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Inc. v. Commissioner, supra. The capacity of the corporate
petitioner to sue under State law is a prerequisite to our
jurisdiction. Id. Under Alaska law, an involuntarily dissolved
corporation lacks capacity to sue, with one limited exception not
relevant here. Alaska Stat. sec. 10.06.678(b) (Michie 1988). On
October 14, 1991, INI was involuntarily dissolved by the Alaska
Commissioner of Corporations. We therefore regard INI as lacking
the capacity to sue at the time petitioner purported to file its
petition with this Court.6
Although we have some concerns about judicial economy and
efficiency--the record contains all the relevant facts and the
parties have fully briefed and argued the INI issues--petitioner
is not without a remedy. INI is a dormant--probably dead--
corporation, currently in possession of no assets. Respondent
6 Under Alaska law, compliance with the Corporation Act even
after a suit has been filed is sufficient to allow a corporation
to maintain an action and to prevent dismissal based on the
previous default. See Richardson Vista Corp. v. City of
Anchorage, 14 Alaska 1 (Alaska 1952). Also, so long as the
period of limitations has not expired, the transferees of an
involuntarily dissolved Alaska corporation may reincorporate and
assert the claims of the dissolved corporation. See Alaska
Continental, Inc. v. Trickey, 933 P.2d 528 (Alaska 1997). Under
the Federal Rules of Civil Procedure and the Alaska Rules of
Civil Procedure, the defense of lack of capacity to sue is waived
if not raised “by specific negative averment” in the answer, or
by motion before the answer is filed. Fed. R. Civ. P. 9; Alaska
R. Civ. P. 9; Summers v. Interstate Tractor & Equip. Co., 466
F.2d 42, 49 (9th Cir. 1972); Brown v. Music, Inc., 359 P.2d 295,
301 (Alaska 1961). Thus, in the Federal courts generally, and in
the Alaska State courts, capacity is not a jurisdictional
element, and lack of capacity is an affirmative defense.
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