Eklof v. Persson

531

Argued and submitted November 2, 2021; resubmitted January 25; decision

of Court of Appeals reversed, judgment of circuit court reversed, and case

remanded to circuit court for further proceedings April 21, 2022

KARLYN EKLOF,

Petitioner on Review,

v.

Rob PERSSON,

Superintendent,

Coffee Creek Correctional Facility,

Respondent on Review.

(CC C120242CV) (CA A167037) (SC S068347)

508 P3d 468

Petitioner filed a successive petition for post-conviction relief and sought to

amend that petition a third time to make additional claims. The state objected,

arguing that judicially noticeable facts demonstrated that petitioner could rea-

sonably have brought her claims in her prior petition for post-conviction relief,

so the claims violated ORS 138.550(3)’s bar on successive petitions. The post-

conviction court agreed with the state and denied the motion for leave to amend.

The post-conviction court then granted summary judgment to the state, and the

Court of Appeals affirmed. Held: (1) The key inquiry in determining whether to

allow a successive amendment to a pleading is prejudice, but futile amendments

may also be denied; (2) the court may consider judicially noticeable facts in eval-

uating whether an amendment is futile; and (3) judicially noticeable facts indi-

cated that some, but not all, of petitioner’s proposed amended claims were futile.

The decision of the Court of Appeals is reversed. The judgment of the cir-

cuit court is reversed, and the case is remanded to the circuit court for further

proceedings.

On review from the Court of Appeals.*

Lindsey Burrows, O’Connor Weber LLC, Portland, argued

the cause and filed the briefs for petitioner on review.

Jordan R. Silk, Assistant Attorney General, Salem, argued

the cause and filed the brief for respondent on review. Also

on the brief were Ellen Rosenblum, Attorney General, and

Benjamin Gutman, Solicitor General.

Kristen G. Williams, McMinnville, filed the brief for

amicus curiae Oregon Trial Lawyers Association.

______________

* Appeal from Washington County Circuit Court, Linda Louise Bergman,

Senior Judge. 307 Or App 585, 477 P3d 1215 (2020).

532 Eklof v. Persson

Before Walters, Chief Justice, and Balmer, Flynn, Duncan,

Nelson, Garrett, and DeHoog, Justices.**

BALMER, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings.

______________

** Nakamoto, J., retired December 31, 2021, and did not participate in the

decision of this case.

Cite as 369 Or 531 (2022) 533

BALMER, J.

Petitioner was convicted of aggravated intentional

murder in 1995 and sentenced to life in prison without the

possibility of parole. In this, her second case seeking post-

conviction relief, petitioner moved to amend her complaint a

third time to introduce new claims that the state unlawfully

withheld exculpatory evidence in petitioner’s criminal trial.

Under ORCP 23 A, after a pleading is amended once, fur-

ther amendments require either the consent of the adverse

party or leave of court. Here, the state1 did not consent, so

leave of the post-conviction court was required.

The post-conviction court considered, among other

things, the state’s argument that petitioner’s proposed

amended claims were barred as a successive petition under

ORS 138.550(3). That bar applies unless the claims at issue

“could not reasonably have been raised” in a prior petition.

ORS 138.550(3). The state presented evidence from the

records of earlier cases involving the same murder, which

purported to show that petitioner or her counsel knew about

the allegedly withheld evidence and the possibility that it was

withheld, and, therefore, reasonably could have raised her

claims. After considering that evidence, the post-conviction

court denied petitioner leave to amend her petition.

Petitioner sought review, asking this court to resolve

whether the merit of the proposed amendments, including

whether they are procedurally barred, is relevant to deter-

mining whether to grant leave to amend under ORCP 23 A,

and whether the post-conviction court erred in considering

the state’s evidence.

For the reasons explained below, we reiterate that

the gravamen of the inquiry under ORCP 23 A is prejudice

to the opposing party, and we clarify that merit is relevant

only insofar as ORCP 23 A permits leave to be denied for

futile amendments. We further conclude that a court may

consider judicially noticeable facts in determining whether

a proposed amendment is futile. In applying those rules to

this case, we conclude that some of petitioner’s claims were

1

The superintendent of the Coffee Creek Correctional Facility is the nomi-

nal defendant. For convenience, we refer to the defendant as the “state.”

534 Eklof v. Persson

not futile. Because the state and post-conviction court iden-

tified no meaningful prejudice to the state resulting from

petitioner’s proposed amendments, the post-conviction court

abused its discretion in denying leave to amend. We there-

fore reverse the decision of the Court of Appeals and the

judgment of the circuit court, and remand to the circuit

court for further proceedings.

I. FACTS

Petitioner was convicted of aggravated intentional

murder in 1995, based on evidence that she and an accom-

plice, Tiner, murdered petitioner’s roommate. Among the

state’s witnesses in that proceeding were Distabile, Hope,

and Smith. Petitioner was sentenced to life in prison with-

out the possibility of parole. Petitioner unsuccessfully sought

relief through direct appeal, a petition for post-conviction

relief filed in 1999, and a federal petition for habeas corpus

filed in 2004.

Petitioner then filed this successive petition for post-

conviction relief, alleging, among other things, that she was

denied due process because of Brady violations by the state.

See Brady v. Maryland, 373 US 83, 87, 83 S Ct 1194, 10 L Ed

2d 215 (1963) (holding that a prosecutor’s withholding of

favorable evidence from a criminal defendant “violates due

process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of

the prosecution”). After petitioner had amended this peti-

tion twice for reasons not relevant here, the post-conviction

court granted summary judgment to the defendant. This

court reversed that judgment and remanded the case for

further proceedings. Eklof v. Steward, 360 Or 717, 385 P3d

1074 (2016) (Eklof I).

