801.04 Jurisdictional requirements for judgments against persons, status and things. (1) JURISDICTION OF SUBJECT MATTER REQUIRED FOR ALL CIVIL ACTIONS. A court of this state may entertain a civil action only when the court has power to hear the kind of action brought. The power of the court to hear the kind of action brought is called “jurisdiction of the subject matter”. Jurisdiction of the subject matter is conferred by the constitution and statutes of this state and by statutes of the United States; it cannot be conferred by consent of the parties. Except as provided in s. 813.015, nothing in chs. 801 to 847 affects the subject matter jurisdiction of any court of this state. (2) PERSONAL JURISDICTION. A court of this state having jurisdiction of the subject matter may render a judgment against a party personally only if there exists one or more of the jurisdictional grounds set forth in s. 801.05 or 801.06 and in addition either:
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(a) A summons is served upon the person pursuant to s. 801.11; or (b) Service of a summons is dispensed with under the conditions in s. 801.06. (3) JURISDICTION IN REM OR QUASI IN REM. A court of this state having jurisdiction of the subject matter may render a judgment in rem or quasi in rem upon a status or upon a property or other thing pursuant to s. 801.07 and the judgment in such action may affect the interests in the status, property or thing of all persons served pursuant to s. 801.12 with a summons and complaint or notice of object of action as the case requires. History: Sup. Ct. Order, 67 Wis. 2d 585, 591 (1975); 1979 c. 89; 2015 a. 4. A court having jurisdiction may decline to exercise it if there are sufficient policy reasons to do so. Jones v. Jones, 54 Wis. 2d 41, 194 N.W.2d 627 (1972). State courts, including small claims courts, have a constitutional obligation to hear and decide 42 USC 1983 cases whether or not the federal right asserted is pendent to a state claim. Terry v. Kolski, 78 Wis. 2d 475, 254 N.W.2d 704 (1977). A prior adult proceeding that litigated the question of the respondent’s age collaterally estopped the state from relitigating the same question in juvenile court. The juvenile court had subject matter jurisdiction of the case. H.N.T. v. State, 125 Wis. 2d 242, 371 N.W.2d 395 (Ct. App. 1985). Subject to limited exceptions, complainants in 42 USC 1983 actions need not exhaust administrative remedies prior to being brought in state court. Casteel v. Vaade, 167 Wis. 2d 1, 481 N.W.2d 476 (1992). Constitutional Law—Due Process—Civil Procedure—State Court Jurisdiction. Geilfuss. 1978 WLR 533.
801.05 Personal jurisdiction, grounds for generally. A court of this state having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to s. 801.11 under any of the following circumstances: (1) LOCAL PRESENCE OR STATUS. In any action whether arising within or without this state, against a defendant who when the action is commenced: (a) Is a natural person present within this state when served; or (b) Is a natural person domiciled within this state; or (c) Is a domestic corporation or limited liability company; or (d) Is engaged in substantial and not isolated activities within this state, whether such activities are wholly interstate, intrastate, or otherwise. (2) SPECIAL JURISDICTION STATUTES. In any action which may be brought under statutes of this state that specifically confer grounds for personal jurisdiction over the defendant. (3) LOCAL ACT OR OMISSION. In any action claiming injury to person or property within or without this state arising out of an act or omission within this state by the defendant. (4) LOCAL INJURY; FOREIGN ACT. In any action claiming injury to person or property within this state arising out of an act or omission outside this state by the defendant, provided in addition that at the time of the injury, either: (a) Solicitation or service activities were carried on within this state by or on behalf of the defendant; or (b) Products, materials or things processed, serviced or manufactured by the defendant were used or consumed within this state in the ordinary course of trade. (5) LOCAL SERVICES, GOODS OR CONTRACTS. In any action which: (a) Arises out of a promise, made anywhere to the plaintiff or to some 3rd party for the plaintiff’s benefit, by the defendant to perform services within this state or to pay for services to be performed in this state by the plaintiff; or (b) Arises out of services actually performed for the plaintiff by the defendant within this state, or services actually performed for the defendant by the plaintiff within this state if such performance within this state was authorized or ratified by the defendant; or (c) Arises out of a promise, made anywhere to the plaintiff or
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to some 3rd party for the plaintiff’s benefit, by the defendant to deliver or receive within this state or to ship from this state goods, documents of title, or other things of value; or (d) Relates to goods, documents of title, or other things of value shipped from this state by the plaintiff to the defendant on the defendant’s order or direction; or (e) Relates to goods, documents of title, or other things of value actually received by the plaintiff in this state from the defendant without regard to where delivery to carrier occurred. (6) LOCAL PROPERTY. In any action which arises out of: (a) A promise, made anywhere to the plaintiff or to some 3rd party for the plaintiff’s benefit, by the defendant to create in either party an interest in, or protect, acquire, dispose of, use, rent, own, control or possess by either party real property situated in this state; or (b) A claim to recover any benefit derived by the defendant through the use, ownership, control or possession by the defendant of tangible property situated within this state either at the time of the first use, ownership, control or possession or at the time the action is commenced; or (c) A claim that the defendant return, restore, or account to the plaintiff for any asset or thing of value which was within this state at the time the defendant acquired possession or control over it. (7) DEFICIENCY JUDGMENT ON LOCAL FORECLOSURE OR RESALE. In any action to recover