Motion to Dismiss - Oregon

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR [____________________] COUNTY

DEFENDANT'S MOTION TO DISMISS

Pursuant to Oregon Rule of Civil Procedure 21 A

Defendant [________________________________] ("Defendant"), by and through undersigned counsel, respectfully moves this Court pursuant to Oregon Rule of Civil Procedure (ORCP) 21 A to dismiss Plaintiff's Complaint, in whole or in part, for the reasons set forth below. Pursuant to ORCP 21 A(2)(b), the grounds on which each defense is based are stated specifically and with particularity as required by the Rule.

I. GROUNDS FOR DISMISSAL

Under ORCP 21 A(1), nine defenses may, at the option of the pleader, be made by motion to dismiss before the responsive pleading. Defendant seeks dismissal on the following grounds (check all that apply):

☐ Ground 1 — ORCP 21 A(1)(a): Lack of Jurisdiction Over the Subject Matter
This Court lacks jurisdiction over the subject matter of this action.

☐ Ground 2 — ORCP 21 A(1)(b): Lack of Jurisdiction Over the Person
This Court lacks personal jurisdiction over Defendant.

☐ Ground 3 — ORCP 21 A(1)(c): Another Action Pending
There is another action pending between the same parties for the same cause of action.

☐ Ground 4 — ORCP 21 A(1)(d): Plaintiff Lacks Legal Capacity to Sue
Plaintiff does not have the legal capacity to sue.

☐ Ground 5 — ORCP 21 A(1)(e): Insufficiency of Summons, Process, or Service
The summons or process is insufficient, or service of the summons or process was insufficient.

☐ Ground 6 — ORCP 21 A(1)(f): Real Party in Interest
Plaintiff is not the real party in interest.

☐ Ground 7 — ORCP 21 A(1)(g): Failure to Join a Required Party
Plaintiff has failed to join a party required under ORCP 29.

☐ Ground 8 — ORCP 21 A(1)(h): Failure to State Ultimate Facts
The Complaint fails to state ultimate facts sufficient to constitute a claim.

☐ Ground 9 — ORCP 21 A(1)(i): Action Not Commenced Within Statutory Time
The Complaint shows on its face that the action was not commenced within the time limited by statute.

II. STATEMENT OF THE CASE

On or about [__/__/____], Plaintiff filed this action in [____________________] County Circuit Court, asserting claims of [________________________________]. Plaintiff's Complaint purports to allege [________________________________].

Defendant was served on [__/__/____]. Oregon law requires Defendant to answer within 30 days of service of the summons and complaint. ORCP 7. This Motion is timely because it is filed before the time for filing the responsive pleading expires, consistent with ORCP 21 A.

III. MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

A. Legal Standard Under ORCP 21 A

Oregon requires pleading of "ultimate facts" rather than mere notice pleading. Under ORCP 18 A, a pleading that sets forth a claim for relief must contain "a plain and concise statement of the ultimate facts constituting a claim for relief without unnecessary repetition." Oregon's "ultimate facts" pleading standard is more demanding than federal notice pleading: the pleading must allege the actual operative facts — not merely legal conclusions — that, if proven, would entitle the plaintiff to relief.

An ORCP 21 A(1)(h) motion to dismiss tests the legal sufficiency of the complaint to state a cognizable claim. The court takes the well-pleaded ultimate facts as true and determines whether they are sufficient as a matter of law. The court's role is to evaluate the adequacy of pleadings and legal claims; it is not the proper vehicle to evaluate the strength or sufficiency of the evidence, which is properly tested at trial or, where applicable, on a motion for summary judgment under ORCP 47.

Particularity requirement: ORCP 21 A(2)(b) requires that "the grounds on which any of the enumerated defenses are based must be stated specifically and with particularity in the responsive pleading or motion." This Motion complies with that requirement.

B. Presentation of Matters Outside the Pleadings

For a motion to dismiss asserting any of the defenses enumerated in ORCP 21 A(1)(a) through (g) (jurisdiction, another action pending, legal capacity, insufficiency of process or service, real party in interest, or failure to join a required party), if the facts supporting the defense 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 will be given a reasonable opportunity to present affidavits, declarations, and other evidence. The Court may then determine the existence or nonexistence of the facts supporting the asserted defense, or may defer that determination until further discovery or trial on the merits. ORCP 21 A(2)(b). This procedure does not apply to a motion under ORCP 21 A(1)(h) (failure to state ultimate facts), which is decided on the face of the pleading alone; if a party wishes the Court to consider matters outside the pleadings on the legal sufficiency of a claim, the proper vehicle is a motion for summary judgment under ORCP 47.

If the Court grants a motion to dismiss under ORCP 21 A(1), it may enter judgment for the moving party or grant leave to file an amended complaint; if the ground is another action pending under ORCP 21 A(1)(c), the Court may instead stay the proceeding or defer entry of judgment. ORCP 21 A(2)(c).

