In Wells Fargo v Clark, No. A162461, the Oregon Court of Appeals held that defendants may file an answer and counterclaim even while their ORCP 21 A motion to dismiss is still pending.  In this case, on the morning of the hearing on the defendants’ motion to dismiss, the defendants filed an answer to the plaintiff’s complaint and counterclaims.  The same morning, the plaintiff filed a notice of voluntary dismissal.  The trial court ruled that the answer and counterclaims were “a legal nullity,” on the theory that parties are not allowed to file a motion to dismiss and an answer at the same time.  The Oregon Court of Appeals disagreed, holding that nothing in the Oregon Rules of Civil Procedure prevents a defendant from filing a responsive pleading or counterclaim while its motion to dismiss is still pending.

This opinion has potential implications in any case in which the plaintiff may seek to voluntarily dismiss its claims without the defendant’s consent while a motion to dismiss is pending. ORCP 54 A(1) provides that a plaintiff can voluntarily dismiss its claims without order of the court merely by filing and serving a notice of dismissal “if no counterclaim has been pleaded.”

In Wells Fargo Bank v. Clark, the Oregon Court of Appeals systematically examined each of the rules that the plaintiff contended prevents a defendant from simultaneously filing a motion to dismiss and an answer and counterclaims.

First, the Court of Appeals held that ORCP 21 does not suggest, implicitly or explicitly, that a motion to dismiss must be ruled on before a responsive pleading may be filed. The court concluded that the requirement that an ORCP 21 A motion be filed before any responsive pleading affects only whether it is proper to bring the motion to dismiss, not whether the responsive pleading (here, an answer and counterclaims) is valid.  Indeed, the court noted that ORCP 21 C permits a circuit court to defer ruling on the motion to dismiss until trial, implying that the rules contemplate filing responsive pleadings under those circumstances while the motion to dismiss remains pending.

Nor does ORCP 21 A’s authorization for the trial court to enter judgment after granting a motion to dismiss preclude a defendant from filing a counterclaim while the motion to dismiss is pending, according to this decision. The Court of Appeals observed that a trial court might enter a limited judgment on only some of the plaintiffs’ claims, while permitting the plaintiffs’ remaining claims and any counterclaims to proceed.

Next, the Court of Appeals held that nothing in ORCP 19 and ORCP 22—governing responsive pleadings and counterclaims—affects a defendant’s ability to file an answer and counterclaim while a motion to dismiss is pending.

Finally, the Court of Appeals held that ORCP 15, which supplies the deadlines for required responsive pleadings, does not address when a defendant may file a counterclaim, which it holds is not a required pleading.    Even as to a required responsive pleading, the court held that ORCP 15 does not prevent a party from filing before the event that triggers the pleading deadline, namely, the denial of a motion to dismiss.

The Wells Fargo court expressly declined to address what effect filing an answer has on the pending motion to dismiss.

The statements and views expressed in this posting are my own and do not reflect those of my law firm, are intended for general informational purposes only, and do not constitute legal advice or legal opinion.