Philip C. LANG, personal representative of the Estate of Ruth M. Miller, Petitioner on Review, υ. ROGUE VALLEY MEDICAL CENTER/ASANTE; Alison Savage, M. D.; and Cancer Care of Southern Oregon, LLC, Respondents on Review.
CC 113198L2; CA A158182; SC S064053
IN THE SUPREME COURT OF THE STATE OF OREGON
June 2, 2017
361 Or 487 (2017)
No. 29. Argued and submitted January 10, 2017.
On appeal from Court of Appeals.*
Argued and submitted January 10, 2017.
Tonia L. Moro, Medford, argued the cause and filed the brief for petitioner on review.
Lindsay H. Hughes, Portland, argued the cause for respondents on review. David C. Landis, Portland, and Casey S. Murdock, of Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern, PC, Medford, filed the brief for respondents on review.
Before Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer, Nakamoto, and Flynn, Justices.**
KISTLER, J.
The decision of the Court of Appeals and the judgment of the circuit court are reversed. The case is remanded to the circuit court for further proceedings.
Lang v. Rogue Valley Medical Center
KISTLER, J.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff is the personal representative of the estate of Ruth Miller. In 2001, Miller was diagnosed with multiple myeloma. Seven years later, in 2008, she executed an advance directive, naming plaintiff as her health care representative. Dr. Savage is an oncologist, who began treating Miller in July 2008. On July 31, 2008, Savage saw Miller, who “complained of weakness, loss of appetite, the inability to eat, [and] increasing dehydration and anorexia.” The next day, on August 1, Miller was admitted into Rogue Valley Medical Center, where she died that night.
Plaintiff brought this action on behalf of Miller‘s estate against Savage and Rogue
Defendants moved for summary judgment. In support of their motions, they submitted evidence that, when Miller was admitted to the hospital on August 1, 2008, they reasonably determined that she was capable of making her own health care decisions, that she did not want to be resuscitated, that a feeding tube had been inserted but had been removed later at Miller‘s request, and that their treatment of her was medically appropriate given Miller‘s decisions. Alternatively, they argued that some of plaintiff‘s claims should be stricken and that the court should grant partial summary judgment on other claims.
On January 8, 2013, the trial court denied defendants’ summary judgment motions to the extent those motions turned оn whether the care that defendants had provided Miller on August 1 was medically reasonable given their determination of her capacity to make decisions. The court struck plaintiff‘s claims for abuse of a vulnerable person and for violation of
The trial on the remaining claims was set for approximately a month later, on February 4, 2013. However, on January 25, 2013, the trial court entered an order vacating the February 4 trial date because plaintiff had become ill. Additionally, plaintiff‘s counsel had advised the court that he needed to depose three witnesses, and the court‘s January 25, 2013 order provided that “[d]iscovery will proceed” and that “[p]laintiff may draft and tender to the court a motion seeking leave to file a third amended complaint upon completion of discovery.”
A little more than a year later, plaintiff moved for leave to file a proposed third amended complaint. The proposed complaint added new factual allegations as well as a punitive damages claim.2 Defendants objected to the new allegations, and the trial court held a hearing on April 14, 2014, to resolve those objections. Defendant Savage contended that the new allegations did not result from the
additional discovery that plaintiff had done, that plaintiff should have included those allegations earlier, and that it was too late to expand the claims in the complaint without some justification for the delay. In response, plaintiff‘s counsel acknowledged that he had taken only one deposition between January 25, 2013 (when the trial court postponed the February 4, 2013 scheduled trial date) and April 14, 2014 (when plaintiff‘s motion for leave to file the proposed third amended complaint was considered). Plaintiff did not identify any information that he had learned during that deposition that justified adding the new allegations.
Defendant Rogue Valley Medical Center raised a more technical objection. As it construed the trial court‘s January 25, 2013 order and
Although the trial court declined to find that plaintiff‘s motion for leave to file an amended complaint was
untimely, as Rogue Valley argued, it expressed concerns regarding the new allegations that plaintiff had added. It ruled that plaintiff had failed to allege sufficient fаcts to add a punitive damages claim and that the proposed third amended complaint pleaded evidence rather than ultimate facts. The court then admonished plaintiff‘s counsel:
“This particular case was three weeks away from trial when we postponed the trial. In no way, shape, or form was I envisioning a revisitation, to this extent, of the pleadings when we had [the] second amended complaint attacked. I envisioned that you would clean this thing up, you‘d go forward, and we‘d have a trial date. And this keeps, basically, growing exponentially every time you come in here. Discovery doesn‘t even begin to explain all these allegations you‘ve got in here, that I don‘t understand why they weren‘t here before. Now, if you‘d had a lot of depositions that occurred since that trial [date] until now, that would be different. But that—no one has said that.”
