Oregon Code :: Oregon Rules of Civil Procedure - 2005 -
Oregon Rules
of Civil Procedure (2005)
OREGON RULES OF CIVIL PROCEDURE
OREGON RULES OF CIVIL PROCEDURE
SCOPE; CONSTRUCTION; APPLICATION; RULE;
CITATION
1 A Scope
1 B Construction
1 C Application
1 D Rule
defined and local rules
1 E Use
of declaration under penalty of perjury in lieu of affidavit; declaration
defined
1 F Citation
FORM OF ACTION
2 One
form of action
COMMENCEMENT
3 Commencement
of action
JURISDICTION
(Personal)
4 Personal
jurisdiction
4 A Local
presence or status
4 B Special
jurisdiction statutes
4 C Local
act or omission
4 D Local
injury; foreign act
4 E Local
services, goods, or contracts
4 F Local
property
4 G Director
or officer of a domestic corporation
4 H Taxes
or assessments
4 I Insurance
or insurers
4 J Securities
4 K Certain
marital and domestic relations actions
4 L Other
actions
4 M Personal
representative
4 N Joinder
of claims in the same action
4 O Defendant
defined
(In Rem)
5 Jurisdiction
in rem
(Without Service)
6 Personal
jurisdiction without service of summons
SUMMONS
7 A Definitions
7 B Issuance
7 C(1) Contents
7 C(1) (a)
Title
7 C(1) (b)
Direction to defendant
7 C(1) (c)
Subscription; post office address
7 C(2) Time
for response
7 C(3) Notice
to party served
7 C(3) (a)
In general
7 C(3) (b)
Service for counterclaim
7 C(3) (c)
Service on persons liable for attorney fees
7 D Manner
of service
7 D(1) Notice
required
7 D(2) Service
methods
7 D(2) (a)
Personal service
7 D(2) (b)
Substituted service
7 D(2) (c)
Office service
7 D(2) (d)
Service by mail
7 D(2) (d)(i)
Generally
7 D(2) (d)(ii)
Calculation of time
7 D(3) Particular
defendants
7 D(3) (a)
Individuals
7 D(3) (a)(i)
Generally
7 D(3) (a)(ii)
Minors
7 D(3) (a)(iii)
Incapacitated persons
7 D(3) (a)(iv)
Tenant of a mail agent
7 D(3) (b)
Corporations and limited partnerships
7 D(3) (b)(i)
Primary service method
7 D(3) (b)(ii)
Alternatives
7 D(3) (c)
State
7 D(3) (d)
Public bodies
7 D(3) (e)
General partnerships
7 D(3) (f)
Other unincorporated association subject to suit under a common name
7 D(3) (g)
Vessel owners and charterers
7 D(4) Particular
actions involving motor vehicles
7 D(4) (a)
Actions arising out of use of roads, highways, streets, or premises open to the
public; service by mail
7 D(4) (b)
Notification of change of address
7 D(5) Service
in foreign country
7 D(6) Court
order for service; service by publication
7 D(6) (a)
Court order for service by other method
7 D(6) (b)
Contents of published summons
7 D(6) (c)
Where published
7 D(6) (d)
Mailing summons and complaint
7 D(6) (e)
Unknown heirs or persons
7 D(6) (f)
Defending before or after judgment
7 D(6) (g)
Defendant who cannot be served
7 E By
whom served; compensation
7 F Return;
proof of service
7 F(1) Return
of summons
7 F(2) Proof
of service
7 F(2) (a)
Service other than publication
7 F(2) (a)(i)
Certificate of service when summons not served by sheriff or deputy
7 F(2) (a)(ii)
Certificate of service by sheriff or deputy
7 F(2) (b)
Publication
7 F(2) (c)
Making and certifying affidavit
7 F(2) (d)
Form of certificate, affidavit or declaration
7 F(3) Written
admission
7 F(4) Failure
to make proof; validity of service
7 G Disregard
of error; actual notice
7 H Telegraphic
transmission
PROCESS
8 A Process
8 B Where
county is a party
8 C Service
or execution
8 D Telegraphic
transmission of writ, order, or paper, for service; procedure
8 E Proof
of service or execution
SERVICE AND FILING OF PLEADINGS AND OTHER
PAPERS
9 A Service;
when required
9 B Service;
how made
9 C Filing;
proof of service
9 D When
filing not required
9 E Filing
with the court defined
9 F Service
by telephonic facsimile communication device
TIME
10 A Computation
10 B Unaffected
by expiration of term
10 C Additional
time after service by mail
11 (Reserved
for Expansion)
PLEADINGS LIBERALLY CONSTRUED; DISREGARD OF
ERROR
12 A Liberal
construction
12 B Disregard
of error or defect not affecting substantial right
KINDS OF PLEADINGS ALLOWED; FORMER PLEADINGS
ABOLISHED
13 A Pleadings
13 B Pleadings
allowed
13 C Pleadings
abolished
MOTIONS
14 A Motions;
in writing; grounds
14 B Form
TIME FOR FILING PLEADINGS OR MOTIONS
15 A Time
for filing motions and pleadings
15 B Pleading
after motion
15 C Responding
to amended pleading
15 D Enlarging
time to plead or do other act
FORM OF PLEADINGS
16 A Captions;
names of parties
16 B Concise
and direct statement; paragraphs; separate statement of claims or defenses
16 C Consistency
in pleading alternative statements
16 D Adoption
by reference
SIGNING OF PLEADINGS, MOTIONS AND OTHER
PAPERS; SANCTIONS
17 A Signing
by party or attorney; certificate
17 B Pleadings,
motions and other papers not signed
17 C Certifications
to court
17 D Sanctions
17 E Rule
not applicable to discovery
CLAIMS FOR RELIEF
18 Claims
for relief
RESPONSIVE PLEADINGS
19 A Defenses;
form of denials
19 B Affirmative
defenses
19 C Effect
of failure to deny
SPECIAL PLEADING RULES
20 A Conditions
precedent
20 B Judgment
or other determination of court or officer; how pleaded
20 C Private
statute; how pleaded
20 D Corporate
existence of city or county and of ordinances or comprehensive plans generally;
how pleaded
20 E Libel
or slander action
20 F Official
document or act
20 G Recitals
and negative pregnants
20 H Fictitious
parties
20 I Designation
of unknown heirs in actions relating to property
20 J Designation
of unknown persons
DEFENSES AND OBJECTIONS; HOW PRESENTED; BY PLEADING OR MOTION; MOTION
FOR JUDGMENT ON THE PLEADINGS
21 A How
presented
21 B Motion
for judgment on the pleadings
21 C Preliminary
hearings
21 D Motion
to make more definite and certain
21 E Motion
to strike
21 F Consolidation
of defenses in motion
21 G Waiver
or preservation of certain defenses
COUNTERCLAIMS, CROSS-CLAIMS, AND THIRD PARTY
CLAIMS
22 A Counterclaims
22 B Cross-claim
against codefendant
22 C Third
party practice
22 D Joinder
of additional parties
22 E Separate
trial
AMENDED AND SUPPLEMENTAL PLEADINGS
23 A Amendments
23 B Amendments
to conform to the evidence
23 C Relation
back of amendments
23 D How
amendment made
23 E Supplemental
pleadings
JOINDER OF CLAIMS
24 A Permissive
joinder
24 B Forcible
entry and detainer and rental due
24 C Separate
statement
EFFECT OF PROCEEDING AFTER MOTION OR
AMENDMENT
25 A Amendment
or pleading over after motion; non-waiver of defenses or objections
25 B Amendment
of pleading; objections to amended pleading not waived
25 C Denial
of motion; non-waiver by filing responsive pleading
REAL PARTY IN INTEREST; CAPACITY OF
PARTNERSHIPS AND ASSOCIATIONS
26 A Real
party in interest
26 B Partnerships
and associations
MINOR OR INCAPACITATED PARTIES
27 A Appearance
of minor parties by guardian or conservator
27 B Appearance
of incapacitated person by conservator or guardian
JOINDER OF PARTIES
28 A Permissive
joinder as plaintiffs or defendants
28 B Separate
trials
JOINDER OF PERSONS NEEDED FOR JUST
ADJUDICATION
29 A Persons
to be joined if feasible
29 B Determination
by court whenever joinder not feasible
29 C Exception
of class actions
MISJOINDER AND NONJOINDER OF PARTIES
30 Misjoinder
and nonjoinder of parties
INTERPLEADER
31 A Parties
31 B Procedure
31 C Attorney
fees
CLASS ACTIONS
32 A Requirement
for class action
32 B Class
action maintainable
32 C Determination
by order whether class action to be maintained
32 D Dismissal
or compromise of class actions; court approval required; when notice required
32 E Court
authority over conduct of class actions
32 F Notice
and exclusion
32 G Commencement
or maintenance of class actions regarding particular issues; subclasses
32 H Notice
and demand required prior to commencement of action for damages
32 I Limitation
on maintenance of class actions for damages
32 J Application
of sections H and I of this rule to actions for equitable relief; amendment of
complaints for equitable relief to request damages permitted
32 K Limitation
on maintenance of class actions for recovery of certain statutory penalties
32 L Coordination
of pending class actions sharing common question of law or fact
32 M Form
of judgment
32 N Attorney
