The Oregon ORCP 21 motion to dismiss: nine defenses, evidence without conversion, and one free jurisdiction motion

Oregon's pre-answer motion does more work than its federal counterpart. It carries nine enumerated defenses instead of seven, it lets the court resolve most of them on evidence without turning into a summary judgment motion, and it gives one defense a free pass out of the consolidation rule that traps people everywhere else.

The nine defenses

ORCP 21 A: every defense must be asserted in the responsive pleading, with the exception of those in A(1)(a) through (i). Those "may, at the option of the pleader, be made by motion to dismiss":

(a) lack of jurisdiction over the subject matter; (b) lack of jurisdiction over the person; (c) that there is another action pending between the same parties for the same cause; (d) that plaintiff has not the legal capacity to sue; (e) insufficiency of summons or process or insufficiency of service of summons or process; (f) that the party asserting the claim is not the real party in interest; (g) failure to join a party under Rule 29; (h) failure to state ultimate facts sufficient to constitute a claim; and (i) that the pleading shows that the action has not been commenced within the time limited by statute.

Four of these have no Rule 12(b) equivalent.

(c) — another action pending. A duplicate suit between the same parties on the same cause is a free-standing ground, and it carries its own remedies. Under ORCP 21 A(2)(c), where the court grants a motion on this ground it "may enter judgment in favor of the moving party, stay the proceeding, or defer entry of judgment." Dismissal is not the only outcome.

(d) and (f) — capacity and real party in interest. Both are pre-answer motions in Oregon.

(i) — the statute of limitations. Where the pleading itself shows the action was filed too late, limitations is an enumerated ground for dismissal. Federal practice reaches the same place only through Rule 12(b)(6) and only where the defect appears on the face of the complaint; Oregon names it.

Note the wording of (h): "failure to state ultimate facts sufficient to constitute a claim." Oregon is a fact-pleading state, and the phrase is not decoration.

Plead the grounds specifically

ORCP 21 A(2)(b) opens with a requirement that is easy to skip:

The grounds on which any of the enumerated defenses are based must be stated specifically and with particularity in the responsive pleading or motion.

A motion that recites "the complaint fails to state a claim" without saying why does not comply. Nor does an answer that lists the enumerated defenses as boilerplate.

Evidence, without conversion to summary judgment

This is the provision that most separates Oregon from federal practice. The rest of ORCP 21 A(2)(b):

If, on a motion to dismiss asserting the defenses enumerated in paragraph A(1)(a) through paragraph A(1)(g) of this rule, the facts constituting the asserted defenses 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, and the court may determine the existence or nonexistence of the facts supporting the asserted defenses or may defer any determination until further discovery or until trial on the merits.

Under FRCP 12(d), outside matter on a 12(b)(6) motion converts the motion into one for summary judgment. Oregon's rule does the opposite for defenses (a) through (g): the court takes the evidence, decides the facts, and no conversion occurs.

Three consequences.

The court is a fact-finder on these motions. On personal jurisdiction, service, capacity, real party in interest and the other listed grounds, it can resolve disputed facts rather than assume the plaintiff's version.

Both sides get to submit evidence. The rule guarantees "a reasonable opportunity" — you are not ambushed by a declaration attached to the motion.

The court can wait. It may defer the determination until further discovery or until trial.

And note which defenses are left out. The evidence provision covers (a) through (g) — not (h) failure to state ultimate facts, and not (i) the limitations ground. Those two are decided on the pleading, which is why (i) is framed as "the pleading shows" the action is late.

What happens if the motion is granted

ORCP 21 A(2)(c):

If the court grants a motion to dismiss, the court may enter judgment in favor of the moving party or grant leave to file an amended complaint.

Two outcomes, and the choice is the court's. A granted motion does not automatically end the case, and it does not automatically produce leave to replead either.

For a motion granted on ground (c) — another action pending — the court may instead stay the proceeding or defer entry of judgment.

Consolidation, and the one motion that escapes it

ORCP 21 F is the trap, and it also contains the escape.

A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule, except a motion to dismiss for lack of jurisdiction over the person or insufficiency of summons or process or insufficiency of service of summons or process, but omits therefrom any defense or objection then available to the party that this rule permits to be raised by motion, the party cannot thereafter make a motion based on the defense or objection so omitted …

A party may make one motion to dismiss for lack of jurisdiction over the person or insufficiency of summons or process or insufficiency of service of summons or process without consolidation of defenses required by this section.

So a defendant may file a standalone jurisdiction-or-service motion first, without joining every other available defense to it, and without forfeiting those defenses.

That is a real advantage. A defendant contesting personal jurisdiction in most systems must decide whether to bundle merits arguments into the same motion — arguing the merits while insisting the court has no power over them. Oregon lets you take the jurisdiction question alone.

