Also known as: prosecutes an action · prosecuted an action · prosecuting an action · prosecution of an action · bring an action · prosecute action
Written by attorneys · grounded in primary & secondary sources — see below
The commencement and pursuit of litigation to enforce a legal right.
Paula Pierce, a member of a member-managed LLC, sent a written demand to the other members asking them to cause the company to sue a third party for breach of contract. After four months passed with no lawsuit filed, Paula commenced and maintained the derivative action herself in the company's name.
Perry Pratt, a limited partner, delivered a detailed demand to the general partner requesting that the partnership sue a supplier for defective parts. Five months later the general partner had taken no action, so Perry initiated and prosecuted the derivative suit on the partnership's behalf.
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Pedro Pacheco alleged predicate acts of mail fraud in a civil RICO complaint against a supplier. After the district court dismissed the initial pleading, Pedro amended and continued to prosecute the action through discovery and summary judgment.
Penelope Price sued the city under section 1983 for a policy that caused her constitutional injury. She prosecuted the action by presenting evidence of the official policy at trial and obtained a judgment against the municipality.
Pablo Perez filed a section 1983 complaint alleging that police officers violated his rights during an arrest. He prosecuted the action through motions practice and obtained a favorable ruling on qualified immunity.
Prism Analytics, a disappointed purchaser, brought a Rule 10b-5 claim against a company for misleading statements. After the district court dismissed the complaint, Prism appealed and continued to prosecute the action in the court of appeals.
The member must first make a demand on the managers or other members requesting that they cause the company to bring the action. If the managers or members do not bring the action within a reasonable time, the member may then prosecute the derivative action.
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The general partner must be given a reasonable time to bring the action after receiving the demand. Courts assess reasonableness based on the complexity of the claim and any steps taken toward litigation or settlement.
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Yes. When the persons who would receive the demand have a disabling conflict, such as personally benefiting from the alleged wrong, demand is futile and the member may prosecute the derivative action without first making demand.
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Vague assurances or internal review without concrete action such as filing suit or preserving the claim do not satisfy the reasonable-time requirement. The limited partner may then prosecute the derivative action.
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…of C, the latter can enforce the trust by an appropriate action. If the trust be of money, the beneficiary may be able to bring an action for money had and received to his use; if it be of something else, the trustee must account according to principles of equity. There is authority for saying that an express promise founded…