fees, costs, disbursements, and litigation expenses
32 O Statute
of limitations
INTERVENTION
33 A Definition
33 B Intervention
of right
33 C Permissive
intervention
33 D Procedure
SUBSTITUTION OF PARTIES
34 A Nonabatement
of action by death, disability, or transfer
34 B Death
of a party; continued proceedings
34 C Disability
of a party; continued proceedings
34 D Death
of a party; surviving parties
34 E Transfer
of interest
34 F Public
officers; death or separation from office
34 G Procedure
35 (Reserved
for Expansion)
GENERAL PROVISIONS GOVERNING DISCOVERY
36 A Discovery
methods
36 B Scope
of discovery
36 B(1) In
general
36 B(2) Insurance
agreements or policies
36 B(3) Trial
preparation materials
36 C Court
order limiting extent of disclosure
PERPETUATION OF TESTIMONY OR EVIDENCE BEFORE ACTION OR PENDING APPEAL
37 A Before
action
37 A(1) Petition
37 A(2) Notice
and service
37 A(3) Order
and examination
37 B Pending
appeal
37 C Perpetuation
by action
37 D Filing
of depositions
PERSONS WHO MAY ADMINISTER OATHS FOR DEPOSITIONS; FOREIGN DEPOSITIONS
38 A Within
Oregon
38 B Outside
the state
38 C Foreign
depositions
DEPOSITIONS UPON ORAL EXAMINATION
39 A When
deposition may be taken
39 B Order
for deposition or production of prisoner
39 C Notice
of examination
39 C(1) General
requirements
39 C(2) Special
notice
39 C(3) Shorter
or longer time
39 C(4) Non-stenographic
recording
39 C(5) Production
of documents and things
39 C(6) Deposition
of organization
39 C(7) Deposition
by telephone
39 D Examination;
record; oath; objections
39 D(1) Examination;
cross-examination; oath
39 D(2) Record
of examination
39 D(3) Objections
39 D(4) Written
questions as alternative
39 E Motion
for court assistance; expenses
39 E(1) Motion
for court assistance
39 E(2) Allowance
of expenses
39 F Submission
to witness; changes; statement
39 F(1) Necessity
of submission to witness for examination
39 F(2) Procedure
after examination
39 F(3) No
request for examination
39 G Certification;
filing; exhibits; copies
39 G(1) Certification
39 G(2) Filing
39 G(3) Exhibits
39 G(4) Copies
39 H Payment
of expenses upon failure to appear
39 H(1) Failure
of party to attend
39 H(2) Failure
of witness to attend
39 I Perpetuation
of testimony after commencement of action
DEPOSITIONS UPON WRITTEN QUESTIONS
40 A Serving
questions; notice
40 B Officer
to take responses and prepare record
EFFECT OF ERRORS AND IRREGULARITIES IN
DEPOSITIONS
41 A As
to notice
41 B As
to disqualification of officer
41 C As
to taking of deposition
41 D As
to completion and return of deposition
42 (Reserved
for Expansion)
PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION
AND OTHER PURPOSES
43 A Scope
43 B Procedure
43 C Writing
called for need not be offered
43 D Persons
not parties
PHYSICAL AND MENTAL EXAMINATION OF PERSONS; REPORTS OF EXAMINATIONS
44 A Order
for examination
44 B Report
of examining physician or psychologist
44 C Reports
of examinations; claims for damages for injuries
44 D Report;
effect of failure to comply
44 D(1) Preparation
of written report
44 D(2) Failure
to comply or make report or request report
44 E Access
to individually identifiable health information
REQUESTS FOR ADMISSION
45 A Request
for admission
45 B Response
45 C Motion
to determine sufficiency
45 D Effect
of admission
45 E Form
of response
45 F Number
FAILURE TO MAKE DISCOVERY; SANCTIONS
46 A Motion
for order compelling discovery
46 A(1) Appropriate
court
46 A(1) (a)
Parties
46 A(1) (b)
Non-parties
46 A(2) Motion
46 A(3) Evasive
or incomplete answer
46 A(4) Award
of expenses of motion
46 B Failure
to comply with order
46 B(1) Sanctions
by court in the county where the deponent is located
46 B(2) Sanctions
by court in which action is pending
46 B(3) Payment
of expenses
46 C Expenses
on failure to admit
46 D Failure
of party to attend at own deposition or respond to request for inspection or to
inform of question regarding the existence of coverage of liability insurance
policy
SUMMARY JUDGMENT
47 A For
claimant
47 B For
defending party
47 C Motion
and proceedings thereon
47 D Form
of affidavits and declarations; defense required
47 E Affidavit
or declaration of attorney when expert opinion required
47 F When
affidavits or declarations are unavailable
47 G Affidavits
or declarations made in bad faith
47 H Multiple
parties or claims; limited judgment
48 (Reserved
for Expansion)
49 (Reserved
for Expansion)
JURY TRIAL
50 Jury
trial of right
ISSUES; TRIAL BY JURY OR BY THE COURT
51 A Issues
51 B Issues
of law; how tried
51 C Issues
of fact; how tried
51 D Advisory
jury and jury trial by consent
POSTPONEMENT OF CASES
52 A Postponement
52 B Absence
of evidence
CONSOLIDATION; SEPARATE TRIALS
53 A Joint
hearing or trial; consolidation of actions
53 B Separate
trials
DISMISSAL OF ACTIONS; COMPROMISE
54 A Voluntary
dismissal; effect thereof
54 A(1) By
plaintiff; by stipulation
54 A(2) By
order of court
54 A(3) Costs
and disbursements
54 B Involuntary
dismissal
54 B(1) Failure
to comply with rule or order
54 B(2) Insufficiency
of evidence
54 B(3) Dismissal
for want of prosecution; notice
54 B(4) Effect
of judgment of dismissal
54 C Dismissal
of counterclaim, cross-claim, or third party claim
54 D Costs
of previously dismissed action
54 E Compromise;
effect of acceptance or rejection
54 F Settlement
conferences
SUBPOENA
55 A Defined;
form
55 B For
production of books, papers, documents, or tangible things and to permit
inspection
55 C Issuance
55 C(1) By
whom issued
55 C(2) By
clerk in blank
55 D Service;
service on law enforcement agency; service by mail; proof of service
55 D(1) Service
55 D(2) Service
on law enforcement agency
55 D(3) Service
by mail
55 D(4) Service
by mail; exception
55 D(5) Proof
of service
55 E Subpoena
for hearing or trial; prisoners
55 F Subpoena
for taking depositions or requiring production of books, papers, documents, or
tangible things; place of production and examination
55 F(1) Subpoena
for taking deposition
55 F(2) Place
of examination
55 F(3) Production
without examination or deposition
55 G Disobedience
of subpoena; refusal to be sworn or answer as a witness
55 H Individually
identifiable health information
55 H(1) Definitions
55 H(2) Mode
of compliance
55 H(3) Affidavit
or declaration of custodian of records
55 H(4) Personal
attendance of custodian of records may be required
55 H(5) Tender
and payment of fees
55 H(6) Scope
of discovery
TRIAL BY JURY
56 Trial
by jury defined
56 A Twelve-person
juries
56 B Six-person
juries
JURORS
57 A Challenging
compliance with selection procedures
57 A(1) Motion
57 A(2) Stay
of proceedings
57 A(3) Exclusive
means of challenge
57 B Jury;
how drawn
57 C Examination
of jurors
57 D Challenges
57 D(1) Challenges
for cause; grounds
57 D(2) Peremptory
challenges; number
57 D(3) Conduct
of peremptory challenges
57 D(4) Challenge
of preemptory challenge exercised on basis of race, ethnicity or sex
57 E Oath
of jury
57 F Alternate
jurors
TRIAL PROCEDURE
58 A Manner
of proceedings on trial by the court
58 B Manner
of proceedings on jury trial
58 C Separation
of jury before submission of cause; admonition
58 D Proceedings
if juror becomes sick
58 E Failure
to appear for trial
INSTRUCTIONS TO JURY AND DELIBERATION
59 A Proposed
instructions
59 B Charging
the jury
59 C Deliberation
59 C(1) Exhibits
59 C(2) Written
statement of issues
59 C(3) Copies
of documents
59 C(4) Notes
59 C(5) Custody
of and communications with jury
59 C(6) Separation
during deliberation
59 C(7) 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 Time
for motion and ruling
63 E Duties
of the clerk
63 F Motion
for new trial after judgment notwithstanding the verdict
NEW TRIALS
64 A New
trial defined
64 B Jury
trial; grounds for new trial
64 C New
trial in case tried without a jury
64 D Specification
of grounds of motion; when motion must be on affidavits or declarations
64 E When
counteraffidavits or counterdeclarations are allowed; former proceedings
considered
64 F Time
of motion; counteraffidavits or counterdeclarations; hearing and determination
64 G New
trial on 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.
