§ 19.2 Orcp 21 Motions

LibraryOregon Civil Pleading and Litigation (OSBar) (2020 Ed.)
§ 19.2 ORCP 21 MOTIONS

§ 19.2-1 In General

§ 19.2-1(a) Introduction

ORCP 21 establishes the procedure for many pretrial motions, including motions to dismiss, motions for judgment on the pleadings, motions for more definite and certain statements, and motions to strike.

§ 19.2-1(b) Purposes of ORCP 21 Motions

A motion to dismiss, a motion for judgment on the pleadings, and, in some instances, a motion to strike can result in the dismissal of an action before the parties have undertaken expensive discovery or appreciable trial preparation.

A motion to strike all or part of a pleading can narrow the issues in an action, making discovery and trial simpler and less expensive.

A motion to strike, a motion to make more definite and certain, or both, may be used to eliminate from a pleading matter that is in some way prejudicial to the moving party.

PRACTICE TIP: Because pleadings are not allowed in the jury room in Oregon (see ORCP 59 C(2)), removing prejudicial matter from the pleadings is less pressing than it was under prior law. However, a motion to clean up the pleadings may still have value, because some judges read virtually verbatim from pleadings when summarizing the parties' contentions for the jury.

Under rules of consolidation and waiver of defenses (discussed in § 19.2-10(a) to § 19.2-10(b)(7)), a lawyer may need to make one or more motions under ORCP 21 to preserve defenses.

Successful motions against a pleading can result in further pleading by the opposing party that clarifies the facts and legal theories on which the opposing party will base his or her case.

Demurrers and pleas of abatement have been supplanted by ORCP 21. ORCP 13 C. The former procedure of making a special appearance to challenge jurisdiction or the sufficiency of the summons and service of summons is obsolete. A challenge to the court's jurisdiction over a person is raised by a motion to dismiss under ORCP 21 A(2). A challenge to the sufficiency or method of service of the summons and complaint is raised by a motion to dismiss under ORCP 21 A(5). Motions for judgment on the pleadings, motions to make more definite and certain, and motions to strike under former ORS chapter 16 are now covered by ORCP 21 B, ORCP 21 D, and ORCP 21 E, respectively.

§ 19.2-1(c) Effects of ORCP 21 Motions

§ 19.2-1(c)(1) Dismissal

An order allowing a motion to dismiss under ORCP 21 A can result in the entry of judgment against the party whose complaint is dismissed, or in the granting of leave to amend. See the discussion on motions to dismiss in § 19.2-6(a) to § 19.2-6(k).

§ 19.2-1(c)(2) Amendment of Pleadings

Generally, when the court allows a motion made under ORCP 21, the pleading moved against may be amended, as discussed in § 19.2-11 (proceeding after a motion is granted or denied).

§ 19.2-1(c)(3) Stay of Proceedings

For motions granted under ORCP 21 A(3) (when another action is pending between the parties for the same cause), the court may enter judgment in favor of the moving party, stay the proceedings, or defer entry of judgment. ORCP 21 A.

§ 19.2-1(c)(4) Further Discovery

For motions asserting defenses (1) to (7) of ORCP 21 A, if the facts supporting those defenses do not appear in the pleading, a court can defer a ruling on the motion until further discovery or a trial on the merits. ORCP 21 A. A decision disallowing or limiting further discovery is reviewed for abuse of discretion. See, e.g., Steers v. Rescue 3, 129 Or App 20, 23, 877 P2d 654 (1994). See also Geo-Culture, Inc. v. Siam Inv. Mgmt., S.A., 147 Or App 536, 544, 936 P2d 1063 (1997) (because the plaintiff's complaint "failed to allege a prima facie basis for asserting jurisdiction over [the defendant], the court did not err in so limiting discovery pursuant to ORCP 21 A").

§ 19.2-2 How to Use ORCP 21

On receipt of another party's pleading, the lawyer should review the pleading for deficiencies to determine whether to make a motion under ORCP 21. A checklist approach is helpful. The lawyer should start by going through the nine grounds for a motion to dismiss enumerated in ORCP 21 A. Early discovery may reveal possible grounds for dismissal. For example, an early investigation into the sufficiency of the service of a summons and complaint might reveal information supporting a motion to dismiss. After reviewing the nine bases for motions to dismiss, the lawyer should review the pleading with motions to strike and motions to make more definite and certain in mind. Motions for judgment on the pleadings are made rarely, but should not be overlooked altogether.