The court explained that the “next time you do this, send a copy of the proposed [complaint] to [defense counsel]. Get a response from them, and then put your heads together, and figure out if you can come up with something that will work.”
The following colloquy then occurred, which turns out to be critical to the trial court‘s later decision to dismiss plaintiff‘s action:
“[DEFENSE COUNSEL]: Your Honor, should the order provide that Plaintiff—
“THE COURT: Ten days.
“[DEFENSE COUNSEL]: —has—may file a motion to file a next amended complaint in conformity with the Court‘s order on the—the Court‘s order on the motions for summary judgment against the second amended complaint?
“THE COURT: Yes, that should be in the order.”
The next day, on Tuesday, April 15, counsel for Rogue Valley sent a copy of a proposed order to plаintiff‘s counsel. The proposed order denied the motion to amend to the extent that it added new allegations of fact, new allegations of negligence, and a claim for punitive damages. It directed plaintiff to move for leave to file a (new) proposed
third amended complaint that conformed to the trial court‘s summary judgment ruling “[w]ithin ten days of the Court‘s order from the bench at the conclusion of oral argument.”4 Finally, the proposed order stated that, within the same time period, “[p]laintiff may file a motion for an order granting leave to file an amended complaint which adds new allegations of facts and new allegations of negligence.”
The cover letter accompanying the proposed order stated: “Please advise if either of you have any objection [to the proposed order].
On April 28, plaintiff filed a motion with the court seeking leave to file a (new) proposed third amended complaint. On May 1, 2014, the trial court signed Rogue Valley‘s proposed order directing plaintiff to file any (new) proposed third amended complaint within 10 days of the April 14, 2014 hearing—in other words, by April 24, 2014. The order also gave plaintiff leave to add new allegations in the third amended complaint. Within an hour after the trial court
signed the proposed order, the clerk‘s office received plaintiff‘s objection to the proposed order.6
On May 19, 2014, defendants moved to dismiss plaintiff‘s action “on the ground that plaintiff willfully and/or in bad faith failed to comply with the court‘s order from the bench on April 14, 2014, that within ten days plaintiff file a third amended complaint which conforms to the Court‘s order dated January 8, 2013.”7 Defendants reasoned that plaintiff knew that the court‘s oral ruling on April 14 required that a (new) proposed third amended complaint be filed within 10 days of the date of the hearing (by April 24) and that plaintiff either willfully or in bad faith had failed to comply with that oral ruling. Plaintiff did not file a response to defendants’ motion to dismiss, nor did his counsel appear at the June 23, 2014 hearing on that motion.
At the June 23 hearing, the trial court ruled that plaintiff‘s action should be dismissed. Shortly after that hearing, defendants served a copy of a proposed order reflecting that ruling on plaintiff. On June 27, plaintiff filed an objection in response and argued that the court should both allow his motion for leave to file a third amended complaint and sеt aside the ruling dismissing his case. For the most part, plaintiff‘s written objection focused on his claim that he had not received notice that defendants’ motion to dismiss would be heard on June 23. Defendants responded by setting out, among other things, copies of emails that the court staff had sent to plaintiff‘s counsel arranging a June 23 hearing date on the motion to dismiss.
Approximately a month later, on July 24, the trial court heard oral argument on plaintiff‘s objection to the proposed order dismissing his case and denying his motion for
leave to file a third amended complaint. The discussion at the hearing focused on whether the court should reconsider its June 23 oral ruling to dismiss; the discussion did not focus on whether plaintiff had received notice of the June 23 hearing. By the July 24 hearing, plaintiff had associated new counsel, who argued, among other things, that plaintiff‘s initial counsel (Dimitre) had not willfully
Plaintiff‘s new counsel also argued that, even if plaintiff had failed to comply with the trial court‘s oral 10-day ruling by moving for leave to filе a (new) third amended complaint four days late, dismissal should be the last resort, and another measure, “short of dismissing this claim, is the better approach.”