On remand, petitioner moved for leave to amend

her petition a third time, seeking to allege, as relevant here,

additional Brady violations related to the three witnesses

mentioned above: Smith, Hope, and Distabile. As to Smith,

petitioner alleged that the state had withheld evidence that

Smith had a reputation for dishonesty among local judges,

prosecutors, and police. As to Hope, petitioner alleged that

the state had withheld evidence that Hope had been under

investigation for several sex abuse crimes. As to Distabile,

Cite as 369 Or 531 (2022) 535

petitioner alleged that the state had withheld a letter from

Distabile’s attorney offering Distabile’s “full and complete

cooperation in exchange for transactional (i.e., total) immu-

nity from prosecution in the * * * murder [case].” Petitioner

contended that that allegedly withheld evidence could have

been used to impeach Smith, Hope, and Distabile at trial.

Under ORCP 23 A, petitioner needed the court’s

leave to amend her petition a third time. ORCP 23 A pro-

vides, in part:

“A pleading may be amended by a party once as a matter

of course at any time before a responsive pleading is served

or, if the pleading is one to which no responsive pleading is

permitted, the party may so amend it at any time within

20 days after it is served. Otherwise a party may amend

the pleading only by leave of court or by written consent

of the adverse party; and leave shall be freely given when

justice so requires.”

The clause, “leave shall be freely given when justice so

requires,” petitioner observed, gave the trial court discre-

tion regarding the amendment. Petitioner directed the

court’s attention to four considerations that the Court of

Appeals has identified to guide the appropriate exercise of

that discretion:

“(1) the nature of the proposed amendments and their

relationship to the existing pleadings; (2) the prejudice, if

any, to the opposing party; (3) the timing of the proposed

amendments and related docketing concerns; and (4) the

colorable merit of the proposed amendments.”

Ramsey v. Thompson, 162 Or App 139, 145, 986 P2d 54 (1999),

rev den, 329 Or 589 (2000). Petitioner contended that all

four Ramsey considerations weighed in favor of amendment.

Petitioner also contended that, in evaluating the motion for

leave to amend, the court was required to assume the truth

of the allegations in the amended petition. Petitioner empha-

sized that, because the strength of her claims depended on

discoverable facts, justice required that she be permitted to

amend her petition and proceed to discovery.

The state objected to petitioner’s motion for leave to

amend, arguing, as relevant here, that petitioner’s proposed

amendments were barred as a successive petition under

536 Eklof v. Persson

ORS 138.550(3).2 That bar applies unless petitioner’s claims

“could not reasonably have been raised” in her prior peti-

tion. ORS 138.550(3). To support its position that petitioner

knew about the allegedly withheld evidence, and its with-

holding, and that the Brady claims either could reason-

ably have been raised, or indeed had been raised, the state

attached exhibits including filings submitted by petitioner

in her prior cases, as well as transcripts of prior proceed-

ings. The state also addressed the four Ramsey consid-

erations, arguing, among other things, that allowing the

amendment would prejudice the state because it would “add

to the burden of having to prove this case all over again”

and “make the Superintendent and the State meet these

claims.”

The post-conviction court denied petitioner’s motion

for leave to amend, adopting the state’s reasoning without

elaboration. Petitioner proceeded to trial on her second

amended petition and, in the end, was denied post-conviction

relief.

Petitioner appealed the resulting judgment, argu-

ing, as relevant here, that the post-conviction court abused

its discretion by denying her motion for leave to amend.

Petitioner reiterated her position that the four Ramsey con-

siderations weighed in favor of allowing the amendment.

In response, the state defended the post-conviction

court’s decision on the ground that petitioner’s proposed

claims lacked “colorable merit,” the fourth Ramsey consid-

eration. The state did not address any of the other three

Ramsey considerations. The state defined a claim with “col-

orable merit” as one that “legitimately allege[d]” the facts

that claimant would eventually have to prove. The state

did not explain what it meant to allege something “legiti-

mately,” but, ultimately, the state appeared to argue that the

2

ORS 138.550(3) provides, in part:

“All grounds for relief claimed by petitioner in a petition pursuant to ORS

138.510 to 138.680 must be asserted in the original or amended petition, and

any grounds not so asserted are deemed waived unless the court on hearing a

subsequent petition finds grounds for relief asserted therein which could not

reasonably have been raised in the original or amended petition.”

Cite as 369 Or 531 (2022) 537

allegations were not “legitimate” if they were contradicted by

judicially noticeable facts and were therefore a “sham.” See

ORCP 21 E(1) (allowing the court to strike “any sham, frivo-

lous, or irrelevant pleading or defense”). The state reasoned

that, in this case, petitioner was required to “allege and

prove facts establishing that she could not reasonably have

raised [her] claims in a timely post-conviction proceeding—

that is, establishing that the claims come within * * * ORS

138.550(3)’s escape clause[ ].” The state then argued that

judicially noticeable facts, specifically “petitioner’s own oral

and written representations” in her prior post-conviction

and federal habeas cases, showed that she reasonably could

have raised all her new claims in her first post-conviction

proceeding, and that she could not now “legitimately allege”

any facts to the contrary.

The Court of Appeals affirmed, relying on Ramsey’s

four considerations and concluding that the post-conviction

court did not abuse its discretion in denying petitioner’s

motion for leave to amend. Eklof v. Persson, 307 Or App

585, 477 P3d 1215 (2020) (Eklof II). Regarding the exhibits

offered by the state from the records of prior related cases,

the court decided that the post-conviction court, in evaluat-

ing the motion under ORCP 23 A, “could look more generally

to the record in the case,” id. at 595, and that the evidence

here was in the record as exhibits to the superintendent’s

opposition to petitioner’s motion for leave to amend, id. at

591.

Petitioner filed a petition for review, which we allowed.

II. ANALYSIS

We review a court’s denial of leave to amend under

ORCP 23 A for abuse of discretion. Deep Photonics Corp. v.

