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Guerin v. Beamer9/29/1999
to file a notice of dismissal subject to the provisions of ORCP 47, which suggests that a plaintiff's right to dismiss his or her action trumps a defendant's right to pursue a pending summary judgment motion to completion. See Frohnmayer v. SAIF, 294 Or 570, 577-78, 660 P2d 1061 (1983) (when the legislature specifies one exception, it impliedly excludes others). On the other hand, the Supreme Court has held that a summary judgment proceeding constitutes a trial for the purposes of ORCP 64, Carter v. U.S. National Bank, 304 Or 538, 544, 747 P2d 980 (1987), and the legislature could have intended that the term "trial" in ORCP 54 would be interpreted the same way. Under that view, a plaintiff who wanted to dismiss his or her action would have to file and serve a notice of dismissal at least five days before the hearing on the defendant's summary judgment motion--something plaintiffs did not do here.
Because there are two plausible interpretations, we look to the legislative history of the rules. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993). Before the rules of civil procedure were adopted, former ORS 18.230 provided for a voluntary non-suit, as a matter of right, "on motion of the plaintiff iled with the court and served on the defendant not less than five days prior to the day of trial if no counterclaim has been pleaded." Or Laws 1967, ch 466, ยง 1. As initially drafted, ORCP 54 A changed both the terminology and the terms on which a plaintiff could dismiss his or her action; it provided that a plaintiff could file a notice of dismissal, as a matter of right, if no answer or motion for summary judgment had been filed. See Memorandum to the Council on Court Procedures, July 19, 1978, p 1.
When the draft rules were circulated among the bar for Discussion, ORCP 54 A(1) provoked a significant response. See Memorandum to the Council on Court Procedures, October 30, 1978, p 1. After considering the bar's response,
"the Council [on Court Procedures] voted unanimously to amend Rule 54 A.(1) to provide that plaintiff can take a dismissal on the condition that a motion is made five days before the time set for trial. The question was raised whether a non-prejudicial dismissal should be allowed after a summary judgment motion was filed by defendant. It was suggested that the right to a voluntary non-prejudicial dismissal could be limited when a summary judgment was pending, but it was unclear how a motion for partial summary judgment would be treated. The Executive Director was asked to provide alternative versions of [Rule] 54 A.(1) for Council consideration." Minutes, Council on Court Procedures, October 12, 1978, p 1-2.
In response to the Council's request, the executive director drafted two alternatives for the Council to consider. Memorandum to the Council on Court Procedures, October 30, 1978, pp 1-2. The first alternative essentially tracked former ORS 18.230. It provided that a plaintiff could dismiss an action "by filing a notice of dismissal with the court and serving such motion on the defendant not less than five days prior to the day of trial if no counterclaim has been pleaded." Id. The second alternative imposed an additional condition on a plaintiff's ability to file a notice of dismissal. See id. at 2-3. It provided that a plaintiff could dismiss an action "by filing a notice of dismissal with the court and serving such notice on defendant not less than five days prior to the day of trial if no counterclaim has been pleaded and no summary judgment motion seeking summary judgment in favor of an adverse party is pending or no summary judgment adverse to the plaintiff has been filed." Id. The executive director's memorandum explained
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