Oregon State Court Motion to Dismiss (ORCP 21)

OREGON STATE COURT MOTION TO DISMISS

ORCP 21 A -- All Nine Grounds with Memorandum of Law

COURT CAPTION

IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF [________________________________]

Assigned Judge: Hon. [________________________________]
Trial Date (if set): [__/__/____]

NOTICE OF MOTION

TO: [________________________________], Attorney for Plaintiff
[________________________________] [Law Firm Name]
[________________________________] [Address]
[________________________________] [Email]

PLEASE TAKE NOTICE that Defendant [________________________________] ("Defendant") hereby moves this Court for an order dismissing Plaintiff's Complaint (or, in the alternative, the following claims: [________________________________]) pursuant to Oregon Rule of Civil Procedure ("ORCP") 21 A on the grounds specified below and as more fully set forth in the accompanying Memorandum of Points and Authorities.

Pursuant to UTCR 5.030(1), any response memorandum must be filed within 14 days after service of this Motion. Any reply memorandum is due 7 days after service of the response. The Court may decide the Motion without oral argument unless a party timely requests it under UTCR 5.060.

GROUNDS FOR DISMISSAL -- ORCP 21 A(1)

Select all applicable grounds:

☐ ORCP 21 A(1)(a) -- Lack of jurisdiction over the subject matter
☐ ORCP 21 A(1)(b) -- Lack of jurisdiction over the person
☐ ORCP 21 A(1)(c) -- Another action pending between the same parties for the same cause
☐ ORCP 21 A(1)(d) -- Plaintiff does not have the legal capacity to sue
☐ ORCP 21 A(1)(e) -- Insufficiency of summons or process, or insufficiency of service of summons or process
☐ ORCP 21 A(1)(f) -- The party asserting the claim is not the real party in interest
☐ ORCP 21 A(1)(g) -- Failure to join a party under ORCP 29
☐ ORCP 21 A(1)(h) -- Failure to state ultimate facts sufficient to constitute a claim
☐ ORCP 21 A(1)(i) -- The pleading shows that the action has not been commenced within the time limited by statute

CERTIFICATION OF CONFERRAL

Pursuant to UTCR 5.010(3), counsel for Defendant certifies as follows:

☐ On [__/__/____], counsel for Defendant made a good-faith effort to confer with counsel for Plaintiff regarding the issues raised in this Motion. The parties were unable to resolve the issues. The specific efforts made were: [________________________________].

☐ Conferral was attempted but opposing counsel was unavailable or unresponsive despite the following efforts: [________________________________].

☐ Conferral is not required because this Motion is filed with Defendant's first appearance. See UTCR 5.010(1).

☐ Conferral is not required because this Motion raises purely legal issues not amenable to resolution by agreement (e.g., subject matter jurisdiction, failure to state a claim).

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Defendant [________________________________] respectfully moves this Court to dismiss Plaintiff's Complaint, filed on [__/__/____], pursuant to ORCP 21 A. [Provide a concise 2-4 sentence summary identifying the core deficiency. Example: "The Complaint fails to allege ultimate facts sufficient to state a claim for [cause of action] because [core deficiency]. Additionally, this Court lacks personal jurisdiction over Defendant, who has no contacts with Oregon giving rise to Plaintiff's claims."]

II. FACTUAL BACKGROUND

The following facts are drawn solely from the face of the Complaint and matters subject to judicial notice:

1. On or about [__/__/____], Plaintiff filed the above-captioned Complaint alleging claims for [________________________________].

2. [________________________________]

3. [________________________________]

4. [________________________________]

5. [________________________________]

III. STANDARD OF REVIEW

A. General Standard for ORCP 21 A Motions

Under ORCP 21 A, a party may move to dismiss a complaint on any of nine enumerated grounds. A motion asserting these defenses "must be filed before pleading if a further pleading is permitted." ORCP 21 A(1). The grounds must be "stated specifically and with particularity." Id.