After the July 24 hearing, the trial court issued two orders. Initially, on July 25, the trial court entered an order dismissing plaintiff‘s action. It found:
“Plaintiff willfully failed to comply with the Court‘s [April 14] order in that: on April 28, 2014, plaintiff filed a (new) motion for leave to file a third amended complaint. The motion was not timely filed. The new proposed third amended complaint did not comply with the Court‘s order in that it purportedly conforms to the Court‘s January 8, 2013 order and it also adds 44 new allegations of fact and new allegations of negligence against [defendants Savage and Rogue Valley Medical Center].”
The court also found that plaintiff had acted in bad faith by asserting that, under
order explained that “[t]he Court clearly stated in its ruling from the bench on April 14, 2014, that the (new) third amended complaint and the new motion were to be filed within ten days.”
Finally, the order recited that the sanction of dismissal was “just” because the April 28 filing was “plaintiff‘s second, successive willful violation of the Court‘s order with respect to filing a motion for leave to file an amended complaint.” The order stated that plaintiff‘s counsel willfully had violated an earlier order in 2013. Specifically, the order stated that, “pursuant to the Court‘s order dated January 25, 2013, and
On September 12, 2014, the trial court entered a second order overruling plaintiff‘s objections to the proposed order and declining to set the order aside. The September 12 order stated that, when the trial court said “ten days” from the bench on April 14, 2014, the court “intended that the ten days run from the date that the Court orally announced its ruling from the bench.” The order also stated that “the Court believes that Thomas Dimitre, plaintiff‘s attorney, knew that the ten days ran from the date that the Court ruled” and “that Mr. Dimitre willfully failed to comply with the Court‘s order.” The trial court accordingly overruled plaintiff‘s objections to the proposed order.
The trial court also declined to set aside the order on the ground that plaintiff‘s counsel did not have notice of the June 23 hearing. On that issue, the court found that plaintiff‘s counsel had, at a minimum, constructive notice that the hearing was set for June 23. It noted that there is “an inference that the motions to dismiss were served on Mr. Dimitre by mail” and that “[t]here is an inference that Mr. Dimitre had notice that the Court intended to schedule
oral argument on the motions to dismiss on June 23, 2014.” The trial court reasoned that, even if plaintiff‘s counsel had not, in fact, received notice, he “had sufficient notice of the Court‘s intent to schedule oral argument on June 23, 2014, to give rise to a duty to investigate and determine when the motion to dismiss had been scheduled for oral argument.” The trial court
As we read the trial court‘s July 25, 2014 and September 14, 2014 orders, the court made essentially two rulings. First, it treated plaintiff‘s objections to the proposed orders as a motion for reconsideration, it reconsidered its earlier rulings in light of plaintiff‘s arguments, and it adhered to its earlier rulings that plaintiff willfully had failed to file the (new) proposed third amended complaint by April 24, 2014, and that dismissal was an appropriate sanction. Second, the trial court denied defendant‘s motion to set aside its ruling dismissing the action because plaintiff lacked notice of the hearing. Given those rulings, the trial court entered a general judgment dismissing plaintiff‘s action with prejudice.
On appeal, plaintiff hаs focused on the trial court‘s ruling adhering to its earlier rulings; that is, plaintiff has focused on whether he willfully failed to comply with the court‘s April 14 oral ruling and whether the court sufficiently explained why dismissal, as opposed to a less serious sanction, was appropriate. Plaintiff has not focused on the trial court‘s ruling declining to set aside its order dismissing the action on the ground that plaintiff did not have adequate notice of the June 23 hearing. The Court of Appeals affirmed the trial court‘s judgment without opinion. We allowed plaintiff‘s petition for review primarily to consider the standard that applies when a trial court dismisses an action under
II. ORCP 54 B(1)
“For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for a judgment of dismissal of an action or of any claim against that defendant.”
By its terms, the rule provides that a defendant may move for a judgment of dismissal for the plaintiff‘s failure: (1) to prosecute; (2) to comply with the rules of civil procedure; or (3) to comply with an order of the court.9 We infer from the text of the rule that the criteria relevant to dismissing an action for failure to prosecute will not necessarily be coextensive with the criteria relevant to dismissing an action for failing to comply with a court order or rule of civil procedure. The rule, however, does not specify what those criteria are. Rather, its use of the word “may” signifies only that trial courts have discretion within legаl limits to determine when a party‘s failure either to prosecute or to comply with a rule or court order warrants dismissal of an action. See Union Lumber Co. v. Miller, 360 Or 767, 777, 388 P3d 327 (2017) (noting that trial courts have discretion to grant relief from a judgment for neglect, surprise, inadvertence, or mistake under a similarly worded rule).
