 12/2/78;
amended by 1979 c.284 §14; §A amended by CCP 12/8/84; amended by CCP 12/13/86;
amended by 1987 c.774 §12; amended by 1995 c.618 §4; §D amended by CCP
12/14/96; §A amended by 2003 c.194 §7]
CLAIMS FOR RELIEF
RULE 18
A pleading which asserts a claim for
relief, whether an original claim, counterclaim, cross-claim, or third party
claim, shall contain:
A A plain and concise statement of the
ultimate facts constituting a claim for relief without unnecessary repetition.
B A demand of the relief which the party
claims; if recovery of money or damages is demanded, the amount thereof shall
be stated; relief in the alternative or of several different types may be
demanded. [CCP 12/2/78; amended by CCP 12/13/86; amended by 1987 c.774 §12a;
amended by CCP 12/15/90]
RESPONSIVE
PLEADINGS
RULE 19
A Defenses; form of denials. A party shall state in short and plain terms
the party’s defenses to each claim asserted and shall admit or deny the
allegations upon which the adverse party relies. If the party is without
knowledge or information sufficient to form a belief as to the truth of an
allegation, the party shall so state and this has the effect of a denial.
Denials shall fairly meet the substance of the allegations denied. When a
pleader intends in good faith to deny only a part or a qualification of an
allegation, the pleader shall admit so much of it as is true and material and
shall deny only the remainder. Unless the pleader intends in good faith to
controvert all the allegations of the preceding pleading, the denials may be
made as specific denials of designated allegations or paragraphs, or the
pleader may generally deny all the allegations except such designated
allegations or paragraphs as the pleader expressly admits; but, when the
pleader does so intend to controvert all of the allegations of the preceding
pleading, the pleader may do so by general denial of all allegations of the
preceding pleading subject to the obligations set forth in Rule 17.
B Affirmative defenses. In pleading to a preceding pleading, a party
shall set forth affirmatively accord and satisfaction, arbitration and award,
assumption of risk, comparative or contributory negligence, discharge in
bankruptcy, duress, estoppel, failure of consideration, fraud, illegality,
injury by fellow servant, laches, license, payment, release, res judicata,
statute of frauds, statute of limitations, unconstitutionality, waiver, and any
other matter constituting an avoidance or affirmative defense. When a party has
mistakenly designated a defense as a counterclaim or a counterclaim as a
defense, the court on terms, if justice so requires, shall treat the pleading
as if there had been a proper designation.
C Effect of failure to deny. Allegations in a pleading to which a
responsive pleading is required, other than those as to the amount of damages,
are admitted when not denied in the responsive pleading. Allegations in a
pleading to which no responsive pleading is required or permitted shall be
taken as denied or avoided. [CCP 12/2/78]
SPECIAL PLEADING
RULES
RULE 20
A Conditions precedent. In pleading the performance or occurrence of
conditions precedent, it is sufficient to allege generally that all conditions
precedent have been performed or have occurred. A denial of performance or
occurrence shall be made specifically and with particularity, and when so made
the party pleading the performance or occurrence shall on the trial establish
the facts showing such performance or occurrence.
B Judgment or other determination of court or
officer; how pleaded. In
pleading a judgment or other determination of a court or officer of special
jurisdiction, it is not necessary to state the facts conferring jurisdiction,
but such judgment or determination may be stated to have been duly given or
made. If such allegation is controverted, the party pleading is bound to
establish on the trial the facts conferring jurisdiction.
C Private statute; how pleaded. In pleading a private statute, or a right
derived therefrom, it is sufficient to refer to such statute by its title and
the day of its passage, and the court shall thereupon take judicial notice
thereof.
D Corporate existence of city or county and
of ordinances or comprehensive plans generally; how pleaded.
D(1) In pleading the corporate existence
of any city, it shall be sufficient to state in the pleading that the city is
existing and duly incorporated and organized under the laws of the state of its
incorporation. In pleading the existence of any county, it shall be sufficient
to state in the pleading that the county is existing and was formed under the
laws of the state in which it is located.
D(2) In pleading an ordinance, comprehensive
plan, or enactment of any county or incorporated city, or a right derived
therefrom, in any court, it shall be sufficient to refer to the ordinance,
comprehensive plan, or enactment by its title, if any, otherwise by its
commonly accepted name or number, and the date of its passage or the date of
its approval when approval is necessary to render it effective, and the court
shall thereupon take judicial notice thereof. As used in this subsection, “comprehensive
plan” has the meaning given that term by ORS 197.015.
E Libel or slander action.
E(1) In an action for libel or slander it
shall not be necessary to state in the complaint any extrinsic facts for the
purpose of showing the application to the plaintiff of the defamatory matter
out of which the cause of action arose; but it shall be sufficient to state
generally that the same was published or spoken concerning the plaintiff. If
such allegation is controverted, the plaintiff shall be bound to establish on
the trial that it was so published or spoken.
E(2) In the answer, the defendant may
allege both the truth of the matter charged as defamatory, and any mitigating
circumstances, to reduce the amount of damages, and whether the defendant
proves the justification or not, the defendant may give in evidence the
mitigating circumstances.
F Official document or act. In pleading an official document or official
act it is sufficient to allege that the document was issued or the act done in
compliance with law.
G Recitals and negative pregnants. No allegations in a pleading shall be held
insufficient on the grounds that they are pled by way of recital rather than
alleged directly. No denial shall be treated as an admission on the ground that
it contains a negative pregnant.
H Fictitious parties. When a party is ignorant of the name of an
opposing party and so alleges in a pleading, the opposing party may be
designated by any name, and when such party’s true name is discovered, the
process and all pleadings and proceedings in the action may be amended by
substituting the true name.
I Designation of unknown heirs in actions
relating to property. When
the heirs of any deceased person are proper parties defendant to any action
relating to property in this state, and the names and residences of such heirs
are unknown, they may be proceeded against under the name and title of the “unknown
heirs” of the deceased.
J Designation of unknown persons. In any action to determine any adverse
claim, estate, lien, or interest in property, or to quiet title to property,
the plaintiff may include as a defendant in such action, and insert in the
title thereof, in addition to the names of such persons or parties as appear of
record to have, and other persons or parties who are known to have, some title,
claim, estate, lien, or interest in the property in controversy, the following:
“Also all other persons or parties unknown claiming any right, title, lien, or
interest in the property described in the complaint herein.” [CCP 12/2/78]
DEFENSES AND
OBJECTIONS; HOW PRESENTED; BY PLEADING OR MOTION; MOTION FOR JUDGMENT ON THE
PLEADINGS
RULE 21
A How presented. Every defense, in law or fact, to a claim
for relief in any pleading, whether a complaint, counterclaim, cross-claim or
third party claim, shall be asserted in the responsive pleading thereto, except
that the following defenses may at the option of the pleader be made by motion
to dismiss: (1) lack of jurisdiction over the subject matter, (2) lack of
jurisdiction over the person, (3) that there is another action pending between
the same parties for the same cause, (4) that plaintiff has not the legal
capacity to sue, (5) insufficiency of summons or process or insufficiency of
service of summons or process, (6) that the party asserting the claim is not
the real party in interest, (7) failure to join a party under Rule 29, (8)
failure to state ultimate facts sufficient to constitute a claim, and (9) that
the pleading shows that the action has not been commenced within the time
limited by statute. A motion to dismiss making any of these defenses shall be
made before pleading if a further pleading is permitted. The grounds upon which
any of the enumerated defenses are based shall be stated specifically and with
particularity in the responsive pleading or motion. No defense or objection is
waived by being joined with one or more other defenses or objections in a
responsive pleading or motion. If, on a motion to dismiss asserting defenses
(1) through (7), the facts constituting such defenses do not appear on the face
of the pleading and matters outside the pleading, including affidavits,
declarations and other evidence, are presented to the court, all parties shall
be given a reasonable opportunity to present affidavits, declarations and other
evidence, and the court may determine the existence or nonexistence of the
facts supporting such defense or may defer such determination until further
discovery or until trial on the merits. If the court grants a motion to
dismiss, the court may enter judgment in favor of the moving party or grant
leave to file an amended complaint. If the court grants the motion to dismiss
on the basis of defense (3), the court may enter judgment in favor of the
moving party, stay the proceeding, or defer entry of judgment pursuant to
subsection B(3) of Rule 54.