B. Standard for ORCP 21 A(1)(h) -- Failure to State Ultimate Facts

When evaluating a motion to dismiss under ORCP 21 A(1)(h), the Court assumes the truth of all well-pleaded facts in the complaint and draws all reasonable inferences in favor of the nonmoving party. Fearing v. Bucher, 328 Or 367, 371 (1999). However, the Court need not accept bare legal conclusions or conclusory allegations unsupported by factual allegations. Id.

A complaint must allege "ultimate facts" -- not mere "conclusions of law" or "evidentiary facts" -- sufficient to state a claim for relief. ORCP 18 A requires a "plain and concise statement of the ultimate facts constituting a claim for relief without unnecessary repetition." The Court examines whether the facts alleged, taken as true, would entitle the plaintiff to relief under any legal theory. Stringer v. Car Data Sys., Inc., 314 Or 576, 584 (1992).

If the complaint can be cured by amendment, the Court should ordinarily grant leave to amend rather than dismiss with prejudice. Eklof v. Steward, 360 Or 717, 735 (2016).

C. Standard for ORCP 21 A(1)(i) -- Statute of Limitations

When the face of the complaint demonstrates that the applicable statute of limitations has expired, the action may be dismissed under ORCP 21 A(1)(i). The burden then shifts to the plaintiff to allege facts supporting tolling or other exceptions. Josephs v. Burns, 260 Or 493, 497 (1971).

D. Standard for Jurisdictional Challenges -- ORCP 21 A(1)(a) and (b)

For subject matter jurisdiction challenges under ORCP 21 A(1)(a), the Court examines whether it has authority to adjudicate the type of claim presented. Lack of subject matter jurisdiction may be raised at any time and is never waived. ORCP 21 G(3).

For personal jurisdiction challenges under ORCP 21 A(1)(b), the Court applies Oregon's long-arm statute (ORS 14.035) and the due process requirements of the Fourteenth Amendment. The plaintiff bears the burden of establishing jurisdiction. State ex rel. Circus Circus Reno, Inc. v. Pope, 317 Or 151 (1993).

IV. ARGUMENT

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

This Court lacks subject matter jurisdiction over Plaintiff's claims because [________________________________].

Oregon circuit courts are courts of general jurisdiction under the Oregon Constitution, Article VII (Amended), section 9. However, subject matter jurisdiction may be absent where: (1) jurisdiction is vested exclusively in a federal court or administrative agency; (2) the claim must be heard by a specialized tribunal such as the Oregon Tax Court (ORS 305.410) or the Workers' Compensation Board (ORS 656.283); or (3) the claim is not justiciable.

Under ORS [________________________________], jurisdiction over this type of claim is vested exclusively in [________________________________]. Accordingly, the Complaint must be dismissed for lack of subject matter jurisdiction. This defense is never waived and may be raised at any time, including for the first time on appeal. ORCP 21 G(3); Boise Cascade Corp. v. Board of Forestry, 325 Or 185, 193 (1997).

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

This Court lacks personal jurisdiction over Defendant because Defendant has insufficient minimum contacts with the State of Oregon to satisfy due process requirements.

Oregon's Long-Arm Statute (ORS 14.035). Oregon's long-arm statute extends jurisdiction to the limits of due process. Gray & Co. v. Firstenberg Mach. Co., 913 F.2d 758, 760 (9th Cir. 1990). Because the statutory and constitutional analyses merge, the sole inquiry is whether exercising jurisdiction comports with due process.

General Jurisdiction. Defendant is not domiciled in Oregon, is not incorporated in Oregon, and does not have its principal place of business in Oregon. Defendant's contacts with Oregon are not "so continuous and systematic as to render [it] essentially at home" in Oregon. Daimler AG v. Bauman, 571 U.S. 117, 139 (2014). [Set forth specific facts: ________________________________]

Specific Jurisdiction. Plaintiff's claims do not arise out of or relate to any purposeful contact Defendant has made with Oregon. The three-part test requires: (1) the defendant purposefully availed itself of the privilege of conducting activities in Oregon; (2) the claim arises out of those forum-related activities; and (3) the exercise of jurisdiction is reasonable. Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985); State ex rel. Ware v. Hieber, 267 Or 124 (1973).

