Business Defendants: Summons Capacity Notice

Do you rely on the process server to fill out this portion of your summons?



For "individual" defendants, it's obvious and easy. But what about business defendants?

Many attorneys don't expect to wind up with an unenforceable judgment or a case thrown out because of an incorrectly marked capacity notice. Until it actually happens. As a process server, I don't like being put in that position. I may have marked a few capacity notices incorrectly, with the best of intentions.

If you're stuck on how to mark the capacity notice, that's a clue you may need to go back and identify that business defendant. Then, marking the capacity notice should come easily:
  • For a sole-proprietor, like Chad Cool dba Cool Construction, check box 1, "as an individual defendant." 
  • Don't be confused by box 2's use of the term "fictitious name." This is NOT related to fictitious business names and sole-proprietors. Box 2 is actually used to name Doe defendants, not businesses.
  • For all other business structures, check box 3 "on behalf of" and input the name of the defendant exactly as named at the top of the summons. Then check the correct structure from the options given. If there's an uncommon "other" category you need to research, be glad you didn't leave this to the process server.
Also be sure to correctly name the defendant and determine who is authorized to accept service.