69th
OREGON LEGISLATIVE ASSEMBLY--1997 Regular Session
NOTE: Matter within { + braces and plus signs
+ } in an
amended section is new. Matter within { - braces and
minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2242
House Bill 2946
Sponsored by COMMITTEE ON JUDICIARY
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Provides that person who tenders offer of compromise in civil
action may recover attorney fees, expert witness fees and
prevailing party fees if offer is not accepted and claimant
fails
to recover more than offered amount after trial.
A BILL FOR AN ACT
Relating to offers of compromise; creating new provisions; and
amending ORCP 54.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORCP 54 is amended to read:
A Voluntary dismissal; effect thereof.
A(1) By plaintiff; by stipulation. Subject to the provisions of
Rule 32 D and of any statute of this state, an action may be
dismissed by the plaintiff without order of court (a) by filing
a
notice of dismissal with the court and serving such notice on
the
defendant not less than five days prior to the day of trial if
no
counterclaim has been pleaded, or (b) by filing a stipulation of
dismissal signed by all adverse parties who have appeared in the
action. Unless otherwise stated in the notice of dismissal or
stipulation, the dismissal is without prejudice, except that a
notice of dismissal operates as an adjudication upon the merits
when filed by a plaintiff who has once dismissed in any court of
the United States or of any state an action against the same
parties on or including the same claim unless the court directs
that the dismissal shall be without prejudice. Upon notice of
dismissal or stipulation under this subsection, the court shall
enter a judgment of dismissal.
A(2) By order of court. Except as provided in subsection (1) of
this section, an action shall not be dismissed at the
plaintiff's
instance save upon judgment of dismissal ordered by the court
and
upon such terms and conditions as the court deems proper. If a
counterclaim has been pleaded by a defendant prior to the
service
upon the defendant of the plaintiff's motion to dismiss, the
defendant may proceed with the counterclaim. Unless otherwise
specified in the judgment of dismissal, a dismissal under this
subsection is without prejudice.
A(3) Costs and disbursements. When an action is dismissed under
this section, the judgment may include any costs and
disbursements, including attorney fees, provided by rule or
statute. Unless the circumstances indicate otherwise, the
dismissed party shall be considered the prevailing party.
B Involuntary dismissal.
B(1) Failure to comply with rule or order. For failure of the
plaintiff to prosecute or to comply with these rules or any
order
of court, a defendant may move for a judgment of dismissal of an
action or of any claim against such defendant.
B(2) Insufficiency of evidence. After the plaintiff in an
action tried by the court without a jury has completed the
presentation of plaintiff's evidence, the defendant, without
waiving the right to offer evidence in the event the motion is
not granted, may move for a judgment of dismissal on the ground
that upon the facts and the law the plaintiff has shown no right
to relief. The court as trier of the facts may then determine
them and render judgment of dismissal against the plaintiff or
may decline to render any judgment until the close of all the
evidence. If the court renders judgment of dismissal with
prejudice against the plaintiff, the court shall make findings
as
provided in Rule 62.
B(3) Dismissal for want of prosecution; notice. Not less than
60 days prior to the first regular motion day in each calendar
year, unless the court has sent an earlier notice on its own
initiative, the clerk of the court shall mail notice to the
attorneys of record in each pending case in which no action has
been taken for one year immediately prior to the mailing of such
notice, that a judgment of dismissal will be entered in each
such
case by the court for want of prosecution, unless on or before
such first regular motion day, application, either oral or
written, is made to the court and good cause shown why it should
be continued as a pending case. If such application is not made
or good cause shown, the court shall enter a judgment of
dismissal in each such case. Nothing contained in this
subsection
shall prevent the dismissal by the court at any time, for want
of
prosecution of any action upon motion of any party thereto.
B(4) Effect of judgment of dismissal. Unless the court in its
judgment of dismissal otherwise specifies, a dismissal under
this
section operates as an adjudication without prejudice.
C Dismissal of counterclaim, cross-claim, or third party claim.
The provisions of this rule apply to the dismissal of any
counterclaim, cross-claim, or third party claim.
D Costs of previously dismissed action.
D(1) If a plaintiff who has once dismissed an action in any
court commences an action based upon or including the same claim
against the same defendant, the court may make such order for
the
payment of any unpaid judgment for costs and disbursements
against plaintiff in the action previously dismissed as it may
deem proper and may stay the proceedings in the action until the
plaintiff has complied with the order.
D(2) If a party who previously asserted a claim, counterclaim,
cross-claim or third party claim that was dismissed with
prejudice subsequently makes the same claim, counterclaim,
cross-claim or third party claim against the same party, the
court shall enter a judgment dismissing the claim, counterclaim,
cross-claim or third party claim and may enter a judgment
requiring the payment of reasonable attorney fees incurred by
the
party in obtaining the dismissal.
E Compromise; effect of acceptance or rejection. 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 - }
{ +
30 + } 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. { + The party asserting the claim may
accept
the offer in the manner specified in this section at any time
within 30 days after the offer is made. The court may extend the
period during which an offer may be accepted by an additional
period of up to 30 days if the court determines that the party
against whom the claim has been made has unreasonably resisted
efforts to obtain discovery during the 30-day period following
the making of the offer. + } If the party asserting the claim
accepts the offer, the party asserting the claim or such party's
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 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
{ + reasonable attorney fees, reasonable expert witness fees,
prevailing party fees and + } costs and disbursements { -
, not
including prevailing party fees, from the time of - } { +
incurred by the party against whom the claim was asserted
after + } the service of the offer. { + For the purpose of
determining whether the party asserting the claim failed to
obtain a more favorable judgment, the court shall not consider
any attorney fees awarded to the claimant. + }
SECTION 2. { + The amendments to ORCP 54 by section 1 of this
Act apply only to actions commenced on or after the effective
date of this Act. + }
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