Here, Defendant did not purposefully avail itself of Oregon's jurisdiction because [________________________________]. The claims do not arise from Oregon-directed conduct because [________________________________]. Even if the first two prongs were met, exercising jurisdiction would be unreasonable in light of [________________________________].

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

There is another action currently pending between the same parties involving the same cause of action. The prior action, [________________________________] v. [________________________________], Case No. [________________________________], was filed in [________________________________] Court on [__/__/____].

Under Oregon law, when two actions involving the same parties and the same cause of action are pending simultaneously, the court should dismiss the later-filed action to avoid duplicative litigation and the risk of inconsistent judgments. Benson v. Peterson, 56 Or App 729, 733 (1982). The "same cause" requirement is met when both actions arise from the same transaction or occurrence and the relief sought is substantially similar. State Farm Fire & Cas. Co. v. Reuter, 299 Or 155, 159 (1985).

The prior action encompasses all claims raised in this Complaint because [________________________________]. Accordingly, this later-filed action should be dismissed.

D. Lack of Legal Capacity to Sue -- ORCP 21 A(1)(d)

Plaintiff lacks the legal capacity to bring this action because [________________________________].

Legal capacity refers to a party's general ability to sue or be sued under the law. Grounds for challenging capacity include:

• Dissolved or suspended entity: A corporation that has been administratively dissolved under ORS 60.651 or voluntarily dissolved under ORS 60.621 may lack capacity to maintain suit. Similarly, a foreign corporation not registered to transact business in Oregon may be barred under ORS 60.701.
• LLCs: A dissolved LLC may lack capacity under ORS 63.661 et seq. A foreign LLC not registered under ORS 63.701 may face the same bar.
• Minors: A minor must sue through a guardian ad litem or conservator. ORS 126.005 et seq.; ORCP 27.
• Incompetent persons: A person adjudicated incompetent must proceed through a guardian. ORS 125.005 et seq.
• Unincorporated associations: An unincorporated association generally cannot sue in its own name unless authorized by statute.
• Deceased plaintiff without personal representative: If the plaintiff is deceased, a personal representative must be appointed under ORS 113.005 et seq.

Here, Plaintiff lacks capacity because [________________________________]. This deficiency [is not curable by amendment / can be cured if ________________________________].

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

The summons, process, or service of summons or process was insufficient because [________________________________].

Under ORCP 7, service must be made in strict compliance with the procedural rules. Oregon courts have consistently held that substantial compliance is not sufficient for service of process. Hogue v. Wetz, 100 Or App 635, 638 (1990).

The specific requirements that were not met include:

ORCP 7 C(2) -- Contents of Summons. The summons must contain specified information including the name of the court, the names of the parties, and a notice to the defendant of the time within which an appearance must be made. If the summons fails to contain required elements, it is insufficient. [Identify deficiency: ________________________________]

ORCP 7 D -- Manner of Service. Service must comply with one of the authorized methods:

• ORCP 7 D(2)(a): Personal service on the individual defendant
• ORCP 7 D(2)(b): Substituted service at the defendant's office or dwelling
• ORCP 7 D(3)(a): Service on a corporation through its registered agent, officer, or managing agent
• ORCP 7 D(3)(b): Service on an LLC through its registered agent or manager
• ORCP 7 D(6): Service by mail (only after court authorization or as permitted by specific rules)

The specific deficiency here is: [________________________________]. Because proper service is a prerequisite to personal jurisdiction, the Complaint should be dismissed without prejudice to allow Plaintiff to attempt proper service, if still within the statute of limitations.

F. Not the Real Party in Interest -- ORCP 21 A(1)(f)

The party asserting the claim is not the real party in interest because [________________________________].

Under ORCP 26 A, "[e]very action shall be prosecuted in the name of the real party in interest." The real party in interest is the person who, under the governing substantive law, possesses the right to enforce the claim asserted. Oregon Educ. Assn. v. Phillips, 302 Or 87, 92 (1986).

Plaintiff is not the real party in interest because [________________________________]. The substantive right at issue belongs to [________________________________] because [________________________________].