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 with a certificate upon the copy signed by an attorney of
record, or if there is no attorney, by a party, which indicates that the copy
is exact and complete.
B Issuance. Any time after the action is commenced, plaintiff or plaintiffs
attorney may issue as many original summonses as either may elect and deliver
such summonses to a person authorized to serve summons under section E of this
rule. A summons is issued when subscribed by plaintiff or an active member of
the Oregon State Bar.
C(1) Contents. The summons shall contain:
C(1)(a) Title. The title of the cause, specifying the name of the court in
which the complaint is filed and the names of the parties to the action.
C(1)(b) Direction to defendant. A direction to the defendant requiring
defendant to appear and defend within the time required by subsection (2) of
this section and a notification to defendant that in case of failure to do so,
the plaintiff will apply to the court for the relief demanded in the complaint.
C(1)(c) Subscription; post office address. A subscription by the plaintiff
or by an active member of the Oregon State Bar, with the addition of the post
office address at which papers in the action may be served by mail.
C(2) Time
for response. If the summons is served by any manner other than
publication, the defendant shall appear and defend within 30 days from the date
of service. If the summons is served by publication pursuant to subsection D(6)
of this rule, the defendant shall appear and defend within 30 days from the
date stated in the summons. The date so stated in the summons shall be the date
of the first publication.
C(3) Notice
to party served.
C(3)(a) In general. All summonses, other than a summons referred to in
paragraph (b) or (c) of this subsection, shall contain a notice printed in type
size equal to at least 8-point type which may be substantially in the following
form:
______________________________________________________________________________
NOTICE TO DEFENDANT:
READ THESE PAPERS CAREFULLY!
You must appear in this case or the
other side will win automatically. To appear you must file with the court a
legal paper called a motion or answer. The motion or answer must be
given to the court clerk or administrator within 30 days along with the required
filing fee. It must be in proper form and have proof of service on the
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
Oregon at (800) 452-7636.
______________________________________________________________________________
C(3)(b) Service for counterclaim. A summons to join a party to respond to a
counterclaim pursuant to Rule 22 D (1) shall contain a notice printed in type
size equal to at least 8-point type which may be substantially in the following
form:
______________________________________________________________________________
NOTICE TO DEFENDANT:
READ THESE PAPERS CAREFULLY!
You must appear to protect your rights
in this matter. To appear you must file with the court a legal paper called a
motion or reply. The motion or reply must be given to the court clerk
or administrator within 30 days along with the required filing fee. It must be
in proper form and have proof of service on the 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
Oregon at (800) 452-7636.
______________________________________________________________________________
C(3)(c) Service on persons liable for attorney fees. A summons to join a
party pursuant to Rule 22 D(2) shall contain a notice printed in type size
equal to at least 8-point type which may be substantially in the following
form:
______________________________________________________________________________
NOTICE TO DEFENDANT:
READ THESE PAPERS CAREFULLY!
You may be liable for attorney fees in
this case. Should plaintiff in this case not prevail, a judgment for reasonable
attorney fees will be entered against you, as provided by the agreement to
which defendant alleges you are a party.
You must appear to protect your rights
in this matter. To appear you must file with the court a legal paper called a
motion or reply. The motion or reply must be given to the court clerk
or administrator within 30 days along with the required filing fee. It must be
in proper form and have proof of service on the 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
Oregon at (800) 452-7636.
______________________________________________________________________________
D Manner of service.
D(1) Notice
required. Summons shall be served, either within or without this state, in
any manner reasonably calculated, under all the circumstances, to apprise the
defendant of the existence and pendency of the action and to afford a
reasonable opportunity to appear and defend. Summons may be served in a manner
specified in this rule or by any other rule or statute on the defendant or upon
an agent authorized by appointment or law to accept service of summons for the
defendant. Service may be made, subject to the restrictions and requirements of
this rule, by the following methods: personal service of summons upon defendant
or an agent of defendant authorized to receive process; substituted service by
leaving a copy of summons and complaint at a persons dwelling house or usual
place of abode; office service by leaving with a person who is apparently in
charge of an office; service by mail; or, service by publication.
D(2) Service
methods.
D(2)(a) Personal service. Personal service may be made by delivery of a
true copy of the summons and a true copy of the complaint to the person to be
served.
D(2)(b) Substituted service. Substituted service may be made by delivering
a true copy of the summons and the complaint at the dwelling house or usual
place of abode of the person to be served, to any person 14 years of age or
older residing in the dwelling house or usual place of abode of the person to
be served. Where substituted service is used, the plaintiff, as soon as
reasonably possible, shall cause to be mailed, by first class mail, a true copy
of the summons and the complaint to the defendant at 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 a true copy of
the summons and the complaint at such office during normal working hours with
the person who is apparently in charge. Where office service is used, the
plaintiff, as soon as reasonably possible, shall cause to be mailed, by first
class mail, a true copy of the summons and the complaint to the defendant at
the 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 a true
copy of the summons and the complaint to the defendant by first class mail and
by any of the following: certified or registered mail, return receipt requested,
or express mail. For purposes of this section, first class mail does not
include certified or registered, or any other form of mail which may delay or
hinder actual delivery of mail to the addressee.
D(2)(d)(ii) Calculation of time. For the purpose of computing any period of
time provided by these rules or by statute, service by mail, except as
otherwise provided, shall be complete on the day the defendant, or other person
authorized by appointment or law, signs a receipt for the mailing, or three days
after the mailing if mailed to an address within the state, or seven days after
the mailing if mailed to an address outside the state, whichever first occurs.
D(3) Particular
defendants. Service may be made upon specified defendants as follows:
D(3)(a) Individuals.
D(3)(a)(i) Generally. Upon an individual defendant, by personal delivery of a
true copy of the summons and the complaint to such defendant or other person
authorized by appointment or law to receive service of summons on behalf of
such defendant, by substituted service or by office service. Service may also
be made upon an individual defendant to whom neither subparagraph (ii) nor
(iii) of this paragraph applies by mailing made in accordance with paragraph
(2)(d) of this section provided the defendant signs a receipt for the
certified, registered or express mailing, in which case service shall be
complete on the date on which the defendant signs a receipt for the mailing.
