Finney v. Bransom

ARMSTRONG, J.,

concurring in part and dissenting in part.

I concur with the majority on all issues except its disposition of plaintiffs’ section 1983 claim. Plaintiffs rely on U.S. National Bank v. Miller, 74 Or App 405, 409, 703 P2d 246 (1985), and Hussey v. Huntsinger, 72 Or App 565, 568-69, 696 P2d 580 (1985), for the proposition that, in ruling on the District’s motion for summary judgment, the trial court was required to treat their complaint as having been amended to state a section 1983 claim. The majority rejects that argument by drawing a distinction between amendments to change the factual assertions in a claim and amendments to add a new claim. See 143 Or App at 160-63. Although the majority argues otherwise, the import of its decision is that a court must treat pleadings as amended in ruling on a motion for summary judgment if the amendment changes the facts at issue on an existing claim, but it has discretion whether to do that if the amendment adds a new claim.

I can find nothing in the relevant Oregon procedural rules, or in the federal cases interpreting the federal rules on which the Oregon rules are based, that supports such a distinction. Consequently, as long as U.S. National Bank and Hussey remain good law in Oregon, I believe that the trial court was required to deny the District’s motion for summary judgment.

I believe, however, that we should overrule U.S. National Bank and Hussey and hold that a party must move to amend the pleadings to resist summary judgment if the factual issue on which the party relies to avoid summary judgment is one whose relevance depends on amended pleadings. That change is consistent with the logic that underlies the relevant procedural rules.

Under those rules, the pleadings frame the issues for trial. For an issue of fact to be a triable issue, whether on a motion for summary judgment or at trial, it must be one that is raised by the pleadings. If the pleadings do not raise an issue that a party wishes to try, the party must amend the pleadings to try that issue unless the opposing party agrees, whether explicitly or implicitly, to try the issue notwithstanding its omission from the pleadings. See ORCP 23 B.

ORCP 23 governs the amendment of pleadings. It is based on FRCP 15, so cases interpreting the federal rule provide persuasive authority on the interpretation of the Oregon rule. ORCP 23 A provides that ‘leave [to amend pleadings] shall be freely given when justice * * * requires.” ORCP 23 B, in turn, provides liberal authority for amendment of pleadings to conform to the evidence.

Considering the comparable provisions in FRCP 15, Moore asserts that FRCP 15

“requires [a] trial court to permit a party to amend its pleading before entering summary judgment for the opposing party, which is an adjudication of the action on the merits, unless the application to amend smacks of dilatory tactics or in some other respect fails to further justice.”

Moore’s Federal Practice ¶ 56-10, at 56-93 to -94 (2d ed 1988) (footnotes and citations omitted). Similarly, Wright, Miller and Kane state that

“denial of leave to amend a pleading * * *, even if technically erroneous, is not prejudicial if the amendment would not have affected the decision to grant summary judgment against [the] plaintiff. Conversely, if an amendment would change the result on the motion, it should be permitted and summary judgment denied.”

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2722, at 48 (2d ed 1983) (footnotes and citations omitted).

There is ample case authority to support those assertions.¹ As the quotation from Moore suggests, there are limited circumstances in which a court can deny a motion to amend pleadings in response to a motion for summary judgment:

“‘Only limited circumstances justify a district court’s refusal to grant leave to amend pleadings: Undue delay, bad faith on the part of the moving party, futility of the amendment or unfair prejudice to the opposing party.’ ”

Costello, Porter v. Providers Fidelity Life Ins., 958 F2d 836, 839 (8th Cir 1992) (citations omitted). None is present in this case.

Nothing suggests thát plaintiffs are guilty of bad faith or that the claim that they proposed to add was futile. In this setting, unfair prejudice refers to the inability of the opposing party to address the amended claim on its merits.² Here, nothing suggests-that the District would have been prejudiced in its ability to defend plaintiffs’ proposed section 1983 claim on the merits if the amendment to add the claim had been allowed.

Finally, plaintiffs cannot be charged with undue delay in seeking the amendment. The federal cases in which undue delay has been found are ones in which years have elapsed between the filing of the original complaint and the motion to amend or in which the motion to amend was filed after discovery had closed.³ Here, plaintiffs filed their complaint on October 29, 1993, and served the District on November 2,1993. The District’s answer was due on December 2, 1993, but it was not filed until February 1, 1994. The District filed its motion for summary judgment on April 4, 1994. Seven weeks later, plaintiffs filed their response to the motion, which included their motion for leave to file an amended complaint to add the section 1983 claim.

The delay between the time in which the District raised the tort-claim notice issue and when plaintiffs sought to amend their complaint to address that issue does not begin to approach the delay that has been found to warrant denial of a motion to amend pleadings. See note 3. Leave to amend pleadings is to be “freely given” so that cases can be decided on their merits. Given the relevant considerations, I would hold that the trial court abused its discretion under ORCP 23 when it denied plaintiffs leave to file their amended complaint. I therefore respectfully dissent from the decision to affirm that denial and the granting of summary judgment in favor of the District on plaintiffs’ section 1983 claim.

Riggs and De Muniz, JJ., join in this dissent.

1 See, e.g., Costello, Porter v. Providers Fidelity Life Ins., 958 F2d 836, 839 (8th Cir 1992); Gary Plastic Packaging v. Merrill Lynch, Pierce, Fenner & Smith, 756 F2d 230, 236-37 (2d Cir 1985); William Inglis & Sons Bakery Co. v. ITT Continental Baking Co., 668 F2d 1014, 1053 (9th Cir 1981), cert den 459 US 825 (1982); Retail Clerks International Ass’n v. Lion Dry Goods, Inc., 341 F2d 715, 722-23 (6th Cir), cert den 382 US 839 (1965); Costner v. First Nat’l Bank of Anchorage, 278 F2d 376, 384-85 (9th Cir 1960).

2 See, e.g., Samuels v. Wilder, 871 F2d 1346, 1348-51 (7th Cir 1989); William Inglis & Sons Bakery Co. v. ITT Continental Baking Co., 668 F2d 1014, 1053 n 68 (9th Cir 1981), cert den 459 US 825 (1982).

3 See, e.g., NL Industries v. GHR Energy Corp., 940 F2d 957, 963-64 (5th Cir 1991), cert den 502 US 1032 (1992) (two years elapsed between filing of complaint and proposed amendment); Johnson v. Educational Testing Service, 754 F2d 20, 23, 27 (1st Cir), cert den 472 US 1029 (1985) (nine years elapsed between filing of motion for summary judgment and motion to amend); Carroll v. Pittsburgh Steel Co., 103 F Supp 788, 788-90 (WD Pa 1952) (motion to amend filed after court had granted summary judgment, which was 18 months after filing of original complaint).