|
INTRODUCTION
The following amendments to the Oregon Rules of Civil Procedure have been
promulgated by the Council on Court Procedures for submission to the 2005
Legislative Assembly. Pursuant to ORS 1.735, they will become effective
January 1, 2006, unless the Legislative Assembly by statute modifies the
action of the Council.
During the 2003-2005 biennium, the Council has taken action to correct
problems relating to rules promulgated during previous biennia.
Subdivisions of rules are called sections and are indicated by capital
letters, e.g., A; subdivisions of sections are called subsections and are
indicated by arabic numerals in parentheses, e.g., (1); subdivisions of
subsections are called paragraphs and are indicated by lower case letters
in parentheses, e.g., (a), and subdivisions of paragraphs are called
subparagrpahs and are indicated by lower case Roman numerals in
parentheses, e.g., (iv).
The amended rules are set out with both the current and amended language.
New language is shown in boldface with underlining, and language to be
deleted is italicized and bracketed.
The Council held public meetings on October 11, 2003 and on the following
dates in 2004: January 10, February 14, March 13, April 10, May 8, June
12, September 11, and December 11. All meetings, except the February 14
meeting, were held at the Oregon State Bar Center in Lake Oswego, Oregon.
The February 14 meeting was held at the University of Oregon School of Law
in Eugene, Oregon.
The Council expresses its appreciation to the bench and the Bar for the
comments and suggestions it has received.
--------------------------------------------------------------------------------
Amendments to
Oregon Rules of Civil Procedure
Table of Contents
Page
Rule 9 SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS 1
Rule 46 FAILURE TO MAKE DISCOVERY; SANCTIONS 1
Rule 54 DISMISSAL OF ACTIONS; COMPROMISE 2
Rule 59 INSTRUCTIONS TO JURY AND DELIBERATION 4
Rule 67 JUDGMENTS 5
Rule 83 PROVISIONAL PROCESS 6
--------------------------------------------------------------------------------
SERVICE AND FILING OF PLEADINGS
AND OTHER PAPERS
RULE 9
* * * * *
F Service by telephonic facsimile communication device. Whenever under
these rules service is required or permitted to be made upon a party, and
that party is represented by an attorney, the service may be made upon the
attorney by means of a telephonic facsimile communication device if the
attorney maintains such a device at the attorney's office and the device
is operating at the time service is made. Service in this manner shall be
equivalent to service by mail for purposes of Rule 10 C.
--------------------------------------------------------------------------------
FAILURE TO MAKE
DISCOVERY; SANCTIONS
RULE 46
A Motion for order compelling discovery. A party, upon reasonable notice
to other parties and all persons affected thereby, may apply for an order
compelling discovery as follows:
* * *
(A)(2) Motion. If a party fails to furnish a report under Rule 44 B or C,
or if a deponent fails to answer a question propounded or submitted under
Rules 39 or 40, or if a corporation or other entity fails to make a
designation under Rule 39 C(6) or Rule 40 A, or if a party fails to
respond to a request for a copy of an insurance agreement or policy under
Rule 36 B(2), or if a party in response to a request for inspection
submitted under Rule 43 fails to permit inspection as requested, the
discovering party may move for an order compelling discovery in accordance
with the request. Any motion made under this subsection shall set out at
the beginning of the motion the items that the moving party seeks to
discover. When taking a deposition on oral examination, the proponent of
the question may complete or adjourn the examination before applying for
an order.
If the court denies the motion in whole or in part, it may make such
protective order as it would have been empowered to make on a motion made
pursuant to Rule 36 C.
* * * * *
--------------------------------------------------------------------------------
DISMISSAL OF ACTIONS;
COMPROMISE
RULE 54
* * * * *
E Compromise; effect of acceptance or rejection.
E(1) Except as provided in ORS 17.065 through 17.085, the party against
whom a claim is asserted may, at any time up to 10 days prior to trial,
serve upon the party asserting the claim an offer to allow judgment to be
given against the party making the offer for the sum, or the property, or
to the effect therein specified.
E(2) If the party asserting the claim accepts the offer, the party
asserting the claim or such partyÕs attorney shall endorse such acceptance
thereon, and file the same with the clerk before trial, and within three
days from the time it was served upon such party asserting the claim; and
thereupon judgment shall be given accordingly, as a stipulated judgment.
