Oregon Code :: Oregon Rules of Civil Procedure - 2007 -
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
PROCESS
8 A Process
8 B Where
county is a party
8 C Service
or execution
8 D 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
9 G Service
by e-mail
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
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
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) Jurors
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(1) Time
for motion and ruling
63 D(2) Effect
of notice of appeal
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(1) Time
of motion; counteraffidavits or counterdeclarations; hearing and determination
64 F(2) Effect
of notice of appeal
64 G New
trial on courts 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
partys 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) Creditors
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.
[CCP 12/2/78; §§E,F,G adopted by CCP
12/13/80; §F deleted and §G redesignated by CCP 12/14/96] indicates that the
rule was promulgated by the Council on December 2, 1978, and that sections E, F
and G of the rule were adopted by the Council by promulgation on December 13,
1980, and that section F was deleted and that section G was redesignated by the
Council by promulgation on December 14, 1996.
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 plaintiffs 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 plaintiffs 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 plaintiffs 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 defendants 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.
B
Issuance. Any time after the
action is commenced, plaintiff or plaintiffs attorney may issue as many
original summonses as either may elect and deliver such summonses to a person
authorized to serve summonses 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 document 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
plaintiffs 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 Bars Lawyer Referral Service at (503) 684-3763 or toll-free in
______________________________________________________________________________
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 document
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 defendants 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 Bars Lawyer Referral Service at (503) 684-3763 or toll-free in
______________________________________________________________________________
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 document
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 defendants 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 Bars Lawyer Referral Service at (503) 684-3763 or toll-free in
______________________________________________________________________________
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 true copies of the
summons and the complaint upon defendant or an agent of defendant authorized to
receive process; substituted service by leaving true copies of the summons and
the complaint at a persons dwelling house or usual place of abode; office
service by leaving true copies of the summons and the complaint 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
true copies 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, true copies
of the summons and the complaint to the defendant at defendants 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 true copies 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,
true copies of the summons and the complaint to the defendant at defendants
dwelling house or usual place of abode or defendants 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 true
copies of the summons and the complaint to the defendant by first class mail
and by any of the following: certified, registered, or express mail with return
receipt requested. For purposes of this section, first class mail does not
include certified, registered, or express mail, return receipt requested, 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
true copies 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 a 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 minors father, mother, conservator of the minors 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 persons 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 true copies
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 true copies 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 copies 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, true copies of the summons and the complaint 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 true copies of the summons and the 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 true copies of the summons and the complaint at the
Attorney Generals 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 partnership 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 owners or
charterers 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 defendants 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 defendants 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 true copies of the summons
and the complaint 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 any of the following:
certified, registered, or express mail, return receipt requested; 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 defendants current address, the plaintiff shall mail true copies of the
summons and the complaint to the defendant at such address by first class mail
and any of the following: certified, registered, or express mail, return
receipt requested. If the plaintiff does not know and cannot upon diligent
inquiry ascertain the current address of any defendant, true copies of the
summons and the complaint shall be mailed by the methods specified above to the
defendant at the defendants last known address. If the plaintiff does not
know, and cannot ascertain upon diligent inquiry, the defendants current and
last known addresses, a mailing of copies 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 defendants 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 defendants
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 (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 (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 sheriffs 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 sheriffs 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 true
copies of the summons and the complaint were left or describe in detail the
manner and circumstances of service. If true copies of the summons and the
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 sheriffs deputy, the sheriffs or deputys
certificate of service indicating the time, place, and manner of service, and
if defendant is not personally served, when, where, and with whom true copies
of the summons and the complaint were left or describing in detail the manner
and circumstances of service. If true copies of the summons and the 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
) 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
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
) 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
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, 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 rule, 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. [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; §§A,B,D,F,G amended and §H deleted
by CCP 12/9/06; §C amended by 2007 c.129 §23]
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
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
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; §A amended and §D deleted and §E redesignated by CCP 12/9/06]
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 document 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 attorneys or partys last known address or, if the party is
represented by an attorney, by telephonic facsimile communication device or
e-mail as provided in sections F or G of this rule. Delivery of a copy within
this rule means: handing it to the person to be served; or leaving it at such
persons office with such persons 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 persons 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 filing a
copy of the pleading or other documents with the court. Service by mail is
complete upon mailing. Service of any notice or other document 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 Rule 7 and Rule
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 or e-mail,
proof of service shall be made by affidavit or declaration of the person making
service, or by certificate of an attorney or sheriff. Attached to such
affidavit, declaration, or certificate shall be the printed confirmation of
receipt of the message generated by the transmitting machine, if facsimile
communication is used. If service is made by e-mail under section G of this
rule, the person making service must certify that he or she received
confirmation that the message was received, either by return e-mail,
automatically generated message, telephonic facsimile, or orally.
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 documents 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 document the time of
day, the day of the month, the month, and the year. The clerk or person
exercising the duties of that office is not required to receive for filing any
document unless the name of the court, the title of the cause and the document,
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
attorneys 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.
G
Service by e-mail. Service
by e-mail is prohibited unless attorneys agree in writing to e-mail service.
This agreement must provide the names and e-mail addresses of all attorneys and
the attorneys designees, if any, to be served. Any attorney may withdraw his
or her agreement at any time, upon proper notice via e-mail and any one of the
other methods authorized by this rule. Service is effective under this method
when the sender has received confirmation that the attachment has been received
by the designated recipient. Confirmation of receipt does not include an
automatically generated message that the recipient is out of the office or
otherwise unavailable. [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; §§A,B,E amended by CCP 12/9/06 and by 2007 c.129 §§24,25,26; §C
amended by CCP 12/9/06 and by 2007 c.255 §15; §G adopted by CCP 12/9/06]
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 document 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 document 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
document 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 persons 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 document 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 document 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
document 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 courts 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, document
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,
document 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;
§§A,C,D amended by 2007 c.129 §§27,28,29]
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 partys 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 partys
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 courts 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 courts 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 defendants 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 plaintiffs claim against the
third party plaintiff as a matter of right not later than 90 days after service
of the plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs
claim against the third party plaintiff, and the third party defendant
thereupon shall assert the third party defendants defenses as provided in Rule
21 and may assert the third party defendants 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 courts 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 courts 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 courts 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 partys
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
minors 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 minors 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
persons 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 persons 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 persons 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 persons absence may (a) as a practical matter impair or impede the
persons 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 persons 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
persons 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
representatives 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 members 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)(i) 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.
F(2)(ii) The form of the statement shall
be designed to meet the ends of justice. In determining the language and form
of the documents to be sent class members under subsection F(2)(i) or (iii),
the court shall consider at least: (a) the nature of the acts of the defendant;
(b) the amount of knowledge a class member would have about the extent of such
members damages; (c) the nature of the class including the probable degree of
sophistication of its members and any special needs created by class members
disabilities; (d) whether it is appropriate for the statement to be prepared in
alternative formats, such as large type, Braille, or in languages in addition
to English; and (e) the availability of relevant information from sources other
than the individual class members.
F(2)(iii) When the names and addresses of
the class members can reasonably be determined from the defendants business
records and individual monetary recoveries are capable of calculation without
the need for individualized adjudications, the court, instead of requiring the
statement referred to in subsection F(2)(i), may direct the defendant to send
each class member notice of (a) the amount of the monetary recovery that has
been calculated for that person and (b) that persons right to request
exclusion from the class. All class members who do not request exclusion within
the time specified by the court shall be deemed to have requested affirmative
relief in the calculated amount.
F(2)(iv) The amount of damages assessed
against the defendant shall not exceed the total amount of damages determined
to be allowable by the court for all individual class members who have filed
the statement required by the court under subsection F(2)(i) or who are deemed
to have requested affirmative relief under subsection F(2)(iii), assessable
court costs, and an award of attorney fees, if any, as determined by the court.
F(2)(v) If the parties agree and the court
approves, any of the procedures set forth in subsection F(2)(i) to subsection
F(2)(iv) may be waived in a particular case.
F(3) If a class member fails to file the
statement required by the court under subsection F(2)(i) or if a class member
requests exclusion under subsection F(2)(iii) within the time specified by the
court, that persons claim for monetary recovery shall be dismissed without
prejudice to the right to maintain an individual, but not a class, action for
such claim.
F(4) Nothing in subsections F(2) or F(3)
is intended to allow the court to award any monetary recovery that is not
claimed either because a class member failed to file the statement required by
the court under subsection F(2)(i), or because a class member requested
exclusion under subsection F(2)(iii) within the time specified by the court.
F(5) 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(6) 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 employees of the defendant under this section.
F(7) 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 persons 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 representatives 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 courts 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 courts 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 Rule
1.5 of the Oregon Rules of Professional Conduct.
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; §§F,N amended by CCP 12/9/06]
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 partys personal
representative or successors in interest at any time within one year after such
partys death; or
B(2) Against such partys 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 claimants 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 partys 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 officers official
capacity and during its pendency dies, resigns, or otherwise ceases to hold
office, the action does not abate and such officers 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 officers official capacity, such officer may be described as a party
by official title rather than by name; but the court may require such officers
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 party or the party with a disability, 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; §G amended by 2007 c.70 §5]
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 partys 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 partys 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.
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 persons 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 petitioners 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 petitioners 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
petitioners 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
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 persons 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
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 plaintiffs attorney shall sign the notice, and such signature constitutes
a certification by the attorney that to the best of such attorneys 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.
D(3) Objections.
All objections made at the time of the examination shall be noted on the
record. A party or deponent shall state objections concisely and in a
non-argumentative and non-suggestive manner. Evidence shall be taken subject to
the objection, except that a party may instruct a deponent not to answer a
question, and a deponent may decline to answer a question, only:
(a) when necessary to present or preserve
a motion under section E of this rule;
(b) to enforce a limitation on examination
ordered by the court; or
(c) to preserve a privilege or
constitutional or statutory right.
D(4) Written
questions as alternative. In lieu of participating in an oral examination,
parties may serve written questions on the party taking the deposition who
shall propound them to the deponent on the record.
E
Motion for court assistance; expenses.
E(1) Motion
for court assistance. At any time during the taking of a deposition, upon
motion and a showing by a party or a deponent that the deposition is being
conducted or hindered in bad faith, or in a manner not consistent with these
rules, or in such manner as unreasonably to annoy, embarrass, or oppress the
deponent or any party, the court may order the officer conducting the
examination to cease forthwith from taking the deposition, or may limit the
scope or manner of the taking of the deposition as provided in section C of
Rule 36. The motion shall be presented to the court in which the action is
pending, except that non-party deponents may present the motion to the court in
which the action is pending or the court at the place of examination. If the
order terminates the examination, it shall be resumed thereafter only on order
of the court in which the action is pending. Upon demand of the moving party or
deponent, the parties shall suspend the taking of the deposition for the time
necessary to make a motion under this subsection.
E(2) Allowance
of expenses. Subsection A(4) of Rule 46 shall apply to the award of
expenses incurred in relation to a motion under this section.
F
Submission to witness; changes; statement.
F(1) Necessity
of submission to witness for examination. When the testimony is taken by
stenographic means, or is recorded by other than stenographic means as provided
in subsection C(4) of this rule, and if any party or the witness so requests at
the time the deposition is taken, the recording or transcription shall be
submitted to the witness for examination, changes, if any, and statement of
correctness. With leave of court such request may be made by a party or witness
at any time before trial.
F(2) Procedure
after examination. Any changes which the witness desires to make shall be
entered upon the transcription or stated in a writing to accompany the
recording by the party taking the deposition, together with a statement of the
reasons given by the witness for making them. Notice of such changes and
reasons shall promptly be served upon all parties by the party taking the
deposition. The witness shall then state in writing that the transcription or
recording is correct subject to the changes, if any, made by the witness,
unless the parties waive the statement or the witness is physically unable to
make such statement or cannot be found. If the statement is not made by the
witness within 30 days, or within a lesser time upon court order, after the
deposition is submitted to the witness, the party taking the deposition shall
state on the transcription or in a writing to accompany the recording the fact
of waiver, or the physical incapacity or absence of the witness, or the fact of
refusal of the witness to make the statement, together with the reasons, if
any, given therefor; and the deposition may then be used as fully as though the
statement had been made unless, on a motion to suppress under Rule 41 D, the
court finds that the reasons given for the refusal to make the statement
require rejection of the deposition in whole or in part.
F(3) No
request for examination. If no examination by the witness is requested, no
statement by the witness as to the correctness of the transcription or
recording is required.
G
Certification; filing; exhibits; copies.
G(1) Certification.
When a deposition is stenographically taken, the stenographic reporter shall
certify, under oath, on the transcript that the witness was duly sworn and that
the transcript is a true record of the testimony given by the witness. When a
deposition is recorded by other than stenographic means as provided in
subsection C(4) of this rule, and thereafter transcribed, the person
transcribing it shall certify, under oath, on the transcript that such person
heard the witness sworn on the recording and that the transcript is a correct
transcription of the recording. When a recording or a non-stenographic
deposition or a transcription of such recording or non-stenographic deposition
is to be used at any proceeding in the action or is filed with the court, the
party taking the deposition, or such partys attorney, shall certify under oath
that the recording, either filed or furnished to the person making the
transcription, is a true, complete, and accurate recording of the deposition of
the witness and that the recording has not been altered.
G(2) Filing.
If requested by any party, the transcript or the recording of the deposition
shall be filed with the court where the action is pending. When a deposition is
stenographically taken, the stenographic reporter or, in the case of a deposition
taken pursuant to subsection C(4) of this rule, the party taking the deposition
shall enclose it in a sealed envelope, directed to the clerk of the court or
the justice of the peace before whom the action is pending or such other person
as may by writing be agreed upon, and deliver or forward it accordingly by mail
or other usual channel of conveyance. If a recording of a deposition has been
filed with the court, it may be transcribed upon request of any party under
such terms and conditions as the court may direct.
G(3) Exhibits.
Documents and things produced for inspection during the examination of the
witness shall, upon the request of a party, be marked for identification and
annexed to and returned with the deposition, and may be inspected and copied by
any party. Whenever the person producing materials desires to retain the
originals, such person may substitute copies of the originals, or afford each
party an opportunity to make copies thereof. In the event the original
materials are retained by the person producing them, they shall be marked for
identification and the person producing them shall afford each party the
subsequent opportunity to compare any copy with the original. The person
producing the materials shall also be required to retain the original materials
for subsequent use in any proceeding in the same action. Any party may move for
an order that the original be annexed to and returned with the deposition to
the court, pending final disposition of the case.
G(4) Copies.
Upon payment of reasonable charges therefor, the stenographic reporter or, in
the case of a deposition taken pursuant to subsection C(4) of this rule, the
party taking the deposition shall furnish a copy of the deposition to any party
or to the deponent.
H
Payment of expenses upon failure to appear.
H(1) Failure
of party to attend. If the party giving the notice of the taking of the
deposition fails to attend and proceed therewith and another party attends in
person or by attorney pursuant to the notice, the court in which the action is
pending may order the party giving the notice to pay to such other party the
amount of the reasonable expenses incurred by such other party and the attorney
for such other party in so attending, including reasonable attorneys fees.
H(2) Failure
of witness to attend. If the party giving the notice of the taking of a
deposition of a witness fails to serve a subpoena upon the witness and the
witness because of such failure does not attend, and if another party attends
in person or by attorney because the attending party expects the deposition of
that witness to be taken, the court may order the party giving the notice to
pay to such other party the amount of the reasonable expenses incurred by such
other party and the attorney for such other party in so attending, including
reasonable attorneys fees.
I
Perpetuation of testimony after commencement of action.
I(1) After commencement of any action, any
party wishing to perpetuate the testimony of a witness for the purpose of trial
or hearing may do so by serving a perpetuation deposition notice.
I(2) The notice is subject to subsections
C(1) through (7) of this rule and shall additionally state:
I(2)(a) A brief description of the subject
areas of testimony of the witness; and
I(2)(b) The manner of recording the
deposition.
I(3) Prior to the time set for the
deposition, any other party may object to the perpetuation deposition. Such
objection shall be governed by the standards of Rule 36 C. At any hearing on
such an objection, the burden shall be on the party seeking perpetuation to
show that: (a) the witness may be unavailable as defined in ORS 40.465 (1)(d)
or (e) or 45.250 (2)(a) through (c); or (b) it would be an undue hardship on
the witness to appear at the trial or hearing; or (c) other good cause exists
for allowing the perpetuation. If no objection is filed, or if perpetuation is
allowed, the testimony taken shall be admissible at any subsequent trial or
hearing in the action, subject to the Oregon Evidence Code.
I(4) Any perpetuation deposition shall be
taken not less than seven days before the trial or hearing on not less than 14
days notice. However, the court in which the action is pending may allow a
shorter period for a perpetuation deposition before or during trial upon a showing
of good cause.
I(5) To the extent that a discovery
deposition is allowed by law, any party may conduct a discovery deposition of
the witness prior to the perpetuation deposition.
I(6) The perpetuation examination shall
proceed as set forth in section D of this rule. All objections to any testimony
or evidence taken at the deposition shall be made at the time and noted upon
the record. The court before which the testimony is offered shall rule on any
objections before the testimony is offered. Any objections not made at the
deposition shall be deemed waived. [CCP 12/2/78; §F amended by 1979 c.284 §25; §F
amended by CCP 12/13/80; amended by CCP 12/13/86; amended by 1987 c.275 §2; §I
amended by 1989 c.980 §5; §§C,E,G amended by CCP 12/12/92; §I amended by CCP
12/14/96; §§D,E amended by CCP 12/12/98]
DEPOSITIONS UPON WRITTEN
QUESTIONS
RULE 40
A
Serving questions; notice.
Upon stipulation of the parties or leave of court for good cause shown, and
after commencement of the action, any party may take the testimony of any
person, including a party, by deposition upon written questions. The attendance
of witnesses may be compelled by the use of subpoena as provided in Rule 55.
The deposition of a person confined in prison may be taken only as provided in
Rule 39 B.
A party desiring to take a deposition upon
written questions shall serve them upon every other party with a notice stating
(1) the name and address of the person who is to answer them, 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 the person belongs, and (2) the name
or descriptive title and address of the officer before whom the deposition is
to be taken. A deposition upon written questions may be taken of a public or
private corporation or a partnership or association or governmental agency in
accordance with the provisions of Rule 39 C(6).
Within 30 days after the notice and
written questions are served, a party may serve cross questions upon all other
parties. Within 10 days after being served with cross questions, a party may
serve redirect questions upon all other parties. Within 10 days after being
served with redirect questions, a party may serve recross questions upon all
other parties. The court may for cause shown enlarge or shorten the time.
B
Officer to take responses and prepare record. A copy of the notice and copies of all
questions served shall be delivered by the party taking the deposition to the
officer designated in the notice, who shall proceed promptly, in the manner
provided by Rule 39 D, F, and G, to take the testimony of the witness in
response to the questions and to prepare, certify, and file or mail the
deposition, attaching thereto the copy of the notice and the questions received
by the officer. [CCP 12/2/78; amended by CCP 12/4/82]
EFFECT OF ERRORS
AND IRREGULARITIES IN DEPOSITIONS
RULE 41
A
As to notice. All errors and
irregularities in the notice for taking a deposition are waived unless written
objection is promptly served upon the party giving the notice.
B
As to disqualification of officer. Objection to taking a deposition because of disqualification of the
officer administering the oath is waived unless made before the taking of the
deposition begins or as soon thereafter as the disqualification becomes known
or could be discovered with reasonable diligence.
C
As to taking of deposition. C(1) Objections to the competency of a
witness or to the competency, relevancy, or materiality of testimony are not
waived by failure to make them before or during the taking of the deposition,
unless the ground of the objection is one which might have been obviated or
removed if presented at that time.
C(2) Errors and irregularities occurring
at the oral examination in the manner of taking the deposition, in the form of
the questions or answers, in the oath or affirmation, or in the conduct of
parties, and errors of any kind which might be obviated, removed, or cured if
promptly presented, are waived unless seasonable objection thereto is made at
the taking of the deposition.
C(3) Objections to the form of written
questions submitted under Rule 40 are waived unless served in writing upon the
party propounding them within the time allowed for serving the succeeding cross
or other questions and within 20 days after service of the last questions
authorized.
