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Marineau v. A. P. Green Refractories Co.9/28/2005
authority to require by general order a level of pleading or discovery different from that provided for in the Rules of Civil Procedure."
The second footnote states,
"For the sake of preserving an argument that this Court has previously rejected, plaintiff asserts that the extent of a court's authority to dismiss an action for failing to follow a court order is defined by the source of authority to issue the underlying order. Although this Court may have authority to issue the General Order as a substitute for the Rule 21 process, authority to dismiss a case for lack of compliance would be limited to the circumstances under which Rule 21 permits dismissal--namely an individualized determination that the allegations are not sufficiently definite and certain followed by a failure to correct that insufficiency. If the General Order is, instead, based on the court's inherent power recognized in ORS 1.010, dismissal is not a permitted sanction at all."
Based on the above material and the transcript of oral argument, we understand plaintiff not to have contested below the trial court's authority to promulgate a general order that applies to asbestos cases. Rather, plaintiff's argument to the trial court appears to have been that any enforcement of the General Order must be consistent with the Oregon Rules of Civil Procedure. We agree with that proposition. ORCP 1 D provides, in part, that the Oregon Rules of Civil Procedure "do not preclude a court in which they apply from regulating pleading, practice and procedure in any manner not inconsistent with these rules." Plaintiff urges therefore that the trial court erroneously exercised its authority by granting summary judgment to defendant without giving her an additional opportunity to correct any insufficiency in the complaint. Because that issue is the only issue raised in the trial court regarding its authority to dismiss plaintiff's complaint, we reject plaintiff's other contentions made on appeal for lack of preservation.
Under the Oregon Rules of Civil Procedure, a plaintiff can amend a complaint without leave of the court "at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted, the party may so amend it at any time within 20 days after it is served." ORCP 23 A. A defendant is required to file a motion or answer to the complaint within 30 days from the date of service. ORCP 15 A; ORCP 7 C(2). Under the General Order, plaintiff was permitted to file a product identification report--essentially amending her complaint--" y not later than 60 days after filing the complaint or 10 days after service of process, whichever is later[.]" Further, plaintiff was permitted under the General Order to amend the product identification report "by not later than 105 days before trial." Court permission was not required for either filing. The General Order's provisions for plaintiff to amend without leave of the court are consistent with, although more generous than, the Oregon Rules of Civil Procedure. Therefore, plaintiff cannot reasonably complain that the trial court was required to give her an additional opportunity to correct the insufficiency in her pleading to be consistent with the Oregon Rules of Civil Procedure. Plaintiff also argues that ordinarily she would have the opportunity to amend her complaint in response to a motion to make more definite and certain pursuant to an ORCP 21 D motion. However, the product identification report supplants the need for an ORCP 21 D motion and, therefore, the General Order is not "inconsistent" with the Oregon Rules of Civil Procedure.
Having found no inconsistency between the General Order and the Oregon Rules o
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