[Unless agreed upon otherwise by the parties, costs, disbursements, and
attorney fees shall be entered in addition as part of such judgment as
provided in Rule 68.] If the offer does not state that it includes costs
and disbursements or attorney fees, the party asserting the claim shall
submit any claim for costs and disbursements or attorney fees to the court
as provided in Rule 68.
E(3) If the offer is not accepted and filed within the time prescribed, it
shall be deemed withdrawn, and shall not be given in evidence on the
trial; and if the party asserting the claim fails to obtain a more
favorable judgment, the party asserting the claim shall not recover costs,
prevailing party fees, disbursements, or attorney fees incurred after the
date of the offer, but the party against whom the claim was asserted shall
recover of the party asserting the claim costs and disbursements, not
including prevailing party fees, from the time of the service of the
offer.
--------------------------------------------------------------------------------
INSTRUCTIONS TO JURY
AND DELIBERATION
RULE 59
* * * * *
[H Necessity of noting exception on error in statement of issues or
instruction; all other exceptions automatic. No statement of issues
submitted to the jury pursuant to subsection C(2) of this rule and no
instruction given to a jury shall be subject to review upon appeal unless
its error, if any, was pointed out to the judge who gave it and unless a
notation of an exception is made immediately after the court instructs the
jury. Any point of exception shall be particularly stated and taken down
by the reporter or delivered in writing to the judge. It shall be
unnecessary to note an exception in court to any other ruling made. All
adverse rulings, including failure to give a requested instruction or a
requested statement of issues, except those contained in instructions and
statements of issues given, shall import an exception in favor of the
party against whom the ruling was made.]
H Necessity of noting exception on error in statement of issues or
instructions given or refused
H(1) Statement of issues or instructions given or refused. A party may not
obtain review on appeal of an asserted error by a trial court in
submitting or refusing to submit a statement of issues to a jury pursuant
to subsection C(2) of this rule or in giving or refusing to give an
instruction to a jury unless the party who seeks to appeal identified the
asserted error to the trial court and made a notation of exception
immediately after the court instructed the jury.
H(2) Exceptions must be specific and on the record. A party shall state
with particularity any point of exception to the trial judge. A party
shall make a notation of exception either orally on the record or in a
writing filed with the court.
--------------------------------------------------------------------------------
JUDGMENTS
RULE 67
* * * * *
C Demand for judgment. Every judgment shall grant the relief to which the
party in whose favor it is rendered is entitled[, even if such relief has
not been demanded in the pleadings, except: C(1) Default. A judgment by
default shall not be different in kind from or exceed in amount that
prayed for in the demand for judgment. However, a default judgment
granting equitable remedies may differ in kind from or exceed in amount
that prayed for in the demand for judgment, provided that reasonable
notice and opportunity to be heard are given to any party against whom the
judgment is to be entered. C(2) Demand for money damages. Where a demand
for judgment is for a stated amount of money as damages, any judgment for
money damages shall not exceed that amount.]. A judgment for relief
different in kind from or exceeding the amount prayed for in the pleadings
may not be rendered unless reasonable notice and opportunity to be heard
are given to any party against whom the judgment is to be entered.
* * * * *
--------------------------------------------------------------------------------
PROVISIONAL PROCESS
RULE 83
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 declarations requesting specific
provisional process and showing, to the best knowledge, information, and
belief of the plaintiff, affiant or declarant that the action is one in
which provisional process may issue, and:
* * *
[A(9) If provisional process is based on notice of a bulk transfer, a copy
of the notice;]
[A(10)] A(9) 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)] A(10) Facts, if any, which tend to establish that without
restraint immediate and irreparable injury, damage, or loss will occur;
[A(12)] A(11) 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)] A(12) 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.
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] E 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] D Issuance of provisional process where damage to property threatened.
* * *
[F] E Restraining order to protect property. * * *
[G] F Appearance; hearing; service of show cause order; content; effect of
service on person in possession of property. * * *
[H] G Waiver; order without hearing. If after service of the order issued
under subsection [G(1)] F(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] H Authority of court on sustaining validity of underlying claim;
provisional process; restraining order.
[I(1)] H(1) Subject to section B of this rule, if the court on hearing on
a show cause order issued under section [G] F 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)] H(2) Subject to section B of this rule, if the court on hearing on
a show cause order issued under section [G] F 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] E 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.
For more information, see
www.publications.ojd.state.or.us
or contact:
OJD Publications Section
Supreme Court Building
1163 State St.
Salem, OR 97301-2563
--------------------------------------------------------------------------------
This website is for informational purposes
only, and does not constitute legal advice.
|
