839-050-0150 Motions Except as otherwise stated in OAR 839-050-0050, all pre-hearing and post-hearing motions will be submitted in writing to the Administrative Law Judge through the Contested Case Coordinator. If the nonmoving participant chooses to respond, the nonmoving participant must file a written response to a written motion with the Contested Case Coordinator within seven days after service of the motion, unless the Administrative Law Judge orders otherwise. Motions include but are not limited to the following: (1) Motion to dismiss: This motion must be based upon: (a) Lack of jurisdiction over the subject matter or person; (b) Insufficiency of process or service of process; or (c) Failure to state a claim upon which relief can be granted; or (d) The commissioner's discretion to dismiss a complaint pursuant to ORS 659A.830(2)(a); or (e) The requirement pursuant to ORS 659A.830(2)(a) that the commissioner dismiss a complaint filed under ORS 659A.820 upon the written request of the person who filed the complaint. (f) Subsection (e) of this section does not apply to a complaint alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under federal housing law. (2) Motion to change the place of hearing. (3) Motion to exclude witnesses: (a) The motion may be made by any participant at any time prior to or during the hearing. (b) The Administrative Law Judge may, without a motion being made by a participant, exclude witnesses from the hearing except for a party, counsel, the Administrative Prosecutor, one agency officer or employee, an authorized representative, claimant, complainant and any person authorized by statute to attend. Notwithstanding this rule, an Administrative Law Judge may expel any person from the hearing if that person engages in conduct that disrupts the hearing. (4) Motion for summary judgment: (a) A motion for summary judgment may be made by a participant or by decision of the Administrative Law Judge for an accelerated decision in favor of any participant as to all or part of the issues raised in the pleadings. The motion may be based on any of the following conditions: (A) Issue or claim preclusion; (B) No genuine issue as to any material fact exists and the participant is entitled to a judgment as a matter of law, as to all or any part of the proceedings; or (C) Such other reasons as are just. (b) When the Administrative Law Judge grants the motion, the decision will be set forth in the Proposed Order. (c) A motion for summary judgment shall be denied if, at the time of its filing, the contested case hearing is scheduled to commence in fewer than 21 days. (5) Motion for a postponement: (a) Any participant making a request for a postponement of any part of the contested case proceeding must state in detail the reason for the request. The Administrative Law Judge may grant the request for good cause shown. In making this determination, the Administrative Law Judge will consider: (A) Whether previous postponements have been granted; (B) The timeliness of the request; (C) Whether a participant has previously indicated it was prepared to proceed; (D) Whether there is a reasonable alternative to postponement; for example, submitting a sworn statement of a witness; and (E) The date the hearing was originally scheduled to commence. (b) The Administrative Law Judge will issue a written ruling either granting or denying the motion and will set forth the reasons therefore; (c) If all participants agree to a postponement, in order for the postponement to be effective, the Administrative Law Judge will approve of this agreement. Whether the Administrative Law Judge grants or denies such a motion for postponement, the Administrative Law Judge will issue a written ruling setting forth the reasons therefore. (6) Motion for consolidation of hearings: This motion must allege facts sufficient to meet the criteria of OAR 839-050-0190. (7) Motion for hearing by telephone: Any participant may file a motion to conduct the hearing by telephone. The motion must contain: (a) A statement setting forth the reason(s) for the request; (b) A statement explaining why no participant will be substantially prejudiced by having a hearing in this manner; (c) A statement of the location of the majority of witnesses expected to be called; (d) A statement estimating the number and/or volume of documents to be introduced into the record; (e) A statement indicating whether the participant intends to call any expert witness; and (f) A statement indicating whether an interpreter or an assistive communication device under OAR 839-050-0300 will be required for any witness. (8) Motion for a protective order. (9) Motion for default when a respondent has failed to timely file an answer within the time specified in the charging document. (10) Motion to amend. (11) Motion to make more definite and certain. (12) Motion for prevailing party costs and reasonable attorney fees for an aggrieved person who intervenes in a proceeding alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under federal housing law. Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4) Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850 History: BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019 BLI 5-2014, f. & cert. ef. 4-15-14 BLI 12-2010, f. 3-1-10, cert. ef. 3-3-10 BLI 13-2006, f. 3-23-06, cert. ef. 3-24-06 BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04 BLI 4-2002, f. 2-14-02, cert. ef. 2-15-02 BLI 2-2000, f. & cert. ef. 1-27-00 BL 12-1996, f. & cert. ef. 12-10-96 BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0070 BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93 BL 10-1988, f. & cert. ef. 6-16-88 BL 12-1986, f. 10-29-86, ef. 10-30-86 BL 8-1986, f. & ef. 9-2-86