Abatement Due to Another Action Pending

A prior action pending is a ground for abatement of a second action.  Where a second action is based on same cause of action and between same parties as of a prior action, the second action is abated.  A second action is abated on the ground of a prior action pending, if;

  • the second action is presented in a court of competent jurisdiction
  • both actions are within same state or jurisdictional territory
  • actions are between the same parties
  • actions involve same or substantially the same subject matter and cause of action
  • rights of the parties is determined and adjudged in the prior action.

Courts order abatement of a subsequent action only if a court before which the first action is pending has jurisdiction of the subject matter.  When the second court where the action is brought does not have jurisdiction over the subject matter, an action is not abated upon the ground of another action pending between the parties.  Similarly an action pending in federal court does not abate a subsequent action in a state court even if the parties and cause of action are same.[i] For one action to be pleaded in abatement of another, the matter in issue must be between the same, or substantially the same, parties, or at least parties that represent the same interest.  Another requisite of defense of another action pending is that the two actions should be based on same, or substantially same, cause of action.  Also the rights of parties may have conclusively determined in the prior action.

Courts order abatement by reason of another action pending to protect a party from harassment by having to defend several actions on the same cause of action at the same time[ii].  In Shepherd v. Maritime Overseas Corp., 614 So. 2d 1048 (Ala. 1993), court held that no one is entitled to prosecute two actions in courts at the same time for same cause and against same party.  When both actions are commenced simultaneously, the defendant may require the plaintiff to elect which s/he will prosecute.  If commenced at different times, the pendency of a former action is a good ground to abate the second action.  When a prior action is pending and another action is brought between the same parties and for the same cause, it is the second action that is abated.  When actions are brought in separate courts, the court that first acquires jurisdiction retains it, and the later-filed action is abated.

Generally, a prior action is not abated for the reason that a subsequent action is commenced for same cause of action.  However, when second action contains the subject matter more fully and is brought in good faith and not to harass the defendant, the prior action is abated.  Similarly, if abatement of the second action results in a possible loss of substantial rights to plaintiff and if the earlier action is defective, courts will abate the prior action and not the second action.

[i] Seeley v. Missouri, K. & T. R. Co., 39 F. 252 (C.C.D.N.Y. 1889)

[ii] Ins. Co. v. Brune’s Assignee, 96 U.S. 588 (U.S. 1878)


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