Judicial Seal

Rule Amendments

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PROPOSED AMENDMENTS
TO
OREGON RULES OF CIVIL PROCEDURES

The Council on Court Procedures is considering whether or not to promulgate the following proposed amendments to the Oregon Rules of Civil Procedure. Bold-face (with underlining) denotes new language; italicized language within brackets indicates language to be deleted.

Comments regarding the proposed amendments to the Oregon Rules of Civil Procedure may be sent to:

Maurice J. Holland
Executive Director
Council on Court Procedures
1221 University of Oregon
School of Law
Eugene, OR 97403-1221

The Council meeting at which the Council will receive comments from the public relating to the proposed amendments will be held commencing at 9:30 a.m. on the following date and place:
December 12, 1998 Oregon State Bar Center
5200 Southwest Meadows Road
Lake Oswego, Oregon

The Council will take final action on the proposed amendments at the December 12, 1998 meeting.

SUMMONS
RULE 7

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D Manner of service.

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D(2) Service methods.

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D(2)(b) Substituted service. Substituted service may be made by delivering a true copy of the summons and the complaint at the dwelling house or usual place of abode of the person to be served, to any person [over] 14 years of age or older residing in the dwelling house or usual place of abode of the person to be served. Where substituted service is used, the plaintiff, as soon as reasonably possible, shall cause to be mailed, by first class mail, a true copy of the summons and the complaint to the defendant at defendant's dwelling house or usual place of abode, together with a statement of the date, time, and place at which substituted service was made. For the purpose of computing any period of time prescribed or allowed by these rules or by statute, substituted service shall be complete upon such mailing.

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E By whom served; compensation. A summons may be served by any competent person 18 years of age or older who is a resident of the state where service is made or of this state and is not a party to the action nor, except as provided in ORS 180.260, an officer, director, or employee of, nor attorney for, any party, corporate or otherwise. However, service pursuant to subparagraph D(2)(d)(i) of this rule may be made by an attorney for any party. Compensation to a sheriff or a sheriff's deputy in this state who serves a summons shall be prescribed by statute or rule. If any other person serves the summons, a reasonable fee may be paid for service. This compensation shall be part of disbursements and shall be recovered as provided in Rule 68.

{NOTE: The Council on Court Procedures is considering whether to promulgate the amendment to ORCP 7 D(3) shown below authorizing mail agent service as therein provided, and whether, if the amendment is promulgated, there should also be promulgated a new subsection 69 A(3), shown below, which would require an affidavit, as therein described, in support of a motion for default judgment when service was made pursuant to subparagraph 7 D(3)(a)(iv).}

SUMMONS
RULE 7

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D Manner of service.

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D(3) Particular defendants. Service may be made upon specified defendants as follows:

D(3)(a) Individuals.

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D(3)(a)(iv) Tenant of a mail agent. Upon an individual defendant who is a "tenant" of a "mail agent" within the meaning of ORS 646.221 by delivering a true copy of the summons and the complaint to any person apparently in charge of the place where the mail agent receives mail for the tenant, provided that:

(A) the plaintiff makes a diligent inquiry but cannot find the defendant; and

(B) the plaintiff, as soon as reasonably possible after delivery, causes a true copy of the summons and the complaint to be mailed by first class mail to the defendant at the address at which the mail agent receives mail for the defendant and to any other mailing address of the defendant then known to the plaintiff, together with a statement of the date, time, and place at which the plaintiff delivered the copy of the summons and the complaint.

Service shall be complete on the latest date resulting from the application of subparagraph D(2)(d)(ii) of this rule to all mailings required by this subparagraph unless the defendant signs a receipt for the mailing, in which case service is complete on the day the defendant signs the receipt.

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DEFAULT ORDERS AND JUDGMENTS

RULE 69

A Entry of order of default.

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A(3) Mail agent service. Notwithstanding subsection A(1) of this section, no default shall be entered against a defendant served with summons pursuant to subparagraph D(3)(a)(iv) of Rule 7 unless the plaintiff shows by affidavit that the plaintiff has conducted a diligent inquiry and cannot find the defendant and has accomplished the mailings required by that subparagraph. The affidavit shall not limit any showing by the plaintiff in any proceeding to set aside an order or judgment of default.