This exercise of reviewing a pleading for possible ORCP 21 motions is also useful as a reminder of the defenses that may be raised affirmatively in an answer, such as the running of the statute of limitations or the failure to state a claim. Along with undertaking this checklist exercise, the lawyer should consider reviewing ORCP 19 B, which lists many affirmative defenses that must be set forth in a responsive pleading.

§ 19.2-3 Considering Whether to Make a Motion

Because some defects in pleadings are easily corrected, moving against a defective pleading is not always advantageous given the expense of preparing and arguing motions. In some cases, the motion will alert the opponent to an element of pleading and proof that otherwise would have been overlooked. If that is the case, making the motion might be unwise. If the motion is allowed, the opponent almost certainly will amend the pleading to include the missing allegations. The only thing the motion will have accomplished is educating the opponent, who might have proceeded to trial on a defective pleading and might have neglected to put on proof of that element of the case at trial.

Similarly, little may be gained by moving to dismiss on the basis of defective service. Assuming that the statute of limitations has not run on any of the plaintiff's claims for relief, the motion to dismiss will almost certainly result in another attempt at service. The client might wonder why he or she spent money for the purpose of being served a second time.

In some instances, a lawyer may determine through discovery not only that the opposing counsel has failed to allege an element of a claim or defense, but also that the opposing party may not be able to prove that element. A lawyer's well-timed and well-briefed motion under ORCP 21 can have the effect of convincing an opponent that the cause is hopeless, and may deter the opponent from going forward with a claim, counterclaim, or affirmative defense, or from conducting discovery that could damage the lawyer's client and that, at the very least, would cost the client more money.

While ORCP 21 motions often can serve to effectively narrow the pleadings and issues in a case, sometimes a motion for summary judgment may be more advantageous than an ORCP 21 motion. Whereas a party often can cure a pleading defect raised in an ORCP 21 motion, a summary-judgment motion can permanently remove a claim, counterclaim, or affirmative defense from a case. Although summary-judgment motions generally are disfavored in state court, there are certain pleadings issues that may be resolved early in a case through summary judgment rather than through an ORCP 21 motion. For example, many defendants in civil cases plead multiple affirmative defenses, even when there is no legal basis for the affirmative defenses that are pled. It is not uncommon for defendants to allege failure to state a claim, jurisdictional defenses, or the statute of limitations when a claim has been properly pled, jurisdiction is not legitimately at issue, or the claim is brought well within the time period for bringing a claim. A plaintiff may want to move for summary judgment on those defenses (or others) at the outset of litigation to eliminate the defense from the case and to narrow the issues on which the defendant may seek discovery. See § 19.2-6(j) regarding motions to dismiss under ORCP 21 A(9) and § 19.2-7 regarding motions for judgments on the pleadings, which also address when a motion for summary judgment may be available as an alternative.

§ 19.2-4 Order in Which Motions Are Made

A moving party may make more than one ORCP 21 motion at a time. The order in which the motions are presented should be determined by the relative importance of the various motions (e.g., motions to dismiss should generally appear before motions to make more definite and certain) and by strategy. If multiple motions to dismiss are being made, it may be more logical and more convenient to the court if the moving party presents first those motions that do not go to the substance of the case. Therefore, a motion based on defects in service or on lack of personal jurisdiction should appear before a motion to dismiss based on the running of the statute of limitations, which in turn should be raised before the failure of the plaintiff to state a claim. The motions must make sense, and should be presented in a sequence that will make the most sense to the judge deciding the motions.

PRACTICE TIP: Written motions should be as short as possible. An experienced judge will have decided many similar motions before and will appreciate a concise statement of the grounds for a routine ORCP 21 motion. Only in unusual circumstances is a lengthy written motion necessary.

See § 19.2-10(a) to § 19.2-10(b)(7) (consolidation, waiver, and preservation of defenses).

§ 19.2-5 Mechanics of ORCP 21 Motions

§ 19.2-5(a) Basics

See § 19.1-3(a) to § 19.1-3(i) for discussion on the form of pretrial motions.

§ 19.2-5(b) Time

A motion responsive to a complaint or a third-party complaint must be filed within 30 days from the date of service. ORCP 15 A; ORCP 7 C(2). This rule applies if summons and complaint are served by any manner other than by publication. If service is by publication, a motion against the complaint or third-party complaint must be filed within 30 days of the date of first publication. ORCP 15 A; ORCP 7 C(2).

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