Lang v. Rogue Valley Medical Center/Asante ( 2017 )

No. 29 June 2, 2017 487
IN THE SUPREME COURT OF THE
STATE OF OREGON
Philip C. LANG,
personal representative of
the Estate of Ruth M. Miller,
Petitioner on Review,
v.
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)
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.
______________
**  On appeal from Jackson County Circuit Court, Ronald Grensky, Judge.
276 Or App 610, 369 P3d 450 (2016).
**  Baldwin, J., retired March 31, 2017, and did not participate in the decision
of this case.
488 Lang v. Rogue Valley Medical Center
Case Summary: The trial court dismissed plaintiff’s wrongful death action
under ORCP 54 B, based on findings that (1) plaintiff had willfully failed to com-
ply with an oral order from the bench to file a motion for leave to file a third
amended complaint within 10 day; (2) plaintiff had acted in bad faith by assert-
ing that, under a rule of civil procedure, ORCP 15, the motion could be filed
within 10 days of the date the written order was served on plaintiff; and (3) the
sanction of dismissal was just because plaintiff’s failure to comply with the order
from the bench was his second successive willful failure to comply with a court
order. Plaintiff unsuccessfully appealed, and then sought review, arguing that (1)
because the trial court’s oral order in fact had not required him to move for leave
to file an amended complaint within 10 days of the oral order, he had not willfully
failed to comply with the court’s order by filing his motion some 14 days after the
oral order; and (2) the trial court was required, but failed, to consider whether
dismissal was just in light of other available sanctions, and its explanation as to
why the sanction of dismissal was just could not be reconciled with the record.
Held: Plaintiff did not willfully violate the trial court’s oral ruling by moving
for leave to file an amended complaint 14 days after the oral order, and the trial
court’s explanation for imposing the sanction of dismissal, instead of some lesser
sanction, was contradicted by one of its earlier rulings.
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.
Cite as 361 Or 487 (2017) 489
KISTLER, J.
Pursuant to ORCP 54 B(1), the trial court dismissed
plaintiff’s wrongful death action because it found that plain-
tiff’s counsel willfully failed to comply with two court orders
and that, as a result, dismissal was an appropriate sanc-
tion. The Court of Appeals affirmed the resulting judgment
without opinion. Lang v. Rogue Valley Medical Center, 276
Or App 610, 369 P3d 450 (2016). We allowed plaintiff’s peti-
tion for review to clarify the standard that applies when a
trial court dismisses an action pursuant to ORCP 54 B(1)
for failing to comply with a court order. We now reverse the
Court of Appeals decision and the trial court’s judgment and
remand this case to the trial court.
I.  FACTS AND PROCEDURAL HISTORY
Plaintiff is the personal representative of the estate
of Ruth Miller. In 2001, Miller was diagnosed with multi-
ple myeloma. Seven years later, in 2008, she executed an
advance directive, naming plaintiff as her health care rep-
resentative. 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 Valley Medical Center.1
His second amended complaint alleged that Miller was not
capable of making medical decisions when she was admitted
into Rogue Valley Medical Center on August 1. According
to the complaint, when defendants admitted Miller, they
listed her as “Do Not Resuscitate” and provided her with
only palliative care instead of following plaintiff’s direc-
tions to insert a feeding tube and to take other measures to
reverse Miller’s deteriorating condition. Following Miller’s
death, plaintiff filed this action asserting claims for wrong-
ful death, negligence, medical malpractice, abuse of a vul-
nerable person, and violation of ORS 124.100.
1
Plaintiff also named Cancer Care of Southern Oregon, a limited liability
corporation with which Savage is associated, and Asante, which owns Rogue
Valley Medical Center, as defendants.
490 Lang v. Rogue Valley Medical Center
Defendants moved for summary judgment. In sup-
port 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 resus-
citated, 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 defen-
dants’ summary judgment motions to the extent those
motions turned on 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 per-
son and for violation of ORS 124.100, and it granted partial
summary judgment on other claims.
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 vacat-
ing 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 pro-
ceed” 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 pro-
posed 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 con-
tended that the new allegations did not result from the
2
The claims alleged in the second amended complaint arose out of the events
on August 1, 2008, the day on which Miller was admitted into the hospital and
died. The additional specifications of negligence in the proposed third amended
complaint arose out of defendant Savage’s alleged acts and omissions sometime
before August 1.