DEPOSITIONS UPON ORAL EXAMINATION
RULE 39

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[D Examination and cross-examination; record of examination; oath; objections. Examination and cross-examination of witnesses may proceed as permitted at the trial. The person described in Rule 38 shall put the witness on oath. The testimony of the witness shall be recorded either stenographically or as provided in subsection C(4) of this rule. If testimony is recorded pursuant to subsection C(4) of this rule, the party taking the deposition shall retain the original recording without alteration, unless the recording is filed with the court pursuant to subsection G(2) of this rule, until the final disposition of the action. If requested by one of the parties, the testimony shall be transcribed upon the payment of the reasonable charges therefor. All objections made at the time of the examination to the qualifications of the person taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted upon the record. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions on the party taking the deposition who shall propound them to the witness and see that the answers thereto are recorded verbatim.]

D Examination; record; oath; objections.

D(1) Examination; cross-examination; oath. Examination and cross-examination of deponents may proceed as permitted at trial. The person described in Rule 38 shall put the deponent on oath.

D(2) Record of examination. The testimony of the deponent shall be recorded either stenographically or as provided in subsection C(4) of this rule. If testimony is recorded pursuant to subsection C(4) of this rule, the party taking the deposition shall retain the original recording without alteration, unless the recording is filed with the court pursuant to subsection G(2) of this rule, until final disposition of the action. Upon request of a party or deponent and payment of the reasonable charges therefor, the testimony shall be transcribed.

D(3) Objections. All objections made at the time of the examination shall be noted on the record. A party or deponent shall state objections concisely and in a non-argumentative and non-suggestive manner. Evidence shall be taken subject to the objection, except that a party may instruct a deponent not to answer a question, and a deponent may decline to answer a question, only:

(a) when necessary to present or preserve a motion under section E of this rule;

(b) to enforce a limitation on examination ordered by the court; or

(c) to preserve a privilege or constitutional or statutory right.

D(4) Written questions as alternative. In lieu of participating in an oral examination, parties may serve written questions on the party taking the deposition who shall propound them to the deponent on the record.

[E Motion to terminate or limit examination. At any time during the taking of a deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted or hindered in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or any party, the court in which the action is pending or the court in the county where the deposition is being taken shall rule on any question presented by the motion and may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 36 C. Those persons described in Rule 46 B(2) shall present the motion to the court in which the action is pending. Non-party deponents may present the motion to the court in which the action is pending or the court at the place of examination. If the order terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent,the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 46 A(4) apply to the award of expenses incurred in relation to the motion.]

E Motion for court assistance; expenses.

E(1) Motion for court assistance. At any time during the taking of a deposition, upon motion and a showing by a party or a deponent that the deposition is being conducted or hindered in bad faith, or in a manner not consistent with these rules, or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or any party, the court may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope or manner of the taking of the deposition as provided in section C of Rule 36. The motion shall be presented to the court in which the action is pending, except that non-party deponents may present the motion to the court in which the action is pending or the court at the place of examination. If the order terminates the examination, it shall be resumed thereafter only on order of the court in which the action is pending. Upon demand of the moving party or deponent, the parties shall suspend the taking of the deposition for the time necessary to make a motion under this subsection.

E(2) Allowance of expenses. Subsection A(4) of Rule 46 shall apply to the award of expenses incurred in relation to a motion under this section.

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SUBPOENA
RULE 55

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I Medical records.

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I(2) Manner of service. If a patient or health care recipient is represented by an attorney, a true copy of a subpoena duces tecum for medical records of a patient or health care recipient must be served on the attorney for the patient or health care recipient [at least 15] not less than 14 days before the subpoena is served on a custodian or other keeper of medical records. Upon a showing of good cause, the court may shorten or lengthen the [15-day] 14-day period. Service on the attorney for a patient or health care recipient under this section may be made in the manner provided by Rule 9 B. If the patient or health care recipient is not represented by an attorney, service of a true copy of the subpoena must be made on the patient or health care recipient [at least 15] not less than 14 days before the subpoena is served on the custodian or other keeper of medical records. Upon a showing of good cause, the court may shorten or lengthen the [15-day] 14-day period. Service on a patient or health care recipient under this section must be made in the manner specified by Rule 7 D(3)(a) for service on individuals.

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ALLOWANCE AND TAXATION OF ATTORNEY FEES AND COSTS
AND DISBURSEMENTS
RULE 68

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C(4)(c) Hearing on objections.

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C(4)(c)(ii) The court shall deny or award in whole or in part the amounts sought as attorney fees or costs and disbursements. [No findings of fact or conclusions of law shall be necessary.]

