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You Only
Live Twice:
Reinstate, Refile, Request for Trial De Novo
May 2006
James Bond wasted no time. Three minutes into the movie,
and he was already in the company of a beautiful
companion. As 007 engaged in suggestive small talk, the
mysterious woman rose and walked across the room to the
door.
A quick flip of a secret switch, and the Murphy bed
sprung shut. Bond found himself trapped between the
mattress and the wall, as a gang of masked killers burst
into the room, riddling the bed with bullets.
Cut to the street. Whining sirens and flashing lights
hailed the arrival of the Hong Kong police, who, after a
summary inspection, declared to the delight of his
enemies that James Bond was dead.
Of course, James Bond was not dead. He was only playing
possum, and was in fact actively engaged in causing
mischief.
As defense counsel, we have a license to kill flawed
claims, and we often exert a great degree of effort to
quash cases that fail to conform to statutory
guidelines. We are always relieved to receive notice
that a case has been dismissed, for whatever reason.
Unfortunately, like the martini-swilling British spy,
some cases fail to die permanently.
“No, Mr. Bond, I expect
you to die”
-Goldfinger
We
expect poorly-crafted or mismanaged cases to die. Cases
that are not pushed along by plaintiff, or that fail to
meet certain statutory requirements will not last long
on the docket. With effort and luck, we can sometimes
make ill-drafted claims disappear as well.
Unfortunately, not all judgments of dismissal are
final, especially judgments without prejudice. “Without
prejudice” simply means that the parties’ ultimate
rights have not been adjudicated and there is no bar to
further action.
In such cases, plaintiffs have a variety of means at
their disposal to raise cases from the dead. The first
and most common method of resurrecting a cold case is
ORCP 71A. Often referred to as a “Motion to Reinstate,”
the rule simply provides for relief from judgment if
certain conditions are met. Those conditions are:
mistake, inadvertence, surprise, and excusable neglect.
The Oregon Court of Appeals has explained that
excusable neglect under Rule 71 does not extend to
situations where a case gets dismissed because a party
forgot to perform a required act. Walters v. Kmart
Corporation. Nor does it apply to the regrettable
professional negligence of an attorney. McCarthy v.
Oregon Freeze Dry; Montoya v. Housing Authority
of Portland.
ORCP 71 also limits the time in which to file a motion
for relief from judgment to one year from the date the
moving party received notice of the judgment. So, if no
action is taken for more than a year to correct an
inadvertent dismissal, the case may well and truly be
buried.
Absent reinstatement under ORCP 71, you should still
never say never again. A plaintiff may re-file a
dismissed case under certain circumstances depending
upon the time of filing and the nature of the dismissal.
When it comes to dismissed cases, we would prefer that
plaintiffs live and let die. However, in 2003,
the Oregon legislature rewrote ORS 12.220 to allow
plaintiffs whose cases were involuntarily dismissed to
re-file within 180 days from the dismissal. This
provision fortunately comes with several qualifications
and requirements.
First, the original case must have been filed within
the applicable statute of limitations. Second, it must
have been involuntarily dismissed without prejudice on
any ground not affecting the merits of the action.
Third, the defendant must have had actual notice
of the filing of the original action, no later than 60
days after the action was filed.
The effective date of the new statute was January 1,
2004, and it applies only to civil actions filed on or
after that date. All cases filed before that date are
still subject to the old ORS 12.220.
The old statute provides that if the plaintiff’s action
was dismissed upon trial, the plaintiff may commence a
new case on the same cause of action within one year
from the dismissal. The key phrase there, however, is
“upon trial.”
The Oregon Supreme Court has held that the phrase “upon
trial” means that the courts have to exercise some
judicial function short of adjudication on the merits
before dismissing the case. The Oregon Supreme Court has
been very clear that dismissal for want of prosecution
does not require the court to exercise any judicial
function, and, therefore, the “saving statute” does not
apply. Fuller v. Safeway Stores; Te-Ta-Ma
Truth Foundation v. Vaughan; and Hatley v. Truck
Insurance Exchange.
For some plaintiffs, taking a case to trial is like
placing a wager at the Casino Royale. Even if a case
goes to trial before a jury and the defense wins, it can
still be brought back from the great beyond short of
filing a formal appeal. ORCP 64 allows for a judgment
after a trial to be set aside and a new trial granted;
this is usually referred to as a trial de novo.
A request for trial de novo, pursuant to ORCP 64, is
only granted in very specific circumstances:
irregularity in the proceedings, misconduct of the jury
or prevailing party, accident or surprise, newly
discovered evidence, insufficiency of the evidence to
justify the verdict, and error in law. However, even
when these conditions are met, the court will be
reluctant to order a new trial.
A party requesting a trial de novo must make the motion
within 10 days from the original judgment. In rare
circumstances, the court itself may, on its own
initiative, order a new trial, but must do so within 30
days of the original judgment.
The common, but fatal flaw of James Bond’s foes is
always their inclination to underestimate his ability to
escape certain death. Therefore, a favorable judgment,
like the spy’s own demise, should never be taken for
granted. Should the plaintiff choose to reinstate,
re-file, or request a trial de novo, the case may simply
have to die another day.
While the author of this article is not a secret agent,
you may address any questions you have about this area
of law to Brian Ruff,
brian@lerlaw.com, (503) 768-9600
© 1999 -
2006 Lachenmeier Enloe Rall & Heinson
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