72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
Enrolled
House Bill 2064
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Committee on
Judiciary for Oregon State Bar Procedure and Practice
Committee)
CHAPTER ................
AN ACT
Relating to declarations; amending ORS 45.010, 45.130 and 162.055
and ORCP 1, 7, 9 C, 17 A, 21 A, 47, 52 B, 55 H, 64, 68 C, 69,
70 A, 79 B, 82 E and 83.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORCP 1 is amended to read:
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
Enrolled House Bill 2064 (HB 2064-INTRO) Page 1
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. + }
{ - E - } { + 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).
SECTION 2. ORS 45.010 is amended to read:
45.010. The testimony of a witness is taken by { - five - }
{ + six + } modes:
(1) Affidavit.
(2) Deposition.
(3) Oral examination.
(4) Telephone examination under ORS 45.400.
(5) Examination before a grand jury by means of simultaneous
television transmission under ORS 132.320.
{ + (6) Declaration under penalty of perjury, as described in
ORCP 1 E. + }
SECTION 3. ORS 45.130 is amended to read:
45.130. Whenever a provisional remedy has been allowed upon
affidavit { + or declaration under penalty of perjury as
described in ORCP 1 E + }, the party against whom it is allowed
may serve upon the party by whom it was obtained a notice,
requiring the affiant { + or declarant + } to be produced for
cross-examination before a named officer authorized to administer
oaths. Thereupon the party to whom the remedy was allowed shall
lose the benefit of the affidavit { + or declaration + } and all
proceedings founded thereon, unless within eight days, or such
other time as the court or judge may direct, upon a previous
notice to the adversary of at least three days, the party
produces the affiant { + or declarant + } for examination before
the officer mentioned in the notice, or some other of like
authority, provided for in the order of the court or judge. Upon
production, the affiant { + or declarant + } may be examined by
either party { - ; - } { + , + } but a party is not obliged to
make this production of { - a witness - } { + an affiant or a
declarant + } except within the county where the provisional
remedy was allowed.
SECTION 4. ORS 162.055 is amended to read:
162.055. As used in ORS 162.055 to 162.425 and 162.465, unless
the context requires otherwise:
(1) 'Benefit' means gain or advantage to the beneficiary or to
a third person pursuant to the desire or consent of the
beneficiary.
(2) 'Material' means that which could have affected the course
or outcome of any proceeding or transaction. Whether a false
statement is 'material' in a given factual situation is a
question of law.
(3) 'Statement' means any representation of fact and includes a
representation of opinion, belief or other state of mind where
the representation clearly relates to state of mind apart from or
in addition to any facts which are the subject of the
representation.
(4) 'Sworn statement' means any statement { + that attests to
the truth of what is stated and that is + } knowingly given under
Enrolled House Bill 2064 (HB 2064-INTRO) Page 2
any form of oath or affirmation { - attesting to the truth of
what is stated - } { + or by declaration under penalty of
perjury as described in ORCP 1 E + }.
SECTION 5. ORCP 7 is amended to read:
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 plaintiff's 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 plaintiff's 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 Bar's Lawyer Referral Service at (503) 684-3763 or
toll-free in Oregon at (800) 452-7636.
Enrolled House Bill 2064 (HB 2064-INTRO) Page 3
_________________________________________________________________
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 defendant's 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 Bar's 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 defendant's 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 Bar's 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
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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 person's 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 defendant's 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 defendant's dwelling house or
usual place of abode or defendant's 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.
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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 minor's father,
mother, conservator of the minor's 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 person's 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
Enrolled House Bill 2064 (HB 2064-INTRO) Page 6
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 General's 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 owner's or charterer's 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 defendant's 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
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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 defendant's
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
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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 defendant's 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
defendant's last known address. If the plaintiff does not know,
and cannot ascertain upon diligent inquiry, the defendant's
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 defendant's 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 defendant's
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
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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 sheriff's 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
sheriff's 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 sheriff's deputy, the
sheriff's or deputy's 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. + } { - in substantially
the following form: - }
{ + F(2)(b)(i) A publication by affidavit shall be in
substantially the following form: + }
_________________________________________________________________
Affidavit of Publication
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
State of Oregon)
Enrolled House Bill 2064 (HB 2064-INTRO) Page 10
) ss.
County of )
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
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___.
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
____________
Notary Public for
Oregon
My commission expires
__
day of ___
, 2__
.
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
{ + F(2)(b)(ii) A publication by declaration shall be in
substantially the following form: + }
________________________________________________________________
{ +
Declaration of Publication + }
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
State of Oregon)
) ss.
County of ) + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
{ + 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
Enrolled House Bill 2064 (HB 2064-INTRO) Page 11
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. + }
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
____________
{ +
__
day of ___
, 2__
. + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
________________________________________________________________
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 { + , + } { - or - } { +
+ }affidavit { + or declaration + }. A certificate { + , + }
{ - or - } 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.