a deficiency judgment upon a mortgage note or conditional sales contract or other security agreement executed by the defendant or predecessor to whose obligation the defendant has succeeded and the deficiency is claimed either: (a) In an action in this state to foreclose upon real property situated in this state; or (b) Following sale of real property in this state by the plaintiff under ch. 846; or (c) Following resale of tangible property in this state by the plaintiff under ch. 409. (8) DIRECTOR, OFFICER OR MANAGER OF A DOMESTIC CORPORATION OR LIMITED LIABILITY COMPANY. In any action against a defendant who is or was an officer, director or manager of a domestic corporation or domestic limited liability company where the action arises out of the defendant’s conduct as such officer, director or manager or out of the activities of such corporation or limited liability company while the defendant held office as a director, officer or manager. (9) TAXES OR ASSESSMENTS. In any action for the collection of taxes or assessments levied, assessed or otherwise imposed by a taxing authority of this state after July 1, 1960. (10) INSURANCE OR INSURERS. In any action which arises out of a promise made anywhere to the plaintiff or some 3rd party by the defendant to insure upon or against the happening of an event and in addition either: (a) The person insured was a resident of this state when the event out of which the cause of action is claimed to arise occurred; or (b) The event out of which the cause of action is claimed to arise occurred within this state, regardless of where the person insured resided. (11) CERTAIN MARITAL ACTIONS. In addition to personal jurisdiction under sub. (1) and s. 801.06, in any action affecting the family, except for actions under ch. 769, in which a personal claim is asserted against the respondent commenced in the county in which the petitioner resides at the commencement of the action when the respondent resided in this state in marital relationship with the petitioner for not less than 6 consecutive months within the 6 years next preceding the commencement of
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the action and the respondent is served personally under s. 801.11. The effect of any determination of a child’s custody shall not be binding personally against any parent or guardian unless the parent or guardian has been made personally subject to the jurisdiction of the court in the action as provided under this chapter or has been notified under s. 822.08 as provided in s. 822.06. (11m) CERTAIN RESTRAINING ORDERS OR INJUNCTIONS. (a) Subject to subch. II of ch. 822, and in addition to personal jurisdiction under sub. (1) and s. 801.06, in any action filed pursuant to s. 813.12, 813.122, 813.123, or 813.125, if any of the following apply: 1. Subject to par. (b), an act or threat of the respondent giving rise to the petition occurred outside the state and is part of an ongoing pattern of harassment that has an adverse effect on the petitioner or a member of the petitioner’s family or household, and the petitioner resides in this state. 2. Subject to par. (b), the petitioner or a member of the petitioner’s family or household has sought safety or protection in this state as a result of an act or threat of the respondent giving rise to the petition. 3. Personal jurisdiction is permissible under the constitution of the United States or of the state of Wisconsin. (b) Paragraph (a) 1. or 2. applies if, while the petitioner or a member of the petitioner’s family or household resides or is temporarily living in this state, the respondent has had direct or indirect communication with the petitioner or a member of the petitioner’s family or household or if the respondent has indicated a threat to the physical health or safety of the petitioner or of a member of the petitioner’s family or household. A communication or indication for the purpose of this paragraph includes communication through mail, telephone, electronic message or transmittal, and posting on an electronic communication site, web page, or other electronic medium. Communication on any electronic medium that is generally available to any individual residing in this state is sufficient to exercise jurisdiction under par. (a) 1. or 2. (c) If a court has personal jurisdiction pursuant to par. (a) and a respondent has been served but does not appear or does not file a response or motion asserting the defense of lack of personal jurisdiction, the court shall hear the action. This paragraph does not limit the respondent’s right to challenge personal jurisdiction on appeal. (12) PERSONAL REPRESENTATIVE. In any action against a personal representative to enforce a claim against the deceased person represented where one or more of the grounds stated in subs. (2) to (11) would have furnished a basis for jurisdiction over the deceased had the deceased been living and it is immaterial under this subsection whether the action had been commenced during the lifetime of the deceased. (13) JOINDER OF CLAIMS IN THE SAME ACTION. In any action brought in reliance upon jurisdictional grounds stated in subs. (2) to (11) there cannot be joined in the same action any other claim or cause against the defendant unless grounds exist under this section for personal jurisdiction over the defendant as to the claim or cause to be joined. History: Sup. Ct. Order, 67 Wis. 2d 585, 592 (1975); 1975 c. 218; 1977 c. 105, 203, 418; 1979 c. 196; 1979 c. 352 s. 39; 1993 a. 112, 326, 486; 2005 a. 130; 2015 a. 4. Jurisdiction over a foreign executor under sub. (12) cannot be based on substantial activities in Wisconsin under sub. (1) (d). Rauser v. Rauser, 47 Wis. 2d 295, 177 N.W.2d 115 (1970). In an action against an Illinois corporate defendant and its officer alleging fraudulent advertising, the trial court possessed jurisdiction over the officer when the answer to the complaint admitted corporate advertising in newspapers circulated in Wisconsin, the contacting of Wisconsin residents responding to the advertisements, and the taking of earnest money deposits when testimony indicated that the defendant had participated in one such transaction in the state. State v. Advance Marketing Consultants, Inc., 66 Wis. 2d 706, 225 N.W.2d 887 (1975).
