Mastering Key Pretrial Motions

Online CLE

Mastering Key Pretrial Motions

1 Oregon Practice and Procedure credit

From the Oregon State Bar CLE seminar Fundamentals of Oregon Civil Trial Procedure, presented on September 26 and 27, 2019

© 2019 Nathan Morales. All rights reserved.

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Chapter 5

Presentation Slides: Mastering Key Pretrial Motions

NathaN MoralesPerkins Coie LLPPortland, Oregon

Chapter 5—Presentation Slides: Mastering Key Pretrial Motions

5–iiFundamentals of Oregon Civil Trial Procedure


5–1Fundamentals of Oregon Civil Trial Procedure

Perkins Coie LLP

Mastering Key Pretrial MotionsNathan R. Morales

September 26, 2019

Perkins Coie LLP | PerkinsCoie.com

Key Pretrial Motions

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1. Initial Motions attacking form/substance of Complaint

2. Discovery Motions limiting or compelling discovery

3. Summary Judgment Motions resolving or narrowing claims or issues




Attacking form or substance of the Complaint

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Defenses that are waived if not raised in the initial response to the Complaint

• Motion to make more definite and certain. ORCP 21 D; FRCP 12(e)

Motion to Strike. ORCP 21 E; FRCP 12(f)

• Motion to Dismiss for lack of personal jurisdiction, improper venue, insufficiency of process or service of process, another action pending between same parties (Oregon only). ORCP 21 G; FRCP 12(h)


Motions to Strike / More Definite and Certain

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Use a motion to strike against sham, frivolous, or irrelevant pleading/defense. ORCP 21 E; see also FRCP 12(f)

Use a motion to strike against sham, frivolous, irrelevant or redundant matter in a pleading. ORCP 21 E; FRCP 12(f)

• Use a motion to make more definite and certain to clarify indefinite or uncertain allegations, especially damages in state court practice. ORCP 21 D; FRCP 12(e)

• Must comply with UTCR 5.020(2)





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• Defenses that the plaintiff has no legal capacity to sue and action is time barred will be waived if not included in initial response to Complaint or in subsequent amendment with heightened standard. ORCP 21 G(2)

• Lack of subject-matter jurisdiction is never waived.ORCP 21 G(4); FRCP 12(h)(3)



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• Defense of failure to state a claim is not waived as long as it is raised by the close of trial. ORCP 21 G(3); FRCP 12(h)(2)

• Motion to dismiss for failure to state a claim should be evaluated as part of initial response to complaint. ORCP 21 A(8); FRCP 12(b)(6)




Motion to Dismiss for Failure to State a Claim

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A motion to dismiss for failure to state a claim asks the Court to dismiss a claim because, even accepting all well-pleaded allegations in the Complaint as true and giving the plaintiff the benefit of all favorable inferences that may be drawn from those allegations, the claim fails as a matter of law.ORCP 21 A(8); FRCP 12(b)(6)



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• Documents attached to or incorporated by reference in the Complaint may be considered.

• To survive a motion to dismiss for failure to state a claim, the Complaint must include allegations of material fact regarding each and every element of the claim.





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Strategic and tactical considerations:• Potential early end to case• Narrowing of claims and issues• Potential stay of discovery• Settlement posture• Cost• May result in an amended & improved complaint• Issues may be resolved unfavorably• Assigned judge vs. Motions judge• More persuasive at summary judgment



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Final thoughts• Remember to meaningfully confer• May result only in an amended complaint

pursuant to FRCP 15(a)(1)(B)• Ask for oral argument• Join other motions as required• Review all applicable rules before filing




Discovery Disputes

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Motions aimed at limiting discovery• ORCP 36; FRCP 26(c)

Motions aimed at compelling discovery• ORCP 46; ORCP 45 C; FRCP 37;

FRCP 36(a)(6)


Limiting Discovery

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Motion for Protective Order – ORCP 36 CFor good cause and to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, a Court may order limitations on discovery, including the following limitations:

• No discovery occur.• Discovery be had only on specified terms &

conditions.• Discovery be had only by a certain method.• Limiting scope of discovery.