Both plaintiff and defendants look to the context of
reflected a similar degree of fault. See id. at 436 (stating that standard for dismissing an action under
This court explained in Pamplin that the decision to dismiss an action is a “situation in which special findings are a prerequisite to meaningful review by an appellate court.” Id. (internal quotation marks omitted). As Pamplin recognized, “an appellate court needs to know (1) the historical facts on which the trial court based its decision to impose [the sanction of dismissal] and (2) the analytical process by which the trial court concluded that dismissal is ‘just’ in view of those facts and in view of other sanctions that are available.” Id. at 437. On the last point, we note that
We agree with the parties that Pamplin‘s interpretation of
Another contextual clue is consistent with Pamplin.
Before Oregon adopted
Although Link is not directly on point, its reasoning supports this court‘s decision in Pamplin. Of relevance here, the Court reasoned in Link that dismissal for failure to prosecute was warranted because the district court could have found that the plaintiff‘s delay was deliberate. Id. at 633 (explaining that the trial court reasonably
interpreting
Given that text and context, we conclude that a trial court may dismiss an action under
III. APPLICATION
We review the trial court‘s order dismissing plaintiff‘s action for abuse of discretion. Cf. Union Lumber Co., 360 Or at 778 (applying abuse of discretion standard to similarly worded rule). As we previously have noted, “a discretionary ruling by a trial court *** can subsume both
factual and legal issues. In reviewing a ruling for abuse of discretion, it can be important to distinguish the factual and legal issues that underlie *** a trial court‘s exercise of discretion.” Oakmont, LLC v. Dept. of Rev., 359 Or 779, 789, 377 P3d 523 (2016); accord Union Lumber Co., 360 Or at 777-78. In this case, the trial court found that plaintiff willfully failed to comply with two of its orders. Whether a party‘s failure was willful turns on two issues: what the order required and what the person knew. The first issue presents a question of law and the second, a question of fact. See State ex rel Mikkelsen v. Hill, 315 Or 452, 458, 847 P2d 402 (1993) (explaining that “[a] ‘wil[l]ful’ mental state is an element of the offense of contempt; that element may be established by proof that a party had knowledge of a valid court order and failed to comply with the order“); cf. Hightower, 361 Or at 421 (recognizing that decisions whether to grant a request for self-representation could rest on either factual or legal grounds). In applying those standards, we begin with the court‘s conclusion that plaintiff willfully failed to comply with its April 14 oral ruling from the bench.
A. April 14, 2014 oral ruling
During the April 14, 2014 hearing, the trial court granted defendants’ motion to strike both the new allegations and the punitive damages claim that plaintiff had included in his proposed third amended complaint. The court also provided that plaintiff could move for leave to file a (new) proposed third
“[DEFENSE COUNSEL]: Your Honor, should the order provide that Plaintiff—
“THE COURT: Ten days.
“[DEFENSE COUNSEL]: —has—may file a motion to file a next amended complaint in conformity with the Court‘s order on the—the Court‘s order on the motions for summary judgment against the second amended complaint?
“THE COURT: Yes, that should be in the order.”
Given that colloquy, defendants asserted and the trial court later agreed that the court‘s oral ruling gave plaintiff 10 days from the date of the April 14 hearing in which to move for leave to file an amended complaint. The court also found that plaintiff knew that his amended complaint was due within 10 days from the date of the April 14 hearing and that plaintiff willfully violated the court‘s order when he moved for leave to file an amended complaint on April 28 rather than April 24.
The trial court‘s conclusion that plaintiff willfully violated its oral ruling appears difficult to sustain.
“If the [trial] court grants a motion [directed against a pleading] and an amended pleading is allowed or required, such pleading shall be filed within 10 days after service of the order, unless the order otherwise directs.”
That rule establishes a presumption that the time for filing an amended pleading runs from the date that the order is served “unless the order otherwise directs.” Nothing that the trial court said orally on April 14 directed otherwise.13 Rather, the court interjected the phrase “[t]en days” in the middle of a question counsel was posing to the court that was unrelated to the timing of any amended complaint.