Cite as 361 Or 487 (2017) 491
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 with-
out 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 ORCP 15, those sources, read
together, required “that the motion for leave to file [an]
amended pleading was due ten days after the completion of
discovery” on October 8, 2013.3 Given that conclusion, Rogue
Valley’s counsel argued that the motion for leave to file the
proposed third amended complaint should have been filed
by October 18, 2013, that the proposed complaint was sev-
eral months late, and that the motion for leave to file the
complaint should be denied for that reason. The trial court
declined to adopt what it described as Rogue Valley’s “cre-
ative” argument. The court explained that it “underst[oo]d
that you’re looking for ways to short-circuit this a bit, but in
reality, it’s not necessarily black and white.” The court rea-
soned that “[i]t should have been in the [January 25, 2013
order] to that effect if I was going to order that” the proposed
complaint be filed within 10 days of completing discovery.
Although the trial court declined to find that plain-
tiff’s motion for leave to file an amended complaint was
3
Rogue Valley’s counsel reasoned:
“ORCP 25 A provides that where part of a pleading is ordered stricken,
the pleading shall be amended. ORCP 23 D provides that when a pleading
is amended before trial, it shall be done by filing a new pleading. ORCP 15
B(2) provides that unless the order otherwise provides, the amended plead-
ing shall be filed within 10 days of the date of the order. I construe the order
of January 25, 2013 to provide otherwise. It provides that the amended plead-
ing shall be filed upon completion of discovery.”
Because the additional discovery had been completed on October 8, Rogue
Valley’s counsel contended that the motion for leave to file a third amended com-
plaint should have been filed on October 18, 2013.
492 Lang v. Rogue Valley Medical Center
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 facts 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, basi-
cally, growing exponentially every time you come in here.
Discovery doesn’t even begin to explain all these allega-
tions 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 plaintiff’s
counsel. The proposed order denied the motion to amend to
the extent that it added new allegations of fact, new alle-
gations of negligence, and a claim for punitive damages. It
directed plaintiff to move for leave to file a (new) proposed
Cite as 361 Or 487 (2017) 493
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 grant-
ing leave to file an amended complaint which adds new alle-
gations 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]. Otherwise, I will send [the proposed
order] to the Court on Friday [April 18].” Plaintiff’s counsel
did not notify Rogue Valley’s counsel by Friday, April 18,
of any objection to the proposed order. However, on Friday,
plaintiff’s counsel confirmed by email that he had received
the proposed order and said that he would get back to Rogue
Valley’s counsel over the weekend. Rogue Valley’s counsel
did not hear from plaintiff over the weekend. On Tuesday,
April 22, Rogue Valley’s counsel submitted the proposed
order to the court.5 The next day, plaintiff’s counsel sent
Rogue Valley’s counsel an email stating, “I think this is
fine, but the ten days to refile should be from the date the
order is signed.” Rogue Valley’s counsel responded that he
had already sent the order to the court and suggested that
plaintiff raise any objection with the trial court.
On April 28, plaintiff filed a motion with the court
seeking leave to file a (new) proposed third amended com-
plaint. 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
4
At the April 14 hearing and in its subsequent order, the trial court provided
that plaintiff could move for leave to file another third amended complaint. The
parties refer to that complaint as the “(new) proposed third amended complaint.”
We follow that convention.
5
In his cover letter to the court, Rogue Valley’s counsel noted that he had
served the order on plaintiff’s counsel and confirmed that plaintiff’s counsel had
received it. He also explained that plaintiff’s counsel had said that he would
get back to him over the weekend but that he had not yet heard from plaintiff’s
counsel.
494 Lang v. Rogue Valley Medical Center
signed the proposed order, the clerk’s office received plain-
tiff’s objection to the proposed order.6
On May 19, 2014, defendants moved to dismiss plain-
tiff’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 plain-
tiff 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 com-
plaint and set 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 pro-
posed order dismissing his case and denying his motion for
6
Plaintiff’s motion for leave to file a (new) proposed third amended com-
plaint and his objection to the proposed order were both signed and dated
April 28, 2014. The former, however, was stamped as “filed and received” by
the trial court on April 28, 2014, while the latter was not stamped as “filed and
received” by the court until May 1, 2014. The record does not disclose the reason
for the discrepancy.
7
Plaintiff’s motion for leave to file a (new) third amended complaint was filed
on April 28, more than 10 days after the April 14 oral ruling but three days before
the trial court signed the proposed form of order on May 1. Defendants accord-
ingly have argued that plaintiff’s filing violated the April 14 oral ruling but not
the May 1 written order.