B Motion for judgment on the pleadings. After the pleadings are closed, but within
such time as not to delay the trial, any party may move for judgment on the
pleadings.
C Preliminary hearings. The defenses specifically denominated (1)
through (9) in section A of this rule, whether made in a pleading or by motion,
and the motion for judgment on the pleadings mentioned in section B of this
rule shall be heard and determined before trial on application of any party,
unless the court orders that the hearing and determination thereof be deferred
until the trial.
D Motion to make more definite and certain. Upon motion made by a party before
responding to a pleading, or if no responsive pleading is permitted by these
rules upon motion by a party within 10 days after service of the pleading, or
upon the court’s own initiative at any time, the court may require the pleading
to be made definite and certain by amendment when the allegations of a pleading
are so indefinite or uncertain that the precise nature of the charge, defense,
or reply is not apparent. If the motion is granted and the order of the court
is not obeyed within 10 days after service of the order or within such other
time as the court may fix, the court may strike the pleading to which the
motion was directed or make such order as it deems just.
E Motion to strike. Upon motion made by a party before
responding to a pleading or, if no responsive pleading is permitted by these
rules, upon motion made by a party within 10 days after the service of the
pleading upon such party or upon the court’s own initiative at any time, the
court may order stricken: (1) any sham, frivolous, or irrelevant pleading or
defense or any pleading containing more than one claim or defense not
separately stated; (2) any insufficient defense or any sham, frivolous,
irrelevant, or redundant matter inserted in a pleading.
F Consolidation of defenses in motion. A party who makes a motion under this rule
may join with it any other motions herein provided for and then available to
the party. If a party makes a motion under this rule, except a motion to
dismiss for lack of jurisdiction over the person or insufficiency of summons or
process or insufficiency of service of summons or process, but omits therefrom
any defense or objection then available to the party which this rule permits to
be raised by motion, the party shall not thereafter make a motion based on the
defense or objection so omitted, except a motion as provided in subsection G(3)
of this rule on any of the grounds there stated. A party may make one motion to
dismiss for lack of jurisdiction over the person or insufficiency of summons or
process or insufficiency of service of summons or process without consolidation
of defenses required by this section.
G Waiver or preservation of certain defenses.
G(1) A defense of lack of jurisdiction
over the person, that there is another action pending between the same parties
for the same cause, insufficiency of summons or process, or insufficiency of
service of summons or process, is waived under either of the following
circumstances: (a) if the defense is omitted from a motion in the circumstances
described in section F of this rule, or (b) if the defense is neither made by
motion under this rule nor included in a responsive pleading. The defenses
referred to in this subsection shall not be raised by amendment.
G(2) A defense that a plaintiff has not
the legal capacity to sue, that the party asserting the claim is not the real
party in interest, or that the action has not been commenced within the time
limited by statute, is waived if it is neither made by motion under this rule
nor included in a responsive pleading or an amendment thereof. Leave of court
to amend a pleading to assert the defenses referred to in this subsection shall
only be granted upon a showing by the party seeking to amend that such party
did not know and reasonably could not have known of the existence of the
defense or that other circumstances make denial of leave to amend unjust.
G(3) A defense of failure to state
ultimate facts constituting a claim, a defense of failure to join a party
indispensable under Rule 29, and an objection of failure to state a legal
defense to a claim or insufficiency of new matter in a reply to avoid a
defense, may be made in any pleading permitted or ordered under Rule 13 B or by
motion for judgment on the pleadings, or at the trial on the merits. The
objection or defense, if made at trial, shall be disposed of as provided in
Rule 23 B in light of any evidence that may have been received.
G(4) If it appears by motion of the
parties or otherwise that the court lacks jurisdiction over the subject matter,
the court shall dismiss the action. [CCP 12/2/78; §§F,G amended by 1979 c.284 §§15,
16; §F amended by CCP 12/13/80; §A amended by CCP 12/4/82; §E amended by 1983
c.763 §58; §E amended by CCP 12/8/84; §G amended by 1987 c.714 §6; §G amended
by 1995 c.658 §118; §A amended by CCP 12/9/00; §A amended by 2003 c.194 §8]
COUNTERCLAIMS,
CROSS-CLAIMS, AND THIRD PARTY CLAIMS
RULE 22
A Counterclaims.
A(1) Each defendant may set forth as many
counterclaims, both legal and equitable, as such defendant may have against a
plaintiff.
A(2) A counterclaim may or may not
diminish or defeat the recovery sought by the opposing party. It may claim
relief exceeding in amount or different in kind from that sought in the
pleading of the opposing party.
B Cross-claim against codefendant.
B(1) In any action where two or more
parties are joined as defendants, any defendant may in such defendant’s answer
allege a cross-claim against any other defendant. A cross-claim asserted
against a codefendant must be one existing in favor of the defendant asserting
the cross-claim and against another defendant, between whom a separate judgment
might be had in the action and shall be: (a) one arising out of the occurrence
or transaction set forth in the complaint; or (b) related to any property that
is the subject matter of the action brought by plaintiff.
B(2) A cross-claim may include a claim
that the defendant against whom it is asserted is liable, or may be liable, to
the defendant asserting the cross-claim for all or part of the claim asserted
by the plaintiff.
B(3) An answer containing a cross-claim
shall be served upon the parties who have appeared.
C Third party practice.
C(1) After commencement of the action, a
defending party, as a third party plaintiff, may cause a summons and complaint
to be served upon a person not a party to the action who is or may be liable to
the third party plaintiff for all or part of the plaintiff’s claim against the
third party plaintiff as a matter of right not later than 90 days after service
of the plaintiff’s summons and complaint on the defending party. Otherwise the
third party plaintiff must obtain agreement of parties who have appeared and
leave of court. The person served with the summons and third party complaint,
hereinafter called the third party defendant, shall assert any defenses to the
third party plaintiff’s claim as provided in Rule 21 and may assert
counterclaims against the third party plaintiff and cross-claims against other
third party defendants as provided in this rule. The third party defendant may
assert against the plaintiff any defenses which the third party plaintiff has
to the plaintiff’s claim. The third party defendant may also assert any claim
against the plaintiff arising out of the transaction or occurrence that is the
subject matter of the plaintiff’s claim against the third party plaintiff. The
plaintiff may assert any claim against the third party defendant arising out of
the transaction or occurrence that is the subject matter of the plaintiff’s
claim against the third party plaintiff, and the third party defendant
thereupon shall assert the third party defendant’s defenses as provided in Rule
21 and may assert the third party defendant’s counterclaims and cross-claims as
provided in this rule. Any party may move to strike the third party claim, or
for its severance or separate trial. A third party may proceed under this
section against any person not a party to the action who is or may be liable to
the third party defendant for all or part of the claim made in the action
against the third party defendant.
C(2) A plaintiff against whom a
counterclaim has been asserted may cause a third party to be brought in under
circumstances which would entitle a defendant to do so under subsection C(1) of
this section.
D Joinder of additional parties.
D(1) Persons other than those made parties
to the original action may be made parties to a counterclaim or cross-claim in
accordance with the provisions of Rules 28 and 29.
D(2) A defendant may, in an action on a
contract brought by an assignee of rights under that contract, join as parties
to that action all or any persons liable for attorney fees under ORS 20.097. As
used in this subsection “contract” includes any instrument or document
evidencing a debt.