D(3)(a)(ii) Minors. Upon a minor under the age of 14 years, by service in the
manner specified in subparagraph (i) of this paragraph upon such minor, and
also upon such 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 a true copy
of the summons and the complaint to any person apparently in charge of the
place where the mail agent receives mail for the tenant, provided that:
(A) the plaintiff makes a diligent inquiry
but cannot find the defendant; and
(B) the plaintiff, as soon as reasonably
possible after delivery, causes a true copy of the summons and the complaint to
be mailed by first class mail to the defendant at the address at which the mail
agent receives mail for the defendant and to any other mailing address of the
defendant then known to the plaintiff, together with a statement of the date,
time, and place at which the plaintiff delivered the copy of the summons and
the complaint.
Service shall be complete on the latest
date resulting from the application of subparagraph D(2)(d)(ii) of this rule to
all mailings required by this subparagraph unless the defendant signs a receipt
for the mailing, in which case service is complete on the day the defendant
signs the receipt.
D(3)(b) Corporations and limited partnerships. Upon a domestic or foreign
corporation or limited partnership:
D(3)(b)(i) Primary service method. By personal service or office service upon
a registered agent, officer, director, general partner, or managing agent of
the corporation or limited partnership, or by personal service upon any clerk
on duty in the office of a registered agent.
D(3)(b)(ii) Alternatives. If a registered agent, officer, director, general
partner, or managing agent cannot be found in the county where the action is
filed, the summons may be served: by substituted service upon such registered
agent, officer, director, general partner, or managing agent; or by personal
service on any clerk or agent of the corporation or limited partnership who may
be found in the county where the action is filed; or by mailing a copy of the
summons and complaint to the office of the registered agent or to the last
registered office of the corporation or limited partnership, if any, as shown
by the records on file in the office of the Secretary of State or, if the
corporation or limited partnership is not authorized to transact business in
this state at the time of the transaction, event, or occurrence upon which the
action is based occurred, to the principal office or place of business of the
corporation or limited partnership, and in any case to any address the use of
which the plaintiff knows or, on the basis of reasonable inquiry, has reason to
believe is most likely to result in actual notice.
D(3)(c) State. Upon the state, by personal service upon the Attorney
General or by leaving a copy of the summons and complaint at the Attorney
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 partnerships by personal
service upon a partner or any agent authorized by appointment or law to receive
service of summons for the partnership.
D(3)(f) Other unincorporated association subject to suit under a common name. Upon
any other unincorporated association subject to suit under a common name by
personal service upon an officer, managing agent, or agent authorized by
appointment or law to receive service of summons for the unincorporated
association.
D(3)(g) Vessel owners and charterers. Upon any foreign steamship owner or
steamship charterer by personal service upon a vessel master in such 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 summons is made in the
manner prescribed by the law of the foreign country for service in that country
in its courts of general jurisdiction, or as directed by the foreign authority
in response to letters rogatory, or as directed by order of the court. However,
in all cases such service shall be reasonably calculated to give actual notice.
D(6) Court
order for service; service by publication.
D(6)(a) Court order for service by other method. On motion upon a showing
by affidavit or declaration that service cannot be made by any method otherwise
specified in these rules or other rule or statute, the court, at its discretion,
may order service by any method or combination of methods which under the
circumstances is most reasonably calculated to apprise the defendant of the
existence and pendency of the action, including but not limited to: publication
of summons; mailing without publication to a specified post office address of
the defendant by first class mail and by any of the following: certified or
registered mail, return receipt requested, or express mail; or posting at
specified locations. If service is ordered by any manner other than
publication, the court may order a time for response.
D(6)(b) Contents of published summons. In addition to the contents of a
summons as described in section C of this rule, a published summons shall also
contain a summary statement of the object of the complaint and the demand for
relief, and the notice required in subsection C(3) shall state: The motion
or answer (or reply) must be given to the court clerk or administrator
within 30 days of the date of first publication specified herein along with the
required filing fee. The published summons shall also contain the date of the
first publication of the summons.
D(6)(c) Where published. An order for publication shall direct publication
to be made in a newspaper of general circulation in the county where the action
is commenced or, if there is no such newspaper, then in a newspaper to be
designated as most likely to give notice to the person to be served. Such
publication shall be four times in successive calendar weeks. If the plaintiff
knows of a specific location other than the county where the action is
commenced where publication might reasonably result in actual notice to the
defendant, the plaintiff shall so state in the affidavit or declaration
required by paragraph (a) of this subsection, and the court may order
publication in a comparable manner at such location in addition to, or in lieu
of, publication in the county where the action is commenced.
D(6)(d) Mailing summons and complaint. If the court orders service by publication
and the plaintiff knows or with reasonable diligence can ascertain the
defendants current address, the plaintiff shall mail a copy of the summons and
the complaint to the defendant at such address by first class mail and by any
of the following: certified or registered mail, return receipt requested, or
express mail. If the plaintiff does not know and cannot upon diligent inquiry
ascertain the current address of any defendant, a copy of the summons and the
complaint shall be mailed by the methods specified above to the defendant at
the defendants last known address. If the plaintiff does not know, and cannot
ascertain upon diligent inquiry, the defendants current and last known
addresses, mailing of a copy of the summons and the complaint is not required.
D(6)(e) Unknown heirs or persons. If service cannot be made by another
method described in this section because defendants are unknown heirs or
persons as described in sections I and J of Rule 20, the action shall proceed
against the unknown heirs or persons in the same manner as against named
defendants served by publication and with like effect; and any such unknown
heirs or persons who have or claim any right, estate, lien, or interest in the
property in controversy, at the time of the commencement of the action, and
served by publication, shall be bound and concluded by the judgment in the
action, if the same is in favor of the plaintiff, as effectively as if the
action was brought against such defendants by name.
D(6)(f) Defending before or after judgment. A defendant against whom
publication is ordered or such 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 D(3) of this section if: (i) service pursuant to subparagraph
(4)(a)(i) of this section is not authorized, and the plaintiff attempted service
of summons by all of the methods authorized by subsection D(3) of this section
and was unable to complete service, or (ii) if the plaintiff knew that service
by such methods could not be accomplished.
E By whom served; compensation. A summons may be served by any competent
person 18 years of age or older who is a resident of the state where service is
made or of this state and is not a party to the action nor, except as provided
in ORS 180.260, an officer, director, or employee of, nor attorney for, any party,
corporate or otherwise. However, service pursuant to subparagraph D(2)(d)(i) of
this rule may be made by an attorney for any party. Compensation to a sheriff
or a 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 a copy of
the summons and complaint was left or describe in detail the manner and
circumstances of service. If the summons and complaint were mailed, the
certificate may be made by the person completing the mailing or the attorney for
any party and shall state the circumstances of mailing and the return receipt
shall be attached.
F(2)(a)(ii) Certificate of service by sheriff or deputy. If the summons is
served by a sheriff or a 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 the copy of
the summons and complaint was left or describing in detail the manner and
circumstances of service. If the summons and complaint were mailed, the
certificate shall state the circumstances of mailing and the return receipt
shall be attached.
F(2)(b) Publication. Service by publication shall be proved by an
affidavit or by a declaration.
F(2)(b)(i) A publication by affidavit
shall be in substantially the following form:
______________________________________________________________________________
Affidavit of Publication
State of
Oregon )
) ss.
County of )
I, ________, being first duly sworn,
depose and say that I am the ________ (here set forth the title or job
description of the person making the affidavit), of the ________, a newspaper
of general circulation published at ________ in the aforesaid county and state;
that I know from my personal knowledge that the ________, a printed copy of
which is hereto annexed, was published in the entire issue of said newspaper
four times in the following issues: (here set forth dates of issues in which
the same was published).
Subscribed and
sworn to before me this _____ day of _____, 2_____.
_____________________
Notary
Public for Oregon
My
commission expires
___ day of _____, 2___.
______________________________________________________________________________
F(2)(b)(ii) A publication by declaration
shall be in substantially the following form:
______________________________________________________________________________
Declaration of Publication
State of
Oregon )
) ss.
