326 Or. App. 688
Or. Ct. App.2023Background
- Stahlbush Island Farms sued IPMF, LLC in Linn County; IPMF failed to answer and a default judgment was entered.
- IPMF’s Delaware registered agent sent the summons and complaint to an officer/agent (Marciniak) by email and first-class mail to her Illinois residence; Marciniak declared she never received them.
- IPMF moved to set aside the default under ORCP 71 B, asserting excusable neglect, defective service, and misconduct by plaintiff’s counsel (failure to notify defense counsel, assertedly problematic during COVID-19).
- The trial court denied relief from default; IPMF sought reconsideration and argued the court should decide or brief personal jurisdiction.
- The trial court denied relief and did not rule on personal jurisdiction; IPMF appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether default should be set aside for excusable neglect/faulty service/misconduct | Stahlbush: service on registered agent was proper; no excusable neglect or misconduct shown | IPMF: it did not receive service forwarded by Delaware agent; exercised reasonable reliance; plaintiff’s counsel should have notified defense counsel during pandemic | Court affirmed denial: IPMF failed to show excusable neglect; service on registered agent was a proper method; misconduct not shown (no clear-and-convincing fraud/overreaching) |
| Whether court erred by not addressing or ordering briefing on personal jurisdiction sua sponte | Stahlbush: defendant waived PJ defense by not timely raising or briefing it; court not required to raise PJ sua sponte | IPMF: court should vacate default or at least order briefing because PJ is a threshold issue and may be lacking | Court affirmed: no duty to raise personal jurisdiction sua sponte; IPMF waived PJ by failing to timely assert its merits and instead sought to reserve the issue |
Key Cases Cited
- Union Lumber Co. v. Miller, 388 P.3d 327 (2017) (standard for relief from judgment under ORCP 71 B and excusable neglect analysis)
- Reeves v. Plett, 395 P.3d 977 (2017) (reasonableness standard for setting aside defaults or failures to appear)
- PGE v. Ebasco Servs., Inc., 326 P.3d 1274 (2014) (expectation of established procedures to receive critical legal documents)
- Auble & Auble, 866 P.2d 1239 (1993) (misconduct standard for ORCP 71 B(1)(c) requires fraud/overreaching)
- Osburn v. Pace, 638 P.2d 497 (1982) (courts err when they raise personal jurisdiction sua sponte)
- Pacific Protective Wear Dist. Co. v. Banks, 720 P.2d 1320 (1986) (personal jurisdiction defense is waived if not timely raised)
- Geer v. Geer, 200 P.3d 618 (2009) (reversing sua sponte dismissal for lack of personal jurisdiction)
- In re Lathen, 654 P.2d 1110 (1982) (disciplinary rules govern lawyer conduct; historical hortatory authorities are nonbinding)