D(3) In any action against a party joined
under this section of this rule, the party joined shall be treated as a
defendant for purposes of service of summons and time to answer under Rule 7.
E Separate trial. Upon motion of any party or on the court’s
own initiative, the court may order a separate trial of any counterclaim,
cross-claim, or third party claim so alleged if to do so would: (1) be more
convenient; (2) avoid prejudice; or (3) be more economical and expedite the
matter. [CCP 12/2/78; §D amended by 1979 c.284 §17; §A amended by CCP 12/13/80;
§C amended by CCP 12/4/82; §C amended by CCP 12/10/94]
AMENDED AND
SUPPLEMENTAL PLEADINGS
RULE 23
A Amendments. A pleading may be amended by a party once as
a matter of course at any time before a responsive pleading is served or, if
the pleading is one to which no responsive pleading is permitted, the party may
so amend it at any time within 20 days after it is served. Otherwise a party
may amend the pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so requires.
Whenever an amended pleading is filed, it shall be served upon all parties who
are not in default, but as to all parties who are in default or against whom a
default previously has been entered, judgment may be rendered in accordance
with the prayer of the original pleading served upon them; and neither the
amended pleading nor the process thereon need be served upon such parties in
default unless the amended pleading asks for additional relief against the
parties in default.
B Amendments to conform to the evidence. When issues not raised by the pleadings are
tried by express or implied consent of the parties, they shall be treated in
all respects as if they had been raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at any time, even after
judgment; but failure so to amend does not affect the result of the trial of
these issues. If evidence is objected to at the trial on the ground that it is
not within the issues made by the pleadings, the court may allow the pleadings
to be amended when the presentation of the merits of the action will be
subserved thereby and the objecting party fails to satisfy the court that the
admission of such evidence would prejudice such party in maintaining an action
or defense upon the merits. The court may grant a continuance to enable the
objecting party to meet such evidence.
C Relation back of amendments. Whenever the claim or defense asserted in
the amended pleading arose out of the conduct, transaction, or occurrence set
forth or attempted to be set forth in the original pleading, the amendment
relates back to the date of the original pleading. An amendment changing the
party against whom a claim is asserted relates back if the foregoing provision
is satisfied and, within the period provided by law for commencing the action
against the party to be brought in by amendment, such party (1) has received
such notice of the institution of the action that the party will not be
prejudiced in maintaining any defense on the merits, and (2) knew or should
have known that, but for a mistake concerning the identity of the proper party,
the action would have been brought against the party brought in by amendment.
D How amendment made. When any pleading is amended before trial,
mere clerical errors excepted, it shall be done by filing a new pleading, to be
called the amended pleading, or by interlineation, deletion, or otherwise. Such
amended pleading shall be complete in itself, without reference to the original
or any preceding amended one.
E Supplemental pleadings. Upon motion of a party the court may, upon
reasonable notice and upon such terms as are just, permit the party to serve a
supplemental pleading setting forth transactions or occurrences or events which
have happened since the date of the pleading sought to be supplemented.
Permission may be granted even though the original pleading is defective in its
statement of a claim for relief or defense. If the court deems it advisable
that the adverse party plead to the supplemental pleading, it shall so order,
specifying the time therefor. [CCP 12/2/78; §§B,D,E,F,G amended by CCP
12/13/80]
JOINDER OF CLAIMS
RULE 24
A Permissive joinder. A plaintiff may join in a complaint, either
as independent or as alternate claims, as many claims, legal or equitable, as
the plaintiff has against an opposing party.
B Forcible entry and detainer and rental due. If a claim of forcible entry and detainer
and a claim for rental due are joined, the defendant shall have the same time
to appear as is provided by rule or statute in actions for the recovery of
rental due.
C Separate statement. The claims joined must be separately stated
and must not require different places of trial. [CCP 12/2/78; amended by 1979
c.284 §18]
EFFECT OF
PROCEEDING AFTER MOTION OR AMENDMENT
RULE 25
A Amendment or pleading over after motion;
non-waiver of defenses or objections. When a motion to dismiss or a motion to strike an entire pleading or a
motion for a judgment on the pleadings under Rule 21 is allowed, the court may,
upon such terms as may be proper, allow the party to amend the pleading. In all
cases where part of a pleading is ordered stricken, the pleading shall be
amended in accordance with Rule 23 D. By amending a pleading pursuant to this
section, the party amending such pleading shall not be deemed thereby to have
waived the right to challenge the correctness of the court’s ruling.
B Amendment of pleading; objections to amended
pleading not waived. If a
pleading is amended, whether pursuant to sections A or B of Rule 23 or section
A of this rule or pursuant to other rule or statute, a party who has filed and
received a court’s ruling on any motion directed to the preceding pleading does
not waive any defenses or objections asserted in such motion by failing to
reassert them against the amended pleading.
C Denial of motion; non-waiver by filing
responsive pleading. If an
objection or defense is raised by motion, and the motion is denied, the party
filing the motion does not waive the objection or defense by filing a responsive
pleading or by failing to re-assert the objection or defense in the responsive
pleading or by otherwise proceeding with the prosecution or defense of the
action. [CCP 12/13/80]
REAL PARTY IN
INTEREST; CAPACITY OF PARTNERSHIPS AND ASSOCIATIONS
RULE 26
A Real party in interest. Every action shall be prosecuted in the name
of the real party in interest. An executor, administrator, guardian,
conservator, bailee, trustee of an express trust, a party with whom or in whose
name a contract has been made for the benefit of another, or a party authorized
by statute may sue in that party’s own name without joining the party for whose
benefit the action is brought; and when a statute of this state so provides, an
action for the use or benefit of another shall be brought in the name of the
state. No action shall be dismissed on the ground that it is not prosecuted in
the name of the real party in interest until a reasonable time has been allowed
after objection for ratification of commencement of the action by, or joinder
or substitution of, the real party in interest; and such ratification, joinder,
or substitution shall have the same effect as if the action had been commenced
in the name of the real party in interest.
B Partnerships and associations. Any partnership or other unincorporated
association, whether organized for profit or not, may sue in any name which it
has assumed and be sued in any name which it has assumed or by which it is
known. Any member of the partnership or other unincorporated association may be
joined as a party in an action against the partnership or unincorporated
association. [CCP 12/2/78; amended by CCP 12/13/80]
MINOR OR INCAPACITATED
PARTIES
RULE 27
A Appearance of minor parties by guardian or
conservator. When a minor,
who has a conservator of such minor’s estate or a guardian, is a party to any
action, such minor shall appear by the conservator or guardian as may be
appropriate or, if the court so orders, by a guardian ad litem appointed by the
court in which the action is brought. If the minor does not have a conservator
of such minor’s estate or a guardian, the minor shall appear by a guardian ad
litem appointed by the court. The court shall appoint some suitable person to
act as guardian ad litem:
A(1) When the minor is plaintiff, upon
application of the minor, if the minor is 14 years of age or older, or upon
application of a relative or friend of the minor if the minor is under 14 years
of age.
A(2) When the minor is defendant, upon
application of the minor, if the minor is 14 years of age or older, filed
within the period of time specified by these rules or other rule or statute for
appearance and answer after service of summons, or if the minor fails so to
apply or is under 14 years of age, upon application of any other party or of a
relative or friend of the minor.
B Appearance of incapacitated person by
conservator or guardian.
When a person who is incapacitated or financially incapable, as defined in ORS
125.005, who has a conservator of such person’s estate or a guardian, is a
party to any action, the person shall appear by the conservator or guardian as
may be appropriate or, if the court so orders, by a guardian ad litem appointed
by the court in which the action is brought. If the person does not have a
conservator of such person’s estate or a guardian, the person shall appear by a
guardian ad litem appointed by the court. The court shall appoint some suitable
person to act as guardian ad litem:
B(1) When the person who is incapacitated
or financially incapable, as defined in ORS 125.005, is plaintiff, upon
application of a relative or friend of the person.