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Wisconsin courts may issue in personam orders that may operate on out-of-state property. Dalton v. Meister, 71 Wis. 2d 504, 239 N.W.2d 9 (1976). The trial court was entitled to consider the complaint and answer in determining whether the court had jurisdiction. Merco Distributing Corp. v. O&R Engines, Inc., 71 Wis. 2d 792, 239 N.W.2d 97 (1976). A manufacturer having no dealers or distributors in Wisconsin was amenable to jurisdiction under sub. (4) by virtue of magazine advertisement solicitations and out-of-state sales to Wisconsin residents. Fields v. Playboy Club of Lake Geneva, Inc., 75 Wis. 2d 644, 250 N.W.2d 311 (1977). Findings of the facts requisite for jurisdiction under sub. (4) (b) may properly be made by reasonable inference from facts proven in the record. Stevens v. White Motor Corp., 77 Wis. 2d 64, 252 N.W.2d 88 (1977). Standards of the “long-arm” statute prima facie meet due process requirements. Schmitz v. Hunter Machinery Co., 89 Wis. 2d 388, 279 N.W.2d 172 (1979). The burden of proof is on the plaintiff to establish jurisdiction under this section. Lincoln v. Seawright, 104 Wis. 2d 4, 310 N.W.2d 596 (1981). Substantially higher “doing business” contacts under sub. (1) (d) are required when a nonresident plaintiff brings a foreign cause of action. Vermont Yogurt Co. v. Blanke Baer Fruit & Flavor Co., 107 Wis. 2d 603, 321 N.W.2d 315 (Ct. App. 1982). Sub. (11) provides three independent sources of personal jurisdiction that must be considered in the disjunctive. McAleavy v. McAleavy, 150 Wis. 2d 26, 440 N.W.2d 566 (1989). Telephone calls received by a defendant do not, standing alone, constitute sufficient contact to establish a basis for personal jurisdiction. Dietrich v. Wisconsin Patients Compensation Fund, 169 Wis. 2d 471, 485 N.W.2d 614 (Ct. App. 1992). A non-resident corporate officer alleged to have committed fraud or misrepresentation is subject to Wisconsin jurisdiction only if some act or omission was committed in Wisconsin. Pavlic v. Woodrum, 169 Wis. 2d 585, 486 N.W.2d 533 (Ct. App. 1992). The term “service activities” under sub. (4) (a) requires that a defendant be engaged in some type of regular ongoing or repetitive activities in Wisconsin. Two meetings does not constitute service activities carried on within the state. Housing Horizons, LLC v. Alexander Co., 2000 WI App 9, 232 Wis. 2d 178, 606 N.W.2d 263, 98-3635. “Process” in sub. (4) (b) means subjecting something to a particular system of handling to effect a particular result and preparing something for market or other commercial use by subjecting it to a process. Kopke v. A. Hartrodt S.R.L., 2001 WI 99, 245 Wis. 2d 396, 629 N.W.2d 662, 99-3144. A stream of commerce theory that it is not unreasonable to subject a nonresident manufacturer or distributor to suit if the sale of a product is not simply an isolated occurrence but arises from efforts to serve, directly or indirectly, the market for the product in the state, is applicable in determining whether sufficient minimum contacts exist for jurisdiction to be found. Kopke v. A. Hartrodt S.R.L., 2001 WI 99, 245 Wis. 2d 396, 629 N.W.2d 662, 99-3144. Every personal jurisdiction issue requires a two-step inquiry. It must first be determined whether defendants are subject to jurisdiction under Wisconsin’s long-arm statute. If the statutory requirements are satisfied, then the court must consider whether the exercise of jurisdiction comports with due process requirements. Kopke v. A. Hartrodt S.R.L., 2001 WI 99, 245 Wis. 2d 396, 629 N.W.2d 662, 993144. Sub. (1) (d) may be a basis for personal jurisdiction over a respondent in a divorce and is not restricted to business or employment related activities. Bushelman v. Bushelman, 2001 WI App 124, 246 Wis. 2d 317, 629 N.W.2d 795, 00-0670. The presumption of compliance with due process arising from this section may be rebutted by a defendant. There is a five-factor test to analyze the substantiality of the defendant’s contacts for due process purposes: the quantity, nature, and quality of the contacts, the source of the cause of action and its connection with those contacts, the interest of the state in the action, and convenience to the parties. Bushelman v. Bushelman, 2001 WI App 124, 246 Wis. 2d 317, 629 N.W.2d 795, 00-0670. If a person is induced by false representations to come within the jurisdiction of a court for the purpose of obtaining service of process upon the person, it is an abuse of legal process, and the service will be set aside. Service on a person who enters the state to engage in settlement talks will not be set aside in the absence of an agreement that service will not be attempted. Manitowoc Western Co. v. Montonen, 2002 WI 21, 250 Wis. 2d 452, 639 N.W.2d 726, 00-0420. Traditional personal jurisdiction is not required in child custody proceedings. Child custody proceedings under ch. 822 are valid even in the absence of minimum contacts over an out-of-state parent. Sub. (11) provides sufficient due process protection to out-of-state parents based on notice and an opportunity to be heard. Tammie J.C. v. Robert T.R., 2003 WI 61, 262 Wis. 2d 217, 663 N.W.2d 734, 01-2787. In analyzing the quality of a defendant’s contacts within the state, personal visits are the highest quality of contact. The next highest quality of contact is personal contact of another type. Druschel v. Cloeren, 2006 WI App 190, 295 Wis. 2d 858, 723 N.W.2d 430, 05-2575. Minimum contacts require the defendant’s conduct and connection with