Rule 21.Defenses and Objections; How Presented; By Pleading or Motion; Motion for Judgment on the Pleadings
Current through June 1, 2026 · Last verified July 11, 2026
In one sentenceRule 21 lists the defenses a party can raise by an early motion instead of waiting to answer, including lack of jurisdiction, improper service, and failure to state ultimate facts, and sets the deadlines, procedures, and waiver rules for raising them, plus motions to clarify or strike a pleading.
A.DEFENSES Every defense, in law or fact, to a claim for relief in any pleading, whether a complaint, counterclaim, cross-claim, or third party claim must be asserted in the responsive pleading thereto, with the exception of the defenses enumerated in paragraph A(1)(a) through paragraph A(1)(i) of this rule.
(1)The following defenses 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;
(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.
(2)How presented.
(a)Generally. A motion to dismiss asserting any of the defenses enumerated in paragraph A(1)(a) through paragraph A(1)(i) of this rule must be filed before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.
(b)Factual basis. The grounds on which any of the enumerated defenses are based must be stated specifically and with particularity in the responsive pleading or motion. 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.
(c)Remedies available. 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. If the court grants the motion to dismiss on the basis of a defense described in paragraph A(1)(c) of this rule, the court may enter judgment in favor of the moving party, stay the proceeding, or defer entry of judgment.
B.MOTION FOR JUDGMENT ON THE PLEADINGS After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings. Pleadings
C.PRELIMINARY HEARINGS The defenses specifically enumerated in paragraph A(1)(a) through paragraph A(1)(i) of this rule, whether made in a pleading or by motion, and the motion for judgment on the pleadings mentioned in section B of this rule must be heard and determined before trial on the motion of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.
D.MOTION TO MAKE MORE DEFINITE AND CERTAIN On motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, on motion by a party within 10 days after service of the pleading, or on the court's own initiative at any time, the court may require the pleading to be made definite and certain by amendment 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 the motion is granted and the order of the court is not obeyed within 10 days after service of the order, or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make any order it deems just.
E.MOTION TO STRIKE On motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, on motion made by a party within 10 days after the service of the pleading on such party or on the court's own initiative at any time, the court may order stricken:
(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.
F.CONSOLIDATION OF DEFENSES IN MOTION 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, except a motion as provided in subsection G(3) of this rule on any of the grounds there stated. 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.
(1)A defense of lack of jurisdiction over the person, that there is another action pending between the same parties for the same cause, insufficiency of summons or process, or insufficiency of service of summons or process, is waived under either of the following circumstances, and cannot be raised by amendment:
(a)if the defense is omitted from a motion in the circumstances described in section F of this rule; or
(b)if the defense is neither made by motion under this rule nor included in a responsive pleading.
(2)A defense that a plaintiff has not the legal capacity to sue, that the party asserting the claim is not the real party in interest, or that the action has not been commenced within the time limited by statute, is waived if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof. Leave of court to amend a pleading to assert the defenses referred to in this subsection 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.
(3)A defense of failure to state ultimate facts constituting a claim, a defense of failure to join a party indispensable under Rule 29, and an objection of failure to state a legal defense to a claim or insufficiency of new matter in a reply to avoid a defense, may be made in any pleading permitted or ordered under Rule 13 B, [or] by motion for judgment on the pleadings, or at the trial on the merits. The objection or defense, if Pleadings made at trial, will be disposed of as provided in Rule 23 B in light of any evidence that may have been received.
(4)If it appears by motion of the parties or otherwise that the court lacks jurisdiction over the subject matter, the court must dismiss the action.
Amendment History
[CCP 12/2/78; §§ F, G amended by 1979 c.284 §§ 15, 16; § F amended by CCP 12/13/80; § A amended by CCP 12/4/82; § E amended by 1983 c.763 § 58; § E amended by CCP 12/8/84; § G amended by 1987 c.714 § 6; § G amended by 1995 c.658 § 118 7/18/95; § A amended by CCP 12/9/2000, eff. 1/1/2002; § A amended by 2003 c.194 § 8 eff. 1/1/04; § A amended by CCP 12/11/10 eff. 1/1/12; §§ A, C, D, E, F, G amended by CCP 12/12/20 eff. 1/1/22.]
Plain-English Summary
Most defenses to a claim have to go in the responsive pleading — the answer to a complaint, or the response to a counterclaim, cross-claim, or third party claim. Rule 21 carves out nine defenses that a party can instead raise by an early motion to dismiss, before ever filing that responsive pleading: lack of subject matter jurisdiction, lack of personal jurisdiction, another action already pending between the same parties for the same claim, the plaintiff’s lack of legal capacity to sue, insufficient summons or process or insufficient service of either, that the party asserting the claim is not the real party in interest, failure to join a party required under Rule 29, failure to state ultimate facts sufficient to constitute a claim, and that the pleading itself shows the action was not brought within the time a statute allows. The point of pulling these out is efficiency: rather than answer a complaint that might get thrown out anyway, a defendant can ask the court to resolve a threshold, potentially case-ending problem first. A motion asserting any of these defenses generally must be filed before any further pleading, and raising several of them together in one motion or pleading does not waive any of them.