LaChapelle, 368 Or 274, 300, 491 P3d 60 (2021). That dis-

cretion is bounded by the text of ORCP 23 A, which directs

that “leave shall be freely given when justice so requires.”

The post-conviction court here did not explain its decision

to deny leave, other than citing the reasons offered by the

state. We consider whether denying leave here was a per-

missible exercise of discretion.

538 Eklof v. Persson

On review, both parties agree that the key inquiry

driving the exercise of discretion under ORCP 23 A is the

extent of prejudice to the adverse party. See C.O. Homes,

LLC v. Cleveland, 366 Or 207, 216, 460 P3d 494 (2020) (“[T]he

gravamen of the inquiry [under ORCP 23 A] is whether

allowing a pretrial amendment would unduly prejudice the

opposing party.”). The parties disagree about whether the

court can disallow an amendment that is futile, either in

addition to or as part of the prejudice inquiry. As a subsid-

iary question, the parties dispute whether, in determining

whether a proposed amendment is futile, the court can con-

sider materials beyond the face of the proposed amendment

itself.

The state argues that futility is a permissible con-

sideration under ORCP 23 A because that rule was based on

a federal rule (FRCP 15 (1976)) that had been interpreted by

the federal courts to permit denial of leave to amend based

on the futility of the proposed amended pleading. The state

would define a futile amendment as one that either “fails as

a matter of law,” or “cannot survive scrutiny under govern-

ing pleading standards,” such as former ORCP 21 A(8) (2017),

renumbered as ORCP 21 A(1)(h) (2021) (governing motions

to dismiss for “failure to state ultimate facts sufficient to

constitute a claim”), or ORCP 21 E(1) (governing motions to

strike “any sham, frivolous, or irrelevant pleading”).

The state then argues that petitioner’s proposed

amendments here were futile due to the bar on successive

petitions, ORS 138.550(3). (The state appears not to main-

tain its argument that the petition was also barred by

the statute of limitations, ORS 138.510(3).) To determine

whether that bar applied, the state contends, the court was

permitted to rely on evidence from the “judicially notice-

able public record” that purported to show that petitioner

could reasonably have raised her claims in her prior post-

conviction petition.

Petitioner, in contrast, argues that allowing the

court to consider the merit (including the alleged futility)

of a proposed amendment under ORCP 23 A contradicts

the liberal amendment policy at the heart of that rule.

Alternatively, petitioner suggests, if the court can consider

Cite as 369 Or 531 (2022) 539

the merit of a proposed amended complaint, then, in so

doing, the court must accept as true all facts alleged in the

proposed amended pleadings and may not consider any other

evidence or judicially noticeable facts. As a further alterna-

tive, petitioner contends that, even in light of the state’s evi-

dence in this case, petitioner’s amendments were not futile.

A. Futility of Proposed Amended Pleadings

We begin with the first question, whether courts

may consider the futility or merit of proposed amended

pleadings in deciding whether to grant leave to amend. We

interpret rules, including ORCP 23, by our usual method of

statutory interpretation, looking to their text and context,

along with their legislative history to the extent we deem

appropriate. A. G. v. Guitron, 351 Or 465, 471, 268 P3d 589

(2011). Under ORCP 23 A, as quoted above, a party may

freely amend a pleading once within a certain time. After

that, subsequent amendments require leave of the court or,

not relevant here, the consent of the adverse party.

The critical text for the purpose of this case is,

“leave shall be freely given when justice so requires.” ORCP

23 A. That standard is broad and does not alone resolve

the questions here, but the wording does suggest two basic

principles. The first principle is based on the clause “leave

shall be freely given.” “Freely,” as used here, means “with-

out restraint or reserve : plentifully, abundantly.” Webster’s

Third New Int’l Dictionary 906 (unabridged ed 2002). Thus,

ORCP 23 A directs courts to allow amendments “without

restraint or reserve.” But such decisions are also subject to

the second clause, “when justice so requires,” which leads

us to the second principle. The clause, “when justice so

requires,” leaves it to the court to determine what justice

requires but does not provide much specific direction as to

how that standard should be applied. “Justice” can mean

many things, of course, but here, we understand the word

to refer to, at least, “the quality or characteristic of being

just, impartial, or fair : fairness, integrity, honesty.” Id. at

1228. We therefore understand the clause, “when justice

so requires,” to convey that the trial court’s determina-

tion under ORCP 23 A is discretionary, but that the court

must consider relevant aspects of justice, such as fairness.

540 Eklof v. Persson

Thus, although amendments are to be permitted “freely,”

which will ordinarily benefit the party seeking amendment,

the additional component of the rule—“when justice so

requires”—means that the court must consider the fairness

to both parties of allowing the amendment.

ORCP 23 A operates within the context of a larger

structure of pleading standards and procedures set forth in

the Oregon Rules of Civil Procedure. One subset of rules,

which includes ORCP 23 A, allows parties to defeat a pleading

before trial in certain circumstances. Under ORCP 21 E(1),

for example, the court may strike “any sham, frivolous, or

irrelevant pleading,” either on its own motion or the motion

of a party. Under ORCP 21 A(1)(h) (former ORCP 21 A(8)

(2017)), a party can move to dismiss a claim for relief in a

pleading for “failure to state ultimate facts sufficient to con-

stitute a claim.” Under ORCP 47 C, a party may be granted

summary judgment if it shows that “there is no genuine

issue as to any material fact and that the moving party is

entitled to prevail as a matter of law.” An amended pleading

may, like other pleadings, be subject to motions under each

of those rules. Because ORCP 23 A was promulgated along-

side those rules, and with different wording, we understand

ORCP 23 A to set up a different, though sometimes overlap-

ping, legal standard from each of those rules. In other words,

contrary to the state’s suggestion, we cannot rely entirely on

those other pleading standards to determine whether jus-

tice requires an amendment to be allowed.

