§ 34.10 Motion for Judgment of Dismissal

LibraryOregon Civil Pleading and Litigation (OSBar) (2020 Ed.)
§ 34.10 MOTION FOR JUDGMENT OF DISMISSAL

Under ORCP 54, the trial court may grant a motion for judgment of dismissal with or without prejudice. The dismissal may be voluntary or involuntary. See § 34.10-1(a) to § 34.10-1(b) (voluntary dismissal), § 34.10-2(a) to § 34.10-2(b) (involuntary dismissal).

§ 34.10-1 Voluntary Dismissal

Once the trial begins, a plaintiff does not have a unilateral right to dismiss an action without prejudice. ORCP 54 A. See § 34.10-1(a) (right to dismiss).

§ 34.10-1(a) Right to Dismiss

A plaintiff "may dismiss an action in its entirety or as to one or more defendants" without a court order by

(1) "filing a notice of dismissal with the court and serving the notice on all other parties not in default not less than 5 days prior to the day of trial if no counterclaim has been pleaded"; or

(2) "filing a stipulation of dismissal signed by all adverse parties who have appeared in the action."

ORCP 54 A(1).

If the defendant's motion for summary judgment is pending and scheduled for hearing on the same day that the plaintiff files its notice of dismissal, the plaintiff may still unilaterally dismiss the action without prejudice under ORCP 54 A(1). Guerin v. Beamer, 163 Or App 172, 177-78, 986 P2d 1241 (1999) (examining the legislative history of ORCP 54 A(1)). In fact, the plaintiff may unilaterally dismiss an action without prejudice even if the trial court has already granted the defendant's motion for summary judgment if it is before entry of the judge's order granting the motion. Palmquist v. FLIR Sys., Inc., 189 Or App 552, 555, 558, 77 P3d 637 (2003).

Except for the two situations specified above in ORCP 54 A(1), a plaintiff cannot dismiss an action unless the court issues a judgment of dismissal on terms and conditions that the court deems proper. ORCP 54 A(2); Osborne v. Int'l Harvester Co., 60 Or App 563, 565, 654 P2d 1148 (1982), rev den, 294 Or 613 (1983).

If the defendant pleaded a counterclaim before the plaintiff served its motion to dismiss, the defendant may still proceed with that counterclaim. ORCP 54 A(2).

When an action is dismissed under ORCP 54 A, the judgment may include any costs, disbursements, and attorney fees allowed by rule or statute, and the dismissed party is considered to be the prevailing party. ORCP 54 A(3).

PRACTICE TIP: A party who intends to dismiss its action (perhaps because of settlement with some of the opposing parties) should have all opposing parties agree that the dismissal will be without an
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