291 P.3d 738
Or. Ct. App.2012Background
- Jensen appeals a trial court judgment dismissing his second amended complaint with prejudice and seeks relief on a proposed third amended complaint.
- The dispute stems from a 2004–2005 business deal to form a new corporation; Jensen alleges legal malpractice by Elsasser of Levin and Stein, including failure to review an asset list that affected contributions and liabilities.
- Jensen later retained DuBoff and the DuBoff Law Group (DLG) in 2005 for potential malpractice claims against Elsasser; later, he retained Rundle in 2009 for related actions against Elsasser, DuBoff, and DLG.
- Defendants moved to dismiss, strike, and require more definite and certain pleadings in September 2009; after hearings, several motions were granted or denied, with Jensen permitted to replead by November 5, 2009.
- Hennagin drafted a second amended complaint on November 5, 2009; a motion to dismiss the second amended complaint was filed January 5, 2010; Jensen sought to file a third amended complaint attached December 23, 2009.
- The court dismissed the second amended complaint with prejudice on January 5, 2010, and denied the motion to file a third amended complaint on February 17, 2010, without addressing the substance of the proposed third amended complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal with prejudice was abuse of discretion without considering the third amended complaint | Jensen argues leave to amend should be freely given when justice requires. | DuBoff/DLG contend dismissal was proper given history and alleged deficiencies. | Abuse of discretion; should have considered the third amended complaint. |
| Whether the Ramsey four-factor test supports granting leave to amend | Ramsey factors weigh in favor of allowing amendment. | Court properly weighed factors against further amendment. | Ramsey factors favored amendment; dismissal with prejudice was improper. |
| Whether ORCP 23 A's freely-given leave to amend standard governs this decision | Leave to amend should be freely given when justice requires. | Discretion allowed to deny amendments based on case history. | Leaves to amend should be freely given when justice requires; abuse found here. |
| Whether procedural history and presence of the proposed third amended complaint show lack of prejudice | No dilatory tactics; the proposed third amended complaint would cure defects. | Prejudice to defendants could arise from adding claims late in proceedings. | Procedural history supports allowing amendment; prejudice not shown. |
Key Cases Cited
- Speciale v. Tektronix, 38 Or App 441 (1979) (discretion must advance justice; context of pretrial dismissal)
- Ramsey v. Thompson, 162 Or App 139 (1999) (four considerations for granting leave to amend)
- Safeport, Inc. v. Equipment Roundup & Mfg., 184 Or App 690 (2002) (amendments to cure pleading defects; colorable merit required)
- Caldeen Construction v. Kemp, 248 Or App 82 (2012) (amendments to clarify existing claims; no substantial prejudice; early in proceedings)
- Dean v. Guard Publishing Co., 73 Or App 656 (1985) (abuse of discretion reviewed for reasonableness)