S.E.G. v. Parker

“ORCP 54 B(3) requires a specific ‘notice and show cause procedure’ that affords a plaintiff 60 days’ notice, followed by ‘an opportunity to show that good cause exists to continue the proceeding as a pending case’ and ‘a determination by the court on the merits of that issue.’” Moore v. Ball, Janik & Novack, 120 Or App 466, 470 (1993). However, a trial court’s authority “to dismiss an action for want of prosecution is an inherent power, and it exists independently of statute or rule of court.” Reed v. First Nat. Bank of Gardiner, 194 Or 45, 55, (1952).

Petitioner appealed a judgment dismissing her July 2020 temporary stalking protective order (SPO) against Respondent, who was accused of restraining, threatening, and sexually assaulting her. The trial court denied Petitioner's motion to extend the time to serve Respondent with notice of the trial court’s proceedings citing her unsuccessful attempts to serve process over a 14-month period at various addresses on multiple occasions. On appeal, Petitioner contends the trial court erred by dismissing the temporary SPO. Petitioner argued she was actively trying to locate and serve the respondent and the trial court failed to provide the required notice as mandated by ORCP 54 B(3). “ORCP 54 B(3) requires a specific ‘notice and show cause procedure’ that affords a plaintiff 60 days’ notice, followed by ‘an opportunity to show that good cause exists to continue the proceeding as a pending case’ and ‘a determination by the court on the merits of that issue.’” Moore v. Ball, Janik & Novack, 120 Or App 466, 470 (1993). In determining whether the trial court abused its discretion, the Court reasoned that the trial court’s authority “to dismiss an action for want of prosecution is an inherent power, and it exists independently of statute or rule of court.” Reed v. First Nat. Bank of Gardiner, 194 Or 45, 55, (1952). The Court also noted that the repeated in-person notices by the trial court to Petitioner at hearings over the course of five months that it was inclined to dismiss if she could not effectuate service was “at least as effective—if not more effective—than the mailed notice required by ORCP 54 B(3).” Furthermore, given that Petitioner's declaration outlining service efforts did not describe any specific service efforts after December 2020, the trial court could reasonably infer that Petitioner had exhausted all available means for serving respondent. Therefore, the Court held the trial court did not abuse its discretion in rejecting the motion to extend the time for service. Affirmed.