Cite as 361 Or 487 (2017) 495
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 plain-
tiff’s initial counsel (Dimitre) had not willfully failed to
comply with the trial court’s April 14 oral ruling because
the court had not been clear when the 10 days for filing a
motion began to run. Plaintiff’s counsel noted that ORCP
15 B provides that, unless the order directs otherwise, the
time for filing an amended pleading runs from the date that
the order is served, and she argued that the transcript of
the April 14 hearing showed that the trial court had said
“[t]en days” without any indication that the 10 days would
run from the date of the hearing. The trial court responded,
however, that everyone had understood that the motion had
to be filed within 10 days of the hearing and that that had
been its intent.
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 file 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 ORCP 15, the motion could be filed
within 10 days of the date that the order was served. The
496 Lang v. Rogue Valley Medical Center
order explained that “[t]he Court clearly stated in its rul-
ing 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 dis-
missal was “just” because the April 28 filing was “plain-
tiff’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 will-
fully had violated an earlier order in 2013. Specifically,
the order stated that, “pursuant to the Court’s order dated
January 25, 2013, and ORCP 15 B(2), plaintiff was required
to file a motion seeking leave to file a third amended com-
plaint within ten days after completion of discovery, and
that discovery was complete on October 8, 2013.” It fol-
lowed that plaintiff willfully had violated the January 25,
2013 order by not moving for leave to file a third amended
complaint by October 18, 2013, and that the two willful vio-
lations meant that dismissal, as opposed to a lesser sanc-
tion, was “just.”
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
Cite as 361 Or 487 (2017) 497
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 accordingly denied defendant’s motion to set
aside the order dismissing the action.
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 pro-
posed 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 plain-
tiff lacked notice of the hearing. Given those rulings, the
trial court entered a general judgment dismissing plaintiff’s
action with prejudice.
On appeal, plaintiff has 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 suffi-
ciently 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 dismiss-
ing the action on the ground that plaintiff did not have ade-
quate 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 ORCP 54 B(1) for failing to comply with an
order of the court. We begin with that issue and then turn
to how those standards apply in this case.8
8
Because plaintiff does not challenge the trial court’s ruling that he had
constructive notice of the June 23 hearing, we consider only whether the trial
court abused its discretion in adhering on reconsideration to its June 23 ruling
dismissing plaintiff’s action.
498 Lang v. Rogue Valley Medical Center
II.  ORCP 54 B(1)
ORCP 54 B(1) addresses involuntary dismissal of
an action. It provides:
“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 coex-
tensive 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 legal 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
ORCP 54 B(1) to identify the limits of a trial court’s discretion
under that rule. They agree that the same criteria that apply
when a court dismisses an action under ORCP 46 B(2)(c)
for failing to comply with a discovery order apply when a
court dismisses an action under ORCP 54 B(1) for failing
to comply with a court order. More specifically, relying on
Pamplin v. Victoria, 319 Or 429, 877 P2d 1196 (1994), they
agree that a trial court may dismiss an action or a claim
under ORCP 54 B(1) if it finds that the party’s failure to
comply with the court’s order was willful, in bad faith, or
9
Two parts of ORCP 54 B address dismissal for failure to prosecute. ORCP
54 B(1) provides generally that a defendant may move to dismiss an action for
failure to prosecute. ORCP 54 B(3) specifies when courts, on their own motion
and after providing notice, may dismiss cases in which no action has been taken
during the preceding year.
Cite as 361 Or 487 (2017) 499
reflected a similar degree of fault. See id. at 436 (stating that
standard for dismissing an action under ORCP 46 B(2)(c)).
They also agree that a trial court must explain why dis-
missal is a “just” sanction. Id. at 436-37 Finally, they agree
that, in explaining why dismissal is just, a finding of preju-
dice to the other party is not required; rather, the sanction
may be justified by, among other things, prejudice to the
operation of the legal system. See id. at 436.
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 his-
torical 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 ORCP 46 B(2) lists alternative sanctions that a court
may impose in response to a party’s failure to comply with
a discovery order, the most serious of which is “dismissing
the action or any part thereof.” ORCP 46 B(2)(c). Implicit in
that list is the discretion to choose a less serious sanction
and, as Pamplin recognizes, a corresponding obligation on
trial courts to explain or, at a minimum, for the record to
reflect why the trial court concluded that a less serious sanc-
tion was not sufficient. Cf. State v. Hightower, 361 Or 412,
421, 393 P3d 224 (2017) (recognizing that, in a comparable
situation, “express findings are not required, so long as the
record reveals the reasons for the trial court’s actions”).
