Montana Code 35-8-1104. Derivative actions — proper plaintiff — pleading — expenses
35-8-1104. Derivative actions — proper plaintiff — pleading — expenses. (1) A member of a limited liability company may maintain an action in the right of the company if the members or managers having authority to bring the action have refused to commence the action or an effort to cause those members or managers to commence the action is not likely to succeed.
Terms Used In Montana Code 35-8-1104
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Court: includes every court having jurisdiction in the case. See Montana Code 35-8-102
- Manager: means a person who, whether or not a member of a manager-managed company, is vested with authority under 35-8-301. See Montana Code 35-8-102
- Member: means a person who has been admitted to membership in a limited liability company, as provided in 35-8-703, and who has not dissociated from the limited liability company. See Montana Code 35-8-102
- Operating agreement: means an agreement, including amendments, as to the conduct of the business and affairs of a limited liability company and the relations among the members, managers, and the company that is binding upon all of the members. See Montana Code 35-8-102
- Person: means an individual, a general partnership, a limited partnership, a domestic or foreign limited liability company, a trust, an estate, an association, a corporation, or any other legal or commercial entity. See Montana Code 35-8-102
- Plaintiff: The person who files the complaint in a civil lawsuit.
- Remainder: An interest in property that takes effect in the future at a specified time or after the occurrence of some event, such as the death of a life tenant.
- Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.
(2)In a derivative action for a limited liability company, the plaintiff must be a member of the company when the action is commenced and:
(a)must have been a member at the time of the transaction of which the plaintiff complains; or
(b)the plaintiff’s status as a member must have devolved upon the plaintiff by operation of law or pursuant to the terms of the operating agreement from a person who was a member at the time of the transaction.
(3)In a derivative action for a limited liability company, the complaint must set forth with particularity the effort of the plaintiff to secure initiation of the action by a member or manager or the reasons for not making the effort.
(4)If a derivative action for a limited liability company is successful, in whole or in part, or if anything is received by the plaintiff as a result of a judgment, compromise, or settlement of an action or claim, the court may award the plaintiff reasonable expenses, including reasonable attorney fees, and shall direct the plaintiff to remit to the limited liability company the remainder of the proceeds received.