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Commencement of an Action

A lawsuit must be commenced within the limitation period provided by law (the applicable “statute of limitations”). Lawsuits not filed within the period of the applicable statute of limitations will be dis-missed. Under the U.S. Supreme Court decision in Erie v. Tompkins, federal courts will apply the statute of limitations of the state in which the federal court lies. Statutes of limitations generally begin to run when the cause of action arises. Many states have exceptions that allow for “tolling” of their statutes of limitations (temporarily “stopping the clock”) during periods of absence from the forum state, war, legal incompetency, etc. There are also special rules that apply if death occurs prior to the expiration of the limitations period.

Under FRCP 3 and many state jurisdictions, an action commences when a complaint is filed. However, many states do not consider the action to have commenced until service of process has been made upon the defendant. Service of process may be made by personal service of the complaint and summons upon the defendant (many states permit registered mail service); constructive service by notice or publication; or substituted service on a registered agent of the defendant (as for business corporations). There are strict rules that limit the use of constructive or substituted service on defendants.

Inside Commencement of an Action