We agree with the parties that Pamplin’s interpre-
tation of ORCP 46 B(2)(c) provides useful context. Although
ORCP 54 B(1) lacks a list of alternative sanctions, such as
those found in ORCP 46 B(2), nothing in the former rule
precludes a trial court from imposing a less serious sanc-
tion when it would suffice to remedy the harm caused by a
party’s willful failure to comply with the court’s order. And
Pamplin’s recognition that the record, at a minimum, must
disclose why the trial court exercised its discretion to choose
dismissal rather than a lesser sanction applies with equal
force to ORCP 54 B(1).
500 Lang v. Rogue Valley Medical Center
Another contextual clue is consistent with Pamplin.
ORCP 54 (B)(1) was taken almost verbatim from FRCP
41(b) (1978). See Frederick R. Merrill, Oregon Rules of
Civil Procedure: A Handbook 109 (1981) (staff comment).10
Because we modeled our rule on FRCP 41(b), we presume
that prior United States Supreme Court decisions interpret-
ing the federal rule provide context for interpreting ORCP
54 B(1). See Pamplin, 319 Or at 433-34 (applying that pre-
sumption); State v. Stockfleth/Lassen, 311 Or 40, 50, 804
P2d 471 (1991) (explaining that, “when Oregon adopts the
statute of another jurisdiction, the legislature is presumed
also to adopt prior constructions of the statute by the high-
est court of that jurisdiction”).
Before Oregon adopted ORCP 54 B(1), the United
States Supreme Court had interpreted FRCP 41(b) once.
See Link v. Wabash R. Co., 370 U.S. 626, 82 S. Ct. 1386,
8 L. Ed. 2d 734 (1962). In Link, the trial court had dismissed
the plaintiff’s action for failure to prosecute after plaintiff’s
counsel failed to appear at a pretrial conference scheduled
more than six years after the action was filed and more than
three years after the trial court had denied the defendant’s
motion to dismiss the action on the pleadings. See id. at
627-28 & n 2 (summarizing the litigation). In upholding that
ruling, the United States Supreme Court focused on the
interests implicated by a failure to prosecute, which are not
necessarily identical to the interests implicated by a failure
to comply with a court’s order.
Although Link is not directly on point, its reason-
ing 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 could have
“inferred from [counsel’s] absence [from the pretrial confer-
ence], as well as from the drawn-out history of the litigation
* * * that [the plaintiff] had been deliberately proceeding in
a dilatory fashion”). And the Court recognized that cases
10
FRCP 41(b) (1978) provided: “For failure of the plaintiff to prosecute or
to comply with these rules or any order of the court, a defendant may move for
dismissal of an action or any claim against him.”
Cite as 361 Or 487 (2017) 501
interpreting FRCP 37(b)(2)(c)—the federal counterpart to
the rule at issue in Pamplin—had held that, when a plaintiff
lacks the ability to comply with a discovery order, the plain-
tiff’s noncompliance does not justify dismissing the action.
Id. at 636. Link thus reinforces Pamplin’s conclusion that
a court may dismiss an action for failure to comply with a
court order only when the failure was willful, in bad faith,
or reflects a similar degree of fault. And Link’s recognition
that cases interpreting FRCP 37(b) bear on the meaning
of FRCP 41(b) supports the parties’ argument in this case
that Pamplin’s analysis of dismissal under ORCP 46 B(2)(c)
bears on the meaning of ORCP 54 B(1).
Given that text and context, we conclude that a trial
court may dismiss an action under ORCP 54 B(1) for failing
to comply with a court order if it finds that the failure was
willful, in bad faith, or reflected a similar degree of fault.11
See Pamplin, 319 Or at 436 (stating standard for dismissal
under ORCP 46 B(2)(c)). Similarly, before a court dismisses
an action for failing to comply with one of its orders, it must
consider whether a lesser sanction will suffice and explain
why it concluded that dismissal was the appropriate sanc-
tion. See id. at 436-37. At a minimum, the record must dis-
close why the court concluded that a lesser sanction would
not be sufficient.12 See Hightower, 361 Or at 421.
III. APPLICATION
We review the trial court’s order dismissing plain-
tiff’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 dis-
cretionary ruling by a trial court * * * can subsume both
11
The legislative history of ORCP 54 B(1) does not disclose the drafter’s
intent in following the federal rule.