We turn next to the legislative history of ORCP 23 A.

Promulgated as part of the adoption of the Oregon Rules of

Civil Procedure in 1978, ORCP 23 combined the federal rule

regarding amended pleadings then in effect, FRCP 15 (1976),

with existing Oregon statutes. See C.O. Homes, LLC, 366 Or

at 215 n 14; Council on Court Procedures, Staff Comment

to Rule 23, reprinted in Frederic R. Merrill, Oregon Rules of

Civil Procedure: A Handbook 48 (1981).

FRCP 15(a) (1976)3 supplied the specific wording

used in the relevant part of ORCP 23 A: that leave to amend

3

FRCP 15(a) (1976) provided:

“A party may amend his pleading once as a matter of course at any time

before a responsive pleading is served or, if the pleading is one to which no

Cite as 369 Or 531 (2022) 541

a pleading more than once “shall be freely given when justice

so requires.” Based on the rule’s identical wording to that

in the federal rule, and the staff comment to ORCP 23 A,

it is clear that the relevant portion of ORCP 23 A was mod-

eled after FRCP 15(a) (1976). “When the Oregon legislature

adopts a statute modeled after another jurisdiction, an

interpretation of that statute by the highest court of that

jurisdiction that was rendered in a case decided before adop-

tion of the statute by Oregon is considered to be the inter-

pretation of the adopted statute that the Oregon legislature

intended.” State v. Cooper, 319 Or 162, 167-68, 874 P2d 822

(1994). In interpreting ORCP 23 A, therefore, we can turn

to Supreme Court cases interpreting FRCP 15(a) prior to

the promulgation of the Oregon Rules of Civil Procedure in

1978. There is one relevant case.

In Foman v. Davis, 371 US 178, 83 S Ct 227, 9 L Ed

2d 222 (1962), after the petitioner’s complaint had been dis-

missed for failure to state a claim upon which relief might

be granted, the petitioner asked to vacate the judgment so

she could amend the complaint. Id. at 179. The trial court

refused to vacate the judgment, but the Supreme Court

reversed. Id. at 182. Citing FRCP 15(a), the Court wrote:

“If the underlying facts or circumstances relied upon by a

plaintiff may be a proper subject of relief, he ought to be

afforded an opportunity to test his claims on the merits.

In the absence of any apparent or declared reason—such

as undue delay, bad faith or dilatory motive on the part of

the movant, repeated failure to cure deficiencies by amend-

ments previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, futility of

amendment, etc.—the leave sought should, as the rules

require, be ‘freely given.’ ”

Id. (emphasis added). In that discussion, we see the famil-

iar considerations of timing and prejudice, but also the

responsive pleading is permitted and the action has not been placed upon

the trial calendar, he may so amend it at any time within 20 days after it is

served. Otherwise a party may amend his pleading only by leave of court or

by written consent of the adverse party; and leave shall be freely given when

justice so requires. A party shall plead in response to an amended pleading

within the time remaining for response to the original pleading or within

10 days after service of the amended pleading, whichever period may be the

longer, unless the court otherwise orders.”

542 Eklof v. Persson

“futility of amendment.” Although futility was not dispos-

itive in Foman, that passage has been widely relied on in

the lower federal courts. Those courts’ opinions, although

they are not binding on this court, offer perspective on how

FRCP 15(a) and Foman had been interpreted and applied

before the legislature adopted ORCP 23 A. See, e.g., Smith v.

Commanding Officer, Air Force Accounting, 555 F2d 234, 235

(9th Cir 1977) (per curiam) (applying Foman to hold that the

trial court was within its discretion to deny leave to amend

“when the amendment would be ‘futile’ because [appellant]

could not prevail on the merits because of the Government’s

immunity”); Simons v. United States, 497 F2d 1046, 1049

(9th Cir 1974) (considering whether the trial court should

have deemed a pleading amended before dismissing it, and

citing Foman for the proposition that the trial court “should

have deemed the pleading amended for the purpose of ruling

on the motion to dismiss, unless the amendment would have

been futile”); Freeman v. Continental Gin Company, 381 F2d

459, 468-70, reh’g den, 384 F2d 365 (5th Cir 1967) (citing

Foman and observing that the proposed amendment in that

case, filed eight months after judgment issued, could have

been refused as futile because the key evidence was barred

by the parol evidence rule). Those cases reveal that FRCP

15(a) and Foman have been applied to disallow amendments

that were futile for a variety of reasons.

The federal courts appear to take futility as an addi-

tional consideration, alongside prejudice, under FRCP 15(a).

See Foman, 371 US at 182 (listing both prejudice and futil-

ity among reasons to deny amendments). This court’s case

law predating the Oregon Rules of Civil Procedure hints at a

similar approach. See Hume v. Kelly, 28 Or 398, 410, 43 P 380

(1896) (upholding the rejection of a proposed amendment that

would have left the complaint “subject to objections that [the

amendment] was intended to obviate,” and further noting

that “[w]hile courts are always liberal in allowing amend-

ments in furtherance of justice, * * * they will not do a vain

thing”). We reiterate that prejudice remains the key inquiry

under ORCP 23 A, but based on the above text, context, and

legislative history of ORCP 23 A, we also agree with the fed-

eral courts that, even absent a showing of prejudice, justice

does not require futile amendments to be allowed.

