Actions By and Against

Many states have enacted statutes permitting unincorporated associations to sue and be sued in their adopted name.  The Uniform Unincorporated Nonprofit Association Act authorizes nonprofit associations to institute, defend, intervene, or participate in judicial and other proceedings.  Some statutes authorize actions against and not by certain associations.  An express statutory provision is not crucial to an association’s capacity to sue or be sued in its association name.  If the association is recognized as a legal entity by statute, the association can sued be sued in its name.  Therefore, an unincorporated association authorized by statute to contract in its own name for certain purposes has a legal capacity to be sued on such contracts in its association name.  In the case of unincorporated associations, since such associations have no legal entity absent an enabling statue, an unincorporated association cannot sue be sued in the name of the association.

Organizations are entitled to sue on their own behalf and on behalf of its members. An organization has to meet U.S. Const. art. III’s standing requirements to have standing to sue.  Absent statutory authorization of suits by or against an unincorporated association in the association name, an association can maintain an action in the names of the several persons constituting the association or bring an action as a class suit.  Under the doctrine of virtual representation, when there are numerous members in a voluntary unincorporated association to be joined in the action, one or more members may sue on behalf of all the interested parties.  It should be specifically stated in the complaint that the members represent a common or general interest.

The Federal Rules of Civil Procedure state that unless otherwise provided by federal law, service upon an unincorporated association that is subject to suit under a common name and from which a waiver of service has not been obtained and filed, is to be effected in a judicial district of the United States in the manner prescribed for individuals or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process, and if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.  If service upon the association is to be made in a place not within any judicial district of the United States, it may be effected in any manner prescribed for service upon individuals in foreign countries except for delivery to the individual personally of a copy of the summons and the complaint.


Inside Actions By and Against