That interjection was not accompanied by any terms that might have clarified the court‘s intent. For instance, the phrase “[t]en days” was not preceded by a preposition, such as “within,” or modified by a phrase, such as “in the next,” which could have shed light on what the trial court intended. It is true that the court later ruled that, when it said the phrase “[t]en days,” it intended that the 10-day period would run from the date of the hearing. However, the court‘s unexpressed intent to depart from the terms of
plaintiff move for leave to file an amended complaint within 10 days of the date that the order was served. Plaintiff‘s April 28 filing complied with that oral ruling.
We recognize that, the day after the April 14 hearing, defendants served a proposed form of order on plaintiff‘s counsel, which stated that the 10-day period ran from the date of the hearing. Although the proposed form of order reflected defense counsel‘s understanding of the trial court‘s ruling, plaintiff‘s counsel was not required to accept defense counsel‘s view. It may be that, given defense counsel‘s understanding of the trial court‘s intent, prudent counsel either would have asked the trial court before April 24 what it had intended or would have objected to defense counsel‘s proposed form of order sooner than plaintiff‘s counsel did. However, the question that this case presents is not whether plaintiff‘s counsel was imprudent or even negligent. Rather, it is whether plaintiff‘s counsel violated the terms of the April 14 oral ruling and did so willfully. As explained above, the trial court‘s April 14 oral ruling, viewed objectively, did not require plaintiff to move for leave to file an amended complaint by April 24. A fortiori, plaintiff did not willfully violate that oral ruling when he
B. Less drastic sanctions
Plaintiff raises a second issue. Throughout this litigation, plaintiff has argued that, even if he willfully failed to comply with the trial court‘s April 14 oral ruling, the trial court should have considered whether lesser sanctions would remedy the harm caused by that failure. Defendants have argued in response that the court did precisely that when it explained that dismissal was just because plaintiff‘s failure to comply with the April 14 ruling was not the first time that plaintiff willfully had failed to comply with the court‘s orders. Defendants note that, in its July 25, 2014
order, the trial court found that dismissal was just because plaintiff also willfully failed to comply with its January 25, 2013 order when he did not move for leave to amend within 10 days of completing discovery on October 8, 2013.
The trial court‘s conclusion that dismissal was just may rest on one of two grounds. It may rest on the ground that plaintiff‘s two willful failures to comply with its orders (the failure to file an amended pleading within 10 days of completing discovery on October 8, 2013, and the failure to file an amended pleading within 10 days of the April 14, 2014 oral ruling) demonstrate that nothing short of dismissal would be a sufficient remedy. To the extent that is the ground for the court‘s conclusion, we note that it rests on an incorrect premise—that both failures were willful. As explained above, plaintiff did not willfully violate the trial court‘s April 14, 2014 oral ruling when he moved on April 28, 2014, for leave to file an amended pleading. Moreover, the other willful failure on which the court relied is difficult to reconcile with the court‘s previous ruling оn the same matter. As described above, 361 Or at 491, the trial court previously had found that plaintiff had not violated its January 25, 2013 order by failing to move for leave to file an amended complaint within 10 days after completing discovery on October 8, 2013. The trial court had explained that its January 25, 2013 order was not “black and white” and that, without something more specific in that order, the court could not say that plaintiff violated that order when he failed to move for leave to amend within 10 days of completing discovery on October 8, 2013. Not only is that previous ruling at odds with the court‘s later ruling in dismissing the action,15 but the trial court‘s previous ruling appears to be the stronger of the two.16
The court‘s ruling that dismissal was “just” may rest on an alternative ground. It appears that the trial court was not concerned so much with thе four-day delay in
We recognize the difficulty posed by counsel who, for one reason or another, seem unable to move a case forward in a fair and efficient way. We trust, however, that ordinarily courts will be able to take remedial steps and impose sanctions short of dismissal when faced with such problems. On this record, we cannot say that the trial court‘s dismissal was supported by evidence that plaintiff‘s counsel willfully failed to comply with the court‘s orders. We accordingly reverse the trial court‘s judgment and the Court of Appeals decision and remand this case for further proceedings.
The decision of the Court of Appeals and the judgment of the circuit court are reversed. The case is remanded to the circuit court for further proceedings.