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When an Action is Considered Commenced

Rules and statutes vary from state to state as to what constitutes the commencement of an action that abates a subsequent action.  According to Fed.R. Civ. P. 3, an action is commenced in a federal court when a complaint is filed.  In Valley Cable Vision, Inc. v. Public Utilities Comm’n, 175 Conn. 30, 33, 392 A.2d 485 (1978), the court held that an action is commenced when the complaint is served.

In some statutes an action does not commence until process has been issued or served.  In Parker v. Rich, 297 Mass. 111, 8 N.E.2d 345, the court held that an action is commenced when a writ issues out and is delivered to an officer with a bona fide intent to have it served on the defendant.  In B. M. C. Durfee Trust Co. v. Turner, 299 Mass. 276 (Mass. 1938), the court held that although date of a writ is prima facie the commencement of action, it is not conclusive evidence.

An order vacating a judgment because of a lack of service on the defendant leaves the action as though a petition had been filed but service of process not yet obtained. Such an action is not a ground for abatement of a second action, in states where an action commences only after process is served. Nevertheless, when the plaintiff appeals the order vacating the judgment, and the defendant appears and answers in the appellate court in the first action, it becomes a pending action and a proper ground for an order of abatement.

Inside When an Action is Considered Commenced