Wells Fargo Bank v. Clark

Although ORCP 21 requires that a motion to dismiss must be made before a responsive pleading, it does not "implicitly or explicitly" state that a defendant cannot file a counter-claim and answer while waiting for the court to rule on a motion to dismiss.

Defendant appealed the trial court’s judgment dismissing plaintiff’s action because it prevents the defendant from being able to counter-sue. The defendant assigned error to the trial court’s dismissal. Defendant argued that ORCP does not explicitly prohibit the defendant from filing a counter-claim while a motion to dismiss is pending before the court. The Plaintiff argued that ORCP 21 and ORCP 15 imply that a counter-claim is proper only when the motion to dismiss is denied. The Court held that although ORCP 21 does requires that " a motion to dismiss . . . must be made before a responsive pleading" it does not "implicitly or explicitly" state that a defendant cannot file a counter-claim or answer while waiting for the court to rule on a motion to dismiss. Thus, the Court held that the trial court erred by considering the counterclaim a "legal nullity." Reversed and remanded Defendant’s counterclaim; motion to dismiss is affirmed.