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Actions Commenced Simultaneously

Abatement signifies a temporary suspension of further proceedings in a suit and the court and the parties are enjoined from proceeding further until the case has been ordered reinstated.  Courts generally abate a second action when an action regarding the same transaction was already pending.

When two actions are brought for the same cause of action at the same time, either one may be pleaded in abatement of the other.[i] For instance, in Stapp v. Andrews, 172 Tenn. 610, 612 (Tenn. 1938), the plaintiff brought two suits, one to recover rent and the other to recover freight.  Both claims arose out of the same contract, and plaintiff, by instituting separate suits, split his cause of action.  The court held that the rule against splitting a cause of action is for the benefit of the defendant to protect him against multiplicity of suits, and may be waived by him; and courts will infer such waiver unless timely and proper objection is made.  With respect to the particular facts in Stapp, 172 Tenn. 610, the court held that a defendant who permitted separate suits to recover rent and freight arising out of the same contract to be tried together on their merits waived rule against splitting a cause of action.

Where two actions are commenced on the same day by simultaneous serving of summons and complaint in each action, neither action will have priority in time over the other and one action may not be dismissed because of the pendency of the other.  Further, in the absence of allegations that the action in another jurisdiction was prior in time or that it seeks the same relief for the same cause, the defense that there is another pending action must be deemed invalid on its face.[ii]

The time of filing the actions is a determining factor and different jurisdictions deal with the time factor differently.  While some courts have held that jurisdiction is obtained when the suit is commenced; other courts have held that jurisdiction is acquired at the time of service of summons.  Although the time of service of summons is the more accepted criteria, there are exceptions, such as applications for intermediate relief which would in themselves constitute the exercise of jurisdiction.[iii]

Accordingly, in some jurisdictions, the time when the suit was filed and a writ issued determines the priority of the action.[iv] In certain states, the time when service of process was made on the defendant is the determinant factor.[v]

Under a third category of cases, when two actions are begun simultaneously or on the same day, the pendency of one action cannot be pleaded in abatement of the other, regardless of whether the actions were brought in the same court.  For instance, in Diamond v. Berman, 60 N.Y.S.2d 339 (N.Y. Sup. Ct. 1945), the defendant purchaser moved to dismiss the complaint on the ground that other actions for the same causes were pending in the court in an action by plaintiff trustees to recover bonds purchased for the trust in question.  The court denied the motion to dismiss, holding that “because the matters were filed the same day, the court was not precluded from hearing all of the matters and because of the unique facts of the case, dismissal was not proper either.”  The court held that the state statute permits a dismissal only where there is another action pending between the same parties for the same cause.  Under the circumstances of the case, the court found that the identity of the causes of action cannot be established by comparison of the summonses with the complaint.  Furthermore, since the other summonses and and complaint were served on the same day the actions are considered ‘to have been brought in parity of time and neither constitutes a preceding pending action within the operative effect.[vi]

In such a scenario, the plaintiff may be given an option to select which of the pending actions he or she will pursue.[vii] Alternatively, the court may choose the action on.

[i] Fontaine v. Peddle, 144 Me. 214, 217 (Me. 1949)

[ii] Bartoi v. Bartoi, 20 Misc. 2d 262, 264 (N.Y. Sup. Ct. 1959)

[iii] Martinez v. Martinez, 153 Fla. 753, 758 (Fla. 1943)

[iv] State ex rel. Uland v. Uland, 36 Wn.2d 176 (Wash. 1950)

[v] Martinez, 153 Fla. 753, 757

[vi] Id. at 341

[vii] Moore v. Lamar, 182 Ga. App. 708 (Ga. Ct. App. 1987)

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