The general rule that, pendency of a prior action may be pled in abatement of a subsequent action is not sustained when the prior action is pending in a court of a foreign or different jurisdiction.[i] A court does not lose jurisdiction in personal action by reason of the pendency of action covering the same subject matter in a court of another state. An action pending in another state or foreign jurisdiction does not constitute a prior action subjecting the subsequent suit to a plea in abatement. Thus the mere pendency of an action in one state is not a ground for abating a suit in another state between the same parties and involving the same subject matter. However, as a matter of comity, it is the custom for the second court to stay its proceeding until the first suit is determined.[ii]
Factors that should be considered when deciding whether to grant abatement on the ground of pendency of action in a court of another state are[iii];
- prevention of multiplicity, vexation, and harassment
- likelihood of obtaining complete relief in the foreign jurisdiction
- res judicata effect of a foreign judgment in the local forum.
In Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456 (U.S. 1939), court held that, when the judgment sought is in personam, courts having concurrent jurisdiction may proceed with the litigation at least until judgment is obtained in one of them which may be set up as res judicata in the other. Thus the pendency of a suit between the same parties and for the same or a substantially similar cause of action in another country or another state is no bar to the prosecution of a subsequent suit.
[i] Farmers State Bank v. Germer, 231 Neb. 572 (Neb. 1989)
[ii] In re State Farm Mut. Auto. Original Proceeding Ins. Co., 192 S.W.3d 897 (Tex. App. Tyler 2006)
[iii] AXA Corporate Solutions v. Underwriters Reinsurance Corp., 347 F.3d 272 (7th Cir. Ill. 2003)