D
As to completion and return of deposition. Errors and irregularities in the manner in which the testimony is
transcribed or the deposition is prepared, signed, certified, sealed, endorsed,
transmitted, filed, or otherwise dealt with under Rules 39 and 40 are waived
unless a motion to suppress the deposition or some part thereof is made with
reasonable promptness after such defect is, or with due diligence might have
been, ascertained. [CCP 12/2/78]
RULE 42
(Reserved for
Expansion)
PRODUCTION OF
DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES
RULE 43
A
Scope. Any party may serve
on any other party a request: (1) to produce and permit the party making the
request, or someone acting on behalf of the party making the request, to
inspect and copy, any designated documents (including writings, drawings,
graphs, charts, photographs, phono-records, and other data compilations from
which information can be obtained, and translated, if necessary, by the
respondent through detection devices into reasonably usable form), or to
inspect and copy, test, or sample any tangible things which constitute or
contain matters within the scope of Rule 36 B and which are in the possession,
custody, or control of the party upon whom the request is served; or (2) to
permit entry upon designated land or other property in the possession or
control of the party upon whom the request is served for the purpose of
inspection and measuring, surveying, photographing, testing, or sampling the
property or any designated object or operation there- on, within the scope of
Rule 36 B.
B
Procedure.
B(1) A party may serve a request on the
plaintiff after commencement of the action and on any other party with or after
service of the summons on that party. The request shall identify any items
requested for inspection, copying, or related acts by individual item or by
category described with reasonable particularity, designate any land or other
property upon which entry is requested, and shall specify a reasonable place
and manner for the inspection, copying, entry, and related acts.
B(2) A request shall not require a
defendant to produce or allow inspection, copying, entry, or other related acts
before the expiration of 45 days after service of summons, unless the court
specifies a shorter time. Otherwise, within 30 days after service of a request
in accordance with subsection B(1) of this rule, or such other time as the
court may order or the parties may agree upon in writing, a party shall serve a
response that includes the following:
B(2)(a) a statement that, except as
specifically objected to, any requested item within the partys possession or
custody is provided, or will be provided or made available within the time
allowed and at the place and in the manner specified in the request, which
items shall be organized and labeled to correspond with the categories in the
request;
B(2)(b) as to any requested item not in
the partys possession or custody, a statement that reasonable effort has been
made to obtain it, unless specifically objected to, or that no such item is
within the partys control;
B(2)(c) as to any land or other property,
a statement that entry will be permitted as requested unless specifically
objected to; and
B(2)(d) any objection to a request or a
part thereof and the reason for each objection.
B(3) Any objection not stated in
accordance with subsection B(2) of this rule is waived. Any objection to only a
part of a request shall clearly state the part objected to. An objection does
not relieve the requested party of the duty to comply with any request or part
thereof not specifically objected to.
B(4) A party served in accordance with
subsection B(1) of this rule is under a continuing duty during the pendency of
the action to produce promptly any item responsive to the request and not
objected to which comes into the partys possession, custody, or control.
B(5) A party who moves for an order under
Rule 46 A(2) regarding any objection or other failure to respond or to permit
inspection, copying, entry, or related acts as requested, shall do so within a
reasonable time.
C
Writing called for need not be offered. Though a writing called for by one party is produced by the other, and
is inspected by the party calling for it, the party requesting production is
not obliged to offer it in evidence.
D
Persons not parties. A
person not a party to the action may be compelled to produce books, papers,
documents, or tangible things and to submit to an inspection thereof as
provided in Rule 55. This rule does not preclude an independent action against
a person not a party for permission to enter upon land. [CCP 12/2/78; §A
amended by 1979 c.284 §26; §D amended by CCP 12/15/90; §B amended by CCP
12/14/02; §B amended by CCP 12/9/06]
PHYSICAL AND
MENTAL EXAMINATION OF PERSONS; REPORTS OF EXAMINATIONS
RULE 44
A
Order for examination. When
the mental or physical condition or the blood relationship of a party, or of an
agent, employee, or person in the custody or under the legal control of a party
(including the spouse of a party in an action to recover for injury to the
spouse), is in controversy, the court may order the party to submit to a
physical or mental examination by a physician or a mental examination by a
psychologist or to produce for examination the person in such partys custody
or legal control. The order may be made only on motion for good cause shown and
upon notice to the person to be examined and to all parties and shall specify
the time, place, manner, conditions, and scope of the examination and the
person or persons by whom it is to be made.
B
Report of examining physician or psychologist. If requested by the party against whom an
order is made under section A of this rule or the person examined, the party
causing the examination to be made shall deliver to the requesting person or
party a copy of a detailed report of the examining physician or psychologist
setting out such physicians or psychologists findings, including results of
all tests made, diagnoses and conclusions, together with like reports of all
earlier examinations of the same condition. After delivery the party causing
the examination shall be entitled upon request to receive from the party
against whom the order is made a like report of any examination, previously or
thereafter made, of the same condition, unless, in the case of a report of
examination of a person not a party, the party shows inability to obtain it.
This section applies to examinations made by agreement of the parties, unless
the agreement expressly provides otherwise.
C
Reports of examinations; claims for damages for injuries. In a civil action where a claim is made for
damages for injuries to the party or to a person in the custody or under the
legal control of a party, upon the request of the party against whom the claim
is pending, the claimant shall deliver to the requesting party a copy of all
written reports and existing notations of any examinations relating to injuries
for which recovery is sought unless the claimant shows inability to comply.
D
Report; effect of failure to comply.
D(1) Preparation
of written report. If an obligation to furnish a report arises under
sections B or C of this rule and the examining physician or psychologist has
not made a written report, the party who is obliged to furnish the report shall
request that the examining physician or psychologist prepare a written report
of the examination, and the party requesting such report shall pay the
reasonable costs and expenses, including the examiners fee, necessary to
prepare such a report.
D(2) Failure
to comply or make report or request report. If a party fails to comply with
sections B and C of this rule, or if a physician or psychologist fails or
refuses to make a detailed report within a reasonable time, or if a party fails
to request that the examining physician or psychologist prepare a written
report within a reasonable time, the court may require the physician or
psychologist to appear for a deposition or may exclude the physicians or
psychologists testimony if offered at the trial.
E
Access to individually identifiable health information. Any party against whom a civil action is
filed for compensation or damages for injuries may obtain copies of individually
identifiable health information as defined in Rule 55 H within the scope of
discovery under Rule 36 B. Individually identifiable health information may be
obtained by written patient authorization, by an order of the court, or by
subpoena in accordance with Rule 55 H. [CCP 12/2/78; §§A,E amended by c.284 §§27,28;
§E amended by CCP 12/4/82; §C amended by CCP 12/13/86; §§C,E amended by CCP
12/10/88 and 1/6/89; §§A,B,D amended by 1989 c.1084 §2; §E amended by CCP
12/14/02]
REQUESTS FOR
ADMISSION
RULE 45
A
Request for admission. After
commencement of an action, a party may serve upon any other party a request for
the admission by the latter of the truth of relevant matters within the scope
of Rule 36 B specified in the request, including facts or opinions of fact, or
the application of law to fact, or of the genuineness of any relevant documents
or physical objects described in or exhibited with the request. Copies of
documents shall be served with the request unless they have been or are
otherwise furnished or made available for inspection and copying. Each matter
of which an admission is requested shall be separately set forth. The request
may, without leave of court, be served upon the plaintiff after commencement of
the action and upon any other party with or after service of the summons and
complaint upon that party. The request for admissions shall be preceded by the
following statement printed in capital letters of the type size in which the
request is printed: FAILURE TO SERVE A WRITTEN ANSWER OR OBJECTION WITHIN THE
TIME ALLOWED BY ORCP 45 B WILL RESULT IN ADMISSION OF THE FOLLOWING REQUESTS.
B
Response. The matter is
admitted unless, within 30 days after service of the request, or within such
shorter or longer time as the court may allow, the party to whom the request is
directed serves upon the party requesting the admission a written answer or
objection addressed to the matter, signed by the party or by the partys
attorney; but, unless the court shortens the time, a defendant shall not be
required to serve answers or objections before the expiration of 45 days after
service of the summons and complaint upon such defendant. If objection is made,
the reasons therefor shall be stated. The answer shall specifically deny the
matter or set forth in detail the reasons why the answering party cannot
truthfully admit or deny the matter. A denial shall fairly meet the substance
of the requested admission, and when good faith requires that a party qualify
the answer or deny only a part of the matter of which an admission is
requested, the party shall specify so much of it as is true and qualify or deny
the remainder. An answering party may not give lack of information or knowledge
as a reason for failure to admit or deny unless the answering party states that
reasonable inquiry has been made and that the information known or readily
obtainable by the answering party is insufficient to enable the answering party
to admit or deny. A party who considers that a matter of which an admission has
been requested presents a genuine issue for trial may not, on that ground
alone, object to the request; the party may, subject to the provisions of Rule
46 C, deny the matter or set forth reasons why the party cannot admit or deny
it.
C
Motion to determine sufficiency.
The party who has requested the admissions may
move to determine the sufficiency of the answers or objections. Unless the
court determines that an objection is justified, it shall order that an answer
be served. If the court determines that an answer does not comply with the
requirements of this rule, it may order either that the matter is admitted or
that an amended answer be served. The court may, in lieu of these orders,
determine that final disposition of the request be made at a designated time prior
to trial. The provisions of Rule 46 A(4) apply to the award of expenses
incurred in relation to the motion.
D
Effect of admission. Any
matter admitted pursuant to this rule is conclusively established unless the
court on motion permits withdrawal or amendment of the admission. The court may
permit withdrawal or amendment when the presentation of the merits of the case
will be subserved thereby and the party who obtained the admission fails to
satisfy the court that withdrawal or amendment will prejudice such party in
maintaining such partys case or such partys defense on the merits. Any
admission made by a party pursuant to this rule is for the purpose of the
pending action only, and neither constitutes an admission by such party for any
other purpose nor may be used against such party in any other action.
E
Form of response. The
request for admissions shall be so arranged that a blank space shall be
provided after each separately numbered request. The space shall be reasonably
calculated to enable the answering party to insert the admissions, denials, or
objections within the space. If sufficient space is not provided, the answering
party may attach additional papers with the admissions, denials, or objections
and refer to them in the space provided in the request.
F
Number. A party may serve
more than one set of requested admissions upon an adverse party, but the total
number of requests shall not exceed 30, unless the court otherwise orders for
good cause shown after the proposed additional requests have been filed. In
determining what constitutes a request for admission for the purpose of
applying this limitation in number, it is intended that each request be counted
separately, whether or not it is subsidiary or incidental to or dependent upon or
included in another request, and however the requests may be grouped, combined,
or arranged. [CCP 12/2/78; §§A,B amended by 1979 c.284 §§29,30]
FAILURE TO MAKE DISCOVERY;
SANCTIONS
RULE 46
A
Motion for order compelling discovery. A party, upon reasonable notice to other parties and all persons
affected thereby, may apply for an order compelling discovery as follows:
A(1) Appropriate
court.
A(1)(a) Parties. An application for an order to a party may be made to the
court in which the action is pending, and, on matters relating to a deponents
failure to answer questions at a deposition, such an application may also be
made to a court of competent jurisdiction in the political subdivision where
the deponent is located.
A(1)(b) Non-parties. An application for an order to a deponent who is not a
party shall be made to a court of competent jurisdiction in the political
subdivision where the non-party deponent is located.
A(2) Motion.
If a party fails to furnish a report under Rule 44 B or C, or if a deponent
fails to answer a question propounded or submitted under Rules 39 or 40, or if
a corporation or other entity fails to make a designation under Rule 39 C(6) or
Rule 40 A, or if a party fails to respond to a request for a copy of an
insurance agreement or policy under Rule 36 B(2), or if a party in response to
a request for inspection submitted under Rule 43 fails to permit inspection as
requested, the discovering party may move for an order compelling discovery in
accordance with the request. Any motion made under this subsection shall
set out at the beginning of the motion the items that the moving party seeks to
discover. When taking a deposition on oral examination, the proponent of the
question may complete or adjourn the examination before applying for an order.
If the court denies the motion in whole or
in part, it may make such protective order as it would have been empowered to
make on a motion made pursuant to Rule 36 C.
A(3) Evasive
or incomplete answer. For
purposes of this section, an evasive or incomplete answer is to be treated as a
failure to answer.
A(4) Award
of expenses of motion. If the motion is granted, the court may, after
opportunity for hearing, require the party or deponent whose conduct
necessitated the motion or the party or attorney advising such conduct or both
of them to pay to the moving party the reasonable expenses incurred in
obtaining the order, including attorneys fees, unless the court finds that the
opposition to the motion was substantially justified or that other circumstances
make an award of expenses unjust.
If the motion is denied, the court may,
after opportunity for hearing, require the moving party or the attorney
advising the motion or both of them to pay to the party or deponent who opposed
the motion the reasonable expenses incurred in opposing the motion, including
attorneys fees, unless the court finds that the making of the motion was
substantially justified or that other circumstances make an award of expenses
unjust.
If the motion is granted in part and
denied in part, the court may apportion the reasonable expenses incurred in
relation to the motion among the parties and persons in a just manner.
B
Failure to comply with order.
B(1) Sanctions
by court in the county where the deponent is located. If a deponent fails
to be sworn or to answer a question after being directed to do so by a circuit
court judge in the county in which the deponent is located, the failure may be
considered a contempt of court.
B(2) Sanctions
by court in which action is pending. If a party or an officer, director, or
managing agent or a person designated under Rule 39 C(6) or 40 A to testify on
behalf of a party fails to obey an order to provide or permit discovery,
including an order made under section A of this rule or Rule 44, the court in
which the action is pending may make such orders in regard to the failure as
are just, including among others, the following:
B(2)(a) An order that the matters
regarding which the order was made or any other designated facts shall be taken
to be established for the purposes of the action in accordance with the claim
of the party obtaining the order;
B(2)(b) An order refusing to allow the
disobedient party to support or oppose designated claims or defenses, or
prohibiting the disobedient party from introducing designated matters in
evidence;
B(2)(c) An order striking out pleadings or
parts thereof, or staying further proceedings until the order is obeyed, or
dismissing the action or any part thereof, or rendering a judgment by default
against the disobedient party;
B(2)(d) In lieu of any of the foregoing
orders or in addition thereto, an order treating as a contempt of court the
failure to obey any order except an order to submit to a physical or mental
examination.
B(2)(e) Such orders as are listed in
paragraphs (a), (b), and (c) of this subsection, where a party has failed to
comply with an order under Rule 44 A requiring the party to produce another for
examination, unless the party failing to comply shows inability to produce such
person for examination.
B(3) Payment
of expenses. In lieu of any order listed in subsection (2) of this section
or in addition thereto, the court shall require the party failing to obey the
order or the attorney advising such party or both to pay the reasonable
expenses, including attorneys fees, caused by the failure, unless the court
finds that the failure was substantially justified or that other circumstances
make an award of expenses unjust.
C
Expenses on failure to admit.
If a party fails to admit the genuineness of any document or the truth of any
matter, as requested under Rule 45, and if the party requesting the admissions
thereafter proves the genuineness of the document or the truth of the matter,
the party requesting the admissions may apply to the court for an order
requiring the other party to pay the party requesting the admissions the
reasonable expenses incurred in making that proof, including reasonable
attorneys fees. The court shall make the order unless it finds that (1) the
request was held objectionable pursuant to Rule 45 B or C, or (2) the admission
sought was of no substantial importance, or (3) the party failing to admit had
reasonable ground to believe that such party might prevail on the matter, or
(4) there was other good reason for the failure to admit.
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. If a party
or an officer, director, or managing agent of a party or a person designated
under Rule 39 C(6) or 40 A to testify on behalf of a party fails (1) to appear
before the officer who is to take the deposition of that party or person, after
being served with a proper notice, or (2) to comply with or serve objections to
a request for production and inspection submitted under Rule 43, after proper
service of the request, the court in which the action is pending on motion may
make such orders in regard to the failure as are just, including among others it
may take any action authorized under subsection B(2)(a), (b), and (c) of this
rule. In lieu of any order or in addition thereto, the court shall require the
party failing to act or the attorney advising such party or both to pay the
reasonable expenses, including attorneys fees, caused by the failure, unless
the court finds that the failure was substantially justified or that other
circumstances make an award of expenses unjust.
The failure to act described in this
section may not be excused on the ground that the discovery sought is
objectionable unless the party failing to act has applied for a protective
order as provided by Rule 36 C. [CCP 12/2/78; §§A(2),D amended by CCP 12/13/80;
§§A,B amended by CCP 12/12/92; §B amended by 1999 c.59 §4; §A amended by CCP
12/11/04]
SUMMARY JUDGMENT
RULE 47
A
For claimant. A party
seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a
declaratory judgment may, at any time after the expiration of 20 days from the
commencement of the action or after service of a motion for summary judgment by
the adverse party, move, with or without supporting affidavits or declarations,
for a summary judgment in that partys favor upon all or any part thereof.
B
For defending party. A party
against whom a claim, counterclaim, or cross-claim is asserted or a declaratory
judgment is sought may, at any time, move, with or without supporting
affidavits or declarations, for a summary judgment in that partys favor as to
all or any part thereof.
C
Motion and proceedings thereon.
The motion and all supporting documents shall be served and filed at least 60
days before the date set for trial. The adverse party shall have 20 days in
which to serve and file opposing affidavits or declarations and supporting
documents. The moving party shall have five days to reply. The court shall have
discretion to modify these stated times. The court shall grant the motion if
the pleadings, depositions, affidavits, declarations and admissions on file
show that there is no genuine issue as to any material fact and that the moving
party is entitled to prevail as a matter of law. No genuine issue as to a
material fact exists if, based upon the record before the court viewed in a
manner most favorable to the adverse party, no objectively reasonable juror
could return a verdict for the adverse party on the matter that is the subject
of the motion for summary judgment. The adverse party has the burden of
producing evidence on any issue raised in the motion as to which the adverse
party would have the burden of persuasion at trial. The adverse party may
satisfy the burden of producing evidence with an affidavit or a declaration
under section E of this rule. A summary judgment, interlocutory in character,
may be rendered on the issue of liability alone although there is a genuine
issue as to the amount of damages.
D
Form of affidavits and declarations; defense required. Except as provided by section E of this
rule, supporting and opposing affidavits and declarations shall be made on
personal knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant or declarant is
competent to testify to the matters stated therein. Sworn or certified copies
of all papers or parts thereof referred to in an affidavit or a declaration
shall be attached thereto or served therewith. The court may permit affidavits
or declarations to be supplemented or opposed by depositions or further
affidavits or declarations. When a motion for summary judgment is made and
supported as provided in this rule an adverse party may not rest upon the mere
allegations or denials of that partys pleading, but the adverse partys
response, by affidavits, declarations or as otherwise provided in this section,
must set forth specific facts showing that there is a genuine issue as to any
material fact for trial. If the adverse party does not so respond, the court
shall grant the motion if appropriate.
E
Affidavit or declaration of attorney when expert opinion required. Motions under this rule are not designed to
be used as discovery devices to obtain the names of potential expert witnesses
or to obtain their facts or opinions. If a party, in opposing a motion for
summary judgment, is required to provide the opinion of an expert to establish
a genuine issue of material fact, an affidavit or a declaration of the partys
attorney stating that an unnamed qualified expert has been retained who is
available and willing to testify to admissible facts or opinions creating a
question of fact, will be deemed sufficient to controvert the allegations of
the moving party and an adequate basis for the court to deny the motion. The
affidavit or declaration shall be made in good faith based on admissible facts
or opinions obtained from a qualified expert who has actually been retained by
the attorney who is available and willing to testify and who has actually
rendered an opinion or provided facts which, if revealed by affidavit or
declaration, would be a sufficient basis for denying the motion for summary
judgment.
F
When affidavits or declarations are unavailable. Should it appear from the affidavits or
declarations of a party opposing the motion that such party cannot, for reasons
stated, present by affidavit or declaration facts essential to justify the
opposition of that party, the court may deny the motion or may order a
continuance to permit affidavits or declarations to be obtained or depositions
to be taken or discovery to be had, or may make such other order as is just.
G
Affidavits or declarations made in bad faith. Should it appear to the satisfaction of the court at any time that any
of the affidavits or declarations presented pursuant to this rule are presented
in bad faith or solely for the purpose of delay, the court shall forthwith order
the party employing them to pay to the other party the amount of the reasonable
expenses which the filing of the affidavits or declarations caused the other
party to incur, including reasonable attorney fees, and any offending party or
attorney may be subject to sanctions for contempt.