Cite as 369 Or 531 (2022) 543

That conclusion leads inevitably to the question of

what it means for an amendment to be futile. In general,

“futile” means “serving no useful purpose : ineffective,

fruitless.” Webster’s at 925. The Supreme Court has not

thoroughly explained what “futile” means for purposes of

FRCP 15 other than to imply that amendments should not

be barred “[i]f the underlying facts or circumstances relied

upon by a plaintiff may be a proper subject of relief.” Foman,

371 US at 182. Supplementing that clause, the Ninth Circuit

has held that leave to amend should be granted unless the

complaint “cannot under any conceivable state of facts be

amended to state a claim,” Alexander v. Pacific Maritime

Association, 314 F2d 690, 694 (9th Cir 1963), and that leave

to amend should be granted “if it appears at all possible

that the plaintiff can correct the defect,” Breier v. Northern

California Bowling Proprietor’s Ass’n, 316 F2d 787, 790 (9th

Cir 1963). At other times, the Ninth Circuit has written that

an amendment that “would state a claim for relief” was not

futile, Simons, 497 F2d at 1049, and that one that “could

not prevail on the merits” due to sovereign immunity was

futile, Smith, 555 F2d at 235. The Fifth Circuit has noted,

as another example, that an amendment may be futile if

the proposed claims rely on evidence that has been properly

excluded, and the proposed amendments do not allege facts

to support admitting that evidence. Freeman, 381 F2d at

468-69.

The federal decisions turn on the allegations in

the specific proposed amended proceedings and the facts

in those cases. They describe the kind of amended plead-

ing that would not be futile in different ways, from one that

alleges a claim that would survive a motion to dismiss for

“failure to state a claim upon which relief can be granted,”

FRCP 12(b)(6), to one that “may be a proper subject of relief,”

Foman, 371 US at 182. In any case, in view of the meaning

of “futile” and the above case law, a nonfutile claim must be

one that “could * * * prevail on the merits,” Smith, 555 F2d

at 235, and is therefore not ineluctably “fruitless,” Webster’s

at 925.

Cast in terms of Oregon law, we similarly under-

stand that a futile claim is one that could not prevail on the

544 Eklof v. Persson

merits due to some failing in the pleadings or some unavoid-

able bar or obstacle. For example, a claim over which the rel-

evant court lacks subject matter jurisdiction would be futile

because that claim could not proceed to the merits, much

less prevail, and no discoverable facts could avoid that bar.

See ORCP 21 A(1)(a) (providing for motions to dismiss for

“lack of jurisdiction over the subject matter”).

This court implicitly held as much in Sanok v.

Grimes, 294 Or 684, 662 P2d 693 (1983). In Sanok, the plain-

tiff brought an amended complaint in the Tax Court, seek-

ing to join additional defendants. Id. at 686. The Tax Court

denied the motion to join and dismissed the complaint for

lack of subject matter jurisdiction. Id. This court reversed,

holding that some of the claims, but not all, were within

the subject matter jurisdiction of the Tax Court. Id. at 701.

This court then remanded the case “with leave to further

amend the complaint in accordance with this opinion,” that

is, to add those claims over which the Tax Court had juris-

diction. Id. This court did not direct the Tax Court to allow

the plaintiff to add those claims over which the Tax Court

did not have jurisdiction, presumably because adding those

claims would have been futile.

By the same reasoning, futile amendments might

also include claims that, on their face, are barred by a stat-

ute of limitations, see ORCP 21 A(1)(i), or pleadings that fail

to state ultimate facts sufficient to constitute a claim, see

ORCP 21 A(1)(h). We note that that conclusion is in line with

more recent federal interpretations of FRCP 15, postdating

the promulgation of the Oregon Rules of Civil Procedure. See

Marucci Sports v. Nat’l Collegiate Athletic, 751 F3d 368, 378

(5th Cir 2014) (“An amendment is futile if it would fail to sur-

vive a Rule 12(b)(6) motion.”); Adams v. City of Indianapolis,

742 F3d 720, 734, reh’g den (7th Cir), cert den, 574 US 875

(2014) (“[T]here is no practical difference, in terms of review,

between a denial of a motion to amend based on futility and

the grant of a motion to dismiss for failure to state a claim.”).

But the fact that an amended pleading, on its face,

would not survive a motion to dismiss is not the only way

an amended pleading may be futile. Here, the state’s objec-

tion based on ORS 138.550(3) could have been raised in a

Cite as 369 Or 531 (2022) 545

motion to dismiss or a motion for summary judgment. The

standards for those two motions are different: A court eval-

uating those types of motions to dismiss is limited to the

face of the proposed amended pleadings; a court consider-

ing a motion for summary judgment, however, can consider

undisputed evidence beyond the pleadings, although it must

do so in the light most favorable to the nonmoving party.

Ordinarily, discovery related to claims in a pleading is

available before summary judgment, but discovery related

to new or amended claims may not be permitted until the

amended pleading is allowed. Thus, for a court to conclude

that a proposed amended pleading would be futile because

it would likely fail on summary judgment, that court would

have to conclude that no potentially discoverable evidence

could defeat such a motion.

Here, petitioner does not appear to dispute that

her claims would be barred by ORS 138.550(3) unless those

claims “could not reasonably have been raised” in her prior

petition. The parties also appear to agree that petitioner

could reasonably have raised those claims if she or her coun-

sel had discovered or reasonably should have discovered that

the prosecutor had withheld the evidence at issue at a time

when petitioner could reasonably have added corresponding

claims to her prior post-conviction petition. For purposes of

a motion to amend under ORCP 23 A, those claims would

not be futile if it is possible that discoverable evidence could

permit the conclusion that petitioner had not discovered and

reasonably should not have discovered the withholding of

that evidence at such a time. If petitioner’s claims are not

futile, they may not be disallowed based on their likelihood

of success, however slim that likelihood may seem to the

court when considering the motion to amend. We turn next

to the question of what the court may consider in determin-

ing the amendments’ futility.

B. Considering Judicially Noticeable Facts Under ORCP

23 A

The state’s argument here—that no discoverable

evidence could possibly substantiate petitioner’s claims—is

based on extrinsic evidence offered by the state and attached

to its response to petitioner’s motion for leave to amend.