County of )
I, ________, say that I am the ________
(here set forth the title or job description of the person making the
declaration), of the ________, a newspaper of general circulation
published at ________ in the aforesaid county and state; that I know from my
personal knowledge that the ________, a printed copy of which is hereto annexed,
was published in the entire issue of said newspaper four times in the following
issues: (here set forth dates of issues in which the same was published).
I hereby declare
that the above statement is true to the best of my knowledge and belief, and that
I understand it is made for use as evidence in court and is subject to penalty
for perjury.
__________________
___ day of _____, 2___.
______________________________________________________________________________
F(2)(c) Making and certifying affidavit. The affidavit of service may be
made and certified before a notary public, or other official authorized to
administer oaths and acting as such by authority of the United States, or any
state or territory of the United States, or the District of Columbia, and the
official seal, if any, of such person shall be affixed to the affidavit. The
signature of such notary or other official, when so attested by the affixing of
the official seal, if any, of such person, shall be prima facie evidence of
authority to make and certify such affidavit.
F(2)(d) Form of certificate, affidavit or declaration. A certificate,
affidavit or declaration containing proof of service may be made upon the
summons or as a separate document attached to the summons.
F(3) Written
admission. In any case proof may be made by written admission of the
defendant.
F(4) Failure
to make proof; validity of service. If summons has been properly served,
failure to make or file a proper proof of service shall not affect the validity
of the service.
G Disregard of error; actual notice. Failure to comply with provisions of this
rule relating to the form of summons, issuance of summons, or who may serve
summons shall not affect the validity of service of summons or the existence of
jurisdiction over the person if the court determines that the defendant
received actual notice of the substance and pendency of the action. The court
may allow amendment to a summons, or affidavit, declaration or certificate of
service of summons. The court shall disregard any error in the content of
summons that does not materially prejudice the substantive rights of the party
against whom summons was issued. If service is made in any manner complying
with subsection D(1) of this section, the court shall also disregard any error
in the service of summons that does not violate the due process rights of the
party against whom summons was issued.
H Telegraphic transmission. A summons and complaint may be transmitted
by telegraph as provided in Rule 8 D. [CCP 12/2/78; amended by 1979 c.284 §9; §D
amended by CCP 12/13/80; §§D,E amended by 1981 c.898 §§4,5; §§D,F amended by
CCP 12/4/82; §§D,F amended by 1983 c.751 §§3,4; §C(2) amended by CCP 12/8/84; §D(4)
amended by CCP 12/10/88 and 1/6/89; §D amended by CCP 12/15/90; §§C,E amended
by CCP 12/12/92; §D amended by 1995 c.79 §402 and 1995 c.664 §99; §§B,C,D,F,G
amended by and D(7) redesignated as D(6)(g) by CCP 12/14/96; §§D,E amended by
CCP 12/12/98; §D amended by CCP 12/9/00; amended by 2003 c.194 §5]
PROCESS
RULE 8
A Process. All process authorized to be issued by any court or officer thereof
shall run in the name of the State of Oregon and be signed by the officer
issuing the same, and if such process is issued by a clerk of court, the seal
of office of such clerk shall be affixed to such process. Summonses and
subpoenas are not process and are covered by Rules 7 and 55, respectively.
B Where county is a party. Process in an action where any county is a
party shall be served on the county clerk or the person exercising the duties
of that office, or if the office is vacant, upon the chairperson of the
governing body of the county, or in the absence of the chairperson, any member
thereof.
C Service or execution. Any civil process may be served or executed
on Sunday or any other legal holiday. No limitation or prohibition stated in
ORS 1.060 shall apply to such service or execution of any civil process on a
Sunday or other legal holiday.
D Telegraphic transmission of writ, order, or
paper, for service; procedure.
Any writ or order in any civil action, and all other papers requiring service,
may be transmitted by telegraph for service in any place, and the telegraphic
copy as defined in ORS 165.840, of such writ, order, or paper so transmitted
may be served or executed by the officer or person to whom it is sent for that
purpose, and returned by such officer or person if any return be requisite, in
the same manner and with the same force and effect in all respects as the
original might be if delivered to such officer or person. The officer or person
serving or executing the same shall have the same authority and be subject to
the same liabilities as if the copy were the original. The original, if a writ
or order, shall also be filed in the court from which it was issued, and a certified
copy thereof shall be preserved in the telegraph office from which it was sent.
In sending it, either the original or a certified copy may be used by the
operator for that purpose.
E Proof of service or execution. Proof of service or execution of process
shall be made as provided in Rule 7 F. [CCP 12/2/78]
SERVICE AND FILING
OF PLEADINGS AND OTHER PAPERS
RULE 9
A Service; when required. Except as otherwise provided in these rules,
every order, every pleading subsequent to the original complaint, every written
motion other than one which may be heard ex parte, and every written request,
notice, appearance, demand, offer of judgment, designation of record on appeal,
and similar paper shall be served upon each of the parties. No service need be
made on parties in default for failure to appear except that pleadings
asserting new or additional claims for relief against them shall be served upon
them in the manner provided for service of summons in Rule 7.
B Service; how made. Whenever under these rules service is
required or permitted to be made upon a party, and that party is represented by
an attorney, the service shall be made upon the attorney unless otherwise
ordered by the court. Service upon the attorney or upon a party shall be made
by delivering a copy to such attorney or party, by mailing it to such attorneys
or partys last known address or, if the party is represented by an attorney,
by telephonic facsimile communication device as provided in section F of this
rule. Delivery of a copy within this rule means: handing it to the person to be
served; or leaving it at such 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 placing a copy of the pleading or other papers in the court file.
Service by mail is complete upon mailing. Service of any notice or other paper
to bring a party into contempt may only be upon such party personally.
C Filing; proof of service. Except as provided by section D of this rule,
all papers required to be served upon a party by section A of this rule shall
be filed with the court within a reasonable time after service. Except as
otherwise provided in Rules 7 and 8, proof of service of all papers required or
permitted to be served may be by written acknowledgment of service, by
affidavit or declaration of the person making service, or by certificate of an
attorney. Such proof of service may be made upon the papers served or as a separate
document attached to the papers. Where service is made by telephonic facsimile
communication device, proof of service shall be made by affidavit or
declaration of the person making service, or by certificate of an attorney.
Attached to such affidavit, declaration or certificate shall be the printed
confirmation of receipt of the message generated by the transmitting machine.
D When filing not required. Notices of deposition, requests made
pursuant to Rule 43, and answers and responses thereto shall not be filed with
the court. This rule shall not preclude their use as exhibits or as evidence on
a motion or at trial.
E Filing with the court defined. The filing of pleadings and other papers
with the court as required by these rules shall be made by filing them with the
clerk of the court or the person exercising the duties of that office. The
clerk or the person exercising the duties of that office shall endorse upon
such pleading or paper the time of day, the day of the month, month, and the
year. The clerk or person exercising the duties of that office is not required
to receive for filing any paper unless the name of the court, the title of the
cause and the paper, and the names of the parties, and the attorney for the
party requesting filing, if there be one, are legibly endorsed on the front of
the document, nor unless the contents thereof are legible.
F Service by telephonic facsimile
communication device.
Whenever under these rules service is required or permitted to be made upon a
party, and that party is represented by an attorney, the service may be made
upon the attorney by means of a telephonic facsimile communication device if
the attorney maintains such a device at the 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. [CCP 12/2/78; amended
by 1979 c.284 §10; §B amended by CCP 12/13/80; §B amended by CCP 12/4/82; §§C,D,E
amended by CCP 12/13/86; amended by 1989 c.295 §1; §C amended by 2003 c.194 §6;
§F amended by CCP 12/11/04]
TIME
RULE 10
A Computation. In computing any period of time prescribed
or allowed by these rules, by the local rules of any court or by order of
court, the day of the act, event, or default from which the designated period
of time begins to run shall not be included. The last day of the period so
computed shall be included, unless it is a Saturday or a legal holiday,
including Sunday, in which event the period runs until the end of the next day
which is not a Saturday or a legal holiday. If the period so computed relates
to serving a public officer or filing a document at a public office, and if the
last day falls on a day when that particular office is closed before the end of
or for all of the normal work day, the last day shall be excluded in computing
the period of time within which service is to be made or the document is to be
filed, in which event the period runs until the close of office hours on the
next day the office is open for business. When the period of time prescribed or
allowed (without regard to section C of this rule) is less than 7 days,
intermediate Saturdays and legal holidays, including Sundays, shall be excluded
in the computation. As used in this rule, legal holiday means legal holiday
as defined in ORS 187.010 and 187.020. This section does not apply to any time
limitation governed by ORS 174.120.