H
Multiple parties or claims; limited judgment. If the court grants summary judgment for less
than all parties and claims in an action, a limited judgment may be entered if
the court makes the determination required by Rule 67 B. [CCP 12/2/78; §D
amended by 1979 c.284 §31; §G amended by 1981 c.898 §6; amended by CCP 12/4/82;
§C amended by CCP 12/8/84; §G amended by 1991 c.724 §30; §C amended by 1995
c.618 §5; §C amended by 1999 c.815 §1; amended by 2003 c.194 §9; §C amended by
CCP 12/14/02; §H amended by 2003 c.576 §260; §§C,D,F amended by 2007 c.339 §§15,16,17]
RULES 48 and 49
(Reserved for
Expansion)
JURY TRIAL
RULE 50
Jury
trial of right. The right of
trial by jury as declared by the Oregon Constitution or as given by a statute
shall be preserved to the parties inviolate. [CCP 12/2/78]
ISSUES; TRIAL BY
JURY OR BY THE COURT
RULE 51
A
Issues. Issues arise upon
the pleadings when a fact or conclusion of law is maintained by one party and
controverted by the other.
B
Issues of law; how tried. An
issue of law shall be tried by the court.
C Issues
of fact; how tried. The
trial of all issues of fact shall be by jury unless:
C(1) The parties or their attorneys of
record, by written stipulation filed with the court or by an oral stipulation
made in open court and entered in the record, consent to trial without a jury;
or
C(2) The court, upon motion of a party or
on its own initiative, finds that a right of trial by jury of some or all of
those issues does not exist under the Constitution or statutes of this state.
D
Advisory jury and jury trial by consent. In all actions not triable by right to a jury, the court, upon motion
of a party or on its own initiative, may try an issue with an advisory jury or
it may, with the consent of all parties, order a trial to a jury whose verdict
shall have the same effect as if trial to a jury had been a matter of right. [CCP
12/2/78]
POSTPONEMENT OF
CASES
RULE 52
A
Postponement. When a cause
is set and called for trial, it shall be tried or dismissed, unless good cause
is shown for a postponement. At its discretion, the court may grant a
postponement, with or without terms, including requiring any party whose
conduct made the postponement necessary to pay expenses incurred by an opposing
party.
B
Absence of evidence. If a
motion is made for postponement on the grounds of absence of evidence, the
court may require the moving party to submit an affidavit or a declaration
stating the evidence which the moving party expects to obtain. If the adverse
party admits that such evidence would be given and that it be considered as
actually given at trial, or offered and overruled as improper, the trial shall
not be postponed. However, the court may postpone the trial if, after the
adverse party makes the admission described in this section, the moving party
can show that such affidavit or declaration does not constitute an adequate
substitute for the absent evidence. The court, when it allows the motion, may
impose such conditions or terms upon the moving party as may be just. [CCP
12/2/78; §A amended by CCP 12/13/80 and 12/14/96; §B amended by 2003 c.194 §10]
CONSOLIDATION; SEPARATE
TRIALS
RULE 53
A
Joint hearing or trial; consolidation of actions. Upon motion of any party, when more than one
action involving a common question of law or fact is pending before the court,
the court may order a joint hearing or trial of any or all of the matters in
issue in such actions; the court may order all such actions consolidated; and
it may make such orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay.
B
Separate trials. The court,
in furtherance of convenience or to avoid prejudice, or when separate trials
will be conducive to expedition and economy, may order a separate trial of any
claim, cross-claim, counterclaim, or of any separate issue or of any number of
claims, cross-claims, counterclaims, or issues, always preserving inviolate the
right of trial by jury as declared by the Oregon Constitution or as given by statute.
[CCP 12/2/78]
DISMISSAL OF
ACTIONS; COMPROMISE
RULE 54
A
Voluntary dismissal; effect thereof.
A(1) By
plaintiff; by stipulation. Subject to the provisions of Rule 32 D and of
any statute of this state, an action may be dismissed by the plaintiff without
order of court (a) by filing a notice of dismissal with the court and serving
such notice on the defendant not less than five days prior to the day of trial
if no counterclaim has been pleaded, or (b) by filing a stipulation of
dismissal signed by all adverse parties who have appeared in the action. Unless
otherwise stated in the notice of dismissal or stipulation, the dismissal is
without prejudice, except that a notice of dismissal operates as an
adjudication upon the merits when filed by a plaintiff who has once dismissed
in any court of the United States or of any state an action against the same
parties on or including the same claim unless the court directs that the
dismissal shall be without prejudice. Upon notice of dismissal or stipulation under
this subsection, the court shall enter a judgment of dismissal.
A(2) By
order of court. Except as provided in subsection (1) of this section, an
action shall not be dismissed at the plaintiffs instance save upon judgment of
dismissal ordered by the court and upon such terms and conditions as the court
deems proper. If a counterclaim has been pleaded by a defendant prior to the
service upon the defendant of the plaintiffs motion to dismiss, the defendant
may proceed with the counterclaim. Unless otherwise specified in the judgment
of dismissal, a dismissal under this subsection is without prejudice.
A(3) Costs
and disbursements. When an action is dismissed under this section, the
judgment may include any costs and disbursements, including attorney fees,
provided by rule or statute. Unless the circumstances indicate otherwise, the
dismissed party shall be considered the prevailing party.
B Involuntary
dismissal.
B(1) Failure
to comply with rule or order. For failure of the plaintiff to prosecute or to
comply with these rules or any order of court, a defendant may move for a
judgment of dismissal of an action or of any claim against such defendant.
B(2) Insufficiency
of evidence. After the plaintiff in an action tried by the court without a
jury has completed the presentation of plaintiffs evidence, the defendant,
without waiving the right to offer evidence in the event the motion is not
granted, may move for a judgment of dismissal on the ground that upon the facts
and the law the plaintiff has shown no right to relief. The court as trier of
the facts may then determine them and render judgment of dismissal against the
plaintiff or may decline to render any judgment until the close of all the
evidence. If the court renders judgment of dismissal with prejudice against the
plaintiff, the court shall make findings as provided in Rule 62.
B(3) Dismissal
for want of prosecution; notice. Not less than 60 days prior to the first
regular motion day in each calendar year, unless the court has sent an earlier notice
on its own initiative, the clerk of the court shall mail notice to the
attorneys of record in each pending case in which no action has been taken for
one year immediately prior to the mailing of such notice, that a judgment of
dismissal will be entered in each such case by the court for want of
prosecution, unless on or before such first regular motion day, application,
either oral or written, is made to the court and good cause shown why it should
be continued as a pending case. If such application is not made or good cause
shown, the court shall enter a judgment of dismissal in each such case. Nothing
contained in this subsection shall prevent the dismissal by the court at any
time, for want of prosecution of any action upon motion of any party thereto.
B(4) Effect
of judgment of dismissal. Unless the court in its judgment of dismissal
otherwise specifies, a dismissal under this section operates as an adjudication
without prejudice.
C
Dismissal of counterclaim, cross-claim, or third party claim. The provisions of this rule apply to the
dismissal of any counterclaim, cross-claim, or third party claim.
D
Costs of previously dismissed action.
D(1) If a plaintiff who has once dismissed
an action in any court commences an action based upon or including the same
claim against the same defendant, the court may make such order for the payment
of any unpaid judgment for costs and disbursements against plaintiff in the
action previously dismissed as it may deem proper and may stay the proceedings
in the action until the plaintiff has complied with the order.
D(2) If a party who previously asserted a
claim, counterclaim, cross-claim or third party claim that was dismissed with
prejudice subsequently makes the same claim, counterclaim, cross-claim or third
party claim against the same party, the court shall enter a judgment dismissing
the claim, counterclaim, cross-claim or third party claim and may enter a
judgment requiring the payment of reasonable attorney fees incurred by the
party in obtaining the dismissal.
E
Compromise; effect of acceptance or rejection.
E(1) Except as provided in ORS 17.065
through 17.085, the party against whom a claim is asserted may, at any time up
to 10 days prior to trial, serve upon the party asserting the claim an offer to
allow judgment to be given against the party making the offer for the sum, or
the property, or to the effect therein specified.
E(2) If the party asserting the claim
accepts the offer, the party asserting the claim or such partys attorney shall
endorse such acceptance thereon, and file the same with the clerk before trial,
and within three days from the time it was served upon such party asserting the
claim; and thereupon judgment shall be given accordingly, as a stipulated
judgment. If the offer does not state that it includes costs and disbursements
or attorney fees, the party asserting the claim shall submit any claim for
costs and disbursements or attorney fees to the court as provided in Rule 68.
E(3) If the offer is not accepted and
filed within the time prescribed, it shall be deemed withdrawn, and shall not
be given in evidence on the trial; and if the party asserting the claim fails
to obtain a more favorable judgment, the party asserting the claim shall not
recover costs, prevailing party fees, disbursements, or attorney fees incurred
after the date of the offer, but the party against whom the claim was asserted
shall recover of the party asserting the claim costs and disbursements, not
including prevailing party fees, from the time of the service of the offer.
F
Settlement conferences. A
settlement conference may be ordered by the court at any time at the request of
any party or upon the courts own motion. Unless otherwise stipulated to by the
parties, a judge other than the judge who will preside at trial shall conduct
the settlement conference. [CCP 12/2/78; amended by 1979 c.284 §32; §E amended
by CCP 12/13/80; §A amended by 1981 c.912 §2; §E amended by 1983 c.531 §1; §A
amended by CCP 12/8/84; amended by 1995 c.618 §1; §E amended by CCP 12/11/04]
SUBPOENA
RULE 55
A
Defined; form. A subpoena is
a writ or order directed to a person and may require the attendance of such
person at a particular time and place to testify as a witness on behalf of a
particular party therein mentioned or may require such person to produce books,
papers, documents, or tangible things and permit inspection thereof at a
particular time and place. A subpoena requiring attendance to testify as a
witness requires that the witness remain until the testimony is closed unless
sooner discharged, but at the end of each days attendance a witness may demand
of the party, or the partys attorney, the payment of legal witness fees for
the next following day and if not then paid, the witness is not obliged to
remain longer in attendance. Every subpoena shall state the name of the court
and the title of the action.
B
For production of books, papers, documents, or tangible things and to permit
inspection. A subpoena may
command the person to whom it is directed to produce and permit inspection and
copying of designated books, papers, documents, or tangible things in the
possession, custody or control of that person at the time and place specified
therein. A command to produce books, papers, documents, or tangible things and
permit inspection thereof may be joined with a command to appear at trial or
hearing or at deposition or, before trial, may be issued separately. A person
commanded to produce and permit inspection and copying of designated books,
papers, documents or tangible things but not commanded to also appear for
deposition, hearing or trial may, within 14 days after service of the subpoena
or before the time specified for compliance if such time is less than 14 days
after service, serve upon the party or attorney designated in the subpoena
written objection to inspection or copying of any or all of the designated
materials. If objection is made, the party serving the subpoena shall not be
entitled to inspect and copy the materials except pursuant to an order of the
court in whose name the subpoena was issued. If objection has been made, the
party serving the subpoena may, upon notice to the person commanded to produce,
move for an order at any time to compel production. In any case, where a
subpoena commands production of books, papers, documents or tangible things the
court, upon motion made promptly and in any event at or before the time
specified in the subpoena for compliance therewith, may (1) quash or modify the
subpoena if it is unreasonable and oppressive or (2) condition denial of the
motion upon the advancement by the person in whose behalf the subpoena is
issued of the reasonable cost of producing the books, papers, documents, or
tangible things.
C
Issuance.
C(1) By
whom issued. A subpoena is issued as follows: (a) to require attendance
before a court, or at the trial of an issue therein, or upon the taking of a
deposition in an action pending therein or, if separate from a subpoena
commanding the attendance of a person, to produce books, papers, documents or
tangible things and to permit inspection thereof: (i) it may be issued in blank
by the clerk of the court in which the action is pending, or if there is no
clerk, then by a judge or justice of such court; or (ii) it may be issued by an
attorney of record of the party to the action in whose behalf the witness is
required to appear, subscribed by the signature of such attorney; (b) to
require attendance before any person authorized to take the testimony of a
witness in this state under Rule 38 C, or before any officer empowered by the
laws of the United States to take testimony, it may be issued by the clerk of a
circuit court in the county in which the witness is to be examined; (c) to
require attendance out of court in cases not provided for in paragraph (a) of this
subsection, before a judge, justice, or other officer authorized to administer
oaths or take testimony in any matter under the laws of this state, it may be
issued by the judge, justice, or other officer before whom the attendance is
required.
C(2) By
clerk in blank. Upon request of a party or attorney, any subpoena issued by
a clerk of court shall be issued in blank and delivered to the party or
attorney requesting it, who shall fill it in before service.
D Service;
service on law enforcement agency; service by mail; proof of service.
D(1) Service.
Except as provided in subsection (2) of this section, a subpoena may be served
by the party or any other person 18 years of age or older. The service shall be
made by delivering a copy to the witness personally and giving or offering to
the witness at the same time the fees to which the witness is entitled for
travel to and from the place designated and, whether or not personal attendance
is required, one days attendance fees. The service must be made so as to allow
the witness a reasonable time for preparation and travel to the place of
attendance. A subpoena for taking of a deposition, served upon an organization
as provided in Rule 39 C(6), shall be served in the same manner as provided for
service of summons in Rule 7 D(3)(b)(i), D(3)(d), D(3)(e), or D(3)(f). Copies
of each subpoena commanding production of books, papers, documents or tangible
things and inspection thereof before trial, not accompanied by command to
appear at trial or hearing or at deposition, whether the subpoena is served
personally or by mail, shall be served on each party at least seven days before
the subpoena is served on the person required to produce and permit inspection,
unless the court orders a shorter period. In addition, a subpoena shall not
require production less than 14 days from the date of service upon the person
required to produce and permit inspection, unless the court orders a shorter
period.
D(2) Service
on law enforcement agency.
D(2)(a) Every law enforcement agency shall
designate individual or individuals upon whom service of subpoena may be made.
At least one of the designated individuals shall be available during normal
business hours. In the absence of the designated individuals, service of
subpoena pursuant to paragraph (b) of this subsection may be made upon the
officer in charge of the law enforcement agency.
D(2)(b) If a peace officers attendance at
trial is required as a result of employment as a peace officer, a subpoena may
be served on such officer by delivering a copy personally to the officer or to
one of the individuals designated by the agency which employs the officer not
later than 10 days prior to the date attendance is sought. A subpoena may be
served in this manner only if the officer is currently employed as a peace
officer and is present within the state at the time of service.
D(2)(c) When a subpoena has been served as
provided in paragraph (b) of this subsection, the law enforcement agency shall
make a good faith effort to give actual notice to the officer whose attendance
is sought of the date, time, and location of the court appearance. If the
officer cannot be notified, the law enforcement agency shall promptly notify
the court and a postponement or continuance may be granted to allow the officer
to be personally served.
D(2)(d) As used in this subsection, law
enforcement agency means the Oregon State Police, a county sheriffs
department, or a municipal police department.
D(3) Service
by mail.
Under the following circumstances, service
of a subpoena to a witness by mail shall be of the same legal force and effect
as personal service otherwise authorized by this section:
D(3)(a) The attorney certifies in
connection with or upon the return of service that the attorney, or the attorneys
agent, has had personal or telephone contact with the witness, and the witness
indicated a willingness to appear at trial if subpoenaed;
D(3)(b) The attorney, or the attorneys
agent, made arrangements for payment to the witness of fees and mileage satisfactory
to the witness; and
D(3)(c) The subpoena was mailed to the
witness more than 10 days before trial by certified mail or some other
designation of mail that provides a receipt for the mail signed by the
recipient, and the attorney received a return receipt signed by the witness
more than three days prior to trial.
D(4) Service
by mail; exception. Service of subpoena by mail may be used for a subpoena
commanding production of books, papers, documents, or tangible things, not
accompanied by a command to appear at trial or hearing or at deposition.
D(5) Proof
of service. Proof of service of a subpoena is made in the same manner as
proof of service of a summons except that the server need not certify that the
server is not a party in the action, an attorney for a party in the action or
an officer, director or employee of a party in the action.
E
Subpoena for hearing or trial; prisoners. If the witness is confined in a prison or jail in this state, a
subpoena may be served on such person only upon leave of court, and attendance
of the witness may be compelled only upon such terms as the court prescribes.
The court may order temporary removal and production of the prisoner for the
purpose of giving testimony or may order that testimony only be taken upon
deposition at the place of confinement. The subpoena and court order shall be
served upon the custodian of the prisoner.
F
Subpoena for taking depositions or requiring production of books, papers,
documents, or tangible things; place of production and examination.
F(1) Subpoena
for taking deposition. Proof of service of a notice to take a deposition as
provided in Rules 39 C and 40 A, or of notice of subpoena to command production
of books, papers, documents, or tangible things before trial as provided in
subsection D(1) of this rule or a certificate that such notice will be served
if the subpoena can be served, constitutes a sufficient authorization for the
issuance by a clerk of court of subpoenas for the persons named or described
therein.
F(2) Place
of examination. A resident of this state who is not a party to the action
may be required by subpoena to attend an examination or to produce books,
papers, documents, or tangible things only in the county wherein such person
resides, is employed or transacts business in person, or at such other
convenient place as is fixed by an order of court. A nonresident of this state
who is not a party to the action may be required by subpoena to attend an
examination or to produce books, papers, documents, or tangible things only in
the county wherein such person is served with a subpoena, or at such other
convenient place as is fixed by an order of court.
F(3) Production
without examination or deposition. A party who issues a subpoena may
command the person to whom it is issued to produce books, papers, documents, or
tangible things, other than individually identifiable health information as
described in section H, by mail or otherwise, at a time and place specified in
the subpoena, without commanding inspection of the originals or a deposition.
In such instances, the person to whom the subpoena is directed complies if the
person produces copies of the specified items in the specified manner and
certifies that the copies are true copies of all the items responsive to the
subpoena or, if all items are not included, why they are not.
G
Disobedience of subpoena; refusal to be sworn or answer as a witness. Disobedience to a subpoena or a refusal to
be sworn or answer as a witness may be punished as contempt by a court before
whom the action is pending or by the judge or justice issuing the subpoena.
Upon hearing or trial, if the witness is a party and disobeys a subpoena or
refuses to be sworn or answer as a witness, such partys complaint, answer, or
reply may be stricken.
H Individually
identifiable health information.
H(1) Definitions.
As used in this rule, the terms individually identifiable health information
and qualified protective order are defined as follows:
H(1)(a) Individually identifiable health
information means information which identifies an individual or which could be
used to identify an individual; which has been collected from an individual and
created or received by a health care provider, health plan, employer, or health
care clearinghouse; and which relates to the past, present or future physical
or mental health or condition of an individual; the provision of health care to
an individual; or the past, present, or future payment for the provision of
health care to an individual.
H(1)(b) Qualified protective order means
an order of the court, by stipulation of the parties to the litigation or
otherwise, that prohibits the parties from using or disclosing individually
identifiable health information for any purpose other than the litigation for
which such information was requested and which requires the return to the
original custodian of such information or destruction of the individually
identifiable health information (including all copies made) at the end of the
litigation.
H(2) Mode
of Compliance. Individually identifiable health information may be obtained
by subpoena only as provided in this section. However, if disclosure of any
requested records is restricted or otherwise limited by state or federal law,
then the protected records shall not be disclosed in response to the subpoena
unless the requesting party has complied with the applicable law.
H(2)(a) The attorney for the party issuing
a subpoena requesting production of individually identifiable health
information must serve the custodian or other keeper of such information either
with a qualified protective order or with an affidavit or declaration together
with attached supporting documentation demonstrating that: (i) the party has
made a good faith attempt to provide written notice to the individual or the
individuals attorney that the individual or the attorney had 14 days from the
date of the notice to object; (ii) the notice included the proposed subpoena
and sufficient information about the litigation in which the individually
identifiable health information was being requested to permit the individual or
the individuals attorney to object; (iii) the individual did not object within
the 14 days or, if objections were made, they were resolved and the information
being sought is consistent with such resolution. The party issuing a subpoena
must also certify that he or she will, promptly upon request, permit the
patient or the patients representative to inspect and copy the records
received.