B(2) When the person is defendant, upon
application of a relative or friend of the person filed within the period of
time specified by these rules or other rule or statute for appearance and
answer after service of summons, or if the application is not so filed, upon
application of any party other than the person. [CCP 12/2/78; amended by 1979
c.284 §19; §B amended by CCP 12/15/90; §B amended by 1995 c.79 §403 and 1995
c.664 §100]
JOINDER OF PARTIES
RULE 28
A Permissive joinder as plaintiffs or
defendants. All persons may
join in one action as plaintiffs if they assert any right to relief jointly,
severally, or in the alternative in respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences and if any
question of law or fact common to all these persons will arise in the action.
All persons may be joined in one action as defendants if there is asserted
against them jointly, severally, or in the alternative, any right to relief in
respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences and if any question of law or fact common to all
defendants will arise in the action. A plaintiff or defendant need not be
interested in obtaining or defending against all the relief demanded. Judgment
may be given for one or more of the plaintiffs according to their respective
rights to relief, and against one or more defendants according to their respective
liabilities.
B Separate trials. The court may make such orders as will
prevent a party from being embarrassed, delayed, or put to unnecessary expense
by the inclusion of a party against whom that party asserts no claim and who
asserts no claim against that party. The court may order separate trials or
make other orders to prevent delay or prejudice. [CCP 12/2/78]
JOINDER OF PERSONS
NEEDED FOR JUST ADJUDICATION
RULE 29
A Persons to be joined if feasible. A person who is subject to service of process
shall be joined as a party in the action if (1) in that person’s absence
complete relief cannot be accorded among those already parties, or (2) that
person claims an interest relating to the subject of the action and is so
situated that the disposition in that person’s absence may (a) as a practical
matter impair or impede the person’s ability to protect that interest or (b)
leave any of the persons already parties subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent obligations by reason of
their claimed interest. If such person has not been so joined, the court shall
order that such person be made a party. If a person should join as a plaintiff
but refuses to do so, such person shall be made a defendant, the reason being
stated in the complaint.
B Determination by court whenever joinder not
feasible. If a person as
described in subsections A(1) and (2) of this rule cannot be made a party, the
court shall determine whether in equity and good conscience the action should
proceed among the parties before it, or should be dismissed, the absent person
being thus regarded as indispensable. The factors to be considered by the court
include: first, to what extent a judgment rendered in the person’s absence
might be prejudicial to the person or those already parties; second, the extent
to which, by protective provisions in the judgment, by the shaping of relief,
or other measures, the prejudice can be lessened or avoided; third, whether a
judgment rendered in the person’s absence will be adequate; fourth, whether the
plaintiff will have an adequate remedy if the action is dismissed for
nonjoinder.
C Exception of class actions. This rule is subject to the provisions of
Rule 32. [CCP 12/2/78; amended by 1979 c.284 §20]
MISJOINDER AND
NONJOINDER OF PARTIES
RULE 30
Misjoinder and nonjoinder of parties. Misjoinder of parties is not ground for
dismissal of an action. Parties may be dropped or added by order of the court
on motion of any party or of its own initiative at any stage of the action and
on such terms as are just. Any claim against a party may be severed and
proceeded with separately. [CCP 12/2/78]
INTERPLEADER
RULE 31
A Parties. Persons having claims against the plaintiff may be joined as
defendants and required to interplead when their claims are such that the
plaintiff is or may be exposed to double or multiple liability. It is not
ground for objection to the joinder that the claims of the several claimants or
the titles on which their claims depend do not have a common origin or are not
identical but adverse to and independent of one another, or that the plaintiff
alleges that plaintiff is not liable in whole or in part to any or all of the
claimants. A defendant exposed to similar liability may obtain such interpleader
by way of cross-claim or counterclaim. The provisions of this rule supplement
and do not in any way limit the joinder of parties otherwise permitted by rule
or statute.
B Procedure. Any property or amount involved as to which
the plaintiff admits liability may, upon order of the court, be deposited with
the court or otherwise preserved, or secured by bond in an amount sufficient to
assure payment of the liability admitted. The court may thereafter enjoin all
parties before it from commencing or prosecuting any other action regarding the
subject matter of the interpleader action. Upon hearing, the court may order
the plaintiff discharged from liability as to property deposited or secured
before determining the rights of the claimants thereto.
C Attorney fees. In any suit or action in interpleader filed
pursuant to this rule by any party other than a party who has been compensated
for acting as a surety with respect to the funds or property interpled, the
party filing the suit or action in interpleader shall be awarded a reasonable
attorney fee in addition to costs and disbursements upon the court ordering
that the funds or property interpled be deposited with the court, secured or
otherwise preserved and that the party filing the suit or action in interpleader
be discharged from liability as to the funds or property. The attorney fees
awarded shall be assessed against and paid from the funds or property ordered
interpled by the court. [CCP 12/2/78; amended by 1991 c.733 §1]
CLASS ACTIONS
RULE 32
A Requirement for class action. One or more members of a class may sue or be
sued as representative parties on behalf of all only if:
A(1) The class is so numerous that joinder
of all members is impracticable;
A(2) There are questions of law or fact
common to the class;
A(3) The claims or defenses of the
representative parties are typical of the claims or defenses of the class;
A(4) The representative parties will
fairly and adequately protect the interests of the class; and
A(5) In an action for damages, the representative
parties have complied with the prelitigation notice provisions of section H of
this rule.
B Class action maintainable. An action may be maintained as a class
action if the prerequisites of section A of this rule are satisfied, and in
addition, the court finds that a class action is superior to other available
methods for the fair and efficient adjudication of the controversy. The matters
pertinent to this finding include:
B(1) The extent to which the prosecution
of separate actions by or against individual members of the class creates a
risk of:
B(1)(a) Inconsistent or varying
adjudications with respect to members of the class which would establish
incompatible standards of conduct for the party opposing the class; or
B(1)(b) Adjudications with respect to
members of the class which would as a practical matter be dispositive of the
interests of the other members not parties to the adjudications or
substantially impair or impede their ability to protect their interests;
B(2) The extent to which the relief sought
would take the form of injunctive relief or corresponding declaratory relief
with respect to the class as a whole;
B(3) The extent to which questions of law
or fact common to the members of the class predominate over any questions affecting
only individual members;
B(4) The interest of members of the class
in individually controlling the prosecution or defense of separate actions;
B(5) The extent and nature of any
litigation concerning the controversy already commenced by or against members
of the class;
B(6) The desirability or undesirability of
concentrating the litigation of the claims in the particular forum;
B(7) The difficulties likely to be
encountered in the management of a class action that will be eliminated or
significantly reduced if the controversy is adjudicated by other available
means; and
B(8) Whether or not the claims of
individual class members are insufficient in the amounts or interests involved,
in view of the complexities of the issues and the expenses of the litigation,
to afford significant relief to the members of the class.
C Determination by order whether class action
to be maintained.
C(1) As soon as practicable after the
commencement of an action brought as a class action, the court shall determine
by order whether and with respect to what claims or issues it is to be so
maintained and shall find the facts specially and state separately its
conclusions thereon. An order under this section may be conditional, and may be
altered or amended before the decision on the merits.
C(2) Where a party has relied upon a
statute or law which another party seeks to have declared invalid, or where a
party has in good faith relied upon any legislative, judicial, or
administrative interpretation or regulation which would necessarily have to be
voided or held inapplicable if another party is to prevail in the class action,
the court may postpone a determination under subsection (1) of this section
until the court has made a determination as to the validity or applicability of
the statute, law, interpretation, or regulation.
