commencement of an action


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Action

Conduct; behavior; something done; a series of acts.

A case or lawsuit; a legal and formal demand for enforcement of one's rights against another party asserted in a court of justice.

The term action includes all the proceedings attendant upon a legal demand, its adjudication, and its denial or its enforcement by a court. Specifically, it is the legal proceedings, while a Cause of Action is the underlying right that gives rise to them. In casual conversation, action and cause of action may be used interchangeably, but they are more properly distinguished. At one time, it was more correct to speak of actions at law and of proceedings or suits in Equity. The distinction is rather technical, however, and not significant since the merger of law and equity. The term action is used more often for civil lawsuits than for criminal proceedings.

Parties in an Action

A person must have some sort of legal right before starting an action. That legal right implies a duty owed to one person by another, whether it is a duty to do something or a duty not to do something. When the other person acts wrongfully or fails to act as the law requires, such behavior is a breach, or violation, of that person's legal duty. If that breach causes harm, it is the basis for a cause of action. The injured person may seek redress by starting an action in court.

The person who starts the action is the plaintiff, and the person sued is the defendant. They are the parties in the action. Frequently, there are multiple parties on a side. The defendant may assert a defense which, if true, will defeat the plaintiff's claim. A counterclaim may be made by the defendant against the plaintiff or a cross-claim against another party on the same side of the lawsuit. The law may permit Joinder of two or more claims, such as an action for property damage and an action for personal injuries, after one auto accident; or it may require consolidation of actions by an order of the court. Where prejudice or injustice is likely to result, the court may order a severance of actions into different lawsuits for different parties.

Commencement of an Action

The time when an action may begin depends on the kind of action involved. A plaintiff cannot start a lawsuit until the cause of action has accrued. For example, a man who wants to use a parcel of land for a store where only houses are allowed must begin by applying for a variance from the local Zoning board. He cannot bypass the board and start an action in court. His right to sue does not Accrue until the board turns down his request.

Neither can a person begin an action after the time allowed by law. Most causes of action are covered by a Statute of Limitations, which specifically limits the time within which to begin the action. If the law in a particular state says that an action for libel cannot be brought more than one year after publication of a defamatory statement, then those actions must be initiated within that statutory period. Where there is no statute that limits the time to commence a particular action, a court may nevertheless dismiss the case if the claim is stale and if litigation at that point would not be fair.

A plaintiff must first select the right court, then an action can be commenced by delivery of the formal legal papers to the appropriate person. Statutes that regulate proper procedure for this must be strictly observed. A typical statute specifies that an action may be begun by delivery of a summons, or a writ on the defendant. At one time, common-law actions had to be pleaded according to highly technical Forms of Action, but now it is generally sufficient simply to serve papers that state facts describing a recognized cause of action. If this Service of Process is done properly, the defendant has fair notice of the claim made against him or her and the court acquires jurisdiction over him or her. In some cases, the law requires delivery of the summons or writ to a specified public officer such as a U.S. marshal, who becomes responsible for serving it on the defendant.

Termination of an Action

After an action is commenced, it is said to be pending until termination. While the action is pending, neither party has the right to start another action in a different court over the same dispute or to do any act that would make the court's decision futile.

A lawsuit may be terminated because of dismissal before both sides have fully argued the merits of their cases at trial. It can also be ended because of Compromise and Settlement, after which the plaintiff withdraws his or her action from the court.

Actions are terminated by the entry of final judgments by the courts. A judgment may be based on a jury verdict or it may be a Judgment Notwithstanding the Verdict. Where there has been no jury, judgment is based on the judge's decision. Unless one party is given leave—or permission from the court—to do something that might revive the lawsuit, such as amending an insufficient complaint, the action is at an end when judgment is formally entered on the records of the court.

Cross-references

Civil Procedure.

See: service
References in periodicals archive ?
33) This is especially true of certain mistakes made in the filing process at the commencement of an action as well as when serving process, both of which will be discussed in Part IV.
First Union believes that the recent below-market stock sale by Sizeler and Sizeler's almost immediate commencement of an action seeking court declaration that the stock sale was not fraudulent, are indications that the principal concern of Sizeler management is entrenchment rather than in taking actions designed to enhance shareholder value.
The Company stated that its reasons for filing centered upon the commencement of an action seeking approximately $2,000,000 against the Company by Fidelity Business Alliance as well as a claim by the former shareholders of Mid-America Transporters Group, Inc.