546 Eklof v. Persson

Thus, the remaining questions before us are whether the

trial court was permitted to consider that extrinsic evidence,

and, if so, whether that evidence supports the state’s con-

tention. The first question is, essentially, whether the court

may consider judicially noticeable facts. See OEC 201(b).4

As with the above questions, the text and con-

text of ORCP 23 A do not clearly resolve the issue, other

than directing us to the broad requirements of “justice.” At

most, the text—“leave shall be freely given when justice so

requires”—contains no constraining or limiting phrases

that would restrict the court’s ability to consider judicially

noticeable facts. The context of ORCP 23 A, as noted above,

suggests that the standards under that rule are likely differ-

ent than those under other rules that were simultaneously

promulgated with different wording, such as ORCP 21 A,

ORCP 21 E, and ORCP 47 C. The Oregon Evidence Code,

for its part, authorizes a court to take judicial notice “at

any stage of the proceeding,” OEC 201(f), suggesting that,

absent some other proscription (as, for example, ORCP 21

A(2)(b), which limits the factual basis for certain motions to

dismiss), the court may consider judicially noticeable facts.

Our case law provides two additional clues, showing that

other kinds of judicial notice are permissible under ORCP

23 A.

First, it is well settled that, in evaluating a motion

for leave to amend, a court may look beyond the face of

the proposed amended pleading to the record in the case

before it and the procedural posture of the case at the time

the motion is made. For example, in Deep Photonics Corp.

and C.O. Homes, LLC, we recognized that the timing of

an amendment could prejudice the nonmoving party. Deep

Photonics Corp., 368 Or at 301-02; C.O. Homes, LLC, 366 Or

at 216. To determine whether such prejudice might occur,

the court was required to consider not only the face of the

4

OEC 201(b) provides:

“A judicially noticed fact must be one not subject to reasonable dispute in

that it is either:

“(1) Generally known within the territorial jurisdiction of the trial court;

or

“(2) Capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.”

Cite as 369 Or 531 (2022) 547

proposed amended pleading, but also the stage of the litiga-

tion at the time the motion was made. Similarly, in Humbird

v. McClendon, 281 Or 83, 86-87, 573 P2d 1240 (1978), where

the defendants sought midtrial to amend their answer from a

general denial to an assertion of self-defense, we recognized

that “[i]t is not an abuse of * * * discretion to deny amend-

ment particularly where, as here, the proffered amendment

totally changed the defendants’ theory of the case and coun-

sel offered no reasonable justification for the delay in filing

a proper pleading.” In determining whether the amendment

“totally changed the defendants’ theory of the case,” and

what weight that consideration should receive, the court in

Humbird necessarily looked beyond the face of the proposed

amended pleading to the case as it was being litigated and

the earlier pleadings by both parties. Id. at 86. Those exam-

ples do not conclusively determine how far a court can look

beyond the face of the proposed amended pleadings, but they

do indicate that there is no categorical bar on considering

the record and proceedings in the particular case.

The second clue is that, in interpreting ORCP 23 A,

this court has considered the relationship between proposed

amended pleadings and existing law, which is judicially

noticeable under OEC 202. Doing so may be necessary to

determine whether the proposed amendments substan-

tially change the legal basis for a claim. For example, in

C.O. Homes, LLC, this court observed that the plaintiff’s

proposed amendments changed the statutory basis for its

claim, from one landlord-tenant statute to another. 366 Or

at 219-20. Thus, it has already been established that the

court can take judicial notice of “[t]he decisional, constitu-

tional and public statutory law of Oregon” when evaluating

motions for leave to amend. OEC 202(1).

In light of the text and context of ORCP 23 A,

the text of OEC 201 and OEC 202, and the case law, we

conclude that the court may consider judicially noticeable

facts in evaluating motions for leave to amend to the extent

that such facts are relevant to determining whether justice

requires that leave to amend be granted.

In so concluding, we emphasize that judicially

noticeable facts are limited to those that are “not subject to

548 Eklof v. Persson

reasonable dispute,” in that they are either “[g]enerally

known within the territorial jurisdiction of the trial court,”

or are “[c]apable of accurate and ready determination by

resort to sources whose accuracy cannot reasonably be

questioned.” OEC 201(b). The role of judicially noticed facts

in evaluating a motion under ORCP 23 A is not to seek to

determine whether a claim is likely or unlikely to succeed,

or whether alleged facts are likely to be found to be true, but

rather to determine whether there is an unavoidable bar to

a claim such that that claim is futile.

Petitioner and amicus curiae Oregon Trial Lawyers

Association disagree with that approach and argue that a

court may only consider the pleadings on their face. Their

arguments are unavailing.

Petitioner argues, relying primarily on Sanok, that

the court may not consider such evidence and that it is

instead required to accept the facts alleged in the proposed

amended pleadings as true. Petitioner’s reliance on Sanok

for that proposition is misplaced. In Sanok, as discussed pre-

viously, the Tax Court dismissed a complaint because the

court concluded that the alleged claims were beyond the Tax

Court’s limited jurisdiction. 294 Or at 686. This court dis-

agreed, concluding that some of the claims were within the

Tax Court’s jurisdiction and that those claims should not have

been dismissed. Id. at 701. Sanok did concern an amended

complaint, and it did at one point refer to ORCP 23 A,

but the subject of the appeal in that case was an order of dis-

missal for lack of jurisdiction under what is now ORCP 21

A(1)(a), not a denial of leave to amend under ORCP 23 A. Id.

at 687. As this court has long held, “On review of a judgment

on the pleadings, the appellate court accepts as true all well-

pleaded allegations in the complaint.” Rowlett v. Fagan, 358

Or 639, 649, 369 P3d 1132 (2016). Sanok applied that rule,

accepting as true “the allegations of plaintiff’s complaint

in the [T]ax [C]ourt.” 294 Or at 688. But the court did not

review the Tax Court’s decision regarding the amendment

itself, so Sanok does not assist us in determining the appli-

cable evidentiary standard here.5

5

Sanok is inapposite to this case with regard to petitioner’s arguments about

evidentiary standards under ORCP 23 A because the Tax Court in Sanok did not

Cite as 369 Or 531 (2022) 549

Diverging slightly from petitioner, amicus asserts

that the standard under ORCP 23 A “should not be more

onerous than what is allowed under [former] ORCP 21 A(8)

[(2017)],” under which a party may never offer evidence out-

side the pleadings. Although amicus discusses former ORCP

21 A(8) (2017) at some length, amicus does not explain why

that standard should be applied under ORCP 23 A, which

is a different rule, with different wording, and a different

purpose.