Common scenarios in which this defense arises:

• Assignment: Where the claim has been assigned, the assignee -- not the original obligee -- is the real party in interest.
• Subrogation: Where an insurer has paid a claim and seeks subrogation, the insurer (or the insured suing for the insurer's benefit) must be named.
• Wrong entity: Where the wrong corporate entity within an affiliated group is named as plaintiff.
• Standing: Where the plaintiff has not suffered a legally cognizable injury giving rise to the claim.

ORCP 26 A provides that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed for ratification, joinder, or substitution.

G. Failure to Join a Party Under ORCP 29 -- ORCP 21 A(1)(g)

Plaintiff has failed to join [________________________________] as a required party under ORCP 29 A.

ORCP 29 A provides that a person shall be joined as a party if: (1) in the person's absence complete relief cannot be accorded among those already parties; or (2) the person claims an interest relating to the subject of the action and disposing of the action in the person's absence may (a) impair or impede the person's ability to protect that interest, or (b) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.

[________________________________] is a necessary party because [________________________________]. Without this party's joinder, the Court cannot accord complete relief because [________________________________].

If the absent party cannot be joined (e.g., due to jurisdictional or immunity issues), the Court must determine under ORCP 29 B whether "in equity and good conscience" the action should proceed without the absent party or should be dismissed. Factors include: (a) the extent to which a judgment in the party's absence would be prejudicial; (b) the extent to which prejudice could be lessened by protective provisions; (c) whether a judgment in the party's absence would be adequate; and (d) whether the plaintiff would have an adequate remedy if the action were dismissed.

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

Plaintiff's Complaint fails to allege ultimate facts sufficient to constitute a claim for [________________________________].

Elements of the Claim. To state a claim for [________________________________], Plaintiff must allege the following elements:

1. [________________________________]
2. [________________________________]
3. [________________________________]
4. [________________________________]

See [citation to statute or case establishing elements: ________________________________].

Deficiency in the Pleading. The Complaint fails to allege element(s) [________________________________]. Specifically:

First, [________________________________]. The Complaint alleges only that "[quote conclusory allegation from Complaint]," which is a legal conclusion, not an ultimate fact. Under Fearing v. Bucher, 328 Or 367, 371 (1999), the Court need not accept such conclusory allegations as true.

Second, [________________________________]. Even accepting all alleged facts as true and drawing all reasonable inferences in Plaintiff's favor, the Complaint does not allege facts from which the Court could infer [________________________________]. See Stringer v. Car Data Sys., Inc., 314 Or 576, 584 (1992) (complaint must allege ultimate facts, not evidentiary facts or legal conclusions).

Third, [________________________________]. [If statutory claim: The statute requires [________________________________], but the Complaint fails to allege [________________________________]. Without this element, the claim is fatally deficient.]

Disposition. [Select one of the following:]

☐ Dismissal with prejudice is warranted because the deficiency is substantive, not technical. No set of additional facts could state a viable claim because [________________________________]. Amendment would be futile.

☐ Dismissal without prejudice is appropriate. However, if the Court grants leave to amend, Defendant respectfully requests that any amended complaint be filed within [____] days and that Defendant be given the opportunity to renew this Motion.

☐ Leave to amend should be denied despite the general preference for amendment because [________________________________] (e.g., futility, undue delay, repeated prior failures to cure, bad faith).

I. Statute of Limitations -- ORCP 21 A(1)(i)

The face of the Complaint reveals that this action was not commenced within the time allowed by statute.

Applicable Statute of Limitations. The claim for [________________________________] is subject to a [____]-year statute of limitations under ORS [________________________________].

Common Oregon limitation periods include:

Date the Claim Accrued. The Complaint alleges that the relevant events occurred on or about [__/__/____].

Date the Action Was Commenced. This action was commenced on [__/__/____] -- more than [____] years after accrual.

No Tolling Applies. The Complaint does not allege facts supporting any tolling doctrine. Oregon recognizes limited tolling for: minority (ORS 12.160), insanity (ORS 12.160), absence from the state (ORS 12.150, largely obsolete), fraudulent concealment (Chaney v. Fields Chevrolet Co., 264 Or 21 (1972)), and the discovery rule where applicable. None of these doctrines applies here because [________________________________].