Limiting Discovery

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• Limiting who may be present during discovery. • Limiting ability to open a deposition after it has been

sealed. • Protecting trade secret / confidential material from

disclosure.• Requiring certain documents or information to be filed

under seal.• Shifting cost burden of discovery.

The Court may award expenses incurred with the motion. ORCP 36 C; ORCP 46 A(4)


Compelling Discovery

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Motion to Compel – ORCP 46• Failure to provide medical reports

ORCP 44 B or C

• Failure of deponent to answer a question ORCP 39; ORCP 40

• Failure to make corporate designation ORCP 39 C(6); ORCP 40 A

• Failure to produce or permit requested inspection ORCP 43

• Failure to produce an insurance agreement ORCP 36 B(2)





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Motion to Determine Sufficiency – ORCP 45 C• Challenge answers or objections to Requests for

Admission• Court determines whether an objection to the RFA is

justified and whether an answer to RFA complies with the requirements of ORCP 45 B.



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Court may award moving party or opposing party the reasonable expenses, including attorney fees, incurred with a motion to compel or motion to determine sufficiency. ORCP 46 A(4); FRCP 37(a)(5)




Discovery Disputes

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Final Thoughts• Confer, Confer, Confer• No choice but to seek Court assistance• Remember – loser pays expenses• Will the motion really advance the case?• Protective order v. motion to compel?• Be ready to handle mid-deposition disputes

with a call to the Court


Narrowing or Resolving Claims & Issues

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Motion for Summary Judgment – ORCP 47 C• “No genuine issue as to a material fact exists if,

based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.”

• Standards differ between ORCP 47 and FRCP 56.




Motion for Summary Judgment

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Burden of Persuasion and Proof• Movant must demonstrate no genuine

factual issue• View facts in light most favorable to

non-movant• Movant bears the initial responsibility

of identifying items of record which it believes demonstrate that there are no genuine issues of material fact



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Burden shifts to non-movant only if: • Movant demonstrates that their opponent bears the

burden of proof for the claim at trial; and• Non-movant lacks any evidence to support an

essential element of that claim. • The non-movant must then point to evidence that

supports its claim





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Partial Summary Judgment • Court may grant summary judgment in the party’s

favor on each claim or defense or any part of each claim or defense on which summary judgment is sought

• Does not produce “judgment” but leaves remaining parts of the case for trial or further resolution



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Expert Opinions and ORCP 47 EIf an expert opinion is required to establish a genuine issue of material fact, then the attorney must provide an affidavit or declaration stating:• “[A]n unnamed, qualified expert has been retained

who is available and willing to testify to admissible facts or opinions creating a question of fact.”





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Expert Opinions and ORCP 47 EThe attorney affidavit must be:

• Made in good faith • Based on admissible facts or opinions obtained from a

qualified expert • That expert has actually been retained • That expert is available and willing to testify• That expert has actually rendered an opinion or provided

facts that would be a sufficient basis for denying the summary judgment motion



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Strategic and Tactical Considerations• Terminate litigation without a trial• Narrow or eliminate issues for trial• Force opponent to make evidentiary showing• Dispose of particular claims or defenses• Tipping your hand• Exposing evidence and weaknesses• Witness impeachment• Summary Judgment for Opponent• Cost





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Final Thoughts• Consider an “early” motion• Conduct discovery with an eye to summary judgment• Watch the deadline for filing in state court—60 days

prior to trial• Different conferral requirements in state vs. federal

courts• Adverse party cannot rest on pleadings• Make appropriate evidentiary objections• Ask for oral argument• Remember partial and offensive motions

Perkins Coie LLP | PerkinsCoie.com26

QUESTIONS?

