Can you be sued? Sometimes the answer is no. Here’s how to assert a lack of capacity to be sued in your Answer and protect your client’s legal standing.

A key aspect of defending against a lawsuit is ensuring that the proper party is being sued. If the defendant lacks the legal capacity to be sued, that’s not just a procedural issue—it’s a fundamental defense. Asserting lack of capacity to be sued in your Answer helps establish early in the litigation that the lawsuit is misdirected or invalid from the start.

In this article, Legal Husk outlines how and when to assert lack of capacity to be sued in your Answer and how it can shape the litigation process.

1. What Is Lack of Capacity to Be Sued?

✅ Lack of capacity to be sued means that the defendant:

• Is not legally recognized as a proper party to the lawsuit.

• May include individuals who are minors, corporations that are dissolved, or organizations that are not legally able to bring or defend a lawsuit.

Examples:

• A minor is sued without a legal guardian or representative.

• A dissolved corporation is being sued after it no longer exists.

🎯 In such cases, the lawsuit is legally defective and should be dismissed.

2. When to Assert Lack of Capacity to Be Sued

✅ You should assert lack of capacity to be sued in your Answer when:

• The defendant is incorrectly named or not legally able to engage in litigation.

• Corporations or other entities involved in the case are no longer in existence or are not properly registered.

🚫 Failing to raise this defense in your Answer may waive the issue, so it’s important to bring it up early.

3. How to Assert Lack of Capacity in the Answer

✅ The formal way to assert lack of capacity to be sued is:

• State the facts: Explain the reason for the lack of capacity, such as being a minor or a dissolved corporation.

• Raise it as a defense: In your Answer, explicitly deny the ability to be sued because of the lack of capacity.

Example:

“Defendant denies that they have the capacity to be sued as the entity was dissolved on [Date], and therefore, lacks the legal capacity to be a party to this action.”

4. What Happens After You Assert Lack of Capacity?

✅ If you successfully assert that the defendant lacks capacity:

• The court may dismiss the case or dismiss the claims against the defendant.

• The plaintiff may need to amend the complaint to bring the correct party into the litigation or correct the legal issue.

🎯 The early assertion of lack of capacity can potentially end the case before it gets too far, saving time and litigation costs.

5. Consider Other Defenses Related to Capacity

✅ If the defendant lacks capacity in other ways (e.g., no standing to sue, failure to join an indispensable party, or lack of jurisdiction), raise those issues early as well:

• Lack of standing: “Plaintiff has no legal right to bring this claim.”

• Failure to join an indispensable party: “Plaintiff’s case cannot proceed because it does not include a necessary party.”

🎯 Raising these defenses early reduces the chance that the court will overlook them or that the plaintiff will be allowed to amend their complaint.

6. Risks of Not Asserting Lack of Capacity

✅ Failing to assert lack of capacity in your Answer can lead to:

• Waiver of the defense, meaning you can no longer raise it at a later stage of litigation.

• Prolonged litigation as the case proceeds even though it’s improperly filed against someone who cannot be sued.

🎯 Don’t wait—assert this defense upfront to ensure that the court addresses it early in the case.

Sample Scenario: Asserting Lack of Capacity in a Corporate Dissolution Case

In a case where a dissolved corporation is being sued:

• The attorney for the defendant asserts in the Answer: “Defendant denies the allegations in the complaint, as it is a dissolved corporation with no legal capacity to be sued.”

• The court grants a motion to dismiss the case due to lack of capacity.

Result: The case is dismissed before discovery begins, saving the defendant time and litigation costs.

Final Thoughts

Asserting lack of capacity to be sued in your Answer is an important tool in early case dismissal. By raising this defense, you address a fundamental flaw in the lawsuit and prevent unnecessary proceedings that could burden your client. Be sure to assert it early, and always stay alert to other related defenses that may protect your client’s rights.

At Legal Husk, we ensure that every defense—including lack of capacity—is raised strategically to protect your clients and keep the case moving in your favor.

Let Legal Husk Help You Assert Capacity Defenses

Need help drafting an Answer that asserts lack of capacity or any other procedural defense? Legal Husk ensures that your Answer shields your client from improper claims.

📌 Ready to defend your client’s standing in the case?

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Assert your rights. Protect your case. Legal Husk.

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