Dismissal with prejudice is appropriate because amendment cannot change the dates of accrual and filing. Josephs v. Burns, 260 Or 493 (1971).

V. PRESERVATION OF DEFENSES -- ORCP 21 G

Defendant expressly preserves all defenses raised herein. The waiver rules under ORCP 21 G are as follows:

Waived if not raised in first responsive pleading or motion (ORCP 21 G(1)):

• Lack of personal jurisdiction -- ORCP 21 A(1)(b)
• Another action pending -- ORCP 21 A(1)(c)
• Insufficiency of summons/process/service -- ORCP 21 A(1)(e)
• Not the real party in interest -- ORCP 21 A(1)(f)

May be raised later by motion, responsive pleading, or at trial (ORCP 21 G(2)):

• Failure to state ultimate facts -- ORCP 21 A(1)(h)
• Failure to join a party under ORCP 29 -- ORCP 21 A(1)(g)
• Lack of legal capacity -- ORCP 21 A(1)(d)
• Statute of limitations -- ORCP 21 A(1)(i)

Never waived -- may be raised at any time, including on appeal (ORCP 21 G(3)):

• Lack of subject matter jurisdiction -- ORCP 21 A(1)(a)

Pursuant to ORCP 21 F, all defenses available at the time of this motion have been consolidated herein.

VI. SPECIAL MOTION TO STRIKE -- OREGON ANTI-SLAPP (ORS 31.150-31.155)

[Include this section only if the claims arise from protected speech or petition activity.]

A. Applicability

In the alternative or in addition to the ORCP 21 A motion, Defendant moves to strike Plaintiff's Complaint (or the following claims: [________________________________]) pursuant to Oregon's anti-SLAPP statute, ORS 31.150.

B. Protected Activity

Defendant's conduct that gives rise to Plaintiff's claims constitutes protected activity under ORS 31.150(2), specifically:

☐ (a) Any oral statement made, or written statement or other document submitted, in a legislative, executive, or judicial proceeding or other proceeding authorized by law;
☐ (b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other proceeding authorized by law;
☐ (c) Any oral statement made, or written statement or other document submitted, in a place open to the public or a public forum in connection with an issue of public interest;
☐ (d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

The specific protected activity is: [________________________________].

C. Burden-Shifting Framework Under ORS 31.150(3)

Step 1 -- Defendant's Burden. Defendant must make a prima facie showing that Plaintiff's claim arises out of a statement or conduct described in ORS 31.150(2). This showing requires only that the defendant demonstrate the claim implicates protected activity. Handy v. Lane County, 360 Or 605, 614-15 (2016).

Defendant meets this burden because [________________________________].

Step 2 -- Plaintiff's Burden. Once Defendant makes this showing, the burden shifts to Plaintiff to establish a probability of prevailing on the claim by presenting "substantial evidence to support a prima facie case." ORS 31.150(3). If Plaintiff cannot meet this burden, the Court must grant the motion. Young v. Davis, 259 Or App 497, 504 (2013).

Plaintiff cannot meet this burden because [________________________________].

D. Procedural Requirements

E. Relief Requested

Defendant requests that the Court strike the Complaint (or specified claims) and award Defendant reasonable attorney fees and costs pursuant to ORS 31.152(3).

VII. REQUEST FOR ORAL ARGUMENT

Pursuant to UTCR 5.060, Defendant respectfully requests oral argument on this Motion.

Estimated time for Defendant's argument: [____] minutes.

VIII. CONCLUSION

For the reasons set forth above, Defendant [________________________________] respectfully requests that this Court:

1. GRANT the Motion to Dismiss and dismiss the Complaint (or specified claims):
   ☐ with prejudice
   ☐ without prejudice

2. [If anti-SLAPP motion filed:] GRANT the Special Motion to Strike and award Defendant reasonable attorney fees and costs under ORS 31.152(3);

3. [If applicable:] DENY Plaintiff leave to amend because amendment would be futile;

4. Award Defendant costs and disbursements as permitted by law; and

5. Grant such other and further relief as the Court deems just and proper.

DATED: [__/__/____]

Respectfully submitted,

________________________________________
[________________________________]
[Attorney Name], OSB No. [________________________________]
Attorney for Defendant [________________________________]
[________________________________] [Firm Name]
[________________________________] [Street Address]
[________________________________] [City, State ZIP]
Telephone: [________________________________]
Email: [________________________________]

DECLARATION IN SUPPORT OF MOTION TO DISMISS

IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF [________________________________]

I, [________________________________], declare as follows:

1. I am [________________________________] [counsel for Defendant / a party to this action / other capacity]. I make this declaration based on personal knowledge except where stated on information and belief, and if called to testify I could and would competently testify to the facts stated herein.