H(2)(b) Except as provided in subsection
(4) of this section, when a subpoena is served upon a custodian of individually
identifiable health information in an action in which the entity or person is
not a party, and the subpoena requires the production of all or part of the
records of the entity or person relating to the care or treatment of an
individual, it is sufficient compliance therewith if a custodian delivers by
mail or otherwise a true and correct copy of all the records responsive to the
subpoena within five days after receipt thereof. Delivery shall be accompanied
by an affidavit or a declaration as described in subsection (3) of this
section.
H(2)(c) The copy of the records shall be
separately enclosed in a sealed envelope or wrapper on which the title and
number of the action, name of the witness, and date of the subpoena are clearly
inscribed. The sealed envelope or wrapper shall be enclosed in an outer
envelope or wrapper and sealed. The outer envelope or wrapper shall be
addressed as follows: (i) if the subpoena directs attendance in court, to the
clerk of the court, or to the judge thereof if there is no clerk; (ii) if the
subpoena directs attendance at a deposition or other hearing, to the officer
administering the oath for the deposition, at the place designated in the subpoena
for the taking of the deposition or at the officers place of business; (iii)
in other cases involving a hearing, to the officer or body conducting the
hearing at the official place of business; (iv) if no hearing is scheduled, to
the attorney or party issuing the subpoena. If the subpoena directs delivery of
the records in accordance with subparagraph H(2)(c)(iv), then a copy of the
proposed subpoena shall be served on the person whose records are sought and on
all other parties to the litigation, not less than 14 days prior to service of
the subpoena on the entity or person. Any party to the proceeding may inspect
the records provided and/or request a complete copy of the records. Upon
request, the records must be promptly provided by the party who issued the
subpoena at the requesting partys expense.
H(2)(d) After filing and after giving
reasonable notice in writing to all parties who have appeared of the time and
place of inspection, the copy of the records may be inspected by any party or
the attorney of record of a party in the presence of the custodian of the court
files, but otherwise shall remain sealed and shall be opened only at the time
of trial, deposition, or other hearing, at the direction of the judge, officer,
or body conducting the proceeding. The records shall be opened in the presence
of all parties who have appeared in person or by counsel at the trial,
deposition, or hearing. Records which are not introduced in evidence or
required as part of the record shall be returned to the custodian of hospital
records who submitted them.
H(2)(e) For purposes of this section, the
subpoena duces tecum to the custodian of the records may be served by first
class mail. Service of subpoena by mail under this section shall not be subject
to the requirements of subsection (3) of section D.
H(3) Affidavit
or declaration of custodian of records. H(3)(a)
The records described in subsection (2) of this section shall be accompanied by
the affidavit or declaration of a custodian of the records, stating in
substance each of the following: (i) that the affiant or declarant is a duly
authorized custodian of the records and has authority to certify records; (ii)
that the copy is a true copy of all the records responsive to the subpoena;
(iii) that the records were prepared by the personnel of the entity or person
acting under the control of either, in the ordinary course of the entitys or
persons business, at or near the time of the act, condition, or event
described or referred to therein.
H(3)(b) If the entity or person has none
of the records described in the subpoena, or only a part thereof, the affiant
or declarant shall so state in the affidavit or declaration and shall send only
those records of which the affiant or declarant has custody.
H(3)(c) When more than one person has
knowledge of the facts required to be stated in the affidavit or declaration,
more than one affidavit or declaration may be used.
H(4) Personal
attendance of custodian of records may be required.
H(4)(a) The personal attendance of a
custodian of records and the production of original records is required if the
subpoena duces tecum contains the following statement:
______________________________________________________________________________
The personal attendance of a custodian of
records and the production of original records is required by this subpoena.
The procedure authorized pursuant to Oregon Rule of Civil Procedure 55 H(2)
shall not be deemed sufficient compliance with this subpoena.
______________________________________________________________________________
H(4)(b) If more than one subpoena duces
tecum is served on a custodian of records and personal attendance is required
under each pursuant to paragraph (a) of this subsection, the custodian shall be
deemed to be the witness of the party serving the first such subpoena.
H(5) Tender
and payment of fees. Nothing in this section requires the tender or payment
of more than one witness and mileage fee or other charge unless there has been
agreement to the contrary.
H(6) Scope
of discovery. Notwithstanding any other provision, this rule does not
expand the scope of discovery beyond that provided in Rule 36 or Rule 44. [CCP
12/2/78; §§A,C,H amended by 1979 c.284 §§33,34,35; §§D(1), F(2) amended by CCP
12/13/80; §D amended by CCP 12/4/82; §D amended by 1983 c.751 §5; §H(2) amended
by CCP 12/13/86; §H(2) amended by CCP 12/10/88 and 1/6/89; §E amended by 1989
c.980 §3; §§A,B,C,D,F,H amended by CCP 12/15/90; §H amended by 1993 c.18 §3; §D
amended by CCP 12/10/94 and 1995 c.79 §404; §§F,H amended by CCP 12/10/94; §I
adopted by 1995 c.694 §1; §I amended by CCP 12/14/96; §D amended by 1997 c.249 §10;
§C amended by 1999 c.59 §5; §I amended by CCP 12/12/98; §H amended by 2001
c.104 §3; §H amended by CCP 12/14/02 and 2003 c.194 §11; §I deleted by CCP
12/14/02; §F amended by CCP 12/9/06]
TRIAL BY JURY
RULE 56
Trial
by jury defined.
A
Twelve-person juries. A
trial jury in the circuit court is a body of 12 persons drawn as provided in
Rule 57. The parties may stipulate that a jury shall consist of any number less
than 12 or that a verdict or finding of a stated majority of the jurors shall
be taken as the verdict or finding of the jury.
B
Six-person juries.
Notwithstanding section A of this rule, a jury in circuit court shall consist
of six persons if the amount in controversy is less than $10,000. [CCP 12/2/78;
amended by 1995 c.658 §119]
JURORS
RULE 57
A Challenging
compliance with selection procedures.
A(1) Motion.
Within 7 days after the moving party discovered or by the exercise of diligence
could have discovered the grounds therefor, and in any event before the jury is
sworn to try the case, a party may move to stay the proceedings or for other
appropriate relief, on the ground of substantial failure to comply with the applicable
provisions of ORS chapter 10 in selecting the jury.
A(2) Stay
of proceedings. Upon motion filed under subsection (1) of this section
containing a sworn statement of facts which, if true, would constitute a
substantial failure to comply with the applicable provisions of ORS chapter 10
in selecting the jury, the moving party is entitled to present in support of
the motion: the testimony of the clerk or court administrator, any relevant
records and papers not public or otherwise available used by the clerk or court
administrator, and any other relevant evidence. If the court determines that in
selecting the jury there has been a substantial failure to comply with the
applicable provisions of ORS chapter 10, the court shall stay the proceedings
pending the selection of the jury in conformity with the applicable provisions
of ORS chapter 10, or grant other appropriate relief.
A(3) Exclusive
means of challenge. The procedures prescribed by this section are the
exclusive means by which a party in a civil case may challenge a jury on the
ground that the jury was not selected in conformity with the applicable
provisions of ORS chapter 10.
B
Jury; how drawn. When the
action is called for trial the clerk shall draw names at random from the names
of jurors in attendance upon the court until the jury is completed or the names
of jurors in attendance are exhausted. If the names of jurors in attendance
become exhausted before the jury is complete, the sheriff, under the direction
of the court, shall summon from the bystanders, or the body of the county, so
many qualified persons as may be necessary to complete the jury. Whenever the
sheriff shall summon more than one person at a time from the bystanders or the
body of the county, the sheriff shall return a list of the persons so summoned
to the clerk. The clerk shall draw names at random from the list until the jury
is completed.
C
Examination of jurors. When
the full number of jurors has been called, they shall be examined as to their
qualifications, first by the court, then by the plaintiff, and then by the
defendant. The court shall regulate the examination in such a way as to avoid
unnecessary delay.
D Challenges.
D(1) Challenges
for cause; grounds. Challenges for cause may be taken on any one or more of
the following grounds:
D(1)(a) The want of any qualifications
prescribed by ORS 10.030 for a person eligible to act as a juror.
D(1)(b) The existence of a mental or
physical defect which satisfies the court that the challenged person is
incapable of performing the duties of a juror in the particular action without
prejudice to the substantial rights of the challenging party.
D(1)(c) Consanguinity or affinity within
the fourth degree to any party.
D(1)(d) Standing in the relation of
guardian and ward, physician and patient, master and servant, landlord and
tenant, or debtor and creditor, to the adverse party; or being a member of the
family of, or a partner in business with, or in the employment for wages of, or
being an attorney for or a client of, the adverse party; or being surety in the
action called for trial, or otherwise, for the adverse party.
D(1)(e) Having served as a juror on a
previous trial in the same action, or in another action between the same
parties for the same cause of action, upon substantially the same facts or
transaction.
D(1)(f) Interest on the part of the juror
in the outcome of the action, or the principal question involved therein.
D(1)(g) Actual bias on the part of a juror. Actual bias is the
existence of a state of mind on the part of a juror that satisfies the court,
in the exercise of sound discretion, that the juror cannot try the issue
impartially and without prejudice to the substantial rights of the party
challenging the juror. Actual bias may be in reference to: (i) the action; (ii)
either party to the action; (iii) the sex of the party, the partys attorney, a
victim or a witness; or (iv) a racial or ethnic group that the party, the partys
attorney, a victim or a witness is a member of, or is perceived to be a member
of. A challenge for actual bias may be taken for the cause mentioned in this
paragraph, but on the trial of such challenge, although it should appear that
the juror challenged has formed or expressed an opinion upon the merits of the
cause from what the juror may have heard or read, such opinion shall not of
itself be sufficient to sustain the challenge, but the court must be satisfied,
from all the circumstances, that the juror cannot disregard such opinion and
try the issue impartially.
D(2) Peremptory
challenges; number. A peremptory challenge is an objection to a juror for
which no reason need be given, but upon which the court shall exclude such
juror. Either party is entitled to no more than three peremptory challenges if
the jury consists of more than six jurors, and no more than two peremptory
challenges if the jury consists of six jurors. Where there are multiple parties
plaintiff or defendant in the case or where cases have been consolidated for
trial, the parties plaintiff or defendant must join in the challenge and are
limited to the number of peremptory challenges specified in this subsection,
except the court, in its discretion and in the interest of justice, may allow
any of the parties, single or multiple, additional peremptory challenges and permit
them to be exercised separately or jointly.
D(3) Conduct
of peremptory challenges. After the full number of jurors have been passed
for cause, peremptory challenges shall be conducted by written ballot or
outside the presence of the jury as follows: the plaintiff may challenge one
and then the defendant may challenge one, and so alternating until the
peremptory challenges shall be exhausted. After each challenge, the panel shall
be filled and the additional juror passed for cause before another peremptory
challenge shall be exercised, and neither party is required to exercise a
peremptory challenge unless the full number of jurors are in the jury box at
the time. The refusal to challenge by either party in the order of alternation
shall not defeat the adverse party of such adverse partys full number of
challenges, and such refusal by a party to exercise a challenge in proper turn
shall conclude that party as to the jurors once accepted by that party, and if
that partys right of peremptory challenge be not exhausted, that partys
further challenges shall be confined, in that partys proper turn, to such
additional jurors as may be called. The court may, for good cause shown, permit
a challenge to be taken to any juror before the jury is completed and sworn,
notwithstanding the juror challenged may have been theretofore accepted, but
nothing in this subsection shall be construed to increase the number of
peremptory challenges allowed.
D(4) Challenge
of peremptory challenge exercised on basis of race, ethnicity or sex.
D(4)(a) A party may not exercise a
peremptory challenge on the basis of race, ethnicity or sex. Courts shall
presume that a peremptory challenge does not violate this paragraph, but the
presumption may be rebutted in the manner provided by this section.
D(4)(b) If a party believes that the
adverse party is exercising a peremptory challenge on a basis prohibited under
paragraph (a) of this subsection, the party may object to the exercise of the
challenge. The objection must be made before the court excuses the juror. The
objection must be made outside of the presence of potential jurors. The party
making the objection has the burden of establishing a prima facie case that the
adverse party challenged the potential juror on the basis of race, ethnicity or
sex.
D(4)(c) If the court finds that the party
making the objection has established a prima facie case that the adverse party
challenged a prospective juror on the basis of race, ethnicity or sex, the
burden shifts to the adverse party to show that the peremptory challenge was
not exercised on the basis of race, ethnicity or sex. If the adverse party
fails to meet the burden of justification as to the questioned challenge, the
presumption that the challenge does not violate paragraph (a) of this
subsection is rebutted.
D(4)(d) If the court finds that the
adverse party challenged a prospective juror on the basis of race, ethnicity or
sex, the court shall disallow the peremptory challenge.
E
Oath of jury. As soon as the
number of the jury has been completed, an oath or affirmation shall be
administered to the jurors, in substance that they and each of them will well
and truly try the matter in issue between the plaintiff and defendant, and a
true verdict give according to the law and evidence as given them on the trial.
F
Alternate jurors. The court
may direct that not more than six jurors in addition to the regular jury be
called and impanelled to sit as alternate jurors. Alternate jurors in the order
in which they are called shall replace jurors who, prior to the time the jury
retired to consider its verdict, become or are found to be unable or
disqualified to perform their duties. Alternate jurors shall be drawn in the
same manner, shall have the same qualifications, shall be subject to the same
examination and challenges, shall take the same oath, and shall have the same
functions, powers, facilities, and privileges as the regular jurors. An
alternate juror who does not replace a regular juror shall be discharged as the
jury retires to consider its verdict. Each side is entitled to one peremptory
challenge in addition to those otherwise allowed by these rules or other rule
or statute if one or two alternate jurors are to be impanelled, two peremptory
challenges if three or four alternate jurors are to be impanelled, and three
peremptory challenges if five or six alternate jurors are to be impanelled. The
additional peremptory challenges may be used against an alternate juror only,
and the other peremptory challenges allowed by these rules or other rule or
statute shall not be used against an alternate juror. [CCP 12/2/78; §§C,F
amended by 1979 c.284 §§36,37; §C amended by CCP 12/8/84; 1985 c.703 §20; §C
amended by CCP 12/10/94; §D amended by 1995 c.530 §1 and 1995 c.707 §1; §D
amended by 1997 c.801 §69]
TRIAL PROCEDURE
RULE 58
A
Manner of proceedings on trial by the court. Trial by the court shall proceed in the manner prescribed in
subsections (3) through (6) of section B of this rule, unless the court, for
good cause stated in the record, otherwise directs.
B
Manner of proceedings on jury trial. Trial by a jury shall proceed in the following manner unless the court,
for good cause stated in the record, otherwise directs:
B(1) The jury shall be selected and sworn.
Prior to voir dire, each party may, with the courts consent, present a short
statement of the facts to the entire jury panel.
B(2) After the jury is sworn, the court
shall instruct the jury concerning its duties, its conduct, the order of
proceedings, the procedure for submitting written questions to witnesses if
permitted, and the legal principles that will govern the proceedings.
B(3) The plaintiff shall concisely state
plaintiffs case and the issues to be tried; the defendant then, in like
manner, shall state defendants case based upon any defense or counterclaim or
both.
B(4) The plaintiff shall introduce the
evidence on plaintiffs case in chief, and when plaintiff has concluded, the
defendant shall do likewise.
B(5) The parties respectively may
introduce rebutting evidence only, unless the court in furtherance of justice
permits them to introduce evidence upon the original cause of action, defense,
or counterclaim.
B(6) When the evidence is concluded,
unless the case is submitted by both sides to the jury without argument, the
plaintiff shall commence and conclude the argument to the jury. The
plaintiff may waive the opening argument, and if the defendant then argues the
case to the jury, the plaintiff shall have the right to reply to the argument
of the defendant, but not otherwise.
B(7) Not more than two counsel shall
address the jury on behalf of the plaintiff or defendant; the whole time
occupied on behalf of either shall not be limited to less than two hours.
B(8) After the evidence is concluded, the
court shall instruct the jury. The court may instruct the jury before or after
the closing arguments.
B(9) With the courts consent, jurors
shall be permitted to submit to the court written questions directed to
witnesses or to the court. The court shall afford the parties an opportunity to
object to such questions outside the presence of the jury.
C
Separation of jury before submission of cause; admonition. The jurors may be kept together in charge of
a proper officer, or may, in the discretion of the court, at any time before
the submission of the cause to them, be permitted to separate; in either case,
they may be admonished by the court that it is their duty not to converse with
any other person, or among themselves, on any subject connected with the trial,
or to express any opinion thereon, until the case is finally submitted to them.
D
Proceedings if juror becomes sick. If, after the formation of the jury, and before verdict, a juror
becomes sick, so as to be unable to perform the duty of a juror, the court may order
such juror to be discharged. In that case, unless an alternate juror, seated
under Rule 57 F, is available to replace the discharged juror or unless the
parties agree to proceed with the remaining jurors, a new juror may be sworn,
and the trial begin anew; or the jury may be discharged, and a new jury then or
afterwards formed.
E
Failure to appear for trial.
When a party who has filed an appearance fails to appear for trial, the court
may, in its discretion, proceed to trial and judgment without further notice to
the non-appearing party. [CCP 12/2/78; §E adopted by CCP 12/10/94; §§A,B
amended by CCP 12/9/00]
INSTRUCTIONS TO
JURY AND DELIBERATION
RULE 59
A
Proposed instructions.
Unless otherwise requested by the trial judge on timely notice to counsel,
proposed instructions shall be submitted at the commencement of the trial.
Proposed instructions upon questions of law developed by the evidence, which
could not be reasonably anticipated, may be submitted at any time before the
court has instructed the jury. The number of copies of proposed instructions
and their form shall be governed by local court rule.
B
Charging the jury. In
charging the jury, the court shall state to them all matters of law necessary
for their information in giving their verdict. Whenever the knowledge of the
court is by statute made evidence of a fact, the court shall declare such
knowledge to the jury, who are bound to accept it as conclusive. The court
shall reduce, or require a party to reduce, the charge to writing. However, if
the preparation of written instructions is not feasible, the court may record
the instructions electronically during the charging of the jury. The jury shall
take such written instructions or recording with it while deliberating upon the
verdict and then return the written instructions or recording to the clerk
immediately upon conclusion of its deliberations. The clerk shall file the
written instructions or recording in the court file of the case.
C
Deliberation.
C(1) Exhibits.
Upon retiring for deliberation the jury may take with them all exhibits
received in evidence, except depositions.
C(2) Written
statement of issues. Pleadings shall not go to the jury room. The court
may, in its discretion, submit to the jury an impartial written statement summarizing
the issues to be decided by the jury.
C(3) Copies
of documents. Copies may be substituted for any parts of public records or
private documents as ought not, in the opinion of the court, to be taken from
the person having them in possession.
C(4) Notes.
Jurors may take notes of the testimony or other proceeding on the trial and may
take such notes into the jury room.
C(5) Custody
of and communications with jury. After hearing the charge and submission of
the cause to them, the jury shall retire for deliberation. When they retire,
they must be kept together in some convenient place, under the charge of an
officer, until they agree upon their verdict or are allowed by the court to
separate or are discharged by the court. Unless by order of the court, the
officer must not suffer any communication to be made to them, or make any
personally, except to ask them if they are agreed upon a verdict, and the
officer must not, before their verdict is rendered, communicate to any person
the state of their deliberations, or the verdict agreed upon. Before any
officer takes charge of a jury, this subsection shall be read to the officer
who shall be then sworn to follow its provisions to the utmost of such officers
ability.
C(6) Separation
during deliberation. The court in its discretion may allow the jury to
separate during its deliberation when the court is of the opinion that the
deliberation process will not be adversely affected. In such cases the court
will give the jury appropriate cautionary instruction.
C(7) Jurors
use of private knowledge or information. A juror shall not communicate any
private knowledge or information that the juror may have of the matter in
controversy to other jurors nor shall the juror be governed by the same in
giving his or her verdict.
D
Further instructions. After
retirement for deliberation, if the jury requests information on any point of
law, the judge may require the officer having them in charge to conduct them
into court. Upon the jury being brought into court, the information requested,
if given, shall be given either orally or in writing in the presence of, or
after notice to, the parties or their counsel.
E
Comments on evidence. The
judge shall not instruct with respect to matters of fact, nor comment thereon.
F Discharge
of jury without verdict.