IV. ARGUMENT

A. Lack of Subject Matter Jurisdiction — ORCP 21 A(1)(a)

(Complete this section if Ground 1 is checked)

Oregon Circuit Courts are courts of general jurisdiction, but certain matters fall outside their authority.

This Court lacks subject matter jurisdiction because:

☐ This action involves a federal question that falls within the exclusive jurisdiction of the federal courts.

☐ Plaintiff has failed to exhaust mandatory administrative remedies under [________________________________] before seeking judicial review.

☐ The [________________________________] Commission/Agency has exclusive original jurisdiction over this type of claim under ORS [________________________________].

☐ Other: [________________________________].

Specific facts supporting this ground:

[________________________________]

Subject matter jurisdiction cannot be conferred by agreement of the parties, and its absence may be raised at any time. This Court must dismiss or transfer the action if it lacks subject matter jurisdiction.

B. Lack of Personal Jurisdiction — ORCP 21 A(1)(b)

(Complete this section if Ground 2 is checked)

Oregon's long-arm rule, ORCP 4, authorizes personal jurisdiction over nonresidents "in any action" on any basis not inconsistent with the Oregon or United States constitutions. ORCP 4 L provides for jurisdiction on "any basis consistent with" constitutional due process.

Oregon courts apply a two-step analysis: (1) whether the claim falls within Oregon's long-arm rule, and (2) whether the exercise of jurisdiction comports with due process. Ranza v. Nike, Inc., 793 F.3d 1059 (9th Cir. 2015).

Defendant lacks the required contacts with Oregon because:

☐ Defendant is not an Oregon resident, is not incorporated in Oregon, and does not have its principal place of business in Oregon. Therefore, Defendant is not subject to general jurisdiction in Oregon.

☐ The claims do not arise out of or relate to any contacts Defendant may have with Oregon, so specific jurisdiction is lacking.

☐ Defendant has not purposefully directed its conduct toward Oregon, and exercising jurisdiction would not comport with fair play and substantial justice.

☐ Other: [________________________________].

Supporting Facts:

Defendant [________________________________] is a [________________________________] with its principal place of business at [________________________________]. Defendant [________________________________]. See Declaration of [________________________________], Exhibit A.

C. Another Action Pending — ORCP 21 A(1)(c)

(Complete this section if Ground 3 is checked)

ORCP 21 A(1)(c) provides for dismissal when there is another action pending between the same parties for the same cause of action. Oregon applies the "prior pending action" doctrine.

The following action is currently pending between the same parties for the same cause of action:

Court: [________________________________]
Case Number: [________________________________]
Date Filed: [__/__/____]
Claims Asserted: [________________________________]

That action is substantively identical to this action because: [________________________________]

See Exhibit [____], attached (copy of the complaint filed in the prior action).

D. Plaintiff Lacks Legal Capacity to Sue — ORCP 21 A(1)(d)

(Complete this section if Ground 4 is checked)

Plaintiff lacks the legal capacity to sue in this action because:

☐ Plaintiff is a minor who has not been represented by a proper guardian ad litem as required by ORCP 27.

☐ Plaintiff is an entity that has been administratively dissolved or has forfeited its authority to do business in Oregon.

☐ Plaintiff is a foreign corporation transacting business in Oregon without authorization from the Secretary of State under ORS 60.701, and therefore may not maintain this action under ORS 60.704(1).

☐ Plaintiff's legal capacity is otherwise lacking because: [________________________________].

Supporting Facts:

[________________________________]

E. Insufficiency of Summons, Process, or Service — ORCP 21 A(1)(e)

(Complete this section if Ground 5 is checked)

Oregon requires strict compliance with service of process requirements. The summons must comply with ORCP 7 C, and service must be effected in a manner authorized by ORCP 7 D.

The summons or service is deficient because:

☐ The summons fails to contain all required information under ORCP 7 C(2), specifically: [________________________________].

☐ Service was not effected by a method authorized under ORCP 7 D.

☐ Service was made upon a person not authorized to receive service on behalf of Defendant.

☐ Service by mail under ORCP 7 D(2)(d) was defective because: [________________________________].

☐ The affidavit of service is deficient because: [________________________________].

☐ Other: [________________________________].

Because proper service is a prerequisite to the court's exercise of personal jurisdiction, and because valid service has not been effected, the Complaint should be dismissed.

F. Plaintiff Is Not the Real Party in Interest — ORCP 21 A(1)(f)

(Complete this section if Ground 6 is checked)

Under ORCP 26 A, every action must be prosecuted in the name of the real party in interest.

Plaintiff is not the real party in interest because:

☐ Plaintiff assigned all rights in the subject matter of this dispute to [________________________________] on [__/__/____].