B Unaffected by expiration of term. The period of time provided for the doing of
any act or the taking of any proceeding is not affected or limited by the
continued existence or expiration of a term of court. The continued existence
or expiration of a term of court in no way affects the power of a court to do
any act or take any proceeding in any civil action which is pending before it.
C Additional time after service by mail. Except for service of summons, whenever a
party has the right or is required to do some act or take some proceedings
within a prescribed period after the service of a notice or other paper upon
such party and the notice or paper is served by mail, 3 days shall be added to
the prescribed period. [CCP 12/2/78; §C amended by CCP 12/13/80; §A amended by
CCP 12/10/88 and 1/6/89; §A amended by 2002 s.s.1 c.10 §9]
RULE 11
(Reserved for
Expansion)
PLEADINGS
LIBERALLY CONSTRUED; DISREGARD OF ERROR
RULE 12
A Liberal construction. All pleadings shall be liberally construed
with a view of substantial justice between the parties.
B Disregard of error or defect not affecting
substantial right. The court
shall, in every stage of an action, disregard any error or defect in the
pleadings or proceedings which does not affect the substantial rights of the
adverse party. [CCP 12/2/78]
KINDS OF PLEADINGS
ALLOWED; FORMER
PLEADINGS
ABOLISHED
RULE 13
A Pleadings. The pleadings are the written statements by
the parties of the facts constituting their respective claims and defenses.
B Pleadings allowed. There shall be a complaint and an answer. An
answer may include a counterclaim against a plaintiff, including a party joined
under Rule 22 D, and a cross-claim against a defendant, including a party
joined under Rule 22 D. A pleading against any person joined under Rule 22 C is
a third party complaint. There shall be an answer to a cross-claim and a third
party complaint. There shall be a reply to a counterclaim denominated as such
and a reply to assert any affirmative allegations in avoidance of any defenses
asserted in an answer. There shall be no other pleading unless the court orders
otherwise.
C Pleadings abolished. Demurrers and pleas shall not be used. [CCP
12/2/78; amended by 1979 c.284 §11]
MOTIONS
RULE 14
A Motions; in writing; grounds. An application for an order is a motion.
Every motion, unless made during trial, shall be in writing, shall state with
particularity the grounds therefor, and shall set forth the relief or order
sought.
B Form. The rules applicable to captions, signing, and other matters of form
of pleadings, including Rule 17 A, apply to all motions and other papers
provided for by these rules. [CCP 12/2/78; amended by 1979 c.284 §12]
TIME FOR FILING
PLEADINGS OR MOTIONS
RULE 15
A Time for filing motions and pleadings. A motion or answer to the complaint or third
party complaint and the reply to a counterclaim or answer to a cross-claim
shall be filed with the clerk by the time required by Rule 7 C(2) to appear and
defend. Any other motion or responsive pleading shall be filed not later than
10 days after service of the pleading moved against or to which the responsive
pleading is directed.
B Pleading after motion.
B(1) If the court denies a motion, any
responsive pleading required shall be filed within 10 days after service of the
order, unless the order otherwise directs.
B(2) If the court grants a motion and an
amended pleading is allowed or required, such pleading shall be filed within 10
days after service of the order, unless the order otherwise directs.
C Responding to amended pleading. A party shall respond to an amended pleading
within the time remaining for response to the original pleading or within 10
days after service of the amended pleading, whichever period may be the longer,
unless the court otherwise directs.
D Enlarging time to plead or do other act. The court may, in its discretion, and upon
such terms as may be just, allow an answer or reply to be made, or allow any
other pleading or motion after the time limited by the procedural rules, or by
an order enlarge such time. [CCP 12/2/78; §A amended by 1979 c.284 §13; §A
amended by CCP 12/10/94]
FORM OF PLEADINGS
RULE 16
A Captions; names of parties. Every pleading shall contain a caption
setting forth the name of the court, the title of the action, the register
number of the cause, and a designation in accordance with Rule 13 B. In the
complaint the title of the action shall include the names of all the parties,
but in other pleadings it is sufficient to state the name of the first party on
each side with an appropriate indication of other parties.
B Concise and direct statement; paragraphs;
separate statement of claims or defenses. Every pleading shall consist of plain and concise statements in
paragraphs consecutively numbered throughout the pleading with Arabic numerals,
the contents of which shall be limited as far as practicable to a statement of
a single set of circumstances, and a paragraph may be referred to by number in
all succeeding pleadings. Each separate claim or defense shall be separately
stated. Within each claim alternative theories of recovery shall be identified
as separate counts.
C Consistency in pleading alternative statements. Inconsistent claims or defenses are not
objectionable, and when a party is in doubt as to which of two or more
statements of fact is true, the party may allege them in the alternative. A
party may also state as many separate claims or defenses as the party has,
regardless of consistency and whether based upon legal or equitable grounds or
upon both. All statements shall be made subject to the obligation set forth in
Rule 17.
D Adoption by reference. Statements in a pleading may be adopted by
reference in a different part of the same pleading. [CCP 12/2/78; §B amended by
CCP 12/8/84; §B amended by CCP 12/13/86]
SIGNING OF
PLEADINGS, MOTIONS AND OTHER PAPERS; SANCTIONS
RULE 17
A Signing by party or attorney; certificate. Every pleading, motion and other paper of a
party represented by an attorney shall be signed by at least one attorney of
record who is an active member of the Oregon State Bar. A party who is not
represented by an attorney shall sign the pleading, motion or other paper and
state the address of the party. Pleadings need not be verified or accompanied
by affidavit or declaration.
B Pleadings, motions and other papers not
signed. If a pleading,
motion or other paper is not signed, it shall be stricken unless it is signed
promptly after the omission is called to the attention of the pleader or
movant.
C Certifications to court.
C(1) An attorney or party who signs, files
or otherwise submits an argument in support of a pleading, motion or other
paper makes the certifications to the court identified in subsections (2) to
(5) of this section, and further certifies that the certifications are based on
the 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 paper is not being presented for any improper
purpose, such as to harass or to cause unnecessary delay or needless increase
in the cost of litigation.
C(3) An attorney certifies that the claims,
defenses, and other legal positions taken in the pleading, motion or other
paper are warranted by existing law or by a nonfrivolous argument for the
extension, modification or reversal of existing law or the establishment of new
law.
C(4) A party or attorney certifies that
the allegations and other factual assertions in the pleading, motion or other
paper are supported by evidence. Any allegation or other factual assertion that
the party or attorney does not wish to certify to be supported by evidence must
be specifically identified. The attorney or party certifies that the attorney
or party reasonably believes that an allegation or other factual assertion so
identified will be supported by evidence after further investigation and
discovery.
C(5) The party or attorney certifies that
any denials of factual assertion are supported by evidence. Any denial of
factual assertion that the party or attorney does not wish to certify to be
supported by evidence must be specifically identified. The attorney or party
certifies that the attorney or party believes that a denial of a factual
assertion so identified is reasonably based on a lack of information or belief.
D Sanctions.
D(1) The court may impose sanctions
against a person or party who is found to have made a false certification under
section C of this rule, or who is found to be responsible for a false
certification under section C of this rule. A sanction may be imposed under
this section only after notice and an opportunity to be heard are provided to
the party or attorney. A law firm is jointly liable for any sanction imposed
against a partner, associate or employee of the firm, unless the court
determines that joint liability would be unjust under the circumstances.
D(2) Sanctions may be imposed under this
section upon motion of a party or upon the 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, paper or
argument in a manner that corrects the false certification specified in the
motion. If the party does not amend or otherwise withdraw the pleading, motion,
paper or argument but thereafter prevails on the motion, the court may order
the moving party to pay to the prevailing party reasonable attorney fees
incurred by the prevailing party by reason of the motion for sanctions.
