Abatement Due to Premature Commencement of Action

Abatement is the premature ending of a legal action by a court.  The aim of a court through abatement is to save the time and expense of a trial.  Abatement happens under various grounds such as: death of the plaintiff, on premature commencement of action, when another case is pending on the same issue, or when the interest of a party in the case has changed or is transferred to another person.

One of the  grounds of abatement of an action is premature commencement of an action.  An action cannot commence without the reason for the action starting to run.  When the reason for the premature filing is not made clear in the plaintiff’s initial pleading, the defendant can move to abate the suit by specifically claiming that the suit is not ready for initiation.  However, if the defendant fails to claim for abetment in his/her answer, the defense will be taken as waived.

Green v. Sherritt [i], was an action by an attorney against the attorney’s client seeking recovery of $10,000 as compensation for legal services he performed in a property settlement case.  The client pleaded that the attorney could only claim $1000.  A contract between the attorney and the client stipulated that the attorney would receive reasonable fees by mutual agreement if the property settlement action was dismissed.  The property settlement action was dismissed following a settlement.  The plaintiff attorney’s action to recover legal services fee was filed one day before the property settlement action was compromised and settled by the defendant client.  Although, plaintiff’s action was prematurely brought, the judge observed that the reasonable value of the services rendered by the attorney was not required to be reversed.  However the defendant client had failed to claim that the action was premature in his/her answer, and hence, the defense was waived.

Premature commencement of a suit can occur in class actions.  Class actions are where one or more plaintiffs file a suit on behalf of a large group who has a common legal claim.  Courts will separate the claims of each class member/claimant to make sure that they have merit before ruling on the question of law.  If the court finds some claims prematurely initiated, such claims alone will be abated.  Hence, those class members’ will not have the right to bring a suit before the court on the issue.  In the interest of sound judicial economy, courts are to decide whether the plaintiffs have right to come to the court upon an issue.  This is to avoid the unnecessary effort and expense of deciding on class action cases.

A suit can also get abated due to premature commencement when a person who is a necessary party is substituted by another person.  A party to a suit is considered necessary party when the judgment does not affect anyone substituted in the actual party’s place.  In cases where a person who originally initiated the case is dead, and if the judgment has no effect on the parties substituted to the claim that action will abate.  In such circumstances the case cannot be revived.

[1] 17 Cal. App. 2d 732 (Cal. App. 1936)

[2] Independent Fish Co. v. Phinney, 252 F. Supp. 952 (W.D. Tex. 1966)


Inside Abatement Due to Premature Commencement of Action