2. [________________________________] [State facts relevant to the motion -- for example: facts regarding lack of jurisdiction (Defendant's contacts with Oregon, or lack thereof); facts regarding service deficiencies (when, where, and how service was attempted); facts regarding the pending parallel action; facts regarding capacity issues; authenticated documents attached as exhibits.]

3. [________________________________]

4. [________________________________]

5. Attached hereto as Exhibit [____] is a true and correct copy of [________________________________].

6. [________________________________]

I declare under penalty of perjury under the laws of the State of Oregon that the foregoing is true and correct.

DATED: [__/__/____]
City/State of Execution: [________________________________], Oregon

________________________________________
[________________________________]
[Printed Name]

PROPOSED ORDER

IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF [________________________________]

This matter came before the Court on Defendant's Motion to Dismiss Pursuant to ORCP 21 A, filed [__/__/____]. The Court, having considered the Motion, the supporting memorandum and declaration(s), any opposition filed by Plaintiff, any reply, [and having heard oral argument on [__/__/____] / without oral argument], hereby ORDERS as follows:

☐ 1. Defendant's Motion to Dismiss is GRANTED.

☐ 2. Plaintiff's Complaint is DISMISSED WITH PREJUDICE as to:
☐ all claims
☐ the following claims only: [________________________________]

☐ 3. Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE as to:
☐ all claims
☐ the following claims only: [________________________________]

☐ 4. Plaintiff is granted leave to file an Amended Complaint within [____] days of the date of this Order. Failure to timely file an Amended Complaint will result in dismissal with prejudice without further notice.

☐ 5. Defendant's Special Motion to Strike under ORS 31.150 is GRANTED. Defendant is awarded reasonable attorney fees and costs in the amount of $[________________________________], to be determined by subsequent motion if not stipulated.

☐ 6. Defendant's Motion to Dismiss is DENIED.

☐ 7. Defendant's Motion to Dismiss is DENIED IN PART as to the following claims: [________________________________]. Defendant shall file an Answer within [____] days of this Order.

☐ 8. The remaining claims, if any, shall proceed according to the existing case schedule.

☐ 9. Other: [________________________________]

IT IS SO ORDERED.

DATED: [__/__/____]

________________________________________
Hon. [________________________________]
Circuit Court Judge

CERTIFICATE OF SERVICE

I certify that on [__/__/____], I caused a true and correct copy of the foregoing DEFENDANT'S MOTION TO DISMISS PURSUANT TO ORCP 21 A, including the Memorandum of Points and Authorities, Declaration in Support, and Proposed Order, to be served upon the following parties in the manner indicated:

[________________________________]
[Attorney Name], Attorney for Plaintiff
[________________________________] [Firm Name]
[________________________________] [Address]
[________________________________] [City, State ZIP]
[________________________________] [Email]

☐ Oregon Judicial Department eFiling System (File & Serve)
☐ First-class U.S. mail, postage prepaid
☐ Electronic mail (by written agreement of the parties per ORCP 9 G)
☐ Hand delivery
☐ Facsimile transmission to: [________________________________]

________________________________________
[________________________________]
[Attorney Name]

OREGON PRACTICE NOTES

These notes are for practitioner reference only. Remove before filing.

Filing and Procedural Requirements

1. Timing. An ORCP 21 A motion must be filed before the responsive pleading. ORCP 21 A(1). If a further pleading is not permitted, the defense may be raised at trial. The filing of an ORCP 21 A motion tolls the time for filing a responsive pleading until the court rules on the motion.