D Dismissal or compromise of class actions;
court approval required; when notice required. Any action filed as a class action in which
there has been no ruling under subsection C(1) of this rule and any action
ordered maintained as a class action shall not be voluntarily dismissed or
compromised without the approval of the court, and notice of the proposed
dismissal or compromise shall be given to some or all members of the class in
such manner as the court directs, except that if the dismissal is to be without
prejudice or with prejudice against the class representative only, then such
dismissal may be ordered without notice if there is a showing that no
compensation in any form has passed directly or indirectly from the party
opposing the class to the class representative or to the class representative’s
attorney and that no promise of such compensation has been made. If the statute
of limitations has run or may run against the claim of any class member, the
court may require appropriate notice.
E Court authority over conduct of class
actions. In the conduct of
actions to which this rule applies, the court may make appropriate orders which
may be altered or amended as may be desirable:
E(1) Determining the course of proceedings
or prescribing measures to prevent undue repetition or complication in the
presentation of evidence or argument, including precertification determination
of a motion made by any party pursuant to Rules 21 or 47 if the court concludes
that such determination will promote the fair and efficient adjudication of the
controversy and will not cause undue delay;
E(2) Requiring, for the protection of
class members or otherwise for the fair conduct of the action, that notice be
given in such manner as the court may direct to some or all class members of
any step in the action, of the proposed extent of the judgment; of the
opportunity of members to signify whether they consider the representation fair
and adequate, to intervene and present claims or defenses or otherwise to come
into the action, or to be excluded from the class;
E(3) Imposing conditions on the
representative parties, class members, or intervenors;
E(4) Requiring that the pleadings be
amended to eliminate therefrom allegations as to representation of absent
persons, and that the action proceed accordingly; and
E(5) Dealing with similar procedural
matters.
F Notice and exclusion.
F(1) When ordering that an action be
maintained as a class action under this rule, the court shall direct that
notice be given to some or all members of the class under subsection E(2) of
this rule, shall determine when and how this notice should be given and shall
determine whether, when, how, and under what conditions putative members may
elect to be excluded from the class. The matters pertinent to these
determinations ordinarily include: (a) the nature of the controversy and the
relief sought; (b) the extent and nature of any member’s injury or liability;
(c) the interest of the party opposing the class in securing a final resolution
of the matters in controversy; (d) the inefficiency or impracticality of
separately maintained actions to resolve the controversy; (e) the cost of
notifying the members of the class; and (f) the possible prejudice to members
to whom notice is not directed. When appropriate, exclusion may be conditioned
on a prohibition against institution or maintenance of a separate action on
some or all of the matters in controversy in the class action or a prohibition
against use in a separately maintained action of any judgment rendered in favor
of the class from which exclusion is sought.
F(2) Prior to the entry of a judgment
against a defendant the court shall request members of the class who may be
entitled to individual monetary recovery to submit a statement in a form
prescribed by the court requesting affirmative relief which may also, where
appropriate, require information regarding the nature of the loss, injury,
claim, transactional relationship, or damage. The statement shall be designed
to meet the ends of justice. In determining the form of the statement, the
court shall consider the nature of the acts of the defendant, the amount of
knowledge a class member would have about the extent of such member’s damages,
the nature of the class including the probable degree of sophistication of its
members, and the availability of relevant information from sources other than
the individual class members. The amount of damages assessed against the
defendant shall not exceed the total amount of damages determined to be
allowable by the court for each individual class member who has filed a
statement required by the court, assessable court costs, and an award of
attorney fees, if any, as determined by the court.
F(3) Failure of a class member to file a
statement required by the court will be grounds for entry of judgment
dismissing such class member’s claim for individual monetary recovery without
prejudice to the right to maintain an individual, but not a class, action for
such claim.
F(4) Plaintiffs shall bear costs of any
notice ordered prior to a determination of liability. The court may, however,
order that defendant bear all or a specified part of the costs of any notice
included with a regular mailing by defendant to its current customers or
employees. The court may hold a hearing to determine how the costs of such
notice shall be apportioned.
F(5) No duty of compliance with due
process notice requirements is imposed on a defendant by reason of the
defendant including notice with a regular mailing by the defendant to current
customers or employes of the defendant under this section.
F(6) As used in this section, “customer”
includes a person, including but not limited to a student, who has purchased
services or goods from a defendant.
G Commencement or maintenance of class
actions regarding particular issues; subclasses. When appropriate an action may be brought or
ordered maintained as a class action with respect to particular claims or
issues or by or against multiple classes or subclasses. Each subclass must
separately satisfy all requirements of this rule except for subsection A(1).
H Notice and demand required prior to
commencement of action for damages.
H(1) Thirty days or more prior to the
commencement of an action for damages pursuant to the provisions of sections A
and B of this rule, the potential plaintiffs’ class representative shall:
H(1)(a) Notify the potential defendant of
the particular alleged cause of action; and
H(1)(b) Demand that such person correct or
rectify the alleged wrong.
H(2) Such notice shall be in writing and
shall be sent by certified or registered mail, return receipt requested, to the
place where the transaction occurred, such person’s principal place of business
within this state, or, in the case of a corporation or limited partnership not
authorized to transact business in this state, to the principal office or place
of business of the corporation or limited partnership, and to any address the
use of which the class representative knows, or on the basis of reasonable
inquiry, has reason to believe is most likely to result in actual notice.
I Limitation on maintenance of class actions
for damages. No action for
damages may be maintained under the provisions of sections A and B of this rule
upon a showing by a defendant that all of the following exist:
I(1) All potential class members similarly
situated have been identified, or a reasonable effort to identify such other
people has been made;
I(2) All potential class members so
identified have been notified that upon their request the defendant will make
the appropriate compensation, correction, or remedy of the alleged wrong;
I(3) Such compensation, correction, or
remedy has been, or, in a reasonable time, will be, given; and
I(4) Such person has ceased from engaging
in, or if immediate cessation is impossible or unreasonably expensive under the
circumstances, such person will, within a reasonable time, cease to engage in
such methods, acts, or practices alleged to be violative of the rights of potential
class members.
J Application of sections H and I of this
rule to actions for equitable relief; amendment of complaints for equitable
relief to request damages permitted. An action for equitable relief brought under sections A and B of this
rule may be commenced without compliance with the provisions of section H of
this rule. Not less than 30 days after the commencement of an action for
equitable relief, and after compliance with the provisions of section H of this
rule, the class representative’s complaint may be amended without leave of
court to include a request for damages. The provisions of section I of this
rule shall be applicable if the complaint for injunctive relief is amended to
request damages.
K Limitation on maintenance of class actions
for recovery of certain statutory penalties. A class action may not be maintained for the recovery of statutory
minimum penalties for any class member as provided in ORS 646.638 or 15 U.S.C.
1640(a) or any other similar statute.
L Coordination of pending class actions
sharing common question of law or fact.
L(1)(a) When class actions sharing a
common question of fact or law are pending in different courts, the presiding
judge of any such court, upon motion of any party or on the court’s own
initiative, may request the Supreme Court to assign a Circuit Court, Court of
Appeals, or Supreme Court judge to determine whether coordination of the
actions is appropriate, and a judge shall be so assigned to make that
determination.
L(1)(b) Coordination of class actions
sharing a common question of fact or law is appropriate if one judge hearing
all of the actions for all purposes in a selected site or sites will promote
the ends of justice taking into account whether the common question of fact or
law is predominating and significant to the litigation; the convenience of
parties, witnesses, and counsel; the relative development of the actions and
the work product of counsel; the efficient utilization of judicial facilities
and personnel; the calendar of the courts; the disadvantages of duplicative and
inconsistent rulings, orders, or judgments; and the likelihood of settlement of
the actions without further litigation should coordination be denied.
L(2) If the assigned judge determines that
coordination is appropriate, such judge shall order the actions coordinated,
report that fact to the Chief Justice of the Supreme Court, and the Chief
Justice shall assign a judge to hear and determine the actions in the site or
sites the Chief Justice deems appropriate.
