ORCP 21

NOTES OF DECISIONS

Plaintiff’s failure to explicitly challenge factual basis and issues of law on motion for summary judgment does not preclude plaintiff from arguing on appeal that defendant did not meet its burden below. Martelli v. R.A. Chambers and Associates, 99 Or App 524, 783 P2d 31 (1989), aff’d 310 Or 529, 800 P2d 766 (1990)

Complaint for interference with professional employment cannot be dismissed for failure to state claim when complaint alleges that defendant was competitor but does not include facts showing that defendant was thereby privileged. Ramirez v. Selles, 308 Or 609, 784 P2d 433 (1989)

ORCP 21A

See also annotations under ORS 16.260 to 16.290 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 16.260)

If any portion of pleading states cause of action, it is not subject to general demurrer. Baker v. City of Milwaukie, 17 Or App 89, 520 P2d 479 (1974), as modified by 271 Or 500, 533 P2d 772 (1975)

Demurrer calls court’s attention to defects in prior pleadings, so defendant’s demurrer to complaint cannot bring sufficiency of answer into question. Citizens Bank of Oregon v. Pioneer Inv. Co., 271 Or 60, 530 P2d 841 (1975)

In general

A motion to dismiss under this section for failure to state ultimate facts sufficient to constitute a claim is equivalent to a demurrer and a granting of the motion and dismissal of the action is an appealable order. Paddack v. McDonald, 294 Or 667, 661 P2d 545 (1983)

Failure to state ultimate facts sufficient to constitute claim is proper basis for asserting failure to comply with ORCP 20A (pleading of conditions precedent). Aurora Aviation v. AAR Western Skyways, 75 Or App 598, 707 P2d 631 (1985)

Motion to dismiss for reason that pleading shows action has not been commenced within time limited by statute is limited to what appears on face of pleading and, in considering motions to dismiss, court looks not to superceded original complaint but only facts alleged in amended complaint. O’Gara v. Kaufman, 81 Or App 499, 726 P2d 403 (1986)

To survive motion to dismiss on limitations grounds, complaint does not have to show that action is timely but complaint must not reveal on its face that action is not timely. Munsey v. Plumbers’ Local #51, 85 Or App 396, 736 P2d 615 (1987)

This rule does not state that party must demonstrate through submission of affidavits that evidentiary hearing is necessary before there is right to hearing and denial of hearing was error. Edwards v. Edwards, 87 Or App 188, 741 P2d 928 (1987)

Case on appeal in federal court is still pending and state court case which asserts same claims is therefore subject to dismissal on ground that there is another case pending. Beetham v. Georgia-Pacific, 87 Or App 592, 743 P2d 755 (1987)

Where motion to dismiss is made at trial, sufficiency of complaint is determined by evidence introduced, not by pleadings. Contractors, Inc. v. Tri-Met, 94 Or App 392, 766 P2d 389 (1988)

For purposes of ORCP 21A (9) motion to dismiss, each claim in pleading stands alone and must be tested separately; allegations in plaintiff’s complaint against one defendant may not be used to defeat allegations in separate claim against another defendant. Dotson v. Smith, 307 Or 132, 764 P2d 540 (1988)

Evidence at trial cannot affect correctness of pretrial ruling that complaint was sufficient to state claim. Morgan v. Turley, 97 Or App 487, 776 P2d 586 (1989), Sup Ct review denied

Court must look only to pleading to determine whether cause was timely commenced and may not resort to facts submitted separately from pleading, in attorney’s affidavit in response to motion to dismiss. Press v. Todd Investment Co., 98 Or App 93, 778 P2d 506 (1989), Sup Ct review denied

Disputed factual issues cannot be decided on motion to dismiss for failure to state claim nor can effect of arbitrator’s subsequent decision of factually related claim be raised in support of that motion. Melvin v. Kim’s Restaurant, 308 Or 177, 776 P2d 1286 (1989)

Where action arose out of earlier Oregon action that defendant brought, Oregon Court had personal jurisdiction over Florida defendant. Heathman v. Heathman, 100 Or App 681, 788 P2d 475 (1990)

Because of unusual procedures in habeas corpus cases, motion to strike has same function and effect as motion to dismiss and though filing motion to strike is preferred way to test legal sufficiency of replication, defendant may move to dismiss which has same function and effect. Lane v. Maass, 309 Or 671, 790 P2d 1137 (1990); Feller v. Wright, 103 Or App 575, 798 P2d 703 (1990)

Where determination of jurisdiction requires resolution of facts necessary to determine merits of case, court is not required to defer determination of jurisdiction until trial. Showalter v. Edwards and Associates, Inc., 112 Or App 472, 831 P2d 58 (1992), Sup Ct review denied; Industrial Leasing Corp. v. Miami Ice Machine Co., 126 Or App 80, 867 P2d 548 (1994)

Where party raises motion to dismiss for first time on appeal, appellate court looks beyond allegations of complaint to evidence presented to determine whether party has proven claim. Beckett v. Computer Career Institute, Inc., 120 Or App 143, 852 P2d 840 (1993)

Res judicata does not provide grounds for motion to dismiss where face of complaint does not mention previous action. Business Men’s Service Co. v. Union Gospel Ministries, 120 Or App 228, 852 P2d 199 (1993)

Courts have subject matter jurisdiction over third party collateral attack on judgment rendered in another county. Greeninger v. Cromwell, 127 Or App 435, 873 P2d 377 (1994)

Court could not take judicial notice of pleadings of same parties in separate but related action to render judgment on pleadings. Thompson v. Telephone & Data Systems, Inc., 130 Or App 302, 881 P2d 819 (1994), on reconsideration 132 Or App 103, 888 P2d 16 (1994)