Every other ORCP 21 motion is subject to consolidation. Omit an available defense from one of those and it is gone, except for the ones ORCP 21 G(3) preserves.

Waiver

ORCP 21 G(1) — waived, and not revivable by amendment. Personal jurisdiction, another action pending, insufficiency of summons or process, and insufficiency of service are waived if omitted from a motion in the ORCP 21 F circumstances, or if neither made by motion nor included in a responsive pleading. The rule says in terms that they "cannot be raised by amendment."

Compare Washington's CR 12(h)(1) and Hawaii's Rule 12(h)(1), both of which let an as-of-course amendment save the defense. Oregon closes that door.

ORCP 21 G(2) — waived, but leave is possible on a showing. Legal capacity to sue, real party in interest, and the limitations ground are waived if neither made by motion nor included in a responsive pleading or an amendment. Leave to amend to assert them "will only be granted on a showing by the party seeking to amend that the party did not know and reasonably could not have known of the existence of the defense, or that other circumstances make denial of leave to amend unjust."

ORCP 21 G(3) — preserved. Failure to state ultimate facts constituting a claim, failure to join an indispensable party under Rule 29, and failure to state a legal defense may be made in any pleading permitted or ordered under Rule 13 B, by motion for judgment on the pleadings, or at the trial on the merits.

ORCP 21 G(4) — never waived. If it appears by motion of the parties or otherwise that the court lacks subject matter jurisdiction, "the court must dismiss the action."

The other ORCP 21 motions

Judgment on the pleadings — ORCP 21 B: after the pleadings are closed, within such time as not to delay the trial, by any party.

Preliminary hearings — ORCP 21 C: the nine enumerated defenses and a Rule 21 B motion "must be heard and determined before trial on the motion of any party," unless the court defers them to trial.

More definite and certain — ORCP 21 D: available on motion before responding, or within 10 days after service where no responsive pleading is permitted, or on the court's own initiative at any time, "when the allegations of a pleading are so indefinite or uncertain that the precise nature of the claim, defense, or reply is not apparent." If a granted order is not obeyed within 10 days, the court may strike the pleading.

Motion to strike — ORCP 21 E, on the same timing, reaching three things:

(1) any sham, frivolous, or irrelevant pleading or defense or any pleading containing more than one claim or defense not separately stated; (2) any insufficient defense or any sham, frivolous, irrelevant, or redundant matter inserted in a pleading; or (3) any response to an amended pleading, or part thereof, that raises new issues, when justice so requires.

Subsection (1)'s separate-statement ground and subsection (3)'s new-issues ground are both broader than the federal motion to strike, which reaches only insufficient defenses and redundant, immaterial, impertinent or scandalous matter.

Timing

ORCP 15 A ties the motion to the appearance period: an answer to a complaint or third-party complaint, "or a motion responsive to either pleading," must be filed within the time Rule 7 C(2) allows to appear and defend. Where the summons is served by publication, the defendant must appear and defend within 30 days of the date of first publication.

After the motion is decided — ORCP 15 B:

• if the court denies the motion, any responsive pleading required is due within 10 days after service of the order, unless the order directs otherwise;
• if the court grants the motion and an amended pleading is allowed or required, that pleading is due within 10 days after service of the order.

Ten days either way, and both run from service of the order.

How Oregon compares

A short checklist

1. Read the complaint against all nine grounds, not the federal seven. Capacity, real party in interest, a parallel action and a limitations defect are all available here.
2. If you are contesting personal jurisdiction or service, consider filing that alone. ORCP 21 F lets you, and nothing is waived by doing so.
3. For any other ORCP 21 motion, join everything available. Omission is forfeiture.
4. State the grounds specifically and with particularity. A(2)(b) requires it in the motion or the answer.
5. Bring your evidence on grounds (a) through (g). The court can find facts, and no conversion to summary judgment follows.
6. Do not expect evidence to help on (h) or (i) — those are decided on the pleading.
7. Calendar 10 days from service of the order for the pleading that follows, whichever way the motion goes.
8. If you missed a G(1) defense, it is gone. Amendment will not bring it back.

Where these rules live

• ORCP 7 — Summons
• ORCP 13 — Pleadings Allowed; Form; Construction of Pleadings
• ORCP 15 — Time for Filing Pleadings or Motions
• ORCP 21 — Defenses and Objections; How Presented
• ORCP 23 — Amended and Supplemental Pleadings
• ORCP 29 — Joinder of Persons Needed for Just Adjudication
• ORCP 47 — Summary Judgment
• ORCP 69 — Default

The Oregon Judicial Department publishes court information at courts.oregon.gov. This page explains what the rules say. It isn't legal advice.