the forum state are such that the defendant should reasonably anticipate being haled into court there. The concept that the contacts of an individual, made as an agent of a business, do not count toward the minimum contacts required for personal jurisdiction, commonly referred to as the fiduciary shield doctrine, has not been adopted in Wisconsin. Druschel v. Cloeren, 2006 WI App 190, 295 Wis. 2d 858, 723 N.W.2d 430, 05-2575. The constitutional touchstone of long-arm jurisdiction is whether a defendant purposefully availed itself of the privilege of conducting activities within the forum state. If the defendant’s efforts are purposefully directed toward another state’s resident, jurisdiction may not be avoided merely because the defendant did not physically enter the forum state. A substantial amount of business is transacted solely by mail and wire communications across state lines, making physical presence unnecessary. Stayart v. Hance, 2007 WI App 204, 305 Wis. 2d 380, 740 N.W.2d 168, 061418. Sub. (1) (d) plainly requires the circuit court to analyze a defendant’s contacts at the time the action is commenced. It was error for the circuit court to analyze the
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defendant’s contacts preceding the commencement of the action. FL Hunts, LLC v. Wheeler, 2010 WI App 10, 322 Wis. 2d 738, 780 N.W.2d 529, 08-2506. Courts consider five factors when analyzing whether a defendant has substantial contacts under sub. (1) (d): 1) the quantity of the contacts; 2) the quality of the contacts; 3) the source of the contacts and their connection with the cause of action; 4) the state’s interest; and 5) the convenience of the parties. FL Hunts, LLC v. Wheeler, 2010 WI App 10, 322 Wis. 2d 738, 780 N.W.2d 529, 08-2506. To determine whether an action relates to goods shipped from this state in a breach of contract action under sub. (5) (d), the court analyzes the contract’s provisions and the complaint’s allegations. Jurisdiction was not appropriate under sub. (5) (d) in this case because the action did not relate to the equipment the plaintiff provided the defendant. This case involved an employment contract, and not a sales contract, that made only one passing reference to equipment and lacked provisions traditionally included in sales contracts. FL Hunts, LLC v. Wheeler, 2010 WI App 10, 322 Wis. 2d 738, 780 N.W.2d 529, 08-2506. Absent control by a parent corporation sufficient to cause a court to disregard the separate corporate identities of the parent and a subsidiary corporation, the activities of the subsidiary are insufficient to subject its nonresident parent corporation to general personal jurisdiction under sub. (1) (d). In assessing corporate separateness, Wisconsin courts have focused most directly on the amount of control that one corporation exercises or has the right to exercise over the other; whether both corporations employ independent decision-making; whether corporate formalities are observed; whether the corporations operate as one corporation; and whether observing the corporate separateness facilitates fraud. Rasmussen v. General Motors Corp., 2011 WI 52, 335 Wis. 2d 1, 803 N.W.2d 623, 07-0035. The meaning of “to the defendant” in sub. (5) (d) includes shipping goods from Wisconsin to third parties at the defendant’s order or direction. Johnson Litho Graphics of Eau Claire, Ltd. v. Sarver, 2012 WI App 107, 344 Wis. 2d 374, 824 N.W.2d 127, 10-1441. Two questions govern whether the exercise of personal jurisdiction comports with due process: 1) whether the defendant purposefully established minimum contacts in Wisconsin; and 2) if so, whether the defendant’s contacts in Wisconsin comport with notions of fair play and substantial justice, in light of relevant factors. The plaintiff carries the initial burden of showing that the defendant purposefully established minimum contacts with the state, and, if so, the burden then shifts to the defendant to present a compelling case that the presence of some other considerations would render jurisdiction unreasonable. Johnson Litho Graphics of Eau Claire, Ltd. v. Sarver, 2012 WI App 107, 344 Wis. 2d 374, 824 N.W.2d 127, 10-1441. To make the determination of fair play and substantial justice under the due process analysis, the court considers five factors: 1) the forum state’s interest in adjudicating the dispute; 2) the plaintiff’s interest in obtaining convenient and effective relief; 3) the burden on the defendant; 4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and 5) the shared interest of the several states in furthering fundamental substantive social policies. When there is a strong showing that the nonresident defendant purposefully availed itself of the benefits and protections of Wisconsin law, a lower showing of fairness suffices to permit personal jurisdiction. Johnson Litho Graphics of Eau Claire, Ltd. v. Sarver, 2012 WI App 107, 344 Wis. 2d 374, 824 N.W.2d 127, 10-1441. The defendant did not purposefully establish minimum contacts in Wisconsin so as to permit the circuit court to exercise personal jurisdiction over it under the facts of this case. Defendant’s advertisements on its own website and third-party sites represented merely potential contacts with the state of Wisconsin. The facts did not suggest that the defendant targeted Wisconsin residents with its Internet advertisements any more than any other state’s residents, and the advertisements were accessible to everyone regardless of location. Carlson v. Fidelity Motor Group, LLC, 2015 WI