2. Consolidation Requirement (ORCP 21 F). All available ORCP 21 A defenses must be raised in a single motion. A party who makes a motion under ORCP 21 A but omits an available defense may not make a further motion raising that defense. Exception: If the first motion is solely for lack of personal jurisdiction, insufficiency of summons/process, or insufficiency of service, other defenses are not waived under ORCP 21 G(4).

3. Waiver Rules (ORCP 21 G) -- Summary Table:

4. UTCR Timelines:
   - Response to motion: 14 days after service (UTCR 5.030(1))
   - Reply memorandum: 7 days after service of response (UTCR 5.030(2))
   - Oral argument request: Must be stated in the motion or response (UTCR 5.060)
   - The court may shorten or extend these timelines on motion for good cause.

5. Page Limits. Check county supplemental local rules (SLRs) for page limits. Key examples:
   - Multnomah County SLR 5.016: Memoranda limited to 20 pages absent leave of court
   - Washington County, Lane County, Marion County, Clackamas County: Check current SLRs; limits vary
   - All counties: Exhibits and declarations typically do not count toward the page limit

6. Font and Formatting. UTCR 2.010 requires documents to be on letter-size paper with at least 1-inch margins. Check county SLRs for specific font and size requirements (typically 12-point, double-spaced text).

7. eFiling. Most Oregon circuit courts require electronic filing through the Oregon Judicial Department eFiling system (OJD eCourt). Verify county-specific eFiling requirements and accepted file formats.

Strategic Considerations

8. Removal to Federal Court. If removal is an option, consider whether filing a state court motion to dismiss constitutes a waiver of removal rights. The 30-day removal window under 28 U.S.C. section 1446(b) runs from service of the initial pleading (or from service of an amended pleading or other paper revealing removability).

9. Personal Jurisdiction -- Jurisdictional Discovery. If jurisdictional facts are disputed, consider requesting limited jurisdictional discovery before or as an alternative to dismissal.

10. ORCP 21 D -- More Definite Statement. If the complaint is merely vague rather than wholly deficient, consider moving for a more definite statement under ORCP 21 D as an alternative to or in addition to an ORCP 21 A(1)(h) motion.

11. ORCP 21 B -- Judgment on the Pleadings. After the close of pleadings, any party may move for judgment on the pleadings. This is the post-answer analog to the ORCP 21 A motion and uses the same standard as ORCP 21 A(1)(h).

12. Anti-SLAPP (ORS 31.150) -- Key Advantages. The anti-SLAPP motion offers: (a) automatic discovery stay; (b) mandatory attorney fees for prevailing defendant; (c) immediate appeal right; and (d) its own 60-day filing deadline independent from the responsive pleading deadline.

13. Leave to Amend. Oregon courts strongly prefer granting leave to amend over dismissal with prejudice. Eklof v. Steward, 360 Or 717, 735 (2016). If you seek dismissal with prejudice, demonstrate that amendment would be futile.

14. Preserving the Record. If the motion is denied, reassert the defense in the answer. Failure to do so for defenses under ORCP 21 G(2) may result in waiver if not raised at trial.

Key Oregon Case Law

Sources and References

• Oregon Rules of Civil Procedure (ORCP): https://www.oregonlegislature.gov/bills_laws/Pages/orcp.aspx
• ORCP 21 (Defenses and Objections): https://oregon.public.law/rules/orcp_21
• Uniform Trial Court Rules (UTCR): https://www.courts.oregon.gov/programs/utcr/pages/currentrules.aspx
• ORS 31.150 (Oregon Anti-SLAPP Statute): https://oregon.public.law/statutes/ors_31.150
• ORS 31.152 (Anti-SLAPP Procedures and Fees): https://oregon.public.law/statutes/ors_31.152
• ORS 14.035 (Oregon Long-Arm Statute): https://oregon.public.law/statutes/ors_14.035
• Oregon Judicial Department eFiling System: https://www.courts.oregon.gov/services/online/pages/efiling.aspx
• Multnomah County Supplemental Local Rules: https://www.courts.oregon.gov/courts/multnomah/go/Pages/SLR.aspx
• Council on Court Procedures (ORCP History): http://www.counciloncourtprocedures.org/