☐ The claim belongs to [________________________________], the proper real party in interest.

☐ Plaintiff is a nominal party without a substantive interest in the outcome of this litigation.

☐ Other: [________________________________].

Supporting Facts:

[________________________________]

G. Failure to Join a Required Party — ORCP 21 A(1)(g)

(Complete this section if Ground 7 is checked)

Under ORCP 29, a person must be joined if: (1) complete relief cannot be accorded among those already parties without the absent party; or (2) the absent party claims an interest relating to the subject of the action and disposing of it without them may impair their interest or leave existing parties subject to inconsistent obligations.

The following person has not been joined but must be joined:

Name: [________________________________]
Relationship to Action: [________________________________]
Reason Joinder Required: [________________________________]
Feasibility of Joinder: ☐ Feasible ☐ Not feasible because: [________________________________]

If joinder is not feasible, the court must determine in equity and good conscience whether this action should proceed among existing parties or be dismissed. This action [________________________________] and should be dismissed.

H. Failure to State Ultimate Facts — ORCP 21 A(1)(h)

(Complete this section if Ground 8 is checked)

Oregon's pleading standard under ORCP 18 A requires a plaintiff to plead "ultimate facts" — the operative facts that, if proven, establish each element of the claim. Legal conclusions are insufficient. Doyle v. City of Medford, 256 Or App 625 (2013).

Specific deficiencies in the Complaint:

1. Count [____] — [________________________________] — Fails to Allege Ultimate Facts

To state a claim for [________________________________] under Oregon law, Plaintiff must allege ultimate facts establishing: (1) [________________________________]; (2) [________________________________]; (3) [________________________________]; and (4) [________________________________]. See [________________________________].

The Complaint specifically fails because:

Deficiency No. 1: The Complaint's allegation that "[________________________________]" (Complaint ¶ [____]) is a legal conclusion, not an ultimate fact. Plaintiff has alleged no facts showing [________________________________].

Deficiency No. 2: The Complaint fails entirely to allege [________________________________], which is an essential element of the claim. Without an allegation of [________________________________], Plaintiff cannot establish [________________________________].

Deficiency No. 3 (if applicable): [________________________________]

2. Count [____] — [________________________________] — Fails to Allege Ultimate Facts

(Repeat as necessary for each count)

[________________________________]

I. Action Barred by Statute of Limitations — ORCP 21 A(1)(i)

(Complete this section if Ground 9 is checked)

ORCP 21 A(1)(i) expressly authorizes dismissal when the complaint itself shows that the action was not commenced within the time limited by statute.

The applicable statute of limitations is:

☐ ORS 12.080(1) — 6 years (contract or liability, express or implied, including written and oral contracts)
☐ ORS 12.080(2) — 6 years (liability created by statute)
☐ ORS 12.110(1) — 2 years (assault, battery, false imprisonment, or other injury to the person not arising on contract; fraud or deceit is deemed to accrue upon discovery)
☐ ORS 12.110(4) — 2 years from discovery, subject to a 5-year outer limit (medical, surgical, or dental malpractice)
☐ ORS 12.115 — 10 years (ultimate repose for negligent injury to person or property)
☐ ORS 12.120(2) — 1 year (libel or slander)
☐ Other: [________________________________]

The cause of action accrued on [__/__/____] when [________________________________]. Plaintiff filed this action on [__/__/____], which is [________________________________] after the limitations period expired. The face of the Complaint establishes this untimeliness because: [________________________________].

The discovery rule does not save Plaintiff's claim because [________________________________].

V. UTCR COMPLIANCE AND FILING INFORMATION

This Motion is filed in compliance with the Uniform Trial Court Rules (UTCR) of the Oregon Judicial Department. Oregon Circuit Courts accept electronic filing through the Oregon Judicial Department's OJD eFIle system.

OJD eFIle Case Number: [________________________________]

Pursuant to UTCR 5.030(1)-(2) and UTCR 5.050(1), the following information is provided:

• Motion filed: [__/__/____]
• Response due: 14 days after service or filing of this Motion, whichever is later (UTCR 5.030(1))
• Reply due: 7 days after service or filing of the response, whichever is later (UTCR 5.030(2))
• Oral argument: ☐ Requested ☐ Waived (request must be stated, with a time estimate, in the caption of the motion or response — UTCR 5.050(1))

Conferral: Under UTCR 5.010(1), a motion under ORCP 21 other than one solely for failure to state a claim (Ground 8) or lack of jurisdiction (Grounds 1-2) will be denied unless the moving party certifies a good-faith effort to confer with opposing counsel before filing. ☐ Conferral completed on [__/__/____]. ☐ Conferral not required under UTCR 5.010(1).