App 16, 360 Wis. 2d 369, 860 N.W.2d 299, 14-0695. An article published online is “processed” within the meaning of sub. (4) (b). The broad definition of “process” adopted by the supreme court in Kopke, 2001 WI 99, is broad enough to embrace the newspaper’s process of preparing and arranging news and blank spaces for advertising content for the market and subjecting it to information processing so that users in Wisconsin can access articles placed on its website. Salfinger v. Fairfax Media Ltd., 2016 WI App 17, 367 Wis. 2d 311, 876 N.W.2d 160, 15-0150. The relationship between the defendant and the forum state must arise out of contacts that the defendant himself or herself creates with the forum state. The U.S. Supreme Court has consistently rejected attempts to satisfy the defendant-focused minimum contacts inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum state. The minimum contacts analysis looks to the defendant’s contacts with the forum state itself, not the defendant’s contacts with persons who reside there. Salfinger v. Fairfax Media Ltd., 2016 WI App 17, 367 Wis. 2d 311, 876 N.W.2d 160, 15-0150. A Wisconsin court may not exercise jurisdiction over a foreign defendant whose only real connection to Wisconsin is in having published an article online that is ostensibly available to anyone in the world and that also provides for targeted advertising based upon the user’s location and interests. Salfinger v. Fairfax Media Ltd., 2016 WI App 17, 367 Wis. 2d 311, 876 N.W.2d 160, 15-0150. A father’s acquiescence in his daughter’s desire to live with her mother in California did not confer jurisdiction over the father in California courts. Kulko v. Superior Court, 436 U.S. 84, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978). A state may not exercise quasi in rem jurisdiction over a defendant having no forum contacts by attacking a contractual obligation of the defendant’s insurer licensed in the state. Rush v. Savchuk, 444 U.S. 320, 100 S. Ct. 571, 62 L. Ed. 2d 516 (1980). When an accident involving only Wisconsin residents occurred in Wisconsin, the fact that the decedent had been employed in Minnesota conferred jurisdiction on the Minnesota courts, and Minnesota insurance law was applicable. Allstate Insurance Co. v. Hague, 449 U.S. 302, 101 S. Ct. 633, 66 L. Ed. 2d 521 (1981). Foreign subsidiaries of a U.S. parent corporation are not amenable to suit in state court on claims unrelated to any activity of the subsidiaries in the forum state. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011). The 14th amendment limits the personal jurisdiction of state courts. Because a
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state court’s assertion of jurisdiction exposes defendants to the state’s coercive power, it is subject to review for compatibility with the 14th amendment’s due process clause, which limits the power of a state court to render a valid personal judgment against a nonresident defendant. Specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction. For specific jurisdiction, a defendant’s general connections with the forum are not enough. A specific connection between the forum and specific claims at issue is required. Bristol-Myers Squibb Co. v. Superior Court, 582 U.S. 255, 137 S. Ct. 1773, 198 L. Ed. 2d 395 (2017). When an out-of-state defendant placed an order in Wisconsin, but conducted no other activities in the state, the minimum contacts test was not satisfied. Lakeside Bridge & Steel Co. v. Mountain State Construction Co., 597 F.2d 596 (1979). A New York corporation was subject to the long-arm statute when agents of the corporation made two visits to the state in connection with business on which the claim was based. Wisconsin Electrical Manufacturing Co. v. Pennant Products, Inc., 619 F.2d 676 (1980). The Wisconsin circuit court had exclusive jurisdiction over trust assets in Illinois, making removal to Wisconsin federal district court improper. Norton v. Bridges, 712 F.2d 1156 (1983). “Processed” under sub. (4) (b) included a distributor’s purchase and sale of goods in the normal course of distribution of those goods. Nelson v. Park Industries, Inc., 717 F.2d 1120 (1983). A buyer’s inspection of goods before shipment from the state was sufficient contact for jurisdiction. Afram Export Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358 (1985). An act or omission occurring outside the state with consequences in the state does not fit the tort provisions of sub. (3). Services within the state under sub. (5) do not include the purchase of insurance from a state company. Federated Rural Electric Insurance Corp. v. Inland Power & Light Co., 18 F.3d 389 (1994). Specific personal jurisdiction requires that a defendant’s contacts with the forum state show that the defendant purposefully availed itself of the privilege of conducting business in the forum state or purposefully directed the defendant’s activities at the state. This analysis focuses on the defendant’s contacts with the forum state itself, not the defendant’s contacts with persons who reside there. Deliberate contact with the resident of a state is not the same thing as deliberate contact with the state itself. Lexington Insurance Co. v. Hotai Insurance Co., 938 F.3d 874 (2019). Under Wisconsin law, showing that an officer has control over a corporation allows for attribution of the corporation’s activities to that officer. Yet, a corporation’s contacts with a forum must have existed by virtue of the officer’s control. Webber v. Armslist LLC, 70 