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When is a Lawsuit “Commenced” For Purposes of Malicious Prosecution?

MALICIOUS PROSECUTION CLAIMS APPLY ONLY TO LEGAL ACTIONS COMMENCED WITH LEGALLY SUFFICIENT MALICE AND WITH A LACK OF PROBABLE CAUSE.

Although “commencement” of an action is not a specified element of a malicious prosecution claim, an action must be commenced before it can be “fully and finally terminated” — another element the plaintiff must prove to prevail — and before the motives of the party filing the suit can be analyzed.

The law does not state specifically whether a lawsuit that is dismissed, withdrawn, or settled after the initial complaint is filed but before it is formally served on the defendant is “commenced” for malicious prosecution purposes. Filing alone is not generally considered sufficient basis for a claim of abuse of process; however, the law does not necessarily require service of the complaint to support a malicious prosecution claim.

MALICIOUS PROSECUTION ALSO REQUIRES “DAMAGES” – WHICH ARE UNLIKELY TO OCCUR (BUT NOT IMPOSSIBLE) PRIOR TO SERVICE OF THE INITIAL COMPLAINT.

While it may be possible for a defendant to claim the elements of malicious prosecution existed after filing of a complaint but before the complaint was served, (s)he could possibly face a substantial hurdle when it comes to proving damages.

A party claiming malicious prosecution  must be able to prove that (s)he incurred legally recognizable damages as a result of the improperly prosecuted action (or cause of action). In proper circumstances, payment of attorney fees to defend against the complaint (and the underlying action generally) do constitute damages for purposes of malicious prosecution claims. However, it is rare for a defendant to incur attorney fees – or other damages – as a result of lawsuits filed but not yet served. While it isn’t impossible to create a hypothetical situation in which damages could be incurred before service of the complaint on the defendant, proving damages would be a challenge for the defendant in a case where the suit was dismissed prior to initial service of the complaint.

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Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR OR THIS WEBSITE AND ANY PERSON. Your rights and experiences may vary. Never use an online article (including this one) to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Malicious Prosecution claims are complicated and fact-dependent. If you believe you have a claim against someone who wrongfully instituted a legal action against you, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your possible rights and claims.

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