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Winfrey v. Downtown Delicatessen12/16/1998
ORCP 46 B is the source of a trial court's authority to impose sanctions on a party for noncompliance with discovery obligations. Subsection 2 of the rule addresses non-monetary sanctions (e.g., evidentiary limitations, stay of proceedings, holding the disobedient party in contempt), stating that such sanctions may be imposed only by the court "in which the action is pending." Subsection 3 addresses monetary sanctions:
"In lieu of any order listed in subsection (2) of this section or in addition thereto, the court shall require the party failing to obey the order or the attorney advising such party or both to pay the reasonable expenses * * * caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust."
In substance, subsection 3 requires the court to impose monetary sanctions in addition to or in lieu of non-monetary ones, unless doing so would be unjust. Thus, the statute is a grant of complementary sanctioning authority. Necessarily, the two subsections refer to the same court. The key language, then, is the language in subsection 2 that confers sanctioning authority on the court "in which the action is pending." If the action is no longer pending, the court no longer has authority to rule on a motion for sanctions.
Here, judgment had been entered more than three weeks before plaintiff filed the motion for sanctions. Consequently, plaintiff's motion was untimely, not because it was filed after the 14-day time period imposed by ORCP 68, but because it was not filed while the action was pending in the trial court. State v. Hilborn, 299 Or 608, 611, 705 P2d 192 (1985) (an action is considered pending from its inception until the rendition of a final judgment). Accord In re Thompson, 325 Or 467, 472 n 1, 940 P2d 512 (1997). The trial court therefore had no authority to consider the motion.
Judgment affirmed; supplemental judgment denying plaintiff's motion for costs, attorney fees, and sanctions vacated.
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