D(4) Sanctions under this section must be
limited to amounts sufficient to reimburse the moving party for attorney fees
and other expenses incurred by reason of the false certification, including
reasonable attorney fees and expenses incurred by reason of the motion for
sanctions, and upon clear and convincing evidence of wanton misconduct amounts
sufficient to deter future false certification by the party or attorney and by
other parties and attorneys. The sanction may include monetary penalties
payable to the court. The sanction must include an order requiring payment of
reasonable attorney fees and expenses incurred by the moving party by reason of
the false certification.
D(5) An order imposing sanctions under
this section must specifically describe the false certification and the grounds
for determining that the certification was false. The order must explain the
grounds for the imposition of the specific sanction that is ordered.
E Rule not applicable to discovery. This rule does not apply to any motion,
pleading or conduct that is subject to sanction under Rule 46. [CCP 12/2/78;
amended by 1979 c.284 §14; §A amended by CCP 12/8/84; amended by CCP 12/13/86;
amended by 1987 c.774 §12; amended by 1995 c.618 §4; §D amended by CCP
12/14/96; §A amended by 2003 c.194 §7]
CLAIMS FOR RELIEF
RULE 18
A pleading which asserts a claim for
relief, whether an original claim, counterclaim, cross-claim, or third party
claim, shall contain:
A A plain and concise statement of the
ultimate facts constituting a claim for relief without unnecessary repetition.
B A demand of the relief which the party
claims; if recovery of money or damages is demanded, the amount thereof shall
be stated; relief in the alternative or of several different types may be
demanded. [CCP 12/2/78; amended by CCP 12/13/86; amended by 1987 c.774 §12a;
amended by CCP 12/15/90]
RESPONSIVE
PLEADINGS
RULE 19
A Defenses; form of denials. A party shall state in short and plain terms
the 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) Prior to the entry of a judgment
against a defendant the court shall request members of the class who may be
entitled to individual monetary recovery to submit a statement in a form
prescribed by the court requesting affirmative relief which may also, where
appropriate, require information regarding the nature of the loss, injury,
claim, transactional relationship, or damage. The statement shall be designed
to meet the ends of justice. In determining the form of the statement, the
court shall consider the nature of the acts of the defendant, the amount of
knowledge a class member would have about the extent of such members damages,
the nature of the class including the probable degree of sophistication of its
members, and the availability of relevant information from sources other than
the individual class members. The amount of damages assessed against the
defendant shall not exceed the total amount of damages determined to be
allowable by the court for each individual class member who has filed a
statement required by the court, assessable court costs, and an award of
attorney fees, if any, as determined by the court.
F(3) Failure of a class member to file a
statement required by the court will be grounds for entry of judgment
dismissing such class members claim for individual monetary recovery without
prejudice to the right to maintain an individual, but not a class, action for
such claim.
F(4) Plaintiffs shall bear costs of any
notice ordered prior to a determination of liability. The court may, however,
order that defendant bear all or a specified part of the costs of any notice
included with a regular mailing by defendant to its current customers or
employees. The court may hold a hearing to determine how the costs of such
notice shall be apportioned.
F(5) No duty of compliance with due
process notice requirements is imposed on a defendant by reason of the
defendant including notice with a regular mailing by the defendant to current
customers or employes of the defendant under this section.
F(6) As used in this section, customer
includes a person, including but not limited to a student, who has purchased
services or goods from a defendant.
G Commencement or maintenance of class
actions regarding particular issues; subclasses. When appropriate an action may be brought or
ordered maintained as a class action with respect to particular claims or
issues or by or against multiple classes or subclasses. Each subclass must
separately satisfy all requirements of this rule except for subsection A(1).
H Notice and demand required prior to
commencement of action for damages.
H(1) Thirty days or more prior to the
commencement of an action for damages pursuant to the provisions of sections A
and B of this rule, the potential plaintiffs class representative shall:
H(1)(a) Notify the potential defendant of
the particular alleged cause of action; and
H(1)(b) Demand that such person correct or
rectify the alleged wrong.
H(2) Such notice shall be in writing and
shall be sent by certified or registered mail, return receipt requested, to the
place where the transaction occurred, such 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 DR
2-106 of the Oregon Code of Professional Responsibility.
N(2) Before a hearing under section C of
this rule or at any other time the court directs, the representative parties
and the attorney for the representative parties shall file with the court,
jointly or separately:
N(2)(a) A statement showing any amount
paid or promised them by any person for the services rendered or to be rendered
in connection with the action or for the costs and expenses of the litigation and
the source of all of the amounts;
N(2)(b) A copy of any written agreement,
or a summary of any oral agreement, between the representative parties and
their attorney concerning financial arrangement or fees; and
N(2)(c) A copy of any written agreement,
or a summary of any oral agreement, by the representative parties or the
attorney to share these amounts with any person other than a member, regular
associate, or an attorney regularly of counsel with the law firm of the
representative parties attorney. This statement shall be supplemented promptly
if additional arrangements are made.
O Statute of limitations. The statute of limitations is tolled for all
class members upon the commencement of an action asserting a class action. The
statute of limitations resumes running against a member of a class:
O(1) Upon filing of an election of
exclusion by such class member;
O(2) Upon entry of an order of
certification, or of an amendment thereof, eliminating the class member from
the class;
O(3) Except as to representative parties,
upon entry of an order under section C of this rule refusing to certify the
class as a class action; and
O(4) Upon dismissal of the action without
an adjudication on the merits. [CCP 12/2/78; amended by CCP 12/13/80; amended
by 1981 c.912 §1; §H amended by CCP 12/8/84; amended by CCP 12/12/92; §F
amended by CCP 12/10/94; §N amended by CCP 12/9/00; §§F,M amended by 2003 c.576
§§173,259]
INTERVENTION
RULE 33
A Definition. Intervention takes place when a third person
is permitted to become a party to an action between other persons, either by
joining the plaintiff in claiming what is sought by the complaint, by uniting
with the defendant in resisting the claims of the plaintiff, or by demanding
something adversely to both the plaintiff and defendant.
B Intervention of right. At any time before trial, any person shall
be permitted to intervene in an action when a statute of this state, these
rules, or the common law, confers an unconditional right to intervene.
C Permissive intervention. At any time before trial, any person who has
an interest in the matter in litigation may, by leave of court, intervene. In
exercising its discretion, the court shall consider whether the intervention
will unduly delay or prejudice the adjudication of the rights of the original
parties.
D Procedure. A person desiring to intervene shall serve a
motion to intervene upon the parties as provided in Rule 9. The motion shall
state the grounds therefor and shall be accompanied by a pleading setting forth
the claim or defense for which intervention is sought. If the court allows the
intervention, parties shall, within 10 days, file those responsive pleadings
which are permitted or required by these rules for such pleading. [CCP 12/2/78;
§B amended by 1979 c.284 §21]
SUBSTITUTION OF
PARTIES
RULE 34
A Nonabatement of action by death,
disability, or transfer. No
action shall abate by the death or disability of a party, or by the transfer of
any interest therein, if the claim survives or continues.
B Death of a party; continued proceedings. In case of the death of a party, the court
shall, on motion, allow the action to be continued:
B(1) By such 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
or disabled party, or the successors in interest of the transferor and shall be
served on the parties as provided in Rule 9 and upon persons not parties in the
manner provided in Rule 7 for the service of a summons. [CCP 12/2/78; §D
amended by 1979 c.284 §22; §B amended by CCP 12/14/02]
RULE 35 (Reserved
for Expansion)
GENERAL PROVISIONS
GOVERNING DISCOVERY
RULE 36
A Discovery methods. Parties may obtain discovery by one or more
of the following methods: depositions upon oral examination or written
questions; production of documents or things or permission to enter upon land
or other property, for inspection and other purposes; physical and mental
examinations; and requests for admission.