Court determination of presence or absence of facts affecting personal jurisdiction may include credibility determination. Sutherland v. Brennan, 131 Or App 25, 883 P2d 1318 (1994), aff’don other grounds, 321 Or 520, 901 P2d 240 (1995)

Where motion to dismiss for failure to state claim is made for first time on appeal, if omission in pleading did not result in surprise or prejudice to movant or prevent full trial and if evidence at trial disclosed existence of cause of action, court will treat case as though objection were raised at proper time and pleadings amended accordingly. Boers v. Payline Systems, Inc., 141 Or App 238, 918 P2d 432 (1996)

Case law on pleas in abatement remains valid for determining issue of failure to state claim, subject to expanded definition of “cause of action” developed in claim preclusion cases. Lee v. Mitchell, 152 Or App 159, 953 P2d 414 (1998)

Where complaint is insufficient to state claim because filing was premature, dismissal should be without prejudice. Sandgathe v. Jagger, 165 Or App 375, 996 P2d 1001 (2000)

Action is “pending” after filing of complaint, irrespective of perfection of service of summons. Webb v. Underhill, 174 Or App 592, 27 P3d 148 (2001)

Where two actions between same parties on same cause are before court, court must dismiss later-filed action rather than consolidating actions. Webb v. Underhill, 174 Or App 592, 27 P3d 148 (2001)

Whether another action pending between same parties is for same cause depends on whether claims available to plaintiff under factual transaction involved in first action would have preclusive effect in subsequent action. Eli v. Lampert, 194 Or App 280, 94 P3d 170 (2004), Sup Ct review denied

Where parties have enforceable agreement to litigate action in different venue, court may grant timely motion to dismiss action for lack of jurisdiction over subject matter. Black v. Arizala, 337 Or 250, 95 P3d 1109 (2004)

Plaintiff may satisfy burden of production regarding sufficiency of service through reliance on facts recited in certificate of service. Burden v. Copco Refrigeration, Inc., 339 Or 388, 121 P3d 1133 (2005)

ORCP 21B

See also annotations under ORS 16.130 in permanent edition.

NOTES OF DECISIONS

Ambiguity in law does not create issue of fact that must be resolved by evidentiary hearing. Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or 551, 871 P2d 106 (1994)

ORCP 21D

See annotations under ORS 16.110 in permanent edition.

ORCP 21E

See also annotations under ORS 16.090, 16.100, 16.250 and 16.320 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 16.100)

Complaint that is repetition of former one to which demurrer has been sustained may be regarded as frivolous and upon motion may be stricken and plaintiff denied leave to file amended pleading. Greulich v. City of Lake Oswego, 12 Or App 235, 504 P2d 1390 (1973)

In general

Sham pleading is pleading that is false in fact on its face. Ross and Ross, 240 Or App 435, 246 P3d 1179 (2011)

Frivolous pleading is pleading that, although true in its allegations, is totally insufficient in substance. Ross and Ross, 240 Or App 435, 246 P3d 1179 (2011)

Irrelevant pleading is pleading that is not logically or legally germane to substance of dispute. Ross and Ross, 240 Or App 435, 246 P3d 1179 (2011)

LAW REVIEW CITATIONS

In general

20 WLR 481 (1984); 73 OLR 785 (1994)

ORCP 21F

See also annotations under ORS 16.250, 16.280 and 16.330 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 16.330)

Issue of whether plaintiff failed to prove it was real party in interest could not be raised by motion for involuntary nonsuit. Collier Carbon and Chemical Corp. v. Perdue, 284 Or 19, 584 P2d 758 (1978)

In general

Party may voluntarily submit to jurisdiction of court by appearing in action, thereby waiving defense of lack of personal jurisdiction, which defense may not be raised on court’s own motion. Osburn v. Pace, 55 Or App 492, 638 P2d 497 (1982)

ORCP 21G

See also annotations under ORS 16.140, 16.150, 16.250, 16.280, 16.330, 16.340 and 16.400 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 16.340)

Where petition contains affirmative statement establishing lack of jurisdiction or that no cause of action exists, defect is not cured by verdict and may be asserted for first time on appeal. Fulton Ins. Co. v. White Motor Corp., 261 Or 206, 493 P2d 138 (1972)

Where petition fails by omission to include fact necessary to state cause of action, defect is cured by verdict and may not be asserted for first time on appeal. Fulton Ins. Co. v. White Motor Corp., 261 Or 206, 493 P2d 138 (1972)

Under former similar statute (ORS 16.400)

Where demurrer to cause of action is sustained and complaint contains multiple causes of action, filing of amended complaint eliminating cause of action does not waive right to appeal sustaining of demurrer. Moore v. W. Lawn Memorial Park, 266 Or 244, 512 P2d 1344 (1973)

In general

Husband did not waive right to challenge lack of personal jurisdiction by failing to appear and assert defense. Resnik and Resnik, 99 Or App 56, 781 P2d 856 (1989), Sup Ct review denied

Motion to dismiss for failure to state ultimate facts constituting claim was timely where first made on morning of trial. Navas v. City of Springfield, 122 Or App 196, 857 P2d 867 (1993)

Motion to dismiss for failure to state claim may not be raised after trial court has entered judgment. Waddill v. Anchor Hocking, Inc., 330 Or 376, 8 P3d 200 (2000)

Requirement that defense of insufficiency of service of summons or process be raised at first opportunity applies to post-judgment motions. Adams and Adams, 173 Or App 242, 21 P3d 171 (2001)

LAW REVIEW CITATIONS

Under former similar statute (ORS 16.330)

9 WLJ 368 (1973)