Applying the legal analysis set out above regarding

a trial court’s consideration of matters beyond the pleading

itself under ORCP 23 A, we conclude that the post-conviction

court was within its discretion in considering the evidence

presented by the state, to the extent that that evidence pre-

sented judicially noticeable facts, and in order to evaluate

whether petitioner’s claims were futile. We turn next to

the question of whether, considering those facts, the post-

conviction court abused its discretion in denying leave for

petitioner to amend her complaint.

C. Whether the Amendments Here Are Futile

As explained above, whether petitioner’s claims

could succeed depends on whether petitioner or her coun-

sel discovered or reasonably should have discovered that

the prosecutor had withheld the evidence at issue at a time

when she could have added Brady claims based on that

withheld evidence to her prior petition.6 If discovery could

ultimately base its ruling on ORCP 23 A. As explained above, however, Sanok is

instructive to the limited extent that this court’s resolution of Sanok, directing

the Tax Court to permit certain amendments, indicates what types of claims are

eligible to be added through amendment (i.e., nonfutile ones).

6

The state separately argues that petitioner’s proposed amendments are

futile because petitioner failed to affirmatively plead facts establishing that

her proposed claims could not reasonably have been raised in her original post-

conviction proceeding, and that they therefore would not survive a motion to dis-

miss under former ORCP 21 A(8) (2017). The state maintains that petitioner was

required to allege facts showing that “petitioner’s counsel was unaware of the

Brady evidence or unaware of the possibility that the prosecution had failed to

disclose it,” and that she failed to do so.

We conclude that the third amended petition was adequately pleaded, at least

in the manner challenged by the state. In Eklof I, we held that, because the peti-

tion was successive, the petitioner had to plead “that the claim could not reason-

ably have been raised * * * in the original action for post-conviction relief.” 360

Or at 728. Here, the petition alleged, “Petitioner could not reasonably have raised

550 Eklof v. Persson

yield evidence indicating that petitioner or her counsel dis-

covered the alleged withholding only after petitioner could

have raised her claims in her prior post-conviction proceed-

ing, then petitioner’s claims are not futile. If the discovery

of such evidence is possible, even if unlikely, then leave to

amend should have been granted. On the other hand, if judi-

cially noticeable facts—which, again, are only those “not

subject to reasonable dispute” as that phrase is used in OEC

201(b)—conclusively show that post-conviction trial counsel

had discovered the alleged withholding of evidence, then

the claims would be futile because they would necessarily

be barred by ORS 138.550(3), and the post-conviction court

would have acted within its discretion in denying leave to

amend. We therefore consider whether the arguments and

judicially noticeable facts presented by the state show that

petitioner’s claims regarding trial witnesses Smith, Hope,

and Distabile are unavoidably barred.

As to witness Smith, the allegedly withheld evi-

dence includes potential testimony purporting to show that

various judges, prosecutors, and a police chief believed that

Smith had a reputation for dishonesty. The state presented

a transcript showing that petitioner’s prior post-conviction

counsel stated during one hearing in 2001 that one judge,

Judge Hargreaves, had “found Mr. Smith to be untruthful,”

that “three prior cases were overturned because of the tactics

used by Mr. Smith,” and that Mr. Smith’s reputation was “a

well-known fact in the courtroom.” During another hearing,

counsel stated that Judge Hargreaves thought Smith was

the above grounds for relief * * * in her first post-conviction proceeding, because

neither the Lane County District Attorney nor the Oregon Department of Justice

disclosed the above described * * * evidence to petitioner during any of those pro-

ceedings,” and because the “evidence was not disclosed to petitioner during the

two years following her judgment of conviction and sentence.” Petitioner’s plead-

ings therefore closely track our instructions in Eklof I, and, as the state notes,

those allegations “could be construed to imply that * * * [petitioner] lacked notice

of the possibility that the prosecution had failed to disclose [the evidence] during

her criminal trial.” The state might later prove that petitioner or her counsel

reasonably could have discovered that the prosecutor had possibly withheld such

information at a time when petitioner reasonably could have raised her claims

in her prior post-conviction proceeding, and if the state did so, the petition here

would be barred under ORS 138.550(3). At this stage in the proceeding, however,

the state only argues that construing petitioner’s allegations in the above man-

ner “irreconcilably conflicts with the judicially noticeable public record,” and, to

the extent explained below, we disagree.

Cite as 369 Or 531 (2022) 551

known for being “essentially dishonest.” Petitioner’s trial

memorandum in that proceeding further described Judge

Hargreaves’s view and asserted that Judge Hargreaves’s

opinion of Smith was “well-known in the community.”

Those assertions indicate that, in 2001, petitioner’s

counsel believed that Judge Hargreaves had a negative view

of Smith’s honesty. We may and do take judicial notice of

those statements, and, if petitioner’s claims depended solely

on Judge Hargreaves, we might conclude that petitioner’s

claims were futile. (Although courts may judicially notice

the statements and representations made by counsel in a

prior proceeding, the facts asserted therein, on the other

hand, such as whether or not Judge Hargreaves actually

had a negative view of Smith, are not judicially noticeable,

nor are they material to the issues in this case.) Petitioner

alleged, however, that evidence regarding the opinions of

other judges, prosecutors, and a police chief was withheld

in addition to the evidence regarding Judge Hargreaves.