Whoever raises one of these defenses has to state the grounds specifically and with particularity, not in general terms. For most of them — everything except failure to state ultimate facts and an on-its-face statute of limitations problem — if the supporting facts are not apparent from the pleading itself and a party puts in affidavits, declarations, or other evidence, the court gives every party a reasonable opportunity to respond with evidence of its own. The court can then resolve the factual dispute on the spot, put off a ruling until after more discovery, or wait until trial. If the court grants the motion, it can enter judgment for the moving party or give the other side leave to file an amended pleading; when the ground for dismissal is that another action is already pending between the same parties, the court has extra flexibility — it can enter judgment, stay the case, or defer entering judgment while the other action plays out.
Rule 21 also covers several related motions. After the pleadings close, but with enough time left to avoid delaying trial, any party can move for judgment on the pleadings. All nine threshold defenses, however raised, along with a motion for judgment on the pleadings, must be heard and decided before trial unless the court orders the hearing deferred to trial itself. Separately, a party facing a pleading so vague or indefinite that its claim, defense, or reply is not apparent can move to make it more definite and certain, and if the court agrees and its order is not obeyed within 10 days, the court can strike the pleading or make whatever order it finds just. A related motion to strike lets a party target sham, frivolous, or irrelevant material; an insufficient defense; redundant matter; multiple claims or defenses crammed together without being separately stated; or a response to an amended pleading that improperly raises new issues.
Timing matters more for some of these defenses than others. Lack of personal jurisdiction, another action pending, and insufficient summons, process, or service are waived — permanently, with no fix by amendment — if a party leaves them out of an initial motion that raises other Rule 21 defenses, or fails to raise them by motion or in the responsive pleading at all; the one exception is that a party may bring a single motion challenging personal jurisdiction or service without folding in every other available defense. Lack of capacity to sue, not being the real party in interest, and an on-its-face statute of limitations problem follow a looser rule: they are waived only if they never surface in a motion or in the responsive pleading at all, and even then, a court can allow a late amendment adding one if the party did not know, and could not reasonably have known, that the defense existed, or if fairness otherwise calls for it. Failure to state ultimate facts, failure to join an indispensable party, and an objection that a reply fails to state a legal defense or does not do enough to overcome a defense in the answer are not on the clock at all — a party can raise any of them in a later pleading, in a motion for judgment on the pleadings, or at trial. And a challenge to the court’s subject matter jurisdiction can never be waived: if it appears at any point, by motion or otherwise, that the court lacks it, the court must dismiss the action.
Frequently Asked Questions
What defenses can I raise by a motion to dismiss in an Oregon lawsuit?
ORCP 21 A(1) lists nine: lack of subject matter jurisdiction, lack of personal jurisdiction, another action already pending between the same parties for the same claim, the plaintiff’s lack of legal capacity to sue, insufficient summons or process or insufficient service of either, that the party asserting the claim is not the real party in interest, failure to join a party required under Rule 29, failure to state ultimate facts sufficient to constitute a claim, and that the pleading shows on its face that the action was not commenced within the time a statute allows.
Does Oregon have a motion like the federal motion to dismiss for failure to state a claim?
Yes. ORCP 21 A(1)(h) lets a party move to dismiss for failure to state ultimate facts sufficient to constitute a claim. Oregon pleading requires a party to allege the ultimate facts behind a claim — the underlying operative facts, not legal conclusions or a recitation of evidence — so this motion tests whether the pleading, taken as true, adds up to a legal claim.
Can the court look at evidence outside the pleadings on a motion to dismiss?
For most of the threshold defenses in Rule 21 — everything except failure to state ultimate facts and an on-its-face limitations problem — yes. If the supporting facts are not apparent from the pleading and a party submits affidavits, declarations, or other evidence, ORCP 21 A(2)(b) gives every party a reasonable opportunity to respond with evidence of its own, and lets the court decide the factual dispute immediately, defer it pending further discovery, or wait until trial.
What happens if I leave a defense out of my first motion to dismiss?
It depends on which defense. Under ORCP 21 F and G(1), a defense of lack of personal jurisdiction, another action pending, or insufficient summons, process, or service is waived for good if it is left out of an initial motion raising other Rule 21 defenses, or is never raised by motion or in the responsive pleading — though a party may still bring one motion challenging personal jurisdiction or service on its own, without folding in every other defense. Failure to state ultimate facts, by contrast, is not lost this way; it can be raised later in a pleading, by a motion for judgment on the pleadings, or at trial.
Can a defendant ever waive a challenge to the court’s subject matter jurisdiction?
No. Under ORCP 21 G(4), if it appears at any point in the case — by motion or otherwise — that the court lacks subject matter jurisdiction, the court must dismiss the action. This defense is never waived, no matter how late it surfaces.
What can the court do if another lawsuit between the same parties is already pending?
ORCP 21 A(2)(c) gives the court more than one option when it dismisses on that ground: it can enter judgment for the moving party, stay the current case while the other one proceeds, or defer entering judgment until the other action is resolved.
Source & verification. The rule text is reproduced verbatim from the
official Oregon Rules of Civil Procedure (ORCP 21). Prescribed by the Council on Court Procedures (ORS 1.735), subject to amendment, repeal, or supplementation by the Oregon Legislative Assembly. The plain-English summary is original and written by us. Last verified July 11, 2026. ·
Official source
Also known as:motion to dismiss in oregonoregon 12(b)(6) equivalentfailure to state a claim oregonMTD oregon lawsuitmotion for judgment on the pleadings oregonwaiving a jurisdiction defense in oregonoregon motion to strike a pleading