Enrolled House Bill 2064 (HB 2064-INTRO) Page 12
H Telegraphic transmission. A summons and complaint may be
transmitted by telegraph as provided in Rule 8 D.
SECTION 6. ORCP 9 C is amended to read:
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.
SECTION 7. ORCP 17 A is amended to read:
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 + }.
SECTION 8. ORCP 21 A is amended to read:
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
{ - evidence and - } 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
Enrolled House Bill 2064 (HB 2064-INTRO) Page 13
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.
SECTION 9. ORCP 47, as amended by the Council on Court
Procedures on December 14, 2002, is amended to read:
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 party's 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 party's 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 party's
pleading, but the adverse party's response, by affidavits { + ,
declarations + } or as otherwise provided in this section, must
set forth specific facts showing that there is a genuine issue as
Enrolled House Bill 2064 (HB 2064-INTRO) Page 14
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 party's
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; final judgment. In any action
involving multiple parties or multiple claims, a summary judgment
which is not entered in compliance with Rule 67 B shall not
constitute a final judgment.
SECTION 10. ORCP 52 B is amended to read:
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.
Enrolled House Bill 2064 (HB 2064-INTRO) Page 15
SECTION 11. ORCP 55 H, as amended by the Council on Court
Procedures on December 14, 2002, is amended to read:
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
individual's 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
individual's 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
patient's 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 { - the - }
Enrolled House Bill 2064 (HB 2064-INTRO) Page 16
{ + 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 officer's 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 party's
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 entity's or person's
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.
Enrolled House Bill 2064 (HB 2064-INTRO) Page 17
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.
SECTION 12. ORCP 64 is amended to read:
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
Enrolled House Bill 2064 (HB 2064-INTRO) Page 18
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 court's 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.
SECTION 13. ORCP 68 C, as amended by the Council on Court
Procedures on December 14, 2002, is amended to read:
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 where:
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 which
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
Enrolled House Bill 2064 (HB 2064-INTRO) Page 19
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 which 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
{ - evidence and - } 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
Enrolled House Bill 2064 (HB 2064-INTRO) Page 20
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. When all issues regarding attorney
fees or costs and disbursements have been determined before a
judgment pursuant to Rule 67 is entered, 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. When any issue
regarding attorney fees or costs and disbursements has not been
determined before a judgment pursuant to Rule 67 is entered, any
award or denial of attorney fees or costs and disbursements shall
be made by a separate supplemental judgment. The supplemental
judgment shall be filed and entered and notice shall be given to
the parties in the same manner as provided in Rule 70 B(1).
C(6) Avoidance of multiple collection of attorney fees and
costs and disbursements.
C(6)(a) Separate judgments for separate claims. Where separate
final judgments are granted in one action for separate claims,
pursuant to Rule 67 B, the court shall take such steps as
necessary to avoid the multiple taxation of the same attorney
fees and costs and disbursements in more than one such judgment.
C(6)(b) Separate judgments for the same claim. When there are
separate judgments entered for one claim (where separate actions
are brought for the same claim against several parties who might
have been joined as parties in the same action, or where pursuant
to Rule 67 B separate final judgments are entered against several
parties for the same claim), attorney fees and costs and
disbursements may be entered in each such judgment as provided in
this rule, but satisfaction of one such judgment shall bar
recovery of attorney fees or costs and disbursements included in
all other judgments.
SECTION 14. ORCP 69 is amended to read:
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)
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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 defendant's 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
defendant's 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 + }.
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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.
SECTION 15. ORCP 70 A is amended to read:
A Form. Every judgment shall be in writing plainly titled as a
judgment and set forth in a separate document. A default or
stipulated judgment may have appended or subjoined thereto such
affidavits, { + declarations, + } certificates, motions,
stipulations, and exhibits as may be necessary or proper in
support of the entry thereof.
A(1) Content. No particular form of words is required, but
every judgment shall:
A(1)(a) Specify clearly the party or parties in whose favor it
is given and against whom it is given and the relief granted or
other determination of the action.
A(1)(b) Be signed by the court or judge rendering such judgment
or, in the case of judgment entered pursuant to Rule 69 B(1), by
the clerk.
A(2)(a) Money judgment; contents. Money judgments are judgments
that require the payment of money, including judgments for the
payment of costs or attorney fees. The requirements of this
subsection are not jurisdictional for purposes of appellate
review. Money judgments shall include all of the following:
A(2)(a)(i) The name and address of each judgment creditor and
the name, address and phone number of each creditor's attorney,
if any.
A(2)(a)(ii) The name of each judgment debtor and, if known, the
address, date of birth, Social Security number and driver license
number for each judgment debtor, the state of issuance for each
judgment debtor's driver license and the name of each judgment
debtor's attorney.
A(2)(a)(iii) The name of any person or public body known to the
judgment creditor, other than the judgment creditor's attorney,
who is entitled to any portion of a payment made on the judgment.