F.4th 945 (2023). Jurisdiction in an action for misrepresentation in the sale of a boat did not exist when the only contact was that the boat would be operated partly in Wisconsin and that the seller wrote a letter to the Wisconsin buyer confirming the already existing contract. McCalla v. A.J. Industries, Inc., 352 F. Supp. 544 (1973). The fact that a Virginia corporation was a distributor for a Wisconsin corporation in Virginia was not enough to justify an action in Wisconsin. Watral v. Murphy Diesel Co., 358 F. Supp. 968 (1973). A Texas company that ordered a turbine from a Wisconsin manufacturer and sent representatives to Wisconsin twice was subject to Wisconsin jurisdiction. Nordberg Division of Rex Chainbelt, Inc. v. Hudson Engineering Corp., 361 F. Supp. 903 (1973). An action for injuries sustained by the plaintiff while using a machine manufactured by the defendant in France and sold to the plaintiff’s employer was an action for personal injury based on breach of warranty and strict liability under subs. (4) and (5) (c). Davis v. Mercier-Freres, 368 F. Supp. 498 (1973). Service upon a nonresident defendant’s father at the father’s residence was insufficient for the exercise of personal jurisdiction over the nonresident, despite claimed actual notice, when no attempt was made to comply with s. 345.09. Chilcote v. Shertzer, 372 F. Supp. 86 (1974). The court had jurisdiction over an insurer under sub. (1) (d) based on settlement negotiations conducted by an adjuster, and the insurer was estopped from asserting its no-action clause. Kirchen v. Orth, 390 F. Supp. 313 (1975). The court had in-personam jurisdiction by virtue of sub. (5) (b) and (e) when the defendant made initial contact with the plaintiff, sent its president to Milwaukee to solicit the plaintiff’s participation in the transaction, delivered documentation of title to the subject property to the plaintiff in Milwaukee, accepted payment in Milwaukee, and executed a lease agreement in Milwaukee. Ridge Leasing Corp. v. Monarch Royalty, Inc., 392 F. Supp. 573 (1975). To determine whether a particular nonresident is “doing business” within this state, the court must consider the party’s overall activities within the state, past and present, not at some fixed point in time. Modern Cycle Sales, Inc. v. BurkhardtLarsen Co., 395 F. Supp. 587 (1975). Actions of out-of-state police officials in continuously soliciting the plaintiff’s arrest by a “fugitive from justice notice” entered into a Federal Bureau of Investigation computer database, representing to Wisconsin authorities that extradition was desired and requesting that the plaintiff be arrested, was sufficient minimum contact with Wisconsin to permit the exercise of personal jurisdiction. Maney v. Ratcliff, 399 F. Supp. 760 (1975). Infrequent use of Wisconsin roads by an Idaho trucking corporation did not constitute “continuous and systematic” activity necessary to confer jurisdiction under this section. Ladwig v. Truck Insurance Exchange, 498 F. Supp. 161 (1980). A foreign corporation is not subject to jurisdiction in Wisconsin when the sole basis for assertion of jurisdiction is unilateral activity of the resident plaintiff. Jadair, Inc. v. Walt Keeler Co., 508 F. Supp. 879 (1981). In applying the test under sub. (1) (d), the court looks to the defendant’s general contacts with the forum state, not merely its contacts arising out of the specific transaction at issue. Jadair, Inc. v. Van Lott, Inc., 512 F. Supp. 1141 (1981). The defendant’s attorney’s delivery of checks in the state was insufficient contact
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to confer jurisdiction under this section. Sed, Inc. v. Bohager/Goodhues, Inc., 538 F. Supp. 196 (1982). Distinguishing contracts for services and contracts for goods. L.B. Sales Corp. v. Dial Manufacturing, Inc., 593 F. Supp. 290 (1984). A single sale in the state was insufficient contact to confer personal jurisdiction. Uni-Bond, Ltd. v. Schultz, 607 F. Supp. 1361 (1985). A parent-subsidiary relationship is sufficient to confer jurisdiction over the parent for long-arm purposes so long as the subsidiary carries on sufficient activities in the state. Hayeland v. Jaques, 847 F. Supp. 630 (1994). This section is intended to reach to the fullest extent allowed under the due process clause. Fabry Glove & Mitten Co. v. Spitzer, 908 F. Supp. 625 (1995). Foreseeability that the defendant’s actions in one state may cause injury in Wisconsin does not amount to causing a local act. The consequences of an act alone do not establish jurisdiction over the defendant under sub. (3). Nelson v. Bulso, 979 F. Supp. 1239 (1997). In order for solicitation activities to trigger personal jurisdiction, the solicitor must anticipate receiving a financial benefit from the activity. Knot Just Beads v. Knot Just Beads, Inc., 217 F. Supp. 2d 932 (2002). The fiduciary shield doctrine, which denies personal jurisdiction over an individual whose presence and activity in a state are solely on behalf of an employer or other principal, is not a part of Wisconsin law. Norkol/Fibercore, Inc. v. Gubb, 279 F. Supp. 2d 993 (2003). State May Not Assert Quasi In Rem Jurisdiction Over An Insurance Company’s Contractual Obligations to Defend and Indemnify Its Insured. Orton. 64 MLR 374 (1980). Stacking the Deck: Wisconsin’s Application of Leflar’s Choice-Influencing Considerations to Torts Choice-of-Law Cases. White. 1985 WLR 401. Wisconsin’s ‘Stream of Commerce’ Theory of Personal Jurisdiction. La Fave. Wis. Law. Nov. 2002.