F(1) When
jury may be discharged. The jury shall not be discharged after the cause is
submitted to them until they have agreed upon a verdict and given it in open
court unless:
F(1)(a) At the expiration of such period as
the court deems proper, it satisfactorily appears that there is no probability
of an agreement; or
F(1)(b) An accident or calamity requires
their discharge; or
F(1)(c) A juror becomes ill as provided in
Rule 58 D.
F(2) New
trial when jury discharged. Where
the jury is discharged without giving a verdict, either during the progress of
the trial or after the cause is submitted to them, the action may be again
tried immediately, or at a future time, as the court directs.
G
Return of jury verdict.
G(1) Declaration
of verdict. When the jurors have agreed upon their verdict, they shall be
conducted into court by the officer having them in charge. The court shall
inquire whether they have agreed upon their verdict. If the foreperson answers
in the affirmative, it shall be read.
G(2) Number
of jurors concurring. In civil cases three-fourths of the jury may render a
verdict.
G(3) Polling
the jury. When the verdict is given, and before it is filed, the jury may
be polled on the request of a party, for which purpose each juror shall be
asked whether the verdict is the jurors verdict. If fewer jurors answer in the
affirmative than the number required to render a verdict, the jury shall be
sent out for further deliberations.
G(4) Informal
or insufficient verdict. If the verdict is informal or insufficient, it may
be corrected by the jury under the advice of the court, or the jury may be
required to deliberate further.
G(5) Completion
of verdict; form and entry. When a verdict is given and is such as the
court may receive, the clerk shall file the verdict. Then the jury shall be
discharged from the case.
H
Necessity of noting exception on error in statement of issues or instructions
given or refused.
H(1) Statement
of issues or instructions given or refused. A party may not obtain review
on appeal of an asserted error by a trial court in submitting or refusing to
submit a statement of issues to a jury pursuant to subsection C(2) of this rule
or in giving or refusing to give an instruction to a jury unless the party who
seeks to appeal identified the asserted error to the trial court and made a
notation of exception immediately after the court instructed the jury.
H(2) Exceptions
must be specific and on the record. A party shall state with particularity
any point of exception to the trial judge. A party shall make a notation of
exception either orally on the record or in a writing filed with the court. [CCP
12/2/78; §B amended by 1979 c.284 §38; §C amended by 1981 c.662 §1 and 1981
c.892 §97b; §B amended by CCP 12/4/82; §C(6) amended by CCP 12/10/88 and
1/6/89; §G amended by 1997 c.249 §11; §B amended by CCP 12/14/02; §H amended by
CCP 12/11/04]
MOTION FOR DIRECTED
VERDICT
RULE 60
Motion
for a directed verdict. Any
party may move for a directed verdict at the close of the evidence offered by
an opponent or at the close of all the evidence. A party who moves for a
directed verdict at the close of the evidence offered by an opponent may offer
evidence in the event that the motion is not granted, without having reserved
the right so to do and to the same extent as if the motion had not been made. A
motion for a directed verdict which is not granted is not a waiver of trial by
jury even though all parties to the action have moved for directed verdicts. A
motion for a directed verdict shall state the specific grounds therefor. The
order of the court granting a motion for a directed verdict is effective
without any assent of the jury. If a motion for directed verdict is made by the
party against whom the claim is asserted, the court may, at its discretion,
give a judgment of dismissal without prejudice under Rule 54 rather than direct
a verdict. [CCP 12/2/78; amended by CCP 12/13/80]
VERDICTS, GENERAL AND
SPECIAL
RULE 61
A
General verdict.
A(1) A general verdict is that by which
the jury pronounces generally upon all or any of the issues either in favor of
the plaintiff or defendant.
A(2) When a general verdict is found in
favor of a party asserting a claim for the recovery of money, the jury shall
also assess the amount of recovery. A specific designation by a jury that no
amount of recovery shall be had complies with this subsection.
B
Special verdict. The court
may require a jury to return only a special verdict in the form of a special
written finding upon each issue of fact. In that event the court may submit to
the jury written questions susceptible of categorical or other brief answer or
may submit written forms of the several special findings which might properly
be made under the pleadings and evidence; or it may use such other method of
submitting the issues and requiring the written findings thereon as it deems
most appropriate. The court shall give to the jury such explanation and
instruction concerning the matter thus submitted as may be necessary to enable
the jury to make its findings upon each issue. If in so doing the court omits
any issue of fact raised by the pleadings or by the evidence, each party waives
the right to a trial by jury of the issue so omitted unless before the jury
retires such party demands its submission to the jury. As to an issue omitted
without such demand, the court may make a finding; or, if it fails to do so, it
shall be deemed to have made a finding in accord with the judgment on the
special verdict.
C
General verdict accompanied by answer to interrogatories. The court may submit to the jury, together
with appropriate forms for a general verdict, written interrogatories upon one
or more issues of fact the decision of which is necessary to a verdict. The
court shall give such explanation or instruction as may be necessary to enable
the jury both to make answers to the interrogatories and to render a general
verdict, and the court shall direct the jury both to make written answers and
to render a general verdict. When the general verdict and the answers are
harmonious, the appropriate judgment upon the verdict and the answers shall be
entered. When the answers are consistent with each other but one or more is
inconsistent with the general verdict, judgment may be entered in accordance
with the answers, notwithstanding the general verdict, or the court may return
the jury for further consideration of its answers and verdict or may order a
new trial. When the answers are inconsistent with each other and one or more is
likewise inconsistent with the general verdict, judgment shall not be entered,
but the court shall return the jury for further consideration of its answers
and verdict or shall order a new trial.
D
Action for specific personal property. In an action for the recovery of specific personal property, where any
party who alleges a right to possession of such property is not in possession
at the time of trial, in addition to any general verdict or other special
verdict, the court shall require the jury to return a special verdict in the
form of (1) a special written finding on the issue of the right to possession
of any party alleging a right to possession, and (2) an assessment of the value
of the property. [CCP 12/2/78]
FINDINGS OF FACT
RULE 62
A
Necessity. Whenever any party
appearing in a civil action tried by the court so demands prior to the
commencement of the trial, the court shall make special findings of fact, and
shall state separately its conclusions of law thereon. In the absence of such a
demand for special findings, the court may make either general or special
findings. If an opinion or memorandum of decision is filed, it will be
sufficient if the findings of fact or conclusions of law appear therein.
B
Proposed findings; objections. Within
10 days after the court has made its decision, any special findings requested
by any party, or proposed by the court, shall be served upon all parties who
have appeared in the case and shall be filed with the clerk; and any party may,
within 10 days after such service, object to such proposed findings or any part
thereof, and request other, different, or additional special findings, whether
or not such party has previously requested special findings. Any such
objections or requests for other, different, or additional special findings
shall be heard and determined by the court within 30 days after the date of the
filing thereof; and, if not so heard and determined, any such objections and
requests for such other, different, or additional special findings shall
conclusively be deemed denied.
C
Entry of judgment. Upon (1)
the determination of any objections to proposed special findings and of any
requests for other, different, or additional special findings, or (2) the
expiration of the time for filing such objections and requests if none is
filed, or (3) the expiration of the time at which such objections or requests
are deemed denied, the court shall enter the appropriate order or judgment. Any
such judgment or order filed prior to the expiration of the periods above set
forth shall be deemed not entered until the expiration of said periods.
D
Extending or lessening time. Prior
to the expiration of the times provided in sections B and C of this rule, the
time for serving and filing special findings, or for objecting to and requesting
other, different, or additional special findings, may be extended or lessened
by the trial court upon the stipulation of the parties or for good cause shown;
but in no event shall the time be extended more than 30 days.
E
Necessity. Requests for
findings of fact or objections to findings are not necessary for purposes of
appellate review.
F
Effect of findings of fact. In
an action tried without a jury, except as provided in ORS 19.415 (3), the
findings of the court upon the facts shall have the same force and effect, and
be equally conclusive, as the verdict of a jury. [CCP 12/2/78; §F amended by
CCP 12/14/02]
JUDGMENT
NOTWITHSTANDING THE VERDICT
RULE 63
A
Grounds. When a motion for a
directed verdict, made at the close of all the evidence, which should have been
granted has been refused and a verdict is rendered against the applicant, the
court may, on motion, render a judgment notwithstanding the verdict, or set
aside any judgment which may have been entered and render another judgment, as the
case may require.
B
Reserving ruling on directed verdict motion. In any case where, in the opinion of the court, a motion for a
directed verdict ought to be granted, it may nevertheless, at the request of
the adverse party, submit the case to the jury with leave to the moving party
to move for judgment in such partys favor if the verdict is otherwise than as
would have been directed or if the jury cannot agree on a verdict.
C
Alternative motion for new trial. A motion in the alternative for a new trial may be joined with a
motion for judgment notwithstanding the verdict, and unless so joined shall, in
the event that a motion for judgment notwithstanding the verdict is filed, be
deemed waived. When both motions are filed, the motion for judgment notwithstanding
the verdict shall have precedence over the motion for a new trial, and if
granted the court shall, nevertheless, rule on the motion for a new trial and
assign such reasons therefor as would apply had the motion for judgment
notwithstanding the verdict been denied, and shall make and file an order in
accordance with said ruling.
D(1) Time
for motion and ruling. A motion for judgment notwithstanding the verdict
shall be filed not later than 10 days after the entry of the judgment sought to
be set aside, or such further time as the court may allow. The motion shall be
heard and determined by the court within 55 days of the time of the entry of
the judgment, and not thereafter, and if not so heard and determined within
said time, the motion shall conclusively be deemed denied.
D(2) Effect
of notice of appeal. A motion for judgment notwithstanding the verdict
filed within the time limit prescribed in subsection (1) of this section may be
filed notwithstanding that another party has filed notice of appeal in the case
and the trial court may decide the motion notwithstanding that notice of appeal
has been filed. If a party files a motion for judgment notwithstanding the
verdict after notice of appeal has been filed, the moving party shall serve a
copy of the motion on the appellate court. If the trial court decides the
motion by order, the moving party shall file a copy of the order in the
appellate court within seven days of the date of entry of the order. Any
necessary modification of the appeal required by the order shall be pursuant to
rule of the appellate court.
E
Duties of the clerk. The
clerk shall, on the date an order made pursuant to this rule is entered or on
the date a motion is deemed denied pursuant to section D of this rule,
whichever is earlier, mail a notice of the date of entry of the order or denial
of the motion to the attorney of record, if any, of each party who is not in
default for failure to appear. If a party who is not in default for failure to
appear does not have an attorney of record, such notice shall be mailed to the
party. The clerk also shall make a note in the register of the mailing.
F
Motion for new trial after judgment notwithstanding the verdict. The party whose verdict has been set aside
on motion for judgment notwithstanding the verdict may serve a motion for a new
trial pursuant to Rule 64 not later than 10 days after filing of the judgment
notwithstanding the verdict. [CCP 12/2/78; §§D,E amended by CCP 12/13/80; §A
amended by CCP 12/4/82; §E amended by 1995 c.79 §405; §E amended by 2003 c.576 §223;
§D amended by CCP 12/9/06]
NEW TRIALS
RULE 64
A
New trial defined. A new
trial is a re-examination of an issue of fact in the same court after judgment.
B
Jury trial; grounds for new trial. A former judgment may be set aside and a new trial granted in an
action where there has been a trial by jury on the motion of the party
aggrieved for any of the following causes materially affecting the substantial
rights of such party:
B(1) Irregularity in the proceedings of
the court, jury or adverse party, or any order of the court, or abuse of
discretion, by which such party was prevented from having fair trial.
B(2) Misconduct of the jury or prevailing
party.
B(3) Accident or surprise which ordinary
prudence could not have guarded against.
B(4) Newly discovered evidence, material
for the party making the application, which such party could not with
reasonable diligence have discovered and produced at the trial.
B(5) Insufficiency of the evidence to
justify the verdict or other decision, or that it is against law.
B(6) Error in law occurring at the trial
and objected to or excepted to by the party making the application.
C
New trial in case tried without a jury. In an action tried without a jury, a former judgment may be set aside
and a new trial granted on motion of the party aggrieved on any grounds set
forth in section B of this rule where applicable. On a motion for a new trial
in an action tried without a jury, the court may open the judgment if one has
been entered, take additional testimony, amend findings of fact and conclusions
of law or make new findings and conclusions, and direct the entry of a new
judgment.
D
Specification of grounds of motion; when motion must be on affidavits or
declarations. In all cases
of motion for a new trial, the grounds thereof shall be plainly specified, and
no cause of new trial not so stated shall be considered or regarded by the
court. When the motion is made for a cause mentioned in subsections (1) through
(4) of section B of this rule, it shall be upon affidavit or declaration
setting forth the facts upon which the motion is based. If the cause is newly
discovered evidence, the affidavits or declarations of any witness or witnesses
showing what their testimony will be, shall be produced, or good reasons shown
for their nonproduction.
E
When counteraffidavits or counterdeclarations are allowed; former proceedings
considered. If the motion is
supported by affidavits or declarations, counteraffidavits or
counterdeclarations may be offered by the adverse party. In the consideration
of any motion for a new trial, reference may be had to any proceedings in the
case prior to the verdict or other decision sought to be set aside.
F(1) Time
of motion; counteraffidavits or counterdeclarations; hearing and determination.
A motion to set aside a judgment and for a new trial, with the affidavits or
declarations, if any, in support thereof, shall be filed not later than 10 days
after the entry of the judgment sought to be set aside, or such further time as
the court may allow. When the adverse party is entitled to oppose the motion by
counteraffidavits or counterdeclarations, such party shall file the same within
10 days after the filing of the motion, or such further time as the court may allow.
The motion shall be heard and determined by the court within 55 days from the
time of the entry of the judgment, and not thereafter, and if not so heard and
determined within said time, the motion shall conclusively be deemed denied.
F(2) Effect
of notice of appeal. A motion for new trial filed within the time limit
prescribed in subsection (1) of this section may be filed notwithstanding that
another party has filed notice of appeal in the case and the trial court may
decide the motion notwithstanding that notice of appeal has been filed. If a
party files a motion for new trial after notice of appeal has been filed, the
moving party shall serve a copy of the motion on the appellate court. If the
trial court decides the motion by order, the moving party shall file a copy of
the order in the appellate court within seven days of the date of entry of the
order. Any necessary modification of the appeal required by the order shall be
pursuant to rule of the appellate court.
G
New trial on courts own initiative. If a new trial is granted by the court on its own initiative, the order
shall so state and shall be made within 30 days after the entry of the
judgment. Such order shall contain a statement setting forth fully the grounds
upon which the order was made, which statement shall be a part of the record in
the case. [CCP 12/2/78; §B amended by 1979 c.284 §39; §§F,G amended by CCP
12/13/80; amended by 2003 c.194 §12; §F amended by CCP 12/9/06]
REFEREES
RULE 65
A
In general.
A(1) Appointment.
A court in which an action is pending may appoint a referee who shall have such
qualifications as the court deems appropriate.
A(2) Compensation.
The fees to be allowed to a referee shall be fixed by the court and shall be
charged upon the parties or paid out of any fund or subject matter of the
action which is in the custody and control of the court, as the court may
direct.
A(3) Delinquent
fees. The referee shall not retain the referees report as security for
compensation. If a party ordered to pay the fee allowed by the court does not
pay it after notice and within the time prescribed by the court, the referee is
entitled to a writ of execution against the delinquent party.
B
Reference.
B(1) Reference
by agreement. The court may make a reference upon the written consent of
the parties. In any case triable by right to a jury, consent to reference for
decision upon issues of fact shall be a waiver of right to jury trial.
B(2) Reference
without agreement. Reference may be made in actions to be tried without a jury
upon motion by any party or upon the courts own initiative. In absence of
agreement of the parties, a reference shall be made only upon a showing that
some exceptional condition requires it.
C
Powers.
C(1) Order
of reference. The order of reference to a referee may specify or limit the
referees powers and may direct the referee to report only upon particular
issues, or to do or perform particular acts, or to receive and report evidence
only. The order may fix the time and place for beginning and closing the
hearings and for the filing of the referees report.
C(2) Power
under order of reference. Subject to the specifications and limitations
stated in the order, the referee has and shall exercise the power to regulate
all proceedings in every hearing before the referee and to do all acts and take
all measures necessary or proper for the efficient performance of duties under
the order. The referee may require the production of evidence upon all matters
embraced in the reference, including the production of all books, papers,
vouchers, documents, and writings applicable thereto. Unless otherwise directed
by the order of reference, the referee may rule upon the admissibility of
evidence. The referee has the authority to put witnesses on oath and may personally
examine such witnesses upon oath.
C(3) Record.
When a party so requests, the referee shall make a record of the evidence
offered and excluded in the same manner and subject to the same limitations as
a court sitting without a jury.
D
Proceedings.
D(1) Meetings.
D(1)(a) When a reference is made, the
clerk or person performing the duties of that office shall forthwith furnish
the referee with a copy of the order of reference. Upon receipt thereof, unless
the order of reference otherwise provides, the referee shall forthwith set a
time and place for the first meeting of the parties or their attorneys to be
held within 20 days after the date of the order of reference and shall notify
the parties or their attorneys of the meeting date.
D(1)(b) It is the duty of the referee to
proceed with all reasonable diligence. Any party, after notice to the parties
and the referee, may apply to the court for an order requiring the referee to
speed the proceedings and to make the report.
D(1)(c) If a party fails to appear at the
time and place appointed, the referee may proceed ex parte or may adjourn the
proceedings to a future day, giving notice to the absent party of the
adjournment.
D(2) Witnesses.
The parties may procure the attendance of witnesses before the referee by the
issuance and service of subpoenas as provided in Rule 55. If, without adequate
excuse, a witness fails to appear or give evidence, that witness may be
punished as for a contempt by the court and be subjected to the consequences,
penalties, and remedies provided in Rule 55 G.
D(3) Accounts.
When matters of accounting are in issue, the referee may prescribe the form in
which the accounts shall be submitted and in any proper case may require or
receive in evidence a statement by a certified public accountant who is called
as a witness. Upon objection of a party to any of the items thus submitted or
upon a showing that the form of statement is insufficient, the referee may
require a different form of statement to be furnished or the accounts or specific
items thereof to be proved by oral examination of the accounting parties or in
such other manner as the referee directs.
E
Report.
E(1) Contents.
The referee shall without delay prepare a report upon the matters submitted by
the order of reference and, if required to make findings of fact and
conclusions of law, the referee shall set them forth in the report.
E(2) Filing.
Unless otherwise directed by the order of reference, the referee shall file the
report with the clerk of the court or person performing the duties of that
office and shall file a transcript of the proceedings and of the evidence and
the original exhibits with the report. The referee shall forthwith mail a copy
of the report to all parties.
E(3) Effect.
E(3)(a) Unless the parties stipulate to
the contrary, the referees findings of fact shall have the same effect as a
jury verdict. Within 10 days after being served with notice of the filing of
the report, any party may serve written objections thereto upon the other
parties. Application to the court for action upon the report and upon
objections to the report shall be by motion. The court after hearing may affirm
or set aside the report, in whole or in part.
E(3)(b) In any case, the parties may
stipulate that a referees findings of fact shall be binding or shall be
binding unless clearly erroneous. [CCP 12/13/80]
SUBMITTED
CONTROVERSY
RULE 66
A Submission
without action. Parties to a
question in controversy, which might have been the subject of an action with
such parties plaintiff and defendant, may submit the question to the
determination of a court having subject matter jurisdiction.
A(1) Contents
of submission. The written submission shall consist of an agreed statement
of facts upon which the controversy depends, a certificate that the controversy
is real and that the submission is made in good faith for the purpose of
determining the rights of the parties, and a request for relief.
A(2) Who
must sign the submission. The submission must be signed by all parties or
their attorneys as provided in Rule 17.
A(3) Effect
of the submission. From the moment the submission is filed, the court shall
treat the controversy as if it is an action pending after a special verdict
found. The controversy shall be determined on the agreed case alone, but the
court may find facts by inference from the agreed facts. If the statement of
facts in the case is not sufficient to enable the court to enter judgment, the
submission shall be dismissed or the court shall allow the filing of an additional
statement.
B
Submission of pending case.
