§ 12.2 Amended Pleadings

• Library: Oregon Civil Pleading and Litigation (OSBar) (2020 Ed.)

§ 12.2 AMENDED PLEADINGS

ORCP 23 allows the amendment of a pleading. As discussed in § 12.2-1 to § 12.2-1(c), ORCP 23 A covers amendments generally. ORCP 23 B concerns issues not raised by the pleadings that are tried by express or implied consent. "The pleadings are the written statements by the parties of the facts constituting their respective claims and defenses." ORCP 13 A. The pleadings that may be amended under ORCP 23 are named in ORCP 13 B: complaint, answer, counterclaim, cross-claim, third-party complaint, answer to cross-claim or third-party complaint, reply, and reply to counterclaim. For purposes of ORCP 13 B and ORCP 23, pleadings do not include motions.

§ 12.2-1 Amendments under ORCP 23 A

Amendments to pleadings under ORCP 23 A are allowed (1) as a matter of course or right (see § 12.2-1(a)(1) to § 12.2-1(a)(2)), (2) by written consent (stipulation) of the adverse party (see § 12.2-1(b)), or (3) by leave of court (see § 12.2-1(c) to § 12.2-1(c)(6)).

§ 12.2-1(a) Amendments as of Right

§ 12.2-1(a)(1) When Available

A party may amend its original pleading once "as a matter of course" at any time before a responsive pleading (to the pleading being amended) is served. ORCP 23 A. That is, the party need not first obtain the court's or the adverse party's consent. See Kowalski v. HerefordL'Oasis, 190 Or App 236, 240, 79 P3d 319 (2003), rev den, 336 Or 597 (2004) (because no defendant filed a responsive pleading to the original complaint, "plaintiff was entitled to file the amended complaint without permission from the trial court"). Or, if the pleading is one to which no responsive pleading is required, the pleading may be amended at any time within 20 days after it is served. ORCP 23 A.

Note, however, in Portland Gen. Elec. Co. v. Ebasco Servs., Inc., 263 Or App 53, 326 P3d 1274 (2014), the defendant had not been served with the amended complaint, so the court held that the original complaint remained the operative pleading as to that defendant. Thus, the trial court had jurisdiction to enter judgment on that original complaint. Portland Gen. Elec. Co. , 263 Or App at 70.

The right to amend as of right is extended to all parties, including persons who are brought into the action by way of counterclaim, cross-claim, or third-party claim. ORCP 23 A; ORCP 13 B.

Responsive pleadings are listed in ORCP 13 B. Motions under ORCP 21 are not considered responsive pleadings. ORCP 21 A. However, a pleading dismissed or struck in its entirety after an ORCP 21 motion may not be amended except on leave of court. ORCP 25 A; Alfieri v. Solomon, 358 Or 383, 407, 365 P3d 99 (2015). The court in Alfieri clarified the interaction between ORCP 21, 23, and 25 as follows:

A party is not entitled to amend its complaint once the court has allowed a motion to dismiss the complaint in its entirety under ORCP 21. Rather, once such a motion has been granted, the right to amend as a matter of course is extinguished and a plaintiff must seek leave to amend, which the trial court may grant in its discretion.

Alfieri, 358 Or at 407.

When filing an amended pleading after a motion (such as an ORCP 21 motion against the complaint) is granted, ORCP 15 B(2) governs. As the Oregon Court of Appeals has explained:

ORCP 23A permits a party to amend a pleading "once as a matter of course" in some circumstances. However, if the court has already granted a motion filed in response to the complaint, ORCP 15B(2) requires that an amended pleading "shall be filed within 10 days after service of the order, unless the order otherwise directs."

Patterson v. Wasner, 128 Or App 254, 875 P2d 506 (1994) (holding that trial court did not err in disregarding an amended complaint filed beyond the 10-day period).

CAVEAT: An amended pleading that simply adds or drops parties but that does not change the claim against existing parties is likely governed by ORCP 30 (misjoinder and nonjoinder of parties) rather than ORCP 23 A. ORCP 30 amendments cannot be made as a matter of right as under ORCP 23 A and require an order of the court issued on motion of any party or of the court's own initiative, regardless of the state of litigation. ORCP 30. But see Willamette Landing Apartments-89, LLC v. Boyd Burnett, 280 Or App 703, 709, 382 P3d 512, 516, adh'd to as modified on recons, 282 Or App 814, 387 P3d 501 (2016), rev den, 361 Or 543 (2017) (holding that correcting the name of the properly served defendant is governed by ORCP 23 and was not a change in parties).

§ 12.2-1(a)(2) Procedure

A party may amend a pleading as of right by filing an entirely new pleading, called the amended pleading, or by interlineation, deletion, "or otherwise" in the original pleading. ORCP 23 D.