Local Rule Requirements: [____________________] County may have specific local rules regarding motion practice. Counsel should consult [____________________] County Supplementary Local Rules (SLR) for any additional requirements.

VI. PRAYER FOR RELIEF

WHEREFORE, Defendant [________________________________] respectfully requests that this Court:

1. GRANT this Motion to Dismiss in its entirety;

2. DISMISS Plaintiff's Complaint with prejudice as to all counts and claims asserted therein;

— OR, in the alternative —

3. DISMISS the following specific counts without prejudice:
   Count(s) [________________________________] for the following reasons: [________________________________];

4. ☐ DISMISS with prejudice the claims barred by the statute of limitations under ORCP 21 A(1)(i);

5. ☐ DISMISS with prejudice the claims for lack of subject matter jurisdiction;

6. ☐ GRANT leave to re-serve if Ground 5 is the only ground, at the Court's discretion;

7. AWARD Defendant its reasonable attorneys' fees and costs pursuant to ORS [________________________________] or as otherwise authorized by law; and

8. Grant such other and further relief as this Court deems just and proper.

Respectfully submitted,

Attorney Name: [________________________________]
Oregon State Bar Number: [________________________________]
Firm Name: [________________________________]
Address: [________________________________]
[________________________________]
Telephone: ([____]) [____]-[________]
Facsimile: ([____]) [____]-[________]
Email: [________________________________]

Attorney for Defendant [________________________________]

Date: [__/__/____]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I served a true and correct copy of the foregoing Defendant's Motion to Dismiss on the following parties by the method(s) indicated below:

Counsel for Plaintiff:

Name: [________________________________]
Firm: [________________________________]
Address: [________________________________]
[________________________________]
Email: [________________________________]

Method of Service:

☐ Electronic service through OJD eFIle (Oregon Judicial Department's electronic filing system)
☐ U.S. Mail, first-class postage prepaid
☐ Hand delivery
☐ Email (with consent pursuant to ORCP 9 B)
☐ Overnight courier/commercial delivery service

[________________________________]
Certifying Attorney

EXHIBIT LIST

☐ Exhibit A — Declaration of [________________________________] (supporting lack of personal jurisdiction)
☐ Exhibit B — Copy of complaint filed in prior pending action
☐ Exhibit C — [________________________________]
☐ Exhibit D — [________________________________]

SOURCES AND REFERENCES

• Oregon Rules of Civil Procedure (ORCP): https://www.oregonlegislature.gov/bills_laws/Pages/orcp.aspx
• ORCP 21 — Defenses and Objections; How Presented (current text, including the A(1)(a)-(i)/A(2) structure adopted effective 2021): https://oregon.public.law/rules-of-civil-procedure/orcp-21-defenses-and-objections-how-presented-by-pleading-or-motion-motion-for-judgment-on-the-pleadings/
• ORCP 4 — Personal Jurisdiction (Oregon's Long-Arm Rule): https://oregon.public.law/rules/orcp_4
• ORS Chapter 12 — Statutes of Limitation: https://www.oregonlegislature.gov/bills_laws/ors/ors012.html
• ORS 60.701, ORS 60.704 — Foreign Corporation Authority to Transact Business: https://oregon.public.law/statutes/ors_60.701 ; https://oregon.public.law/statutes/ors_60.704
• Oregon Judicial Department eFIle System: https://efile.oregon.gov
• Uniform Trial Court Rules (UTCR) 5.010, 5.030, 5.050: https://www.courts.oregon.gov/rules/Pages/utcr.aspx
• ORS 31.150-31.152 — Anti-SLAPP Special Motion to Strike: https://oregon.public.law/statutes/ors_31.150

Note: Oregon's answer deadline is 30 days after service of the summons and complaint. Under ORCP 21 G(1), the defenses of personal jurisdiction (A(1)(b)), another action pending (A(1)(c)), and insufficiency of process/service (A(1)(e)) are waived if omitted from a consolidated ORCP 21 motion (ORCP 21 F) or not raised in the first responsive pleading. Under ORCP 21 G(2), the defenses of legal capacity (A(1)(d)), real party in interest (A(1)(f)), and statute of limitations (A(1)(i)) are waived if not raised by motion, in the responsive pleading, or by an amendment permitted on a limited showing. Under ORCP 21 G(3), failure to state ultimate facts (A(1)(h)) and failure to join a required party (A(1)(g)) are not waived by omission and may still be raised by pleading, by motion for judgment on the pleadings, or at trial. Lack of subject matter jurisdiction (A(1)(a)) is never waived and the court must dismiss sua sponte if it appears to be lacking. ORCP 21 G(4). The special Anti-SLAPP motion under ORS 31.150-31.152 is an alternative to ORCP 21 A(1)(h) when the claim arises from protected speech or petitioning activity. Always consult the local supplementary rules of the specific county circuit court for any additional requirements.