An action may be submitted in a pending action at any time before trial,
subject to the same requirements and attended by the same results as in a
submission without action, and in addition:
B(1) Pleadings
deemed abandoned. Submission
shall be an abandonment by all parties of all prior pleadings, and the case
shall stand on the agreed case alone; and
B(2) Provisional
remedies. The submission must provide for any provisional remedy which is
to be continued or such remedy shall be deemed waived. [CCP 12/13/80]
JUDGMENTS
RULE 67
A
Definitions. Judgment as
used in these rules has the meaning given that term in ORS 18.005. Order as
used in these rules means any other determination by a court or judge that is
intermediate in nature.
B
Judgment for less than all claims or parties in action. When more than one claim for relief is
presented in an action, whether as a claim, counterclaim, cross-claim, or third
party claim, or when multiple parties are involved, the court may render a
limited judgment as to one or more but fewer than all of the claims or parties.
A judge may render a limited judgment under this section only if the judge
determines that there is no just reason for delay.
C
Demand for judgment. Every
judgment shall grant the relief to which the party in whose favor it is
rendered is entitled. A judgment for relief different in kind from or exceeding
the amount prayed for in the pleadings may not be rendered unless reasonable
notice and opportunity to be heard are given to any party against whom the
judgment is to be entered.
D
Judgment in action for recovery of personal property. In an action to recover the possession of
personal property, judgment for the plaintiff may be for the possession, or the
value of the property, in case a delivery cannot be had and damages for the
detention of the property. If the property has been delivered to the plaintiff
and the defendant claims a return of the property, judgment for the defendant
may be for a return of the property, or the value of the property in case a
return cannot be had, and damages for taking and withholding the same.
E
Judgment in action against partnership, unincorporated association, or parties
jointly indebted.
E(1) Partnership
and unincorporated association. Judgment in an action against a partnership
or unincorporated association which is sued in any name which it has assumed or
by which it is known may be entered against such partnership or association and
shall bind the joint property of all of the partners or associates.
E(2) Joint
obligations; effect of judgment. In any action against parties jointly
indebted upon a joint obligation, contract, or liability, judgment may be taken
against less than all such parties and a default, dismissal, or judgment in
favor of or against less than all of such parties in an action does not
preclude a judgment in the same action in favor of or against the remaining
parties.
F Judgment
by stipulation.
F(1) Availability
of judgment by stipulation. At any time after commencement of an action, a
judgment may be given upon stipulation that a judgment for a specified amount
or for a specific relief may be entered. The stipulation shall be of the party
or parties against whom judgment is to be entered and the party or parties in
whose favor judgment is to be entered. If the stipulation provides for attorney
fees, costs, and disbursements, they may be entered as part of the judgment
according to the stipulation.
F(2) Filing;
assent in open court. The stipulation for judgment may be in a writing
signed by the parties, their attorneys, or their authorized representatives,
which writing shall be filed in accordance with Rule 9. The stipulation may be
subjoined or appended to, and part of, a proposed form of judgment. If not in
writing, the stipulation shall be assented to by all parties thereto in open
court.
G
Judgment on portion of claim exceeding counterclaim. The court may direct entry of a limited
judgment as to that portion of any claim which exceeds a counterclaim asserted
by the party or parties against whom the judgment is entered, if such party or
parties have admitted the claim and asserted a counterclaim amounting to less
than the claim. [CCP 12/13/80; §§A,B,G amended by 2003 c.576 §§90,261,568; §C amended
by CCP 12/11/04]
ALLOWANCE AND
TAXATION OF ATTORNEY FEES AND COSTS AND DISBURSEMENTS
RULE 68
A
Definitions. As used in this
rule:
A(1) Attorney
fees. Attorney fees are the reasonable value of legal services related to
the prosecution or defense of an action.
A(2) Costs
and disbursements. Costs and disbursements are reasonable and necessary
expenses incurred in the prosecution or defense of an action other than for
legal services, and include the fees of officers and witnesses; the expense of
publication of summonses or notices, and the postage where the same are served
by mail; any fee charged by the Department of Transportation for providing
address information concerning a party served with summons pursuant to
subparagraph D(4)(a)(i) of Rule 7; the compensation of referees; the expense of
copying of any public record, book, or document admitted into evidence at
trial; recordation of any document where recordation is required to give notice
of the creation, modification or termination of an interest in real property; a
reasonable sum paid a person for executing any bond, recognizance, undertaking,
stipulation, or other obligation therein; and any other expense specifically
allowed by agreement, by these rules, or by other rule or statute. The court,
acting in its sole discretion, may allow as costs reasonable expenses incurred
by a party for interpreter services. The expense of taking depositions shall
not be allowed, even though the depositions are used at trial, except as
otherwise provided by rule or statute.
B
Allowance of costs and disbursements. In any action, costs and disbursements shall be allowed to the
prevailing party, unless these rules or other rule or statute direct that in
the particular case costs and disbursements shall not be allowed to the
prevailing party or shall be allowed to some other party, or unless the court
otherwise directs. If, under a special provision of these rules or any other
rule or statute, a party has a right to recover costs, such party shall also
have a right to recover disbursements.
C Award
of and entry of judgment for attorney fees and costs and disbursements.
C(1) Application
of this section to award of attorney fees. Notwithstanding Rule 1 A and the
procedure provided in any rule or statute permitting recovery of attorney fees
in a particular case, this section governs the pleading, proof and award of
attorney fees in all cases, regardless of the source of the right to recovery
of such fees, except when:
C(1)(a) Such items are claimed as damages arising
prior to the action; or
C(1)(b) Such items are granted by order,
rather than entered as part of a judgment.
C(2)(a) Alleging right to attorney fees. A party seeking attorney fees
shall allege the facts, statute or rule that provides a basis for the award of
such fees in a pleading filed by that party. Attorney fees may be sought before
the substantive right to recover such fees accrues. No attorney fees shall be
awarded unless a right to recover such fee is alleged as provided in this
subsection.
C(2)(b) If a party does not file a
pleading and seeks judgment or dismissal by motion, a right to attorney fees
shall be alleged in such motion, in similar form to the allegations required in
a pleading.
C(2)(c) A party shall not be required to
allege a right to a specific amount of attorney fees. An allegation that a
party is entitled to reasonable attorney fees is sufficient.
C(2)(d) Any allegation of a right to
attorney fees in a pleading or motion shall be deemed denied and no responsive
pleading shall be necessary. The opposing party may make a motion to strike the
allegation or to make the allegation more definite and certain. Any objections
to the form or specificity of allegation of the facts, statute or rule that
provides a basis for the award of fees shall be waived if not alleged prior to
trial or hearing.
C(3) Proof.
The items of attorney fees and costs and disbursements shall be submitted in
the manner provided by subsection (4) of this section, without proof being
offered during the trial.
C(4) Procedure
for seeking attorney fees or costs and disbursements. The procedure for
seeking attorney fees or costs and disbursements shall be as follows:
C(4)(a) Filing and serving statement of attorney fees and costs and
disbursements. A party seeking attorney fees or costs and disbursements
shall, not later than 14 days after entry of judgment pursuant to Rule 67:
C(4)(a)(i) File with the court a signed
and detailed statement of the amount of attorney fees or costs and
disbursements, together with proof of service, if any, in accordance with Rule
9 C; and
C(4)(a)(ii) Serve, in accordance with Rule
9 B, a copy of the statement on all parties who are not in default for failure
to appear.
C(4)(b) Objections. A party may object to a statement seeking attorney
fees or costs and disbursements or any part thereof by written objections to
the statement. The objections shall be served within 14 days after service on
the objecting party of a copy of the statement. The objections shall be
specific and may be founded in law or in fact and shall be deemed controverted
without further pleading. Statements and objections may be amended in
accordance with Rule 23.
C(4)(c) Hearing on objections. C(4)(c)(i)
If objections are filed in accordance with paragraph C(4)(b) of this rule, the
court, without a jury, shall hear and determine all issues of law and fact
raised by the statement of attorney fees or costs and disbursements and by the
objections. The parties shall be given a reasonable opportunity to present
affidavits, declarations and other evidence relevant to any factual issue,
including any factors that ORS 20.075 or any other statute or rule requires or
permits the court to consider in awarding or denying attorney fees or costs and
disbursements.
C(4)(c)(ii) The court shall deny or award
in whole or in part the amounts sought as attorney fees or costs and
disbursements.
C(4)(d) No
timely objections. If
objections are not timely filed the court may award attorney fees or costs and
disbursements sought in the statement.
C(4)(e) Findings and conclusions. On the request of a party, the court
shall make special findings of fact and state its conclusions of law on the
record regarding the issues material to the award or denial of attorney fees. A
party shall make a request pursuant to this paragraph by including a request
for findings and conclusions in the title of the statement of attorney fees or
costs and disbursements or objections filed pursuant to paragraph (a) or (b) of
this subsection. In the absence of a request under this paragraph, the court
may make either general or special findings of fact and may state its
conclusions of law regarding attorney fees.
C(5) Judgment
concerning attorney fees or costs and disbursements.
C(5)(a) As part of judgment. If all issues regarding attorney fees or costs
and disbursements are decided before entry of a judgment pursuant to Rule 67,
the court shall include any award or denial of attorney fees or costs and
disbursements in that judgment.
C(5)(b) By supplemental judgment; notice. If any issue regarding attorney
fees or costs and disbursements is not decided before entry of a general
judgment, any award or denial of attorney fees or costs and disbursements shall
be made by supplemental judgment.
C(6) Avoidance
of multiple collection of attorney fees and costs and disbursements.
C(6)(a) Separate judgments for separate claims. If more than one judgment
is entered in an action, the court shall take such steps as necessary to avoid
the multiple taxation of the same attorney fees and costs and disbursements in
those judgments.
C(6)(b) Separate judgments for the same claim. If more than one judgment is
entered for the same claim (when separate actions are brought for the same
claim against several parties who might have been joined as parties in the same
action, or when pursuant to Rule 67 B separate limited judgments are entered
against several parties for the same claim), attorney fees and costs and
disbursements may be entered in each judgment as provided in this rule, but satisfaction
of one judgment bars recovery of attorney fees or costs and disbursements
included in all other judgments. [CCP 12/13/80; amended by 1981 c.898 §7; §C
amended by 1983 c.728 §6; §A(2) amended by CCP 12/8/84; §A amended by 1987
c.586 §43; §C(2) amended by CCP 12/10/88 and 1/6/89; §C amended by CCP
12/15/90; §A amended by CCP 12/12/92; §C amended by 1993 c.18 §4; §A amended by
CCP 12/14/96; §A amended by 1997 c.872 §17; §C amended by CCP 12/12/98; §C
amended by CCP 12/14/02, 2003 c.194 §13 and 2003 c.576 §262; §C amended by 2005
c.22 §4 and 2005 c.568 §31a]
DEFAULT ORDERS AND
JUDGMENTS
RULE 69
A
Entry of order of default.
A(1) In
general. When a party against whom a judgment for affirmative relief is
sought has been served with summons pursuant to Rule 7 or is otherwise subject
to the jurisdiction of the court and has failed to plead or otherwise defend as
provided in these rules, the party seeking affirmative relief may apply for an
order of default. If the party against whom an order of default is sought has
filed an appearance in the action, or has provided written notice of intent to
file an appearance to the party seeking an order of default, then the party
against whom an order of default is sought shall be served with written notice
of the application for an order of default at least 10 days, unless shortened
by the court, prior to entry of the order of default. These facts, along with
the fact that the party against whom the order of default is sought has failed
to plead or otherwise defend as provided in these rules, shall be made to
appear by affidavit, declaration or otherwise, and upon such a showing, the
clerk or the court shall enter the order of default.
A(2) Certain
motor vehicle cases. Notwithstanding subsection A(1) of this section, no
default shall be entered against a defendant served with summons pursuant to
subparagraph D(4)(a)(i) of Rule 7 unless the plaintiff submits an affidavit or
a declaration showing:
A(2)(a) that the plaintiff has complied
with subparagraph D(4)(a)(i) of Rule 7; and
A(2)(b) either, if the identity of the
defendants insurance carrier is known to the plaintiff or could be determined
from any records of the Department of Transportation accessible to the
plaintiff, that the plaintiff not less than 30 days prior to the application
for default mailed a copy of the summons and the complaint, together with
notice of intent to apply for an order of default, to the insurance carrier by
first class mail and by any of the following: certified or registered mail, return
receipt requested, or express mail; or that the identity of the defendants
insurance carrier is unknown to the plaintiff.
B Entry
of default judgment.
B(1) By
the court or the clerk. The court or the clerk upon written application of
the party seeking judgment shall enter judgment when:
B(1)(a) The action arises upon contract;
B(1)(b) The claim of a party seeking
judgment is for the recovery of a sum certain or for a sum which can by
computation be made certain;
B(1)(c) The party against whom judgment is
sought has been defaulted for failure to appear;
B(1)(d) The party seeking judgment submits
an affidavit or a declaration stating that, to the best knowledge and belief of
the party seeking judgment, the party against whom judgment is sought is not
incapacitated as defined in ORS 125.005, a minor, a protected person as defined
in ORS 125.005, or a respondent as defined in ORS 125.005;
B(1)(e) The party seeking judgment submits
an affidavit or a declaration of the amount due;
B(1)(f) An affidavit or a declaration
pursuant to subsection B(3) of this rule has been submitted; and
B(1)(g) Summons was personally served
within the State of Oregon upon the party, or an agent, officer, director, or
partner of a party, against whom judgment is sought pursuant to Rule 7
D(3)(a)(i), 7 D(3)(b)(i), 7 D(3)(e), or 7 D(3)(f).
B(2) By
the court. In cases other than those cases described in subsection (1) of
this section, the party seeking judgment must apply to the court for judgment
by default. The party seeking judgment must submit the affidavit or declaration
required by subsection (1)(d) of this section if, to the best knowledge and
belief of the party seeking judgment, the party against whom judgment is sought
is not incapacitated as defined in ORS 125.005, a minor, a protected person as
defined in ORS 125.005, or a respondent as defined in ORS 125.005. If the party
seeking judgment cannot submit an affidavit or a declaration under this
subsection, a default judgment may be entered against the other party only if a
guardian ad litem has been appointed or the party is represented by another
person as described in Rule 27. If, in order to enable the court to enter
judgment or to carry it into effect, it is necessary to take an account or to
determine the amount of damages or to establish the truth of any averment by
evidence or to make an investigation of any other matter, the court may conduct
such hearing, or make an order of reference, or order that issues be tried by a
jury, as it deems necessary and proper. The court may determine the truth of
any matter upon affidavits or declarations.
B(3) Amount
of judgment. The judgment entered shall be for the amount due as shown by
the affidavit or declaration, and may include costs and disbursements and
attorney fees entered pursuant to Rule 68.
B(4) Non-military
affidavit or declaration required. No judgment by default shall be entered
until the filing of an affidavit or a declaration on behalf of the plaintiff,
showing that the defendant is or is not a person in the military service, or
stating that plaintiff is unable to determine whether or not the defendant is
in the military service as required by Section 201(b)(1) of the Servicemembers
Civil Relief Act, 50 App. U.S.C.A. § 521, as amended, except upon order of the
court in accordance with that Act.
C
Setting aside default. For
good cause shown, the court may set aside an order of default and, if a
judgment by default has been entered, may likewise set it aside in accordance
with Rule 71 B and C.
D
Plaintiffs, counterclaimants, cross-claimants. The provisions of this rule apply whether
the party entitled to the judgment by default is a plaintiff, a third party
plaintiff, or a party who has pleaded a cross-claim or counterclaim. In all
cases a judgment by default is subject to the provisions of Rule 67 B.
E Clerk
defined. Reference to clerk
in this rule shall include the clerk of court or any person performing the
duties of that office. [CCP 12/13/80; §B amended by 1981 c.898 §8; amended by
CCP 12/13/86; §§A,B(2) amended by CCP 12/10/88 and 1/6/89; §B amended by CCP
12/15/90; amended by CCP 12/12/92; §B amended by 1995 c.79 §406 and 1995 c.664 §101;
§C deleted and §§D,E,F redesignated by CCP 12/10/94; §A amended by CCP
12/14/96; §B amended by 2001 c.418 §1; amended by 2003 c.194 §14; §B amended by
CCP 12/9/06]
RULE
70 [CCP 12/13/80; §C amended
by 1981 c.898 §9; §A amended by 1987 c.873 §19; amended by 1989 c.768 §1; §C
amended by CCP 12/15/90; §A amended by 1991 c.202 §20; §A amended by 1993 c.763
§3; §A amended by 1999 c.195 §4; §A amended by 2001 c.417 §2; §A amended by
2003 c.194 §15 and 2003 c.380 §5; repealed by 2003 c.576 §580]
RELIEF FROM
JUDGMENT OR ORDER
RULE 71
A Clerical
mistakes. Clerical mistakes
in judgments, orders, or other parts of the record and errors therein arising
from oversight or omission may be corrected by the court at any time on its own
motion or on the motion of any party and after such notice to all parties who
have appeared, if any, as the court orders. During the pendency of an appeal, a
judgment may be corrected as provided in subsection (2) of section B of this
rule.
B Mistakes;
inadvertence; excusable neglect; newly discovered evidence, etc.
B(1) By
motion. On motion and upon such terms as are just, the court may relieve a
party or such partys legal representative from a judgment for the following
reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly
discovered evidence which by due diligence could not have been discovered in
time to move for a new trial under Rule 64 F; (c) fraud, misrepresentation, or
other misconduct of an adverse party; (d) the judgment is void; or (e) the
judgment has been satisfied, released, or discharged, or a prior judgment upon
which it is based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application. A motion for
reasons (a), (b), and (c) shall be accompanied by a pleading or motion under
Rule 21 A which contains an assertion of a claim or defense. The motion shall
be made within a reasonable time, and for reasons (a), (b), and (c) not more
than one year after receipt of notice by the moving party of the judgment. A
copy of a motion filed within one year after the entry of the judgment shall be
served on all parties as provided in Rule 9 B, and all other motions filed
under this rule shall be served as provided in Rule 7. A motion under this
section does not affect the finality of a judgment or suspend its operation.
B(2) When
appeal pending. A motion under sections A or B may be filed with and
decided by the trial court during the time an appeal from a judgment is pending
before an appellate court. The moving party shall serve a copy of the motion on
the appellate court. The moving party shall file a copy of the trial courts
order in the appellate court within seven days of the date of the trial court
order. Any necessary modification of the appeal required by the court order
shall be pursuant to rule of the appellate court.
C
Relief from judgment by other means. This rule does not limit the inherent power of a court to modify a
judgment within a reasonable time, or the power of a court to entertain an
independent action to relieve a party from a judgment, or the power of a court
to grant relief to a defendant under Rule 7 D(6)(f), or the power of a court to
set aside a judgment for fraud upon the court.
D Writs
and bills abolished. Writs
of coram nobis, coram vobis, audita querela, bills of review, and bills in the
nature of a bill of review are abolished, and the procedure for obtaining any
relief from a judgment shall be by motion or by an independent action. [CCP
12/13/80; §§A,B(2) amended by CCP 12/10/88 and 1/6/89]
STAY OF
PROCEEDINGS TO ENFORCE JUDGMENT
RULE 72
A
Immediate execution; discretionary stay. Execution or other proceeding to enforce a judgment may issue
immediately upon the entry of the judgment, unless the court directing entry of
the judgment, in its discretion and on such conditions for the security of the
adverse party as are proper, otherwise directs. The court shall have authority
to stay execution of a judgment temporarily until the filing of a notice of
appeal and to stay execution of a judgment pending disposition of an appeal, as
provided in ORS 19.335, 19.340 and 19.350 or other provision of law.
B
Other stays. This rule does
not limit the right of a party to a stay otherwise provided for by these rules
or other statute or rule.
C
Stay or injunction in favor of public body. The federal government, any of its public corporations or commissions,
the state, any of its public corporations or commissions, a county, a municipal
corporation, or other similar public body shall not be required to furnish any
bond or other security when a stay is granted by authority of section A of this
rule in any action to which it is a party or is responsible for payment or
performance of the judgment.
D
Stay of judgment as to multiple claims or multiple parties. If a court enters a limited judgment under
the provisions of Rule 67 B, the court may stay enforcement of the judgment and
may prescribe such conditions as are necessary to secure the benefit thereof to
the party in whose favor the judgment is entered. [CCP 12/13/80; §A amended by
CCP 12/14/96; §A amended by 1997 c.71 §18; §D amended by 2003 c.576 §263]
JUDGMENTS BY
CONFESSION
RULE 73
A Judgments
which may be confessed.
