- Court: Oregon Court of Appeals
- Area(s) of Law: Civil Procedure
- Date Filed: 11-15-2012
- Case #: A144883
- Judge(s)/Court Below: Duncan, J. for the Court; Armstrong, P.J.; and Haselton, C.J.
- Full Text Opinion
Jensen appealed the trial court's dismissal of his second amended complaint with prejudice. Jensen filed a malpractice suit against DuBoff on June 8th, 2009. Jensen filed an amended complaint on June 17, 2009. DuBoff was granted a motion to dismiss for failure to state a claim. Jensen drafted a second amended complaint and filed it November 5, 2009. The trial court dismissed Jensen’s second amended complaint with prejudice. The court based its decision to dismiss with prejudice because of Jensen’s repeated attempts to state a cognizable claim. On appeal, Jensen argued the trial court abused its discretion by dismissing the second amended complaint with prejudice without first considering his third proposed amendment. ORCP 23 A provides: "leave [to amend] shall be freely given when justice so requires." The Court of Appeals applied the factors from Ramsey and found the trial abused its discretion to dismiss the complaint with prejudice because: (1) the amended complaint does not include new claims but attempts to cure the defect in the complaint; (2) it does not prejudice DuBoff; (3) the amendment was proposed before a trial date was set; and (4) the complaint has at least colorable merit. Reversed and remanded.