A(2)(a)(iv) The amount of the judgment.
A(2)(a)(v) The interest owed to the date of the judgment,
either as a specific amount or as accrual information, including
the rate or rates of interest, the balance or balances upon which
interest accrues, the date or dates from which interest at each
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rate on each balance runs, and whether interest is simple or
compounded and, if compounded, at what intervals.
A(2)(a)(vi) Post-judgment interest accrual information,
including the rate or rates of interest, the balance or balances
upon which interest accrues, the date or dates from which
interest at each rate on each balance runs, and whether interest
is simple or compounded and, if compounded, at what intervals.
A(2)(a)(vii) For judgments that accrue on a periodic basis, any
accrued arrearages, required further payments per period and
accrual dates.
A(2)(a)(viii) If the judgment awards costs and disbursements or
attorney fees, that they are awarded, any specific amounts
awarded, a clear identification of the specific claims for which
any attorney fees are awarded and the amount of attorney fees
awarded for each claim. This subparagraph does not require
inclusion of specific amounts where such will be determined later
under Rule 68 C.
A(2)(b) Form. To comply with the requirements of paragraph
A(2)(a) of this rule, the requirements in that paragraph must be
presented in a manner that complies with all of the following:
A(2)(b)(i) The requirements must be presented in a separate,
discrete section immediately above the judge's signature if the
judgment contains more provisions than just the requirements of
paragraph A(2)(a) of this rule.
A(2)(b)(ii) The separate section must be clearly labeled at its
beginning as a money judgment. On or after January 1, 1994, if
the money judgment includes a child support obligation, the label
must so indicate.
A(2)(b)(iii) The separate section must contain no other
provisions except what is specifically required by this rule for
judgments and, if applicable, by ORS 24.290 for the payment of
money.
A(2)(b)(iv) The requirements under paragraph A(2)(a) of this
rule must be presented in the same order as set forth in that
paragraph.
A(3) If the proposed judgment does not comply with the
requirements in subsections A(1) and (2) of this rule, it shall
not be signed by the judge. If the judge signs the judgment, it
shall be entered in the register whether or not it complies with
the requirements in subsections A(1) and (2) of this rule.
SECTION 16. ORCP 79 B is amended to read:
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
party's attorney only if:
B(1)(a) It clearly appears from specific facts shown by
{ + an + } affidavit { + , a declaration + } or { - by - } a
verified complaint that immediate and irreparable injury, loss,
or damage will result to the applicant before the adverse party
or the adverse party's attorney can be heard in opposition, and
B(1)(b) The applicant or applicant's attorney submits an
affidavit { + or a declaration + } setting forth the efforts, if
any, which have been made to notify defendant or defendant's
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
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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 party's 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.
SECTION 17. ORCP 82 E is amended to read:
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.
SECTION 18. ORCP 83 is amended to read:
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
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declarations + } requesting specific provisional process and
showing, to the best knowledge, information, and belief of the
plaintiff { + , + }
{ - or - } 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
plaintiff's 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 plaintiff's 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 plaintiff's 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) If provisional process is based on notice of a bulk
transfer, a copy of the notice;
A(10) 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(11) Facts, if any, which tend to establish that without
restraint immediate and irreparable injury, damage, or loss will
occur;
A(12) 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(13) 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.
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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 or E of this rule, or a
restraining order, as provided in section F of this rule, in
addition to a show cause order. The finding under this subsection
is subject to dissolution upon hearing.
D Effect of notice of bulk transfer. Subject to section B of
this rule, if the court finds that with respect to property of
the defendant notice of bulk transfer has been given and that the
time for possession by the transferee has not passed, the court
shall order issuance of provisional process.
E 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.
F 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.
G Appearance; hearing; service of show cause order; content;
effect of service on person in possession of property.
G(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.
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G(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.
G(3) The order shall:
G(3)(a) State that the defendant may file affidavits { + or
declarations + } with the court and may present testimony at the
hearing; and
G(3)(b) State that if the defendant fails to appear at the
hearing the court will order issuance of the specific provisional
process sought.
G(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 F 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.
H Waiver; order without hearing. If after service of the order
issued under subsection G(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.
I Authority of court on sustaining validity of underlying
claim; provisional process; restraining order.
I(1) Subject to section B of this rule, if the court on hearing
on a show cause order issued under section G 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.
I(2) Subject to section B of this rule, if the court on hearing
on a show cause order issued under section G 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 F 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.
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Enrolled House Bill 2064 (HB 2064-INTRO) Page 28
Passed by House January 30, 2003
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 14, 2003
...........................................................
President of Senate
Enrolled House Bill 2064 (HB 2064-INTRO) Page 29
Received by Governor:
......M.,............., 2003
Approved:
......M.,............., 2003
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2003
...........................................................
Secretary of State
Enrolled House Bill 2064 (HB 2064-INTRO) Page 30