L(3) The judge of any court in which there
is pending an action sharing a common question of fact or law with coordinated
actions, upon motion of any party or on the court’s own initiative, may request
the judge assigned to hear the coordinated action for an order coordinating
such actions. Coordination of the action pending before the judge so requesting
shall be determined under the standards specified in subsection (1) of this
section.
L(4) Pending any determination of whether
coordination is appropriate, the judge assigned to make the determination may
stay any action being considered for, or affecting any action being considered
for, coordination.
L(5) Notwithstanding any other provision
of law, the Supreme Court shall provide by rule the practice and procedure for
coordination of class actions in convenient courts, including provision for
giving notice and presenting evidence.
M Form of judgment. The judgment in an action ordered maintained
as a class action, whether or not favorable to the class, shall specify or
describe those found to be members of the class or who, as a condition of
exclusion, have agreed to be bound by the judgment. If a judgment that includes
a money award is entered in favor of a class, the judgment must, when possible,
identify by name each member of the class and the amount to be recovered
thereby.
N Attorney fees, costs, disbursements, and
litigation expenses.
N(1)(a) Attorney fees for representing a
class are subject to control of the court.
N(1)(b) If under an applicable provision
of law a defendant or defendant class is entitled to attorney fees, costs, or
disbursements from a plaintiff class, only representative parties and those
members of the class who have appeared individually are liable for those
amounts. If a plaintiff is entitled to attorney fees, costs, or disbursements
from a defendant class, the court may apportion the fees, costs, or
disbursements among the members of the class.
N(1)(c) If the prevailing class recovers a
judgment that can be divided for the purpose, the court may order reasonable
attorney fees and litigation expenses of the class to be paid from the
recovery.
N(1)(d) The court may order the adverse
party to pay to the prevailing class its reasonable attorney fees and
litigation expenses if permitted by law in similar cases not involving a class.
N(1)(e) In determining the amount of
attorney fees for a prevailing class the court shall consider the following
factors:
N(1)(e)(i) The time and effort expended by
the attorney in the litigation, including the nature, extent, and quality of
the services rendered;
N(1)(e)(ii) Results achieved and benefits
conferred upon the class;
N(1)(e)(iii) The magnitude, complexity,
and uniqueness of the litigation;
N(1)(e)(iv) The contingent nature of
success; and
N(1)(e)(v) Appropriate criteria in DR
2-106 of the Oregon Code of Professional Responsibility.
N(2) Before a hearing under section C of
this rule or at any other time the court directs, the representative parties
and the attorney for the representative parties shall file with the court,
jointly or separately:
N(2)(a) A statement showing any amount
paid or promised them by any person for the services rendered or to be rendered
in connection with the action or for the costs and expenses of the litigation and
the source of all of the amounts;
N(2)(b) A copy of any written agreement,
or a summary of any oral agreement, between the representative parties and
their attorney concerning financial arrangement or fees; and
N(2)(c) A copy of any written agreement,
or a summary of any oral agreement, by the representative parties or the
attorney to share these amounts with any person other than a member, regular
associate, or an attorney regularly of counsel with the law firm of the
representative parties’ attorney. This statement shall be supplemented promptly
if additional arrangements are made.
O Statute of limitations. The statute of limitations is tolled for all
class members upon the commencement of an action asserting a class action. The
statute of limitations resumes running against a member of a class:
O(1) Upon filing of an election of
exclusion by such class member;
O(2) Upon entry of an order of
certification, or of an amendment thereof, eliminating the class member from
the class;
O(3) Except as to representative parties,
upon entry of an order under section C of this rule refusing to certify the
class as a class action; and
O(4) Upon dismissal of the action without
an adjudication on the merits. [CCP 12/2/78; amended by CCP 12/13/80; amended
by 1981 c.912 §1; §H amended by CCP 12/8/84; amended by CCP 12/12/92; §F
amended by CCP 12/10/94; §N amended by CCP 12/9/00; §§F,M amended by 2003 c.576
§§173,259]
INTERVENTION
RULE 33
A Definition. Intervention takes place when a third person
is permitted to become a party to an action between other persons, either by
joining the plaintiff in claiming what is sought by the complaint, by uniting
with the defendant in resisting the claims of the plaintiff, or by demanding
something adversely to both the plaintiff and defendant.
B Intervention of right. At any time before trial, any person shall
be permitted to intervene in an action when a statute of this state, these
rules, or the common law, confers an unconditional right to intervene.
C Permissive intervention. At any time before trial, any person who has
an interest in the matter in litigation may, by leave of court, intervene. In
exercising its discretion, the court shall consider whether the intervention
will unduly delay or prejudice the adjudication of the rights of the original
parties.
D Procedure. A person desiring to intervene shall serve a
motion to intervene upon the parties as provided in Rule 9. The motion shall
state the grounds therefor and shall be accompanied by a pleading setting forth
the claim or defense for which intervention is sought. If the court allows the
intervention, parties shall, within 10 days, file those responsive pleadings
which are permitted or required by these rules for such pleading. [CCP 12/2/78;
§B amended by 1979 c.284 §21]
SUBSTITUTION OF
PARTIES
RULE 34
A Nonabatement of action by death,
disability, or transfer. No
action shall abate by the death or disability of a party, or by the transfer of
any interest therein, if the claim survives or continues.
B Death of a party; continued proceedings. In case of the death of a party, the court
shall, on motion, allow the action to be continued:
B(1) By such party’s personal
representative or successors in interest at any time within one year after such
party’s death; or
B(2) Against such party’s personal
representative or successors in interest unless the personal representative or
successors in interest mail or deliver notice including the information
required by ORS 115.003 (3) to the claimant or to the claimant’s attorney if
the claimant is known to be represented, and the claimant or his attorney fails
to move the court to substitute the personal representative or successors in
interest within 30 days of mailing or delivery.
C Disability of a party; continued
proceedings. In case of the
disability of a party, the court may, at any time within one year thereafter,
on motion, allow the action to be continued by or against the party’s guardian
or conservator or successors in interest.
D Death of a party; surviving parties. In the event of the death of one or more of
the plaintiffs or of one or more of the defendants in an action in which the
right sought to be enforced survives only to the surviving plaintiffs or only
against the surviving defendants, the action does not abate. The death shall be
shown upon the record by a written statement of a party signed in conformance
with Rule 17 and the action shall proceed in favor of or against the surviving
parties.
E Transfer of interest. In case of any transfer of interest, the action
may be continued by or against the original party, unless the court upon motion
directs the person to whom the interest is transferred to be substituted in the
action or joined with the original party.
F Public officers; death or separation from
office.
F(1) When a public officer is a party to
an action in such officer’s official capacity and during its pendency dies,
resigns, or otherwise ceases to hold office, the action does not abate and such
officer’s successor is automatically substituted as a party. Proceedings
following the substitution shall be in the name of the substituted party, but
any misnomer not affecting the substantial rights of the parties shall be
disregarded. An order of substitution may be entered at any time, but the
omission to enter such an order shall not affect the substitution.
F(2) When a public officer sues or is sued
in such officer’s official capacity, such officer may be described as a party
by official title rather than by name; but the court may require such officer’s
name to be added.
G Procedure. The motion for substitution may be made by
any party, or by the successors in interest or representatives of the deceased
or disabled party, or the successors in interest of the transferor and shall be
served on the parties as provided in Rule 9 and upon persons not parties in the
manner provided in Rule 7 for the service of a summons. [CCP 12/2/78; §D
amended by 1979 c.284 §22; §B amended by CCP 12/14/02]
RULE 35 (Reserved
for Expansion)
GENERAL PROVISIONS
GOVERNING DISCOVERY
RULE 36
A Discovery methods. Parties may obtain discovery by one or more
of the following methods: depositions upon oral examination or written
questions; production of documents or things or permission to enter upon land
or other property, for inspection and other purposes; physical and mental
examinations; and requests for admission.