12
We note that, since Oregon adopted ORCP 54 B(1) in 1979, the federal
courts of appeals have essentially followed the same course in interpreting
FRCP 41(b). See Charles A. Wright and Arthur R. Miller, 9 Federal Practice and
Procedure § 2369, 625 (3d ed 2008) (explaining that, under FRCP 41(b), “the fed-
eral courts have held fairly consistently that, except in extreme circumstances, a
court should first resort to the wide range of lesser sanctions that it may impose
upon a litigant or the litigant’s attorney, or both, before ordering a dismissal with
prejudice”). Although those later federal cases do not provide context for inter-
preting ORCP 54 B(1), we note that they are consistent with this court’s holding
in Pamplin and our decision here.
502 Lang v. Rogue Valley Medical Center
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 will-
fully failed to comply with two of its orders. Whether a par-
ty’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 allega-
tions 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 amended complaint that contained
additional factual allegations and additional allegations of
negligence. As noted above, when Rogue Valley’s counsel
was asking what the draft order should say, the following
colloquy occurred:
“[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.”
Cite as 361 Or 487 (2017) 503
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 com-
plaint 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. ORCP 15
B(2) provides:
“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 ORCP 15 was not apparent from
the colloquy at the hearing. Reading the court’s statement
“[t]en days” in conjunction with ORCP 15 B(2), we conclude
that, objectively, all the court’s oral ruling required was that
13
Read in context, the phrase “unless the order otherwise directs” appears
to refer to the written order that is served on the parties rather than an oral pro-
nouncement from the bench. For the purposes of this case, however, we assume that
a court orally may vary the time specified in ORCP 15 B(2) for filing an amended
pleading without reducing the ruling to a written order served on the parties.
504 Lang v. Rogue Valley Medical Center
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 hear-
ing, 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 under-
standing 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 moved for leave to file an
amended complaint on April 28.14
B.  Less drastic sanctions
Plaintiff raises a second issue. Throughout this lit-
igation, 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
14
We also recognize that, in its September 12, 2014 order, the trial court
found that “Thomas Dimitre, plaintiff’s attorney, knew that the ten days ran
from the date that the Court ruled” orally on April 14, 2014. However, the court’s
order does not identify any basis for that finding other than what the court said
on April 14. And, as explained above, the April 14 oral ruling, viewed objectively,
was not sufficient to vary the presumption in ORCP 15 B(2) that the 10 days ran
from the date that the order was served.
Cite as 361 Or 487 (2017) 505
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 dis-
missal 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 on
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 complet-
ing 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
15
The trial court’s previous ruling, which it made orally during the April 14
hearing, is reflected in its May 1, 2014 order giving plaintiff leave to move to
replead and add new allegations of fact and new specifications of negligence. It
follows that this is not a case in which the trial court’s July 25, 2014 written order
supersedes its earlier oral ruling. See State v. Swain/Goldsmith, 267 Or 527, 530,
517 P2d 684 (1974) (explaining that, when an earlier statement differs from the
court’s signed order, the order controls). Rather, this is a case in which two orders
entered by the trial court conflict with each other.
16
The court’s January 25, 2013 order did three things: it reset the trial date;
it provided that “[d]iscovery will proceed”; and it stated that “[p]laintiff may draft
506 Lang v. Rogue Valley Medical Center
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 the four-day delay
in moving for leave to file a (new) proposed third amended
complaint. Rather, its primary concern lay with plaintiff’s
repeated failures (whether willful or unwitting) to move the
case forward in a timely and expeditious fashion. As the
court explained, plaintiff’s proposed amended complaints
did not narrow the issues for trial but instead expanded the
issues “exponentially” without any justification for doing so
at that stage of the proceedings. Although we appreciate
the court’s concerns, the court did not explain, nor does the
record disclose why that problem could not have been solved
without dismissing plaintiff’s action. That is, the record
does not disclose why defendants could not have raised spe-
cific objections to plaintiff’s new allegations, nor does it dis-
close why the court could not have struck any unwarranted
allegations, leaving only genuine disputes of material fact
for trial.
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 sanc-
tions 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 judg-
ment of the circuit court are reversed. The case is remanded
to the circuit court for further proceedings.
and tender to the court a motion seeking leave to file a third amended complaint
upon completion of discovery.” Because the order contemplated that additional
discovery would occur before plaintiff filed another pleading, the order necessar-
ily negated the presumption in ORCP 15 B(2) that any amended pleading would
be due 10 days from the date the January 25, 2013 order was served. However,
the order did not specify a new date by which discovery should be completed, nor
did it specify how long after discovery was completed the amended complaint
would be due. Rather, both dates were left open-ended. As the trial court initially
recognized, the order did not require plaintiff to move for leave to file an amended
complaint within 10 days of completing discovery.