No evidence presented by the state indicates, by judicially

noticeable facts, that petitioner or her counsel had discov-

ered the alleged withholding of that additional evidence.

Thus, evidence regarding those opinions could be discovered

showing that petitioner and her counsel had not discovered

and should not reasonably have discovered the alleged with-

holding of that other evidence.

As to witness Hope, the allegedly withheld evidence

includes a warrant, allegedly to search Hope’s home for evi-

dence of various sex abuse crimes, a filed return allegedly

indicating that police had seized evidence based on that

warrant, and potential testimony indicating that Hope was

under investigation for related crimes. The evidence allegedly

withheld also includes a police report allegedly indicating

that Hope told police a different story from the story he told

as a witness at petitioner’s trial and also allegedly indicat-

ing that Hope was a convicted felon under investigation for

additional crimes. The state here presented evidence that, it

argues, shows that petitioner’s counsel, by the time of peti-

tioner’s federal habeas proceedings in 2006, was aware of

the warrant and investigation of Hope, and that petition-

er’s habeas counsel stated that those facts “were revealed

through discovery motions in Tiner’s [prosecution in] 1999.”

552 Eklof v. Persson

The fact that petitioner’s habeas counsel in 2006 stated that

certain evidence was “revealed” in 1999, however, does not

conclusively demonstrate that petitioner or her counsel had

discovered or reasonably should have discovered that that

evidence was allegedly withheld at a time when petitioner

could reasonably have raised that claim in her prior peti-

tion. Furthermore, although the fact that petitioner’s habeas

counsel stated in 2006 that the evidence was revealed in

1999 is not subject to reasonable dispute and is judicially

noticeable, the different question of whether petitioner or

her post-conviction counsel at the time had discovered or

reasonably should have discovered the alleged withholding

of that evidence in 1999 is subject to reasonable dispute and

is not a judicially noticeable fact. Thus, evidence could be

discovered showing that petitioner and her counsel had not

discovered and reasonably should not have discovered the

alleged withholding of that evidence during her first post-

conviction trial proceeding.

With regard to witnesses Smith and Hope, discov-

ery could reveal evidence indicating that petitioner and her

counsel had not discovered and reasonably should not have

discovered the alleged withholding of possible Brady evi-

dence at issue here at a time when petitioner could reason-

ably have added claims based on that evidence to her prior

petition. Without knowledge of that alleged Brady evidence

or withholding, petitioner could not reasonably have raised

those Brady claims in the prior post-conviction proceeding.

Because those claims could not reasonably have been raised,

they may come within the escape clause of ORS 138.550(3)

and are not unavoidably barred by that statute, which was

the sole ground the state argues that they were futile in this

court. We therefore conclude that those proposed amend-

ments were not futile and that, without the identification of

any prejudice to the state that would weigh against amend-

ment, justice required allowing those nonfutile claims to be

raised. As a result, in the absence of any prejudice that would

result from allowing the amendments, the post-conviction

court abused its discretion in denying leave to amend to add

those claims.

Petitioner’s claims regarding witness Distabile are

different. The allegedly withheld evidence regarding Distabile

Cite as 369 Or 531 (2022) 553

that is relevant here was a letter from Distabile’s attorney to

petitioner’s prosecutor purporting to offer Distabile’s coop-

eration in the prosecution in exchange for transactional

immunity for Distabile as to the victim’s death. The record

from petitioner’s original post-conviction proceeding shows

that petitioner offered that letter as an exhibit. Petitioner

raised in that proceeding the possibility that that letter had

been “kept from” petitioner’s trial counsel. Therefore, it is a

judicially noticeable fact that petitioner’s counsel had dis-

covered the Distabile letter and the possibility that it had

been withheld. As a result, it is apparent from the plead-

ings and arguments here that petitioner reasonably could

have raised a Brady claim based on that letter in her earlier

post-conviction proceeding, and petitioner’s claim in this

case based on the Distabile letter is barred for that reason.

Petitioner does not raise any additional arguments to the

contrary. Because that claim is futile, the post-conviction

court did not abuse its discretion in denying petitioner leave

to amend her petition to add it.

In sum, we conclude that the claims regarding

the state’s alleged failure to turn over potentially exculpa-

tory evidence related to witnesses Smith and Hope were

not futile, but that the claim regarding witness Distabile

was. Futility was the only ground for denying leave to

amend that was supported by the state’s arguments; the

state did not identify prejudice caused by the amendment.7

Absent a showing of prejudice, the lack of merit of proposed

amended claims will only justify denial of leave to amend

where the proposed amendments are truly futile. Thus, the

7

Before the post-conviction court, the state did argue that the proposed

amendments would add “new” claims and were “untimely.” In general, those con-

siderations are only relevant to the inquiry under ORCP 23 A to the extent that

they prejudice the adverse party, such as by changing the nature of the claims

being pleaded, limiting the amount of time the nonmoving party has to respond

to the amended claims, or requiring additional discovery or delay. Here, however,

the only “prejudice” identified by the state related to those considerations was

that the amendments would “add to the burden of having to prove this case all

over again.” The burden of responding to new, nonfutile claims may impose some

cost on the nonmoving party, but the mere requirement to respond to such an

additional claim, without more, does not prejudice the ability of the nonmoving

party to litigate those claims. In this case, as petitioner points out, the state

was able to respond fully to the proposed amended claims in its objection to the

motion for leave to amend. Thus, on this record, it does not appear that the state

would have been prejudiced had the amendment been allowed.

554 Eklof v. Persson

post-conviction court here abused its discretion in denying

petitioner leave to amend her complaint to add her claims

based on witnesses Smith and Hope.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is reversed, and the case

is remanded to the circuit court for further proceedings.