801.06 Personal jurisdiction, grounds for without service of summons. A court of this state having jurisdiction of the subject matter may, without a summons having been served upon a person, exercise jurisdiction in an action over a person with respect to any counterclaim asserted against that person in an action which the person has commenced in this state and also over any person who appears in the action and waives the defense of lack of jurisdiction over his or her person as provided in s. 802.06 (8). An appearance to contest the basis for in rem or quasi in rem jurisdiction under s. 802.06 (2) (a) 3. without seeking any other relief does not constitute an appearance within the meaning of this section. History: Sup. Ct. Order, 67 Wis. 2d 585, 596 (1975); 1975 c. 218; 1993 a. 213.
801.07 Jurisdiction in rem or quasi in rem, grounds for generally. A court of this state having jurisdiction of the subject matter may exercise jurisdiction in rem or quasi in rem on the grounds stated in this section. A judgment in rem or quasi in rem may affect the interests of a defendant in the status, property or thing acted upon only if a summons has been served upon the defendant pursuant to s. 801.12. Jurisdiction in rem or quasi in rem may be invoked in any of the following cases: (1) When the subject of the action is real or personal property in this state and the defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partially in excluding the defendant from any interest or lien therein. This subsection shall apply when any such defendant is unknown. (2) When the action is to foreclose, redeem from or satisfy a mortgage, claim or lien upon real estate within this state. (3) When the defendant has property within this state which has been attached or has a debtor within the state who has been garnisheed. Jurisdiction under this subsection may be independent of or supplementary to jurisdiction acquired under subs. (1) and (2). (4) When the action is to declare property within this state a public nuisance. (5) When the action is an action affecting the family under s. 767.001 (1) (a) to (d) and when the residence requirements of s. 767.301 have been met, a court having subject matter jurisdiction may exercise jurisdiction quasi in rem to determine questions of status if the respondent has been served under s. 801.11 (1). Notwithstanding s. 801.11 (intro.), the court need not have grounds
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for personal jurisdiction under s. 801.05 in order to make a determination of the status of a marriage under this subsection. History: Sup. Ct. Order, 67 Wis. 2d 585, 597 (1975), 758; 1977 c. 418; 1979 c. 32 s. 92 (4); 1979 c. 352 s. 39; 1993 a. 213; 2001 a. 42; 2005 a. 443, s. 265. This section requires that in rem actions under s. 161.555 [now s. 961.555] must be commenced against a person having an interest in property seized under s. 161.55 [now s. 961.55]. State v. One 1973 Cadillac, 95 Wis. 2d 641, 291 N.W.2d 626 (Ct. App. 1980). For quasi in rem jurisdiction under sub. (5), minimum contacts between the defendant and the state are necessary. Mendez v. Hernandez-Mendez, 213 Wis. 2d 217, 570 N.W.2d 563 (Ct. App. 1997), 96-1731. Sub. (3) applies when a settlement offer is made at least 20 days before trial. When a dispute is resolved by arbitration, there is no trial and sub. (3) does not apply. Lane v. Williams, 2000 WI App 263, 240 Wis. 2d 255, 621 N.W.2d 922, 000852. It is apparent that the legislature intended to empower the courts with the authority to determine the status of a marriage even if personal jurisdiction over one of the parties is lacking. In adding the final sentence of sub. (5), the legislature chose not to remove the requirement of personal jurisdiction for determinations involving other property or status subject to jurisdiction under this section. Had the legislature intended to remove the requirement of personal jurisdiction for divorce decisions involving property, it could have written the amendment more expansively. Montalvo v. U.S. Title & Closing Services, LLC, 2013 WI App 8, 345 Wis. 2d 653, 827 N.W.2d 635, 12-0102. Discussing the minimum contacts standard for quasi in rem jurisdiction. Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977). Posting a notice of eviction on an apartment door did not satisfy minimum requirements of due process. Greene v. Lindsey, 456 U.S. 444, 102 S. Ct. 1874, 72 L. Ed. 2d 249 (1982).