B Scope of discovery. Unless otherwise limited by order of the
court in accordance with these rules, the scope of discovery is as follows:
B(1) In
general. For all forms of discovery, parties may inquire regarding any
matter, not privileged, which is relevant to the claim or defense of the party
seeking discovery or to the claim or defense of any other party, including the
existence, description, nature, custody, condition, and location of any books,
documents, or other tangible things, and the identity and location of persons
having knowledge of any discoverable matter. It is not ground for objection
that the information sought will be inadmissible at the trial if the
information sought appears reasonably calculated to lead to the discovery of
admissible evidence.
B(2) Insurance
agreements or policies. B(2)(a) A
party, upon the request of an adverse party, shall disclose the existence and
contents of any insurance agreement or policy under which a person transacting
insurance may be liable to satisfy part or all of a judgment which may be
entered in the action or to indemnify or reimburse for payments made to satisfy
the judgment.
B(2)(b) The obligation to disclose under
this subsection shall be performed as soon as practicable following the filing
of the complaint and the request to disclose. The court may supervise the
exercise of disclosure to the extent necessary to insure that it proceeds
properly and expeditiously. However, the court may limit the extent of
disclosure under this subsection as provided in section C of this rule.
B(2)(c) Information concerning the
insurance agreement or policy is not by reason of disclosure admissible in
evidence at trial. For purposes of this subsection, an application for
insurance shall not be treated as part of an insurance agreement or policy.
B(2)(d) As used in this subsection, “disclose”
means to afford the adverse party an opportunity to inspect or copy the
insurance agreement or policy.
B(3) Trial
preparation materials. Subject to the provisions of Rule 44, a party may
obtain discovery of documents and tangible things otherwise discoverable under
subsection B(1) of this rule and prepared in anticipation of litigation or for
trial by or for another party or by or for that other party’s representative
(including an attorney, consultant, surety, indemnitor, insurer, or agent) only
upon a showing that the party seeking discovery has substantial need of the
materials in the preparation of such party’s case and is unable without undue
hardship to obtain the substantial equivalent of the materials by other means.
In ordering discovery of such materials when the required showing has been
made, the court shall protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or other representative
of a party concerning the litigation.
A party may obtain, without the required
showing, a statement concerning the action or its subject matter previously
made by that party. Upon request, a person who is not a party may obtain,
without the required showing, a statement concerning the action or its subject
matter previously made by that person. If the request is refused, the person or
party requesting the statement may move for a court order. The provisions of
Rule 46 A(4) apply to the award of expenses incurred in relation to the motion.
For purposes of this subsection, a statement previously made is (a) a written
statement signed or otherwise adopted or approved by the person making it, or
(b) a stenographic, mechanical, electrical, or other recording, or a
transcription thereof, which is a substantially verbatim recital of an oral
statement by the person making it and contemporaneously recorded.
C Court order limiting extent of disclosure. Upon motion by a party or by the person from
whom discovery is sought, and for good cause shown, the court in which the
action is pending may make any order which justice requires to protect a party
or person from annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following: (1) that the discovery not be
had; (2) that the discovery may be had only on specified terms and conditions,
including a designation of the time or place; (3) that the discovery may be had
only by a method of discovery other than that selected by the party seeking
discovery; (4) that certain matters not be inquired into, or that the scope of
the discovery be limited to certain matters; (5) that discovery be conducted
with no one present except persons designated by the court; (6) that a
deposition after being sealed be opened only by order of the court; (7) that a
trade secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way; (8) that
the parties simultaneously file specified documents or information enclosed in
sealed envelopes to be opened as directed by the court; or (9) that to prevent
hardship the party requesting discovery pay to the other party reasonable
expenses incurred in attending the deposition or otherwise responding to the
request for discovery.
If the motion for a protective order is
denied in whole or in part, the court may, on such terms and conditions as are
just, order that any party or person provide or permit discovery. The
provisions of Rule 46 A(4) apply to the award of expenses incurred in relation
to the motion. [CCP 12/2/78; §B amended by 1979 c.284 §23; §B(3) amended by CCP
12/13/80]
PERPETUATION OF
TESTIMONY OR EVIDENCE BEFORE ACTION OR PENDING APPEAL
RULE 37
A Before action.
A(1) Petition.
A person who desires to perpetuate testimony or to obtain discovery to
perpetuate evidence under Rule 43 or Rule 44 regarding any matter that may be
cognizable in any court of this state may file a petition in the circuit court
in the county of such person’s residence or the residence of any expected
adverse party. The petition shall be entitled in the name of the petitioner and
shall show: (a) that the petitioner, or the petitioner’s personal
representatives, heirs, beneficiaries, successors, or assigns are likely to be
a party to an action cognizable in a court of this state and are presently
unable to bring such an action or defend it, or that the petitioner has an
interest in real property or some easement or franchise therein, about which a
controversy may arise, which would be the subject of such action; (b) the
subject matter of the expected action and petitioner’s interest therein and a
copy, attached to the petition, of any written instrument the validity or
construction of which may be called into question or which is connected with
the subject matter of the expected action; (c) the facts which petitioner
desires to establish by the proposed testimony or other discovery and
petitioner’s reasons for desiring to perpetuate; (d) the names or a description
of the persons petitioner expects will be adverse parties and their addresses
so far as one is known; and, (e) the names and addresses of the parties to be
examined or from whom discovery is sought and the substance of the testimony or
other discovery which petitioner expects to elicit and obtain from each. The
petition shall name persons to be examined and ask for an order authorizing the
petitioner to take their depositions for the purpose of perpetuating their
testimony, or shall name persons in the petition from whom discovery is sought
and shall ask for an order allowing discovery under Rule 43 or Rule 44 from
such persons for the purpose of preserving evidence.
A(2) Notice
and service. The petitioner shall thereafter serve a notice upon each
person named in the petition as an expected adverse party, together with a copy
of the petition, stating that the petitioner will apply to the court at a time
and place named therein, for the order described in the petition. The notice
shall be served either within or without the state in the manner provided for
service of summons in Rule 7, but if such service cannot with due diligence be
made upon any expected adverse party named in the petition, the court may make
such order as is just for service by publication or otherwise, and shall
appoint, for persons not served with summons in the manner provided in Rule 7,
an attorney who shall represent them and whose services shall be paid for by
petitioner in an amount fixed by the court, and, in case they are not otherwise
represented, shall cross examine the deponent. Testimony and evidence
perpetuated under this rule shall be admissible against expected adverse parties
not served with notice only in accordance with the applicable rules of
evidence. If any expected adverse party is a minor or incompetent, the
provisions of Rule 27 apply.
A(3) Order
and examination. If the court is satisfied that the perpetuation of the
testimony or other discovery to perpetuate evidence may prevent a failure or
delay of justice, it shall make an order designating or describing the persons
whose depositions may be taken and specifying the subject matter of the
examination and whether the depositions shall be taken upon oral examination or
written questions; or shall make an order designating or describing the persons
from whom discovery may be sought under Rule 43 specifying the objects of such
discovery; or shall make an order for a physical or mental examination as
provided in Rule 44. Discovery may then be had in accordance with these rules.
For the purpose of applying these rules to discovery before action, each
reference therein to the court in which the action is pending shall be deemed
to refer to the court in which the petition for such discovery was filed.
B Pending appeal. If an appeal has been taken from a judgment
of a court to which these rules apply or before the taking of an appeal if the
time therefor has not expired, the court in which the judgment was rendered may
allow the taking of the depositions of witnesses to perpetuate their testimony
or may allow discovery under Rule 43 or Rule 44 for use in the event of further
proceedings in such court. In such case the party who desires to perpetuate the
testimony or obtain the discovery may make a motion in the court therefor upon
the same notice and service thereof as if the action was pending in the circuit
court. The motion shall show: (1) the names and addresses of the persons to be
examined or from whom other discovery is sought and the substance of the
testimony or other discovery which the party expects to elicit from each; and
(2) the reasons for perpetuating their testimony or seeking such other
discovery. If the court finds that the perpetuation of the testimony or other
discovery is proper to avoid a failure or delay of justice, it may make an
order as provided in subsection (3) of section A of this rule and thereupon
discovery may be had and used in the same manner and under the same conditions
as are prescribed in these rules for discovery in actions pending in the
circuit court.