A(1) For
money due; where allowed. Judgment by confession may be entered without
action for money due in the manner prescribed by this rule. Such judgment may
be entered in any court having jurisdiction over the subject matter. The
application to confess judgment shall be made in the county in which the
defendants, or one of them, reside or may be found at the time of the
application. A judgment entered by any court in any other county has no force
or validity, notwithstanding anything in the defendants statement to the
contrary.
A(2) Consumer
transactions. No judgment by confession may be entered without action upon
a contract, obligation, or liability which arises out of the sale of goods or
furnishing of services for personal, family, or household use, or out of a loan
or other extension of credit for personal, family, or household purposes, or
upon a promissory note which is based upon such sale or extension of credit.
B
Statement by defendant. A
statement in writing must be made, signed by any party against whom judgment is
to be entered or a person authorized to bind such party, and verified by oath,
as follows:
B(1) It must authorize the entry of
judgment for a specified sum;
B(2) It must state concisely the facts out
of which it arose, and show that the sum confessed therefor is justly and
presently due;
B(3) It must contain a statement that the
person or persons signing the judgment understands that it authorizes entry of
judgment without further proceeding which would authorize execution to enforce
payment of the judgment; and
B(4) It must have been executed after the
date or dates when the sums described in the statement were due.
C
Application by plaintiff.
Judgment by confession may be ordered by the court upon the filing of the
statement required by section B of this rule. The judgment may be entered and
enforced in the same manner and with the same effect as a judgment in an
action.
D
Confession by joint debtors.
One or more joint debtors may confess a judgment for a joint debt due. Where
all the joint debtors do not unite in the confession, the judgment shall be
entered and enforced against only those who confessed it and it is not a bar to
an action against the other joint debtors upon the same demand. [CCP 12/13/80]
RULES 74 through
77
(Reserved for
Expansion)
ORDER OR JUDGMENT FOR
SPECIFIC ACTS
RULE 78
A
Judgment requiring performance considered equivalent thereto. A judgment requiring a party to make a
conveyance, transfer, release, acquittance, or other like act within a period
therein specified shall, if such party does not comply with the judgment, be
deemed to be equivalent thereto.
B
Enforcement; contempt. The
court or judge thereof may enforce an order or judgment directing a party to
perform a specific act by punishing the party refusing or neglecting to comply
therewith, as for a contempt as provided in ORS 33.015 to 33.155.
C
Application. Section B of
this rule does not apply to an order or judgment for the payment of money,
except orders and judgments for the payment of sums ordered pursuant to ORS
107.095 and 107.105 (1)(i), and money for support, maintenance, nurture,
education, or attorney fees, in:
C(1) Actions for dissolution or annulment
of marriage or separation from bed and board.
C(2) Proceedings upon support orders
entered under ORS chapter 108, 109 or 110, or under ORS 416.400 to 416.465,
419B.400 or 419C.590. [CCP 12/13/80; 1985 c.610 §1; §C amended by CCP 12/13/86;
§B amended by 1991 c.724 §31; §D repealed by 1991 c.724 §32; §C amended by 1993
c.33 §365; §C amended by 1995 c.608 §41; §C amended by 2003 c.14 §14; §C
amended by 2007 c.71 §4]
TEMPORARY
RESTRAINING ORDERS AND PRELIMINARY INJUNCTIONS
RULE 79
A
Availability generally.
A(1) Circumstances.
Subject to the requirements of Rule 82 A(1), a temporary restraining order or
preliminary injunction may be allowed under this rule:
A(1)(a) When it appears that a party is
entitled to relief demanded in a pleading, and such relief, or any part
thereof, consists of restraining the commission or continuance of some act, the
commission or continuance of which during the litigation would produce injury
to the party seeking the relief; or
A(1)(b) When it appears that the party
against whom a judgment is sought is doing or threatens, or is about to do, or
is procuring or suffering to be done, some act in violation of the rights of a
party seeking judgment concerning the subject matter of the action, and tending
to render the judgment ineffectual. This paragraph shall not apply when the
provisions of Rule 83 E, F(4) and H(2) are applicable, whether or not
provisional relief is ordered under those provisions.
A(2) Time.
A temporary restraining order or preliminary injunction under this rule may be
allowed by the court, or judge thereof, at any time after commencement of the
action and before judgment.
B
Temporary restraining order.
B(1) Notice.
A temporary restraining order may be granted without written or oral notice to
the adverse party or to such partys attorney only if:
B(1)(a) It clearly appears from specific
facts shown by an affidavit, a declaration or a verified complaint that
immediate and irreparable injury, loss, or damage will result to the applicant
before the adverse party or the adverse partys attorney can be heard in
opposition, and
B(1)(b) The applicant or applicants
attorney submits an affidavit or a declaration setting forth the efforts, if
any, which have been made to notify defendant or defendants attorney of the
application, including attempts to provide notice by telephone, and the reasons
supporting the claim that notice should not be required. The affidavit or
declaration required in this paragraph shall not be required for orders granted
by authority of ORS 107.095 (1)(c), (d), (e), (f) or (g).
B(2) Contents
of order; duration. Every temporary restraining order granted without
notice shall be endorsed with the date and hour of issuance, shall be filed
forthwith, shall define the injury and state why it is irreparable, and shall
state why the order was granted without notice.
B(2)(a) Every temporary restraining order
shall expire by its terms within such time after entry, not to exceed 10 days,
as the court fixes, unless within the time so fixed the order, for good cause
shown, is extended for a like period or unless the party against whom the order
is directed consents that it may be extended for a longer period. The reasons
for the extension shall be entered of record.
B(2)(b) The 10-day limit of paragraph (a)
of this subsection does not apply to orders granted by authority of ORS 107.095
(1)(c), (d), (e), (f) or (g).
B(3) Hearing
on preliminary injunction. In case a temporary restraining order is granted
without notice, the motion for a preliminary injunction shall be set down for
hearing at the earliest possible time and takes precedence over all matters
except older matters of the same character. When the motion comes on for
hearing the party who obtained the temporary restraining order shall proceed
with the application for a preliminary injunction and, if such party does not
do so, the court shall dissolve the temporary restraining order.
B(4) Adverse
partys motion to dissolve or modify. On two days notice (or on shorter
notice if the court so orders) to the party who obtained the temporary
restraining order without notice, the adverse party may appear and move for
dissolution or modification of such restraining order. In that event the court
shall proceed to hear and determine such motion as expeditiously as the ends of
justice require.
B(5) Temporary
restraining orders not extended by implication. If the adverse party
actually appears at the time of the granting of the restraining order, but
notice to the adverse party is not in accord with subsection C(1), the
restraining order is not thereby converted into a preliminary injunction. If a
party moves to dissolve or modify the temporary restraining order as permitted
by subsection (4) of this section, and such motion is denied, the temporary
restraining order is not thereby converted into a preliminary injunction.
C
Preliminary injunction.
C(1) Notice.
No preliminary injunction shall be issued without notice to the adverse party
at least five days before the time specified for the hearing, unless a
different period is fixed by order of the court.
C(2) Consolidation
of hearing with trial on merits. Before or after the commencement of the
hearing of an application for preliminary injunction, the parties may stipulate
that the trial of the action on the merits shall be advanced and consolidated
with the hearing of the application. The parties may also stipulate that any
evidence received upon an application for a preliminary injunction, which would
be admissible upon the trial on the merits, becomes part of the record on trial
and need not be repeated upon the trial.
D
Form and scope of injunction or restraining order. Every order granting a preliminary
injunction and every restraining order shall set forth the reasons for its
issuance, shall be specific in terms, shall describe in reasonable detail (and
not by reference to the complaint or other document) the act or acts sought to
be restrained, and is binding only upon the parties to the action, their
officers, agents, servants, employees, and attorneys, and upon those persons in
active concert or participation with any of them who receive actual notice of
the order by personal service or otherwise.
E
Scope of rule.
E(1) This rule does not apply to a
temporary restraining order issued by authority of ORS 107.700 to 107.735 or
124.005 to 124.040.
E(2) This rule does not apply to temporary
restraining orders or preliminary injunctions granted pursuant to ORCP 83
except for the application of section D of this rule.
E(3) These rules do not modify any statute
or rule of this state relating to temporary restraining orders or preliminary
injunctions in actions affecting employer and employee.
F
Writ abolished. The writ of
ne exeat is abolished. [CCP 12/13/80; §E amended by 1995 c.666 §27; §B amended
by 2003 c.194 §16; §A amended by 2005 c.22 §4a; §E amended by 2007 c.71 §5]
RECEIVERS
RULE 80
A
Receiver defined. A receiver
is a person appointed by a circuit court, or judge thereof, to take charge of
property during the pendency of a civil action or upon a judgment or order
therein, and to manage and dispose of it as the court may direct.
B
When appointment of receiver authorized. Subject to the requirements of Rule 82 A(2), a receiver may be
appointed by a circuit court in the following cases:
B(1) Provisionally
to protect property. Provisionally, before judgment, on the application of
any party, when such partys right to the property, which is the subject of the
action, and which is in the possession of an adverse party, is probable, and the
property or its rents or profits are in danger of being lost or materially
injured or impaired.
B(2) To
effectuate judgment. After judgment to carry the same into effect.
B(3) To
dispose of property, to preserve during appeal or when execution unsatisfied.
To dispose of the property according to the judgment, or to preserve it during
the pendency of an appeal or when an execution has been returned unsatisfied
and the debtor refuses to apply the property in satisfaction of the judgment.
B(4) Creditors
action. In an action brought by a creditor to set aside a transfer,
mortgage, or conveyance of property on the ground of fraud or to subject
property or a fund to the payment of a debt.
B(5) Attaching
creditor. At the instance of an attaching creditor when the property
attached is of a perishable nature or is otherwise in danger of waste,
impairment, or destruction or where the debtor has absconded or abandoned the
property and it is necessary to conserve or protect it, or to dispose of it
immediately.
B(6) Protect,
preserve, or restrain property subject to execution. At the instance of a
judgment creditor either before or after the issuance of an execution to
preserve, protect, or prevent the transfer of property liable to execution and
sale thereunder.
B(7) Corporations
and associations; when provided by statute. In cases provided by statute,
when a corporation or cooperative association has been dissolved, or is
insolvent, or in imminent danger of insolvency, or has forfeited its corporate
rights.
B(8) Corporations
and associations; to protect property or interest of stockholders or creditors.
When a corporation or cooperative association has been dissolved or is
insolvent or in imminent danger of insolvency and it is necessary to protect
the property of the corporation or cooperative association, or to conserve or
protect the interests of the stockholders or creditors.
C
Appointment of receivers; notice. No receiver shall be appointed without notice to the adverse party at
least five days before the time specified for the hearing, unless a different
period is fixed by order of the court.
D
Form of order appointing receivers. Every order or judgment appointing a receiver:
D(1) Shall contain a reasonable
description of the property included in the receivership;
D(2) Shall fix the time within which the
receiver shall file a report setting forth (a) the property of the debtor in
greater detail, (b) the interests in and claims against it, and (c) its
income-producing capacity and recommendations as to the best method of
realizing its value for the benefit of those entitled;
D(3) Shall, when a general receiver is
appointed to liquidate and wind up affairs, set a time within which creditors
and claimants shall file their claims or be barred; and
D(4) May require periodic reports from the
receiver.
E
Notice to persons interested in receivership. A general receiver appointed to liquidate and wind up affairs shall
under the direction of the court, give notice to the creditors of the
corporation, of the partnership or association, or of the individual, in such
manner as the court may direct, requiring such creditors to file their claims,
duly verified, with the receiver, the receivers attorney, or the clerk of the
court, within such time as the court directs.
F
Special notices.
F(1) Required
notice. Creditors filing claims with the receiver, all persons making
contracts with the receiver, all persons having known claims against the
receiver, all persons actually or constructively known to be claiming any interest
in receivership property, and all persons against whom the receiver asserts
claims shall receive notice of any proposed action by the court affecting their
rights.
F(2) Request
for special notice. At any time after a receiver is appointed, any person
interested in the receivership as a party, creditor, or otherwise, may serve
upon the receiver (or upon the attorney for such receiver) and file with the
clerk a written request stating that such person desires special notice of any
and all of the following named steps in the administration of the receivership:
F(2)(a) Filing of motions for sales,
leases, or mortgages of any property in the receivership;
F(2)(b) Filing of accounts;
F(2)(c) Filing of motions for removal or
discharge of the receiver; and
F(2)(d) Such other matters as are
officially requested and approved by the court.
A request shall state the post-office
address of the person, or such persons attorney.
F(3) Form
and service of notices. Any notice required by this section shall be served
in the manner provided in Rule 9, at least five days before the hearing on any
of the matters above described, unless a different period is fixed by order of
the court.
G
Termination of receiverships.
A receivership may be terminated only upon motion served with at least 10 days
notice upon all parties who have appeared in the proceeding. The court may
require that a final account and report be filed and served, and may provide
for the filing of written objections to such account within a specified time.
At the hearing on the motion to terminate, the court shall hear all objections
to the final account and shall take such evidence as is appropriate, and shall
make such orders as are just concerning the termination of the receivership,
including all necessary orders on the fees and costs of the receivership. [CCP
12/13/80; §§C,F amended by 1981 c.898 §§9a,10; §F(3) amended by CCP 12/10/88
and 1/6/89]
DEFINITIONS;
SERVICE; ADVERSE CLAIMANTS
RULE 81
A
Definitions. As used in
Rules 81 through 85, unless the context otherwise requires:
A(1) Attachment.
Attachment is the procedure by which an unsecured plaintiff obtains a
judicial lien on defendants property prior to judgment.
A(2) Bank.
Bank includes commercial and savings banks, trust companies, savings and loan
associations, and credit unions.
A(3) Clerk.
Clerk means clerk of the court or any person performing the duties of that
office.
A(4) Consumer
goods. Consumer goods means consumer goods as defined in ORS 79.0102.
A(5) Consumer
transaction. Consumer transaction means a transaction in which the
defendant becomes obligated to pay for goods sold or leased, services rendered,
or monies loaned, primarily for purposes of the defendants personal, family,
or household use.
A(6) Issuing
officer. Issuing officer means any person who on behalf of the court is
authorized to issue provisional process.
A(7) Levy.
Levy means to create a lien upon property prior to judgment by any of the
procedures provided by Rules 81 through 85 that create a lien.
A(8) Plaintiff
and defendant. Plaintiff includes any party asserting a claim for relief
whether by way of claim, third party claim, cross-claim, or counterclaim, and defendant
includes any person against whom such claim is asserted.
A(9) Provisional
process. Provisional process means attachment under Rule 84, claim and
delivery under Rule 85, temporary restraining orders under Rule 83, preliminary
injunctions under Rule 83, or any other legal or equitable judicial process or
remedy which before entry of a judgment enables a plaintiff, or the court on
behalf of the plaintiff, to take possession or control of, or to restrain use
or disposition of, or fix a lien on property in which the defendant claims an
interest, except an order appointing a provisional receiver under Rule 80 or
granting a temporary restraining order or preliminary injunction under Rule 79.
A(10) Security
interest. Security interest means a lien created by agreement, as opposed
to a judicial or statutory lien.
A(11) Sheriff.
Sheriff includes a constable of a justice court.
A(12) Writ.
A writ is an order by a court to a sheriff or other official to aid a
creditor in attachment.
B
Service of notices or orders; proof of service.
B(1) Service.
Except where some other method is expressly permitted, any notice or order to
show cause required or permitted to be served by Rules 81 through 85 shall be
served in the manner in which a summons may be served.
B(2) Proof
of service. Copies of all notices or orders to show cause shall be filed
together with proof of service as provided in Rule 9 C.
C
Adverse claimants. A person
other than the defendant claiming to be the actual owner of property subject to
provisional process, or any interest in such property, may move the court for
an order establishing the claimants title or interest, extinguishing the
plaintiffs lien, or other appropriate relief. A hearing upon such motion shall
be conducted within 20 days after service pursuant to Rule 9. After hearing:
C(1) Summary
release of attachment. In a case where there is no genuine issue as to any
material fact and the claimant is entitled to relief as a matter of law, the
court may make an order establishing claimants title or interest,
extinguishing or limiting the plaintiffs lien, or granting other appropriate
relief. In such case, the court may enter an order directing the plaintiff to
pay the claimant the reasonable expenses incurred in securing such order,
including attorney fees.
C(2) Continuation
of attachment. In all other cases, the court shall order the provisional
process continued pending judgment. Such order protects the sheriff but is not
an adjudication between the claimant and the plaintiff. [CCP 12/13/80; amended
by 1981 c.883 §36; §C amended by 1981 c.883 §37; §A amended by 1995 c.658 §120;
§A amended by 2001 c.445 §186; §A amended by 2003 c.576 §264]
SECURITY; BONDS AND
UNDERTAKINGS; JUSTIFICATION OF SURETIES
RULE 82
A
Security required.
A(1) Restraining
orders; preliminary injunctions.
A(1)(a) No restraining order or
preliminary injunction shall issue except upon the giving of security by the
applicant, in such sum as the court deems proper, for the payment of such
costs, damages, and attorney fees as may be incurred or suffered by any party
who is found to have been wrongfully enjoined or restrained.
A(1)(b) No security will be required under
this subsection where:
A(1)(b)(i) A restraining order or
preliminary injunction is sought to protect a person from violent or
threatening behavior; or
A(1)(b)(ii) A restraining order or
preliminary injunction is sought to prevent unlawful conduct when the effect of
the injunction is to restrict the enjoined party to available judicial
remedies.
A(2) Receivers.
No receiver shall be appointed except upon the giving of security by the
receiver in such sum as the court deems proper for the payment of any costs,
damages, and attorney fees as may be sustained or suffered by any party due to
the wrongful act of the receiver.
A(3) Attachment
or claim and delivery.
A(3)(a) Before any property is attached
under Rule 84 or taken by the sheriff under Rule 85, the plaintiff must file
with the clerk a surety bond or an irrevocable letter of credit issued by an
insured institution, as defined in ORS 706.008, in an amount fixed by the
court, and to the effect that the plaintiff will pay all costs that may be
adjudged to the defendant, and all damages which the defendant may sustain by
reason of the attachment or taking, if the same be wrongful or without
sufficient cause, not exceeding the sum specified in the bond or letter of
credit.
A(3)(b) Upon motion by the defendant and a
showing that defendants potential costs or damages exceed the amount of the
bond or letter of credit, the court may require the plaintiff to give
additional security.
A(3)(c) No bond or letter of credit shall
be required before property is taken by the sheriff under Rule 85 if the court,
in the order authorizing issuance of provisional process, finds that the claim
for which probable cause exists is that defendant acquired the property
contrary to law.
A(4) Other
provisional process. No other provisional process shall issue except upon
the giving of security by the plaintiff in such sum as the court deems proper,
for payment of such costs, damages, and attorney fees as may be incurred or
suffered by any party who is wrongfully damaged by such provisional process.
A(5) Form
of security or bond. Unless otherwise ordered by the court under subsection
(6) of this section, any security or bond provided for by these rules shall be
in the form of a security bond issued by a corporate surety qualified by law to
issue surety insurance as defined in ORS 731.186, or a letter of credit issued
by an insured institution, as defined in ORS 706.008.
A(6) Modification
of security requirements by court. The court may waive, reduce, or limit
any security or bond provided by these rules, or may authorize a non-corporate
surety bond or deposit in lieu of bond, or require other security, upon an ex
parte showing of good cause and on such terms as may be just and equitable.
B
Security; proceedings against sureties. Whenever these rules or other rule or statute require or permit the
giving of security by a party, and security is given in the form of a bond or
stipulation or other undertaking with one or more sureties, or in the form of
an irrevocable letter of credit issued by an insured institution, as defined in
ORS 706.008, each surety and each letter of credit issuer submits to the
jurisdiction of the court and irrevocably appoints the clerk of the court as
such suretys or such issuers agent upon whom any papers affecting the suretys
or issuers liability on the bond, undertaking or letter of credit may be
served. Any suretys or issuers liability may be enforced on motion without
the necessity of an independent action. The motion and such notice of the
motion as the court prescribes may be served on the clerk of the court, who
shall forthwith mail copies to the sureties or issuers if their addresses are
known.