The amended pleading must be complete within itself without reference to prior pleadings. The amended pleading must be filed with the clerk of the court and a copy must be served on each party. ORCP 9 C. The amended pleading need not be served on a party in default unless the amended pleading adds or otherwise changes the claims against the party in default. See § 12.2-5 (parties in default).

§ 12.2-1(b) Amendments by Consent of Adverse Party

After the time has passed for amendments as of right, an original pleading may be amended by stipulation. The party desiring to amend the original pleading by stipulation may amend such pleading by first obtaining the written consent of the adverse party, and then by filing the stipulation with the court. ORCP 23 A. The adverse party's written consent eliminates the need for a written motion and court order and is not subject to the court's discretion. The stipulation should be filed with the court. See Form 12-2.

§ 12.2-1(c) Amendments by Leave of Court

After a party has amended its pleadings once as a matter of right (any time before a responsive pleading is served), or the time for an amendment as of right has expired (20 days after the pleading has been served, if the pleading is one to which no responsive pleading is permitted), the pleading may be amended only with leave of the court or by stipulation (written consent) of the adverse party. ORCP 23 A. To obtain the leave of court, a party must first file a motion for leave to file an amended pleading. ORCP 14.

Form 12-1 is a sample motion for leave to file an amended pleading.

CAVEAT: Before filing and serving such an amended pleading, the party must obtain either an order from the court granting leave to amend or the consent of the opposing party. The court probably cannot issue an order granting leave to amend after the amended pleading is filed (and before an order has been issued) to validate a premature filing. See Shaughnessy v. Spray, 55 Or App 42, 46 n 4, 637 P2d 182 (1981), rev den, 292 Or 589 (1982) ("Because we conclude the court did not permit plaintiff to file the first amended complaint through an order issued after the fact and, as appeared from the face of that complaint, after the limitation period had run, we need not decide whether the court could have done so.").

§ 12.2-1(c)(1) Common Reasons to Amend

ORCP 23 (amended and supplemental pleadings) applies equally to plaintiffs and defendants, and either party may seek leave to amend for any purpose related to the pleadings. Pleadings are commonly amended for the following purposes:

(1) to correct an insufficient claim or defense;

(2) to expand previously alleged claims or defenses;

(3) to add claims;

(4) to increase damages sought;

(5) to change the form or nature of the claim stated;

(6) to set up additional defenses;

(7) to correct an insufficient jurisdictional statement; or

(8) to change the plaintiff's capacity to sue.

§ 12.2-1(c)(2) Authority or Discretion of Court

Leave to amend is within the discretion of the trial court and is given freely "when justice so requires." ORCP 23 A. The trial court's allowance or refusal of leave to amend is not subject to review except for abuse of discretion. Giordano v. Aerolift, Inc., 109 Or App 122, 129, 818 P2d 950 (1991). Valid reasons for denying leave to amend include undue prejudice to an opposing party, undue delay, or lack of good faith. The court may also deny the motion if the proposed amendment would substantially change the claim in a way that would require trial postponement, or if the court finds that the movant had sufficient opportunity to state a claim but failed to do so.

The trial court abuses its discretion if "exercise[d] . . . in a manner unjustified by, and clearly against, reason and evidence." Quillen v. Roseburg Forest Prods., Inc., 159 Or App 6, 10, 976 P2d 91 (1999).

In Quillen, 159 Or App at 10, the court of appeals held that the trial court did not abuse its discretion in denying the plaintiff's motion for leave to amend the complaint as unduly prejudicial to the defendants, against whom the plaintiff, who had already amended once as a matter of course, sought to add a new claim "less than three weeks before trial, with no explanation for the lateness of the request."

As set forth in Ramsey v. Thompson, 162 Or App 139, 141, 986 P2d 54, 55 (1999), rev den, 329 Or 589 (2000), there are four factors that are considered in reviewing the exercise of discretion. "In Ramsey," explained the Oregon Court of Appeals,

we identified four factors that bear on the appropriate exercise of a trial court's discretion to grant or deny leave to amend, specifically: "(1) the nature of the proposed amendments and their relationship to the existing pleadings; (2) the prejudice, if any, to the opposing party; (3) the timing of the proposed amendments and related docketing concerns; and (4) the colorable merit of the proposed amendments."

Caldeen Constr., LLC v. Kemp, 248 Or App 82, 86-87, 273 P3d 174, 176-77 (2012) (quoting Ramsey, 162 Or App at 145 (citations omitted)).

In Caldeen Construction, the court applied the four Ramsey factors and held that the trial court abused its discretion in denying the plaintiffs' motion for leave to amend. "There was no indication that the...