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On April 21, 2022, the Oregon Supreme Court issued Eklof v. Persson, 369 Or 531, 533 (2022), a decision that limits a petitioner’s right to amend a complaint under ORCP 23(A) in a post-conviction
relief case. ORCP 23(A) allows one pleading amendment as a matter of right; subsequent amendments require either the consent of the adverse party or leave of court. Petitioner Eklof sought leave of court, over the State’s objection, to amend her complaint for a third time and introduce new claims against the State in her second application for post-conviction relief. The trial court denied  petitioner’s motion to amend. The Oregon Court of Appeals affirmed the decision of the trial court. On review, the Supreme Court found that (1) justice does not require the court to allow futile amendments, even absent a showing of prejudice and (2) in determining whether a proposed amendment is futile, the court can consider materials beyond the face of the proposed amendment itself.

This decision expands and clarifies that futility of a proposed pleading amendment stands alone as a basis to deny the amendment, regardless of whether the proposed amendment results in prejudice to the opposing party. A futile amendment is one that cannot not prevail on the merits, due to either a failing in the pleadings, such as a failure to state ultimate facts sufficient to constitute a claim under ORCP 21, or an unavoidable bar or obstacle exists. The futility of an amendment sought will be based on the facts of the particular case. An unavoidable bar arises when claims on their face are futile - such as claims that would fail for lack of subject matter jurisdiction or are barred by statue, such as an applicable statute of limitations. The Eklof court clarified that while the gravamen of an inquiry under ORCP 23(A) is prejudice to the opposing party, futility is grounds to deny an amendment, regardless of prejudice to the opposing party.

That said, the Eklof court also reiterated that claims are not futile under an ORCP 23(A) analysis if it is possible that discoverable evidence could support the amendment being sought. If such discoverable evidence may exist, a motion to amend cannot be denied based on the likelihood of the claim’s success, however slim that likelihood may seem to the court when considering the  proposed amendment.

In concluding that futile amendments may be disallowed, the Court was faced with an evidentiary question as to what a court may consider in evaluating an amendments’ futility. While petitioner argued that a court may only consider the pleadings on their face, the Court disagreed. Eklof clarifies that a court may consider extrinsic 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. Judicially noticed facts may include evidence from prior proceedings or the court record. The role of judicially noticed facts in evaluating a motion under ORCP 23(A) is to determine whether there is an unavoidable bar to a proposed amendment that renders it futile.

The Eklof, decision clarifies the analysis and broadens the grounds on which motions to amend under ORCP 23(A) may be denied. Going forward, in opposing successive motions for leave to amend, particular attention should be paid to whether an unavoidable bar to claims at issue exists, legal or factual, that renders those claims futile.