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Pending Actions and Abatement

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What Is Abatement?

Abatement is when a legal proceeding is interrupted or suspended, and the plaintiff is prohibited from going forward with the lawsuit at that particular time. Abatement is available to a defendant through procedural pleadings, and may be considered a defense. If a case is abated, the case will not continue until a judge gives approval to resume the hearings. 

Abatements can be based on several objections raised by the defendants, but typically arise:

  • When a prior action has already been initiated
  • When a party to the lawsuit has become deceased. 

In other areas of law, abatement is used to describe the control or removal of a nuisance. In a personal injury setting, abatement may be necessary to help the injured party obtain relief more quickly. 

Is Abatement Available If There Are Pending Actions on the Same Claim?

Generally speaking, yes. If an action or lawsuit is pending, it means that the proceedings have already begun, but a final judgment has not yet been instituted. If an action is pending, and a second action is filed, the first claim may be grounds for abatement of the second claim. In other words, the second action will not be heard because a claim has already been filed for the same purpose.

Courts allow abatement on the grounds of another action pending in order to protect the party from having to defend several actions at the same time, if they are based on the same basic cause of action. The doctrine of abatement allows the court to prevent unnecessary expenditures of judicial time and resources. At the same time, abatement protects the defendant from lawsuits which have been instituted simply for the purpose of harassment. A second action may be abated based on a prior, pending action if:

  • Both actions are between the same parties
  • The rights of the parties are already being adjudged or have been determined in the prior action
  • The actions involve the same cause of action and subject matter
  • Both actions are filed in the same jurisdictional territory
  • The second action has been filed in a court with competent jurisdiction

However, if the first pending action was filed in a federal court, a second action filed in a state court will not be abated even if the cause of action and parties are the same. This is because federal and state personal injury laws may often differ drastically on the same subject matters.

Can a Prior Action Be Abated Based on a Second Claim?

Usually the second action is abated if there is a prior action pending. However, there are some instances where a second action will result in the abatement of the first action. A second action may abate a prior proceeding when:

  • The second claim address the legal issue in a manner that is more thorough or complete
  • The second claim is brought in good faith, and not for the purpose of harassing the defendant
  • Abatement of the second claim would result in a substantial loss of rights for the plaintiff
  • The prior action is defective in some manner

In these instances, the first action will be terminated and the second claim will be focused upon instead.

Do I Need a Lawyer?

Although abatement is largely a procedural matter, it can have far-reaching effects on the outcome of a case. Therefore, you should always consult with a personal injury lawyer if you believe that abatement will be an issue in your case. Abatements can be confusing, especially if there are several different claims to address at one time. A local attorney can explain to you how abatement would affect your claim, whether you are the plaintiff or the defendant in a claim.
Photo of page author Matthew Izzi

, LegalMatch Legal Writer and Attorney at Law

Last Modified: 04-15-2018 10:58 PM PDT

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