C Perpetuation by action. This rule does not limit the power of a
court to entertain an action to perpetuate testimony.
D Filing of depositions. Depositions taken under this rule shall be
filed with the court in which the petition is filed or the motion is made. [CCP
12/2/78]
PERSONS WHO MAY
ADMINISTER OATHS FOR DEPOSITIONS; FOREIGN DEPOSITIONS
RULE 38
A Within Oregon.
A(1) Within this state, depositions shall
be preceded by an oath or affirmation administered to the deponent by an
officer authorized to administer oaths by the laws of this state or by a person
specially appointed by the court in which the action is pending. A person so appointed
has the power to administer oaths for the purpose of the deposition.
A(2) For purposes of this rule, a
deposition taken pursuant to Rule 39 C(7) is taken within this state if either
the deponent or the person administering the oath is located in this state.
B Outside the state. Within another state, or within a territory
or insular possession subject to the dominion of the United States, or in a
foreign country, depositions may be taken (1) on notice before a person
authorized to administer oaths in the place in which the examination is held,
either by the law thereof or by the law of the United States, or (2) before a
person appointed or commissioned by the court in which the action is pending,
and such a person shall have the power by virtue of such person’s appointment
or commission to administer any necessary oath and take testimony, or (3)
pursuant to a letter rogatory. A commission or letter rogatory shall be issued
on application and notice and on terms that are just and appropriate. It is not
requisite to the issuance of a commission or a letter rogatory that the taking
of the deposition in any other manner is impracticable or inconvenient; and
both a commission and a letter rogatory may be issued in proper cases. A notice
or commission may designate the person before whom the deposition is to be
taken either by name or descriptive title. A letter rogatory may be addressed “To
the Appropriate Authority in (here name the state, territory, or country).”
Evidence obtained in a foreign country in response to a letter rogatory need
not be excluded merely for the reason that it is not a verbatim transcript or
that the testimony was not taken under oath or for any similar departure from
the requirements for depositions taken within the United States under these
rules.
C Foreign depositions.
C(1) Whenever any mandate, writ, or
commission is issued out of any court of record in any other state, territory,
district, or foreign jurisdiction, or whenever upon notice or agreement it is
required to take the testimony of a witness or witnesses in this state,
witnesses may be compelled to appear and testify in the same manner and by the
same process and proceeding as may be employed for the purpose of taking
testimony in proceedings pending in this state.
C(2) This section shall be so interpreted
and construed as to effectuate its general purposes to make uniform the laws of
those states which have similar rules or statutes. [CCP 12/2/78; amended by
1979 c.284 §24; §A amended by CCP 12/12/92]
DEPOSITIONS UPON ORAL
EXAMINATION
RULE 39
A When deposition may be taken. After the service of summons or the
appearance of the defendant in any action, or in a special proceeding at any
time after a question of fact has arisen, any party may take the testimony of
any person, including a party, by deposition upon oral examination. Leave of
court, with or without notice, must be obtained only if the plaintiff seeks to
take a deposition prior to the expiration of the period of time specified in
Rule 7 to appear and answer after service of summons on any defendant, except
that leave is not required (1) if a defendant has served a notice of taking
deposition or otherwise sought discovery, or (2) a special notice is given as
provided in subsection C(2) of this Rule. The attendance of a witness may be
compelled by subpoena as provided in Rule 55.
B Order for deposition or production of
prisoner. The deposition of
a person confined in a prison or jail may only be taken by leave of court. The
deposition shall be taken on such terms as the court prescribes, and the court
may order that the deposition be taken at the place of confinement or, when the
prisoner is confined in this state, may order temporary removal and production
of the prisoner for purposes of the deposition.
C Notice of
examination.
C(1) General
requirements. A party desiring to take the deposition of any person upon
oral examination shall give reasonable notice in writing to every other party
to the action. The notice shall state the time and place for taking the deposition
and the name and address of each person to be examined, if known, and, if the
name is not known, a general description sufficient to identify such person or
the particular class or group to which such person belongs. If a subpoena duces
tecum is to be served on the person to be examined, the designation of the
materials to be produced as set forth in the subpoena shall be attached to or
included in the notice.
C(2) Special
notice. Leave of court is not required for the taking of a deposition by plaintiff
if the notice (a) states that the person to be examined is about to go out of
the state, or is bound on a voyage to sea, and will be unavailable for
examination unless the deposition is taken before the expiration of the period
of time specified in Rule 7 to appear and answer after service of summons on
any defendant, and (b) sets forth facts to support the statement. The plaintiff’s
attorney shall sign the notice, and such signature constitutes a certification
by the attorney that to the best of such attorney’s knowledge, information, and
belief the statement and supporting facts are true.
If a party shows that when served with
notice under this subsection, the party was unable through the exercise of
diligence to obtain counsel to represent such party at the taking of the
deposition, the deposition may not be used against such party.
C(3) Shorter
or longer time. The court may for cause shown enlarge or shorten the time
for taking the deposition.
C(4) Non-stenographic
recording. The notice of deposition required under subsection (1) of this
section may provide that the testimony be recorded by other than stenographic
means, in which event the notice shall designate the manner of recording and
preserving the deposition. A court may require that the deposition be taken by
stenographic means if necessary to assure that the recording be accurate.
C(5) Production
of documents and things. The notice to a party deponent may be accompanied
by a request made in compliance with Rule 43 for the production of documents
and tangible things at the taking of the deposition. The procedure of Rule 43
shall apply to the request.
C(6) Deposition
of organization. A party may in the notice and in a subpoena name as the
deponent a public or private corporation or a partnership or association or
governmental agency and describe with reasonable particularity the matters on
which examination is requested. In that event, the organization so named shall
designate one or more officers, directors, managing agents, or other persons
who consent to testify on its behalf, and shall set forth, for each person
designated, the matters on which such person will testify. A subpoena shall
advise a nonparty organization of its duty to make such a designation. The
persons so designated shall testify as to matters known or reasonably available
to the organization. This subsection does not preclude taking a deposition by
any other procedure authorized in these rules.
C(7) Deposition
by telephone. Parties may agree by stipulation or the court may order that
testimony at a deposition be taken by telephone. If testimony at a deposition
is taken by telephone pursuant to court order, the order shall designate the
conditions of taking testimony, the manner of recording the deposition, and may
include other provisions to assure that the recorded testimony will be accurate
and trustworthy. If testimony at a deposition is taken by telephone other than
pursuant to court order or stipulation made a part of the record, then
objections as to the taking of testimony by telephone, the manner of giving the
oath or affirmation, and the manner of recording the deposition are waived
unless seasonable objection thereto is made at the taking of the deposition.
The oath or affirmation may be administered to the deponent, either in the
presence of the person administering the oath or over the telephone, at the
election of the party taking the deposition.
D Examination;
record; oath; objections.
D(1) Examination;
cross-examination; oath. Examination and cross-examination of deponents may
proceed as permitted at trial. The person described in Rule 38 shall put the
deponent on oath.
D(2) Record of examination. The testimony of the deponent shall be recorded either stenographically or as provided in subsection C(4) of this rule. If testimony is recorded pursuant to subsection C(4) of this rule, the party taking the deposition shall retain the original recording without alteration, unless the recording is filed with the court pursuant to subsection G(2) of this rule, until final disposition of the action. Upon request of a party or deponent and payment of the reasonable charges therefor, the testimony shall be transcribed.