{NOTE: The Council on Court Procedures is considering whether to promulgate either Alternative 1 or 2 as proposed new paragraph

68 C(4)(e), or neither of them.}

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Alternative 1

C(4)(e) Findings and conclusions. On the written request of a party, the court shall make special findings of fact and state its conclusions of law on the record regarding the issues material to the award or denial of attorney fees. A party shall make any requests for findings and conclusions pursuant to this paragraph within seven days of the last date for filing objections to a statement unless the court permits a later request. In the absence of a request under this paragraph, the court may make either general or special findings of fact and may state its conclusions of law regarding fees.

Alternative 2

C(4)(e) Findings and conclusions. On the request of a party, the court shall make special findings of fact and state its conclusions of law on the record regarding the issues material to the award or denial of attorney fees. A party shall make a request pursuant to this paragraph by including a request for findings and conclusions in the title of the statement of attorney fees or costs and disbursements or objections filed pursuant to paragraph (a) or (b) of this subsection. In the absence of a request under this paragraph, the court may make either general or special findings of fact and may state its conclusions of law regarding fees.

{NOTE: Both alternatives above include the proposed amendment to C(4)(c)(ii) above.}

FORM AND ENTRY OF JUDGMENT
RULE 70

{Note: The proposed amendments to paragraph 70 A(2)(a) shown below will be proposed by the Bar to the 1999 Legislative Assembly. The Council might also promulgate these amendments, so they are published here for the purpose of obtaining comments prior to such action by the Council.}

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[A(2)(a) Money judgment; contents. Money judgments are judgments that require the payment of money, including judgments for the payment of costs or attorney fees. The requirements of this subsection are not jurisdictional for purposes of appellate review. Money judgments shall include all of the following:

A(2)(a)(i) The names of the judgment creditor and the creditor's attorney.

A(2)(a)(ii) The name of the judgment debtor.

A(2)(a)(iii) The amount of the judgment.

A(2)(a)(iv) The interest owed to the date of the judgment, either as a specific amount or as accrual information, including the rate or rates of interest, the balance or balances upon which interest accrues, the date or dates from which interest at each rate on each balance runs, and whether interest is simple or compounded and, if compounded, at what intervals.

A(2)(a)(v) Post-judgment interest accrual information, including the rate or rates of interest, the balance or balances upon which interest accrues, the date or dates from which interest at each rate on each balance runs, and whether interest is simple or compounded and, if compounded, at what intervals.

A(2)(a)(vi) For judgments that accrue on a periodic basis, any accrued arrearages, required further payments per period and accrual dates.

A(2)(a)(vii) If the judgment awards costs and disbursements or attorney fees, that they are awarded and any specific amounts awarded. This paragraph does not require inclusion of specific amounts where such will be determined later under Rule 68 C.]

A(2)(a) Money judgment; contents. Money judgments are judgments that require the payment of money, including judgments for the payment of costs or attorney fees. The requirements of this paragraph are not jurisdictional for purposes of appellate review. Money judgments shall include all of the following:

A(2)(a)(i) The name and address of each judgment creditor and the creditor's attorney's name, address and phone number.

A(2)(a)(ii) The names of any persons or governmental bodies, other than the judgment creditor's attorney, who are entitled to any portion of a payment made on the judgment.

A(2)(a)(iii) The name of each judgment debtor and, if known, the judgment debtor's address, date of birth, social security number, driver's license number and issuing state, and the name of the judgment debtor's attorney.

A(2)(a)(iv) The amount of the judgment.

A(2)(a)(v) The interest owed to the date of the judgment, either as a specific amount or as accrual information, including the rate or rates of interest, the balance or balances upon which interest accrues, the date or dates from which interest at each rate on each balance runs, and whether interest is simple or compounded and, if compounded, at what intervals.

A(2)(a)(vi) Post-judgment interest accrual information, including the rate or rates of interest, the balance or balances upon which interest accrues, the date or dates from which interest at each rate on each balance runs, and whether interest is simple or compounded and, if compounded, at what intervals.

A(2)(a)(vii) For judgments that accrue on a periodic basis, any accrued arrearages, required further payments per period and accrual dates.

A(2)(a)(viii) If the judgment awards costs and disbursements or attorney fees, that they are awarded and any specific amounts awarded. This subparagraph does not require inclusion of specific amounts where such will be determined later under section C of Rule 68kl.

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