B Scope of discovery. Unless otherwise limited by order of the
court in accordance with these rules, the scope of discovery is as follows:
B(1) In
general. For all forms of discovery, parties may inquire regarding any
matter, not privileged, which is relevant to the claim or defense of the party
seeking discovery or to the claim or defense of any other party, including the
existence, description, nature, custody, condition, and location of any books,
documents, or other tangible things, and the identity and location of persons
having knowledge of any discoverable matter. It is not ground for objection
that the information sought will be inadmissible at the trial if the
information sought appears reasonably calculated to lead to the discovery of
admissible evidence.
B(2) Insurance
agreements or policies. B(2)(a) A
party, upon the request of an adverse party, shall disclose the existence and
contents of any insurance agreement or policy under which a person transacting
insurance may be liable to satisfy part or all of a judgment which may be
entered in the action or to indemnify or reimburse for payments made to satisfy
the judgment.
B(2)(b) The obligation to disclose under
this subsection shall be performed as soon as practicable following the filing
of the complaint and the request to disclose. The court may supervise the
exercise of disclosure to the extent necessary to insure that it proceeds
properly and expeditiously. However, the court may limit the extent of
disclosure under this subsection as provided in section C of this rule.
B(2)(c) Information concerning the
insurance agreement or policy is not by reason of disclosure admissible in
evidence at trial. For purposes of this subsection, an application for
insurance shall not be treated as part of an insurance agreement or policy.
B(2)(d) As used in this subsection, disclose
means to afford the adverse party an opportunity to inspect or copy the
insurance agreement or policy.
B(3) Trial
preparation materials. Subject to the provisions of Rule 44, a party may
obtain discovery of documents and tangible things otherwise discoverable under
subsection B(1) of this rule and prepared in anticipation of litigation or for
trial by or for another party or by or for that other 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.
C Court order limiting extent of disclosure. Upon motion by a party or by the person from
whom discovery is sought, and for good cause shown, the court in which the
action is pending may make any order which justice requires to protect a party
or person from annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following: (1) that the discovery not be
had; (2) that the discovery may be had only on specified terms and conditions,
including a designation of the time or place; (3) that the discovery may be had
only by a method of discovery other than that selected by the party seeking
discovery; (4) that certain matters not be inquired into, or that the scope of
the discovery be limited to certain matters; (5) that discovery be conducted
with no one present except persons designated by the court; (6) that a
deposition after being sealed be opened only by order of the court; (7) that a
trade secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way; (8) that
the parties simultaneously file specified documents or information enclosed in
sealed envelopes to be opened as directed by the court; or (9) that to prevent
hardship the party requesting discovery pay to the other party reasonable
expenses incurred in attending the deposition or otherwise responding to the
request for discovery.
If the motion for a protective order is
denied in whole or in part, the court may, on such terms and conditions as are
just, order that any party or person provide or permit discovery. The
provisions of Rule 46 A(4) apply to the award of expenses incurred in relation
to the motion. [CCP 12/2/78; §B amended by 1979 c.284 §23; §B(3) amended by CCP
12/13/80]
PERPETUATION OF
TESTIMONY OR EVIDENCE BEFORE ACTION OR PENDING APPEAL
RULE 37
A Before action.
A(1) Petition.
A person who desires to perpetuate testimony or to obtain discovery to
perpetuate evidence under Rule 43 or Rule 44 regarding any matter that may be
cognizable in any court of this state may file a petition in the circuit court
in the county of such 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 Oregon.
A(1) Within this state, depositions shall
be preceded by an oath or affirmation administered to the deponent by an
officer authorized to administer oaths by the laws of this state or by a person
specially appointed by the court in which the action is pending. A person so appointed
has the power to administer oaths for the purpose of the deposition.
A(2) For purposes of this rule, a
deposition taken pursuant to Rule 39 C(7) is taken within this state if either
the deponent or the person administering the oath is located in this state.
B Outside the state. Within another state, or within a territory
or insular possession subject to the dominion of the United States, or in a
foreign country, depositions may be taken (1) on notice before a person
authorized to administer oaths in the place in which the examination is held,
either by the law thereof or by the law of the United States, or (2) before a
person appointed or commissioned by the court in which the action is pending,
and such a person shall have the power by virtue of such 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 United States under these
rules.
C Foreign depositions.
C(1) Whenever any mandate, writ, or
commission is issued out of any court of record in any other state, territory,
district, or foreign jurisdiction, or whenever upon notice or agreement it is
required to take the testimony of a witness or witnesses in this state,
witnesses may be compelled to appear and testify in the same manner and by the
same process and proceeding as may be employed for the purpose of taking
testimony in proceedings pending in this state.
C(2) This section shall be so interpreted
and construed as to effectuate its general purposes to make uniform the laws of
those states which have similar rules or statutes. [CCP 12/2/78; amended by
1979 c.284 §24; §A amended by CCP 12/12/92]
DEPOSITIONS UPON ORAL
EXAMINATION
RULE 39
A When deposition may be taken. After the service of summons or the
appearance of the defendant in any action, or in a special proceeding at any
time after a question of fact has arisen, any party may take the testimony of
any person, including a party, by deposition upon oral examination. Leave of
court, with or without notice, must be obtained only if the plaintiff seeks to
take a deposition prior to the expiration of the period of time specified in
Rule 7 to appear and answer after service of summons on any defendant, except
that leave is not required (1) if a defendant has served a notice of taking
deposition or otherwise sought discovery, or (2) a special notice is given as
provided in subsection C(2) of this Rule. The attendance of a witness may be
compelled by subpoena as provided in Rule 55.
B Order for deposition or production of
prisoner. The deposition of
a person confined in a prison or jail may only be taken by leave of court. The
deposition shall be taken on such terms as the court prescribes, and the court
may order that the deposition be taken at the place of confinement or, when the
prisoner is confined in this state, may order temporary removal and production
of the prisoner for purposes of the deposition.
C Notice of
examination.
C(1) General
requirements. A party desiring to take the deposition of any person upon
oral examination shall give reasonable notice in writing to every other party
to the action. The notice shall state the time and place for taking the deposition
and the name and address of each person to be examined, if known, and, if the
name is not known, a general description sufficient to identify such person or
the particular class or group to which such person belongs. If a subpoena duces
tecum is to be served on the person to be examined, the designation of the
materials to be produced as set forth in the subpoena shall be attached to or
included in the notice.
C(2) Special
notice. Leave of court is not required for the taking of a deposition by plaintiff
if the notice (a) states that the person to be examined is about to go out of
the state, or is bound on a voyage to sea, and will be unavailable for
examination unless the deposition is taken before the expiration of the period
of time specified in Rule 7 to appear and answer after service of summons on
any defendant, and (b) sets forth facts to support the statement. The 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 NSPECTION 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. A party may serve the 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 set out the items that
the requesting party desires to inspect either by individual item or by
category and describe each item and category with reasonable particularity. The
request shall specify a reasonable time, place, and manner for making the
inspection and performing the related acts. A request shall not require a
defendant to produce or allow inspection or other related acts before the expiration
of 45 days after service of summons, unless the court specifies a shorter time.
The party that receives service of a request shall comply with the request
unless that party objects to the request, with a statement of reasons for each
objection, before the time specified in the request for allowing the inspection
and performing the related acts. An objection to part of an item or category of
a requested item shall specify the objectionable part. The duty to comply with
the request is a continuing duty during the pendency of the action.
Notwithstanding any other response or objection, a party that subsequently
discovers any document or thing that the request identifies shall produce or
allow inspection of the item, or object in the manner described in this
paragraph, within a reasonable time after discovering the item. The party
submitting the request may move for an order under Rule 46 A with respect to
any objection to or other failure to respond to the request or any part
thereof, or any failure to permit inspection as requested.
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]
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 enter judgment for the moving party 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 a
judgment 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, summary
judgment, if appropriate, shall be entered against such party.
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 refuse
the application for judgment, 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]
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, other than a hospital, to produce
books, papers, documents, or tangible things 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; 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 enacted 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]
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
enacted 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 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.
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]
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 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.
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]
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 affiant or declarant reasonably believes that the defendant is
not a person in military service as defined in Article 1 of the Soldiers and
Sailors Civil Relief Act of 1940, 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]
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 416.470,
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]
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 107.732 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]
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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