C
Approval by clerk. Except
where approval by a judge is otherwise required, the clerk is authorized to
approve all irrevocable letters of credit, undertakings, bonds, and
stipulations of security given in the form and amount prescribed by statute,
rule, or order of the court, where the same are executed by a corporate surety
under subsection D(2) of this rule, or where the same are issued by an insured
institution, as defined in ORS 706.008.
D
Qualifications of sureties.
D(1) Individuals.
Each individual surety must be a resident of the state. If there is one
individual surety, that surety must be worth twice the sum specified in the
undertaking, exclusive of property exempt from execution, and over and above
all just debts and liabilities; where there is more than one individual surety,
each may be worth a lesser amount if the total net worth of all of them is
equal to twice the sum specified in the undertaking. No attorney at law, peace
officer, clerk of any court, or other officer of any court is qualified to be surety
on the undertaking.
D(2) Corporations.
A corporate surety must be qualified by law to issue surety insurance as
defined in ORS 731.186.
E
Affidavits or declarations of sureties.
E(1) Individuals.
The bond or undertaking must contain an affidavit or a declaration of each
surety which shall state that such surety possesses the qualifications
prescribed by section D of this rule.
E(2) Corporations.
The bond or undertaking of a corporate surety must contain affidavits or
declarations showing the authority of the agent to act for the corporation and
stating that the corporation is qualified to issue surety insurance as defined
in ORS 731.186.
E(3) Service.
When an irrevocable letter of credit, bond or undertaking is given for the
benefit of a party, a copy of such letter of credit, bond or undertaking shall
be served on that party promptly in the manner prescribed in Rule 9 A. Proof of
service thereof shall thereupon be filed promptly in the court in which the
letter of credit, bond or undertaking has been filed.
F
Objections to sureties. If
the party for whose benefit an irrevocable letter of credit, bond or
undertaking is given is not satisfied with the sufficiency of the issuers or
sureties, that party may, within 10 days after the receipt of a copy of the
letter of credit or bond, serve upon the party giving the letter of credit or
bond, or the attorney for the party giving the letter of credit or bond, a
notice that the party for whose benefit the letter of credit or bond is given
objects to the sufficiency of such issuers or sureties. If the party for whose
benefit the letter of credit or bond is given fails to do so, that party is
deemed to have waived all objection to the issuers or sureties.
G
Hearing on objections to sureties.
G(1) Request
for hearing. Notice of objections to an issuer or a surety as provided in
section F of this rule shall be filed in the form of a motion for hearing on
objections to the irrevocable letter of credit or bond. Upon demand of the
objecting party, each issuer or surety shall appear at the hearing of such
motion and be subject to examination as to such issuers or suretys pecuniary
responsibility or the validity of the execution of the letter of credit or
bond. Upon hearing of such motion, the court may approve or reject the letter
of credit or bond as filed or require such amended, substitute, or additional
letter of credit or bond as the circumstances will warrant.
G(2) Information
to be furnished. Sureties on any bond or undertaking and any irrevocable
letter of credit issuers shall furnish such information as may be required by
the judge approving the same.
G(3) Surety
insurers. It shall be sufficient justification for a surety insurer when
examined as to its qualifications to exhibit the certificate of authority
issued to it by the Director of the Department of Consumer and Business
Services or a certified copy thereof. [CCP 12/13/80; §D amended by 1981 c.898 §13;
amended by 1991 c.331 §2; §G amended by 1995 c.79 §407; §§A,B,C amended by 1997
c.631 §§561,562,563; §E amended by 2003 c.194 §17]
PROVISIONAL
PROCESS
RULE 83
A Requirements
for issuance. To obtain an
order for issuance of provisional process the plaintiff shall cause to be filed
with the clerk of the court from which such process is sought a sworn petition
and any necessary supplementary affidavits or declarations requesting specific
provisional process and showing, to the best knowledge, information, and belief
of the plaintiff, affiant or declarant that the action is one in which
provisional process may issue, and:
A(1) The name and residence or place of
business of the defendant;
A(2) Whether the underlying claim is based
on a consumer transaction and whether provisional process in a consumer good is
sought;
A(3)(a) If the provisional process sought
is claim and delivery, a description of the claimed property in particularity
sufficient to make possible its identification, and the plaintiffs estimate of
the value and location of the property;
A(3)(b) If the provisional process sought
is a restraining order, a statement of the particular acts sought to be
restrained;
A(4) Whether the plaintiffs claim to
provisional process is based upon ownership, entitlement to possession, a
security interest or otherwise;
A(5) A copy or verbatim recital of any
writing or portion of a writing, if plaintiff relies upon a writing, which
evidences the origin or source of the plaintiffs claim to provisional process;
A(6) Whether the claimed property is
wrongfully detained by the defendant or another person;
A(7) Whether the claimed property has been
taken by public authority for a tax, assessment, or fine;
A(8) If the plaintiff claims that the
defendant has waived the right to be heard, a copy of the writing evidencing
such waiver and a statement of when and in what manner the waiver occurred;
A(9) Facts, if any, which tend to
establish that there is a substantial danger that the defendant or another
person is engaging in, or is about to engage in, conduct which would place the
claimed property in danger of destruction, serious harm, concealment, removal
from this state, or transfer to an innocent purchaser;
A(10) Facts, if any, which tend to
establish that without restraint immediate and irreparable injury, damage, or
loss will occur;
A(11) Facts, if any, which tend to
establish that there is substantial danger that the defendant or another person
probably would not comply with a temporary restraining order; and
A(12) That there is no reasonable
probability that the defendant can establish a successful defense to the
underlying claim.
B
Provisional process prohibited in certain consumer transactions. No court shall order issuance of provisional
process to effect attachment of a consumer good or to effect attachment of any
property if the underlying claim is based on a consumer transaction.
Provisional process authorized by Rule 85 may issue in consumer transactions.
C
Evidence admissible; choice of remedies available to court.
C(1) The court shall consider the
affidavit, declaration or petition filed under section A of this rule and may
consider other evidence including, but not limited to, an affidavit, a
declaration, a deposition, an exhibit or oral testimony.
C(2) If from the affidavit, declaration or
petition or other evidence, if any, the court finds that a complaint on the
underlying claim has been filed and that there is probable cause for sustaining
the validity of the underlying claim, the court shall consider whether it shall
order issuance of provisional process, as provided in section D of this rule,
or a restraining order, as provided in section E of this rule, in addition to a
show cause order. The finding under this subsection is subject to dissolution
upon hearing.
D
Issuance of provisional process where damage to property threatened. Subject to section B of this rule, if the
court finds that before hearing on a show cause order the defendant or other
person in possession or control of the claimed property is engaging in, or is
about to engage in, conduct which would place the claimed property in danger of
destruction, serious harm, concealment, removal from this state, or transfer to
an innocent purchaser or that the defendant or other person in possession or
control of the claimed property would not comply with a temporary restraining order,
and if Rule 82 A has been complied with, the court shall order issuance of
provisional process in property which probably would be the subject of such
destruction, harm, concealment, removal, transfer, or violation. Where real
property is subject to provisional process as provided by this section, the
plaintiff shall have recorded in the County Clerk Lien Record a certified copy
of that order.
E
Restraining order to protect property. Subject to section B of this rule, where hearing on a show cause order
is pending or where the court finds that because of impending injury,
destruction, transfer, removal, or concealment of the property in which
provisional process is sought there is probable cause to believe that immediate
and irreparable injury, damage, or loss to the plaintiff is imminent, and if
Rule 82 A has been complied with, the court in its discretion may issue a
temporary order directed to the defendant and each other person in possession
or control of the claimed property restraining the defendant and each such
other person from injuring, destroying, transferring, removing, or otherwise
disposing of property and requiring the defendant and each such other person to
appear at a time and place fixed by the court and show cause why such restraint
should not continue during pendency of the proceeding on the underlying claim.
Such order shall conform to the requirements of Rule 79 D. A restraining order
under this section does not create a lien.
F
Appearance; hearing; service of show cause order; content; effect of service on
person in possession of property. F(1) Subject to section B
of this rule, the court shall issue an order directed to the defendant and each
person having possession or control of the claimed property requiring the
defendant and each such other person to appear for hearing at a place fixed by
the court and at a fixed time after the third day after service of the order
and before the seventh day after service of the order to show cause why
provisional process should not issue. Upon request of the plaintiff the hearing
date may be set later than the seventh day.
F(2) The show cause order issued under
subsection (1) of this section shall be served on the defendant and on each
other person to whom the order is directed.
F(3) The order shall:
F(3)(a) State that the defendant may file
affidavits or declarations with the court and may present testimony at the
hearing; and
F(3)(b) State that if the defendant fails
to appear at the hearing the court will order issuance of the specific provisional
process sought.
F(4) If at the time fixed for hearing the
show cause order under subsection (1) of this section has not been served on
the defendant but has been served on a person in possession or control of the
property, and if Rule 82 A has been complied with, the court may restrain the
person so served from injuring, destroying, transferring, removing, or
concealing the property pending further order of the court or continue a
temporary restraining order issued under section E of this rule. Such order
shall conform to the requirements of Rule 79 D. Any restraining order issued
under this subsection does not create a lien.
G
Waiver; order without hearing.
If after service of the order issued under subsection F(1) of this rule, the
defendant by a writing executed by or on behalf of the defendant after service
of the order expressly declares that defendant is aware of the right to be
heard and does not want to be heard, that defendant expressly waives the right
to be heard, that defendant understands that upon signing the writing the court
will order issuance of the provisional process sought so that the possession or
control of the claimed property will be taken from the defendant or another
person, the court, subject to section B of this rule without hearing shall
order issuance of provisional process.
H
Authority of court on sustaining validity of underlying claim; provisional process;
restraining order.
H(1) Subject to section B of this rule, if
the court on hearing on a show cause order issued under section F of this rule
finds that there is probable cause for sustaining the validity of the
underlying claim and if Rule 82 A has been complied with, the court shall order
issuance of provisional process. The order shall describe with particularity
the provisional process which may be issued.
H(2) Subject to section B of this rule, if
the court on hearing on a show cause order issued under section F of this rule
finds that there is probable cause for sustaining the validity of the
underlying claim but that the provisional process sought cannot properly be
ordered, and if Rule 82 A has been complied with, the court in its discretion
may continue or issue a restraining order of the nature described in section E
of this rule. If a restraining order is issued, it shall conform to the
requirements of Rule 79 D. A restraining order under this subsection does not
create a lien. [CCP 12/13/80; §E amended by 1987 c.586 §44; §A amended by 1991
c.83 §6; §D amended by 1991 c.83 §7; amended by 2003 c.194 §18; §§A,C,H,I
amended and §D deleted and §§E,F,G,H,I redesignated by CCP 12/11/04; §F amended
by 2005 c.22 §4b]
ATTACHMENT
RULE 84
A
Actions in which attachment allowed.
A(1) Order
for provisional process. Before a writ of attachment may be issued or any property
attached by any means provided by this rule, the plaintiff must obtain, and
have recorded in the County Clerk Lien Record, an order under Rule 83 that
provisional process may issue.
A(2) Actions
in which attachment allowed. The plaintiff, at the time of issuing the
summons or any time afterwards, may have the property of the defendant
attached, as security for the satisfaction of any judgment that may be
recovered, in the following cases:
A(2)(a) An action upon a contract,
expressed or implied, for the direct payment of money, when the contract is not
secured by mortgage, lien, or pledge, or when it is so secured but such
security has been rendered nugatory by act of the defendant.
A(2)(b) An action against a defendant not
residing in this state to recover a sum of money as damages for breach of any
contract, expressed or implied, other than a contract of marriage.
A(2)(c) An action against a defendant not
residing in this state to recover a sum of money as damages for injury to
property in this state.
A(3) Exception
for financial institution. Notwithstanding subsection (2) of this section,
no attachment shall be issued against any financial institution, as that term
is defined in ORS 706.008, or against the property of a financial institution.
B
Property that may be attached.
Only the following kinds of property are subject to lien or levy before
judgment:
B(1) In actions in circuit court, real
property;
B(2) Tangible personal property, including
negotiable instruments and securities as defined in ORS 78.1020 except a
certificate of an account or obligation or interest therein of a savings and
loan institution;
B(3) Debts; and
B(4) The interest of a distributee of a
decedents estate.
C
Attachment by claim of lien.
C(1) Property
subject to claim of lien. When attachment is authorized, the plaintiff may
attach the defendants real property by filing a claim of lien.
C(2) Form
of claim; filing.
C(2)(a) Form. The claim of lien must be signed by the plaintiff or
plaintiffs attorney and must:
C(2)(a)(i) Identify the action by names of
parties, court, case number, and judgment demanded;
C(2)(a)(ii) Describe the particular
property attached in a manner sufficient to identify it;
C(2)(a)(iii) Have a certified copy of the
order authorizing the claim of lien attached to the claim of lien.
C(2)(a)(iv) State that an attachment lien
is claimed on the property.
C(2)(b) Filing. A claim of attachment lien in real property shall be filed
with the clerk of the court that authorized the claim and with the county clerk
of the county in which the property is located. The county clerk shall certify
upon every claim of lien so filed the time when it was received. Upon receiving
the claim of lien, the county clerk shall immediately record it in the County Clerk
Lien Record. When the claim of lien is so recorded, the lien in favor of the
plaintiff attaches to the real property described in the claim of lien.
Whenever such lien is discharged, the county clerk shall enter upon the margin
of the page on which the claim of lien is recorded a minute of the discharge.
D
Writ of attachment.
D(1) Issuance;
contents; to whom directed; issuance of several writs. If directed by an
order authorizing provisional process under Rule 83, the clerk shall issue a
writ of attachment. The writ shall be directed to the sheriff of any county in
which property of the defendant may be, and shall require the sheriff to attach
and safely keep all the property of the defendant within the county not exempt
from execution, or so much thereof as may be sufficient to satisfy the
plaintiffs demand, the amount of which shall be stated in conformity with the
complaint, together with costs and expenses. Several writs may be issued at the
same time to the sheriffs of different counties.
D(2) Manner
of executing writ. The sheriff to whom the writ is directed and delivered
shall note upon the writ the date of such delivery, and shall execute the writ
without delay, as follows:
D(2)(a) Personal property not in possession of third party. Tangible personal
property not in the possession of a third person shall be attached by taking it
into the sheriffs custody. If any property attached is perishable, or
livestock, where the cost of keeping is great, the sheriff shall sell the same
in the manner in which property is sold on execution. The proceeds thereof and
other property attached shall be retained by the sheriff to answer any judgment
that may be recovered in the action, unless sooner subjected to execution upon
another judgment. Plaintiffs lien shall attach when the property is taken into
the sheriffs custody.
D(2)(b) Other
personal property. Tangible
and intangible personal property in the possession, control or custody of or
debts or other monetary obligations owing by a third person shall be attached
by writs of garnishment issued by the clerk of a court or by an attorney as
provided in ORS 18.600 to 18.850.
D(3) Notice
to defendant. After taking property into custody under subsection (2)(a) of
this section, the sheriff shall promptly mail or deliver to the defendant, at
the last-known address of the defendant, a copy of the writ of attachment, a
copy of the claim of lien filed pursuant to section C of this rule, if any, a
notice of exemptions form provided by ORS 18.845, and a challenge to garnishment
form provided by ORS 18.850. The sheriff may meet the requirements of this
subsection by mailing the documents to the last-known address of the defendant
as provided by the plaintiff. The sheriff may withhold execution of the writ
until the plaintiff provides such address or a statement that the plaintiff has
no knowledge of the defendants address. The sheriff shall have no duty under
this subsection if the plaintiff provides a statement that the plaintiff has no
knowledge of the defendants address.
D(4) Return
of writ; inventory. When the writ of attachment has been fully executed or
discharged, the sheriff shall return the same, with the sheriffs proceedings
indorsed thereon, to the clerk of the court where the action was commenced, and
the sheriff shall make a full inventory of the property attached and return the
same with the writ.
D(5) Indemnity
to sheriff. Whenever a writ of attachment is delivered to the sheriff, if
the sheriff has actual notice of any third party claim to the personal property
to be levied on or is in doubt as to ownership of the property, or of
encumbrances thereon, or damage to the property held that may result by reason
of its perishable character, such sheriff may require the plaintiff to file
with the sheriff a surety bond, indemnifying the sheriff and the sheriffs
bondsmen against any loss or damage by reason of the illegality of any holding
or sale on execution, or by reason of damage to any personal property held
under attachment. Unless a lesser amount is acceptable to the sheriff, the bond
shall be in double the amount of the estimated value of the property to be
seized.
E
Disposition of attached property after judgment.
E(1) Judgment
for plaintiff. If judgment is recovered by the plaintiff against the defendant,
and it shall appear that property has been attached in the action, and has not
been sold as perishable property or discharged from the attachment, the court
shall order the property to be sold to satisfy the plaintiffs demands, and if
execution issue thereon, the sheriff shall apply the property attached by the
sheriff or the proceeds thereof, upon the execution, and if any such property
or proceeds remain after satisfying such execution, the sheriff shall, upon
demand, deliver the same to the defendant; or if the property attached has been
released from attachment by reason of the giving of the undertaking by the
defendant, as provided by section F of this rule, the court shall upon giving
judgment against the defendant also give judgment in like manner and with like
effect against the surety in such undertaking.
E(2) Judgment
not for plaintiff. If judgment is not recovered by the plaintiff, all the
property attached, or the proceeds thereof, or the undertaking therefor, shall
be returned to the defendant upon service upon the sheriff of a certified copy
of the order discharging the attachment.
F
Redelivery of attached property.
F(1) Order
and bond. If an attachment deprives the defendant or any other person
claiming the property of the possession or use of the property, the defendant
or such person may obtain redelivery or possession thereof upon a court order
authorizing such redelivery or possession. The moving party shall file a surety
bond undertaking, in an amount fixed by the court, to pay the value of the
property or the amount of plaintiffs claim, whichever is less, if the same is
not returned to the sheriff upon entry of judgment against the defendant. A
motion seeking an order authorizing such redelivery or possession must state
the moving partys claim of the value of the attached property and must be
served upon plaintiff as provided in Rule 9 at least five days prior to any
hearing on such motion, unless the court orders otherwise. The property shall
be released to the defendant upon the filing of the bond.
F(2) Defense
of surety. In an action brought upon such undertaking against the principal
or the sureties, it shall be a defense that the property for which the
undertaking was given did not, at the execution of the writ of attachment,
belong to the defendant against whom the writ was issued. [CCP 12/13/80; §§C,D
amended by 1981 c.883 §§38,39; §§A,C amended by 1987 c.586 §§45,46; §D amended
by 1987 c.873 §20; amended by 1997 c.439 §9; §A amended by 1997 c.631 §564; §D
amended by 2001 c.249 §79; §§A,B,C amended by 2003 c.576 §§224,265,266]
CLAIM AND DELIVERY
RULE 85
A
Claim and delivery. In an
action to recover the possession of personal property, the plaintiff, at any
time after the action is commenced and before judgment, may claim the immediate
delivery of such property, as provided in Rule 83.
B
Delivery by sheriff under provisional process order. The order of provisional process issued by
the court as provided in Rule 83 may require the sheriff of the county where
the property claimed may be to take the property from the defendant or another
person and deliver it to the plaintiff.
C
Custody and delivery of property. Upon receipt of the order of provisional process issued by the court
as provided in Rule 83, the sheriff shall forthwith take the property described
in the order, if it be in the possession of the defendant or another person,
and retain it in the sheriffs custody. If any part of the property is
concealed in a building or other enclosure, the sheriff shall demand delivery
of the property. If the property is not delivered, the sheriff shall break open
the building or enclosure and take the property into possession. The sheriff
shall keep the property in a secure place and deliver it to the party entitled
thereto upon receiving the lawful fees for taking, and the necessary expenses
for keeping the same. The court may waive the payment of such fees and expenses
upon a showing of indigency.
D
Filing of order by sheriff. The
sheriff shall file the order, with the sheriffs proceedings thereon, including
an inventory of the property taken, with the clerk of the court in which the
action is pending, within 10 days after taking the property; or, if the clerk
resides in another county, shall mail or forward the same within that time.
E
Dismissal prohibited. If
property is taken by the sheriff pursuant to this rule, the plaintiff shall not
dismiss the action under ORCP 54 A(1) until 30 days after such taking. [CCP
12/13/80; §C amended by 2003 c.85 §24]
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