analogous federal rule in Oregon

2023In addition to the rule’s text, we also find persua- sive the reasoning of several federal courts that have inter- preted the analogous federal rule of civil procedure, FRCP 68, to require consideration of both monetary and nonmone- tary aspects of an offer or judgment in deciding whether the judgment is more favorable than the offer.6 See Vasconcelo v. Miami Auto Max, Inc., 981 F3d 934, 944 (11th Cir 2020) (“[T]he non-monetary elements of a judgment should be considered when comparing it to a Rule 68 offer.”); Reiter v. MTA New York City Transit Auth., 457 F3d 224, 231 (2d Cir 2006), cert den

2023After broadly surveying federal case law and applying the standard articulated in Feist v. Consolidated Freightways Corp., 100 F Supp 2d 273 (ED Pa 1999), aff’d, 216 F3d 1075 (3d Cir 2000), cert den, 532 US 920 (2001), in addressing the analogous federal rule, FRCP 17(a)(3),2 the court concluded that the trial court had discretion to deny substitution and dismiss the action if it was not persuaded that the plaintiff had made an “honest mistake.” Larsen, 322 Or App at 233-35, 239 .

2023The court affirmed the trial court’s conclusion that plaintiff in this case had not made an honest mistake, and concluded that, when a plaintiff acts “dishonestly” in bring- ing an action in her own name, the trial court has discretion under ORCP 26 A to deny substitution and dismiss the case “even in the absence of established prejudice to the defen- dant.” Id. at 240-41 .

2023In addition to the rule’s text, we also find persua- sive the reasoning of several federal courts that have inter- preted the analogous federal rule of civil procedure, FRCP 68, to require consideration of both monetary and nonmone- tary aspects of an offer or judgment in deciding whether the judgment is more favorable than the offer.6 See Vasconcelo v. Miami Auto Max, Inc., 981 F3d 934, 944 (11th Cir 2020) (“[T]he non-monetary elements of a judgment should be considered when comparing it to a Rule 68 offer.”); Reiter v. MTA New York City Transit Auth., 457 F3d 224, 231 (2d Cir 2006), cert den

2023In addition to the rule’s text, we also find persua- sive the reasoning of several federal courts that have inter- preted the analogous federal rule of civil procedure, FRCP 68, to require consideration of both monetary and nonmone- tary aspects of an offer or judgment in deciding whether the judgment is more favorable than the offer.6 See Vasconcelo v. Miami Auto Max, Inc., 981 F3d 934, 944 (11th Cir 2020) (“[T]he non-monetary elements of a judgment should be considered when comparing it to a Rule 68 offer.”); Reiter v. MTA New York City Transit Auth., 457 F3d 224, 231 (2d Cir 2006), cert den

2022Indeed, in Air Land Forwarders, Inc., the dis- sent pointed out that the majority’s theory of admissibility, which did not require a qualified witness who could be subjected to meaningful cross-examination as to the manner in which the records were made and kept, was “squarely at odds with the text of [FRE] 803(6)” and in conflict with the court’s recent case law. 172 F3d at 1346, 1348 (Bryson, J., dissenting) (citing Kolmes v. World Fibers Corp., 107 F3d 1534, 1542 (Fed Cir 1997)). 20 Where federal decisions, including those cited by plaintiff and the dissent, have not grounded their analyses

2022Indeed, in Air Land Forwarders, Inc., the dis- sent pointed out that the majority’s theory of admissibility, which did not require a qualified witness who could be subjected to meaningful cross-examination as to the manner in which the records were made and kept, was “squarely at odds with the text of [FRE] 803(6)” and in conflict with the court’s recent case law. 172 F3d at 1346, 1348 (Bryson, J., dissenting) (citing Kolmes v. World Fibers Corp., 107 F3d 1534, 1542 (Fed Cir 1997)). 20 Where federal decisions, including those cited by plaintiff and the dissent, have not grounded their analyses

1989See Riegel Fiber Corp. v. Anderson Gin Co., 512 F.2d 784, 792 (5th Cir.1975). [5] At some hearings, plaintiff also brought up issues of overpayments under ORS 657.310 and ORS 675.315 when those issues were not before her.