801.08 Objection to personal jurisdiction. (1) All issues of fact and law raised by an objection to the court’s jurisdiction over the person or property as provided by s. 802.06 (2) shall be heard by the court without a jury in advance of any issue going to the merits of the case. If, after such a hearing on the objection, the court decides that it has jurisdiction, the case may proceed on the merits; if the court decides that it lacks jurisdiction, the defendant shall be given the relief required by such decision. (2) Factual determinations made by the court in determining the question of personal jurisdiction over the defendant shall not be binding on the parties in the trial of the action on the merits. (3) No guardian or guardian ad litem may, except as provided in this subsection, waive objection to jurisdiction over the person of the ward. If no objection to the jurisdiction of the court over the person of the ward is raised pursuant to s. 802.06 (2), the service of an answer or motion by a guardian or guardian ad litem followed by a hearing or trial shall be equivalent to an appearance and waiver of the defense of lack of jurisdiction over the person of the ward. History: Sup. Ct. Order, 67 Wis. 2d 585, 598 (1975); 1979 c. 110 s. 60 (7); Sup. Ct. Order, 101 Wis. 2d xi. Judicial Council Note, 1981: The last sentence of sub. (1) has been repealed because it erroneously implied that non-final orders deciding jurisdictional questions were appealable as of right. This has not been true since ch. 187, Laws of 1977 repealed s. 817.33 (3) (f), Wis. Stats. (1975) and created s. 808.03 (1), Wis. Stats. (1977). Heaton v. Independent Mortuary Corp. 97 Wis. 2d 379, 294 N.W.2d 15 (1980). [Re Order effective July 1, 1981] A jurisdiction dispute may not be resolved on motion. Merco Distributing Corp. v. O&R Engines, Inc., 71 Wis. 2d 792, 239 N.W.2d 97 (1976). An order denying a motion to dismiss for lack of personal jurisdiction is appealable by permission under s. 808.03 (2). Heaton v. Independent Mortuary Corp., 97 Wis. 2d 379, 294 N.W.2d 15 (1980). An order denying a motion to dismiss based on jurisdiction under sub. (1) is not a final order and is not appealable as of right under s. 808.03 (1). Grulkowski v. DOT, 97 Wis. 2d 615, 294 N.W.2d 43 (Ct. App. 1980). The trial court erred in denying the plaintiff’s request for an evidentiary hearing. The plaintiff has no burden to prove jurisdictional facts prior to a hearing. Henderson v. Milex Products, Inc., 125 Wis. 2d 141, 370 N.W.2d 291 (Ct. App. 1985). Conducting pretrial discovery does not constitute “going to the merits of the case” under sub. (1) and does not waive an objection raised under s. 802.06 (2). Honeycrest Farms, Inc. v. Brave Harvestore Systems, Inc., 200 Wis. 2d 256, 546 N.W.2d 192 (Ct. App. 1996), 95-1789.
801.09 Summons, contents of. The summons shall contain: (1) The title of the cause, specifying the name of the court in which the action is brought, the name of the county designated by the plaintiff as the place of trial, the standardized description of the case classification type and associated code number as ap-
801.09
proved by the director of state courts and the names and addresses of the parties to the action, plaintiff and defendant. (2) A direction to the defendant summoning and requiring defendant to serve upon the plaintiff’s attorney, whose address shall be stated in the summons, either an answer to the complaint if a copy of the complaint is served with the summons or a demand for a copy of the complaint. The summons shall further direct the defendant to serve the answer or demand for a copy of the complaint within the following periods: (a) 1. Except as provided in subds. 2. and 3., within 20 days, exclusive of the day of service, after the summons has been served personally upon the defendant or served by substitution personally upon another authorized to accept service of the summons for the defendant. 2. If the defendant is the state or an officer, agent, employee, or agency of the state, as to that defendant, within 45 days, exclusive of the day of service, after the summons has been served personally upon the defendant or served by substitution personally upon another authorized to accept service of the summons for the defendant. 3. Within 45 days, exclusive of the day of service, after the summons has been served personally upon the defendant or served by substitution personally upon another authorized to accept service of the summons for the defendant, if any of the following applies: a. A defendant in the action is an insurance company. b. Any cause of action raised in the complaint is founded in tort. (b) Within 40 days after a date stated in the summons, exclusive of such date, if no such personal or substituted personal service has been made, and service is made by publication. The date so stated in the summons shall be the date of the first required publication. (3) A notice that in case of failure to serve an answer or demand for a copy of the complaint within the time fixed by sub. (2), judgment will be rendered against the defendant according to the demand of the complaint. The summons shall be subscribed with the handwritten signature of the plaintiff or attorney with the addition of the post-office address at which papers in the action may be served on the plaintiff by mail, plaintiff’s or attorney’s telephone number, and, if by an attorney, the attorney’s state bar number, if any. If the plaintiff is represented by a law firm, the summons shall contain the name and address of the firm and shall be subscribed with the handwritten signature and state bar number, if any, of one attorney who is a member or associate of such firm. When the complaint is not served with the summons and the only relief sought is the recovery of money, whether upon tort or contract, there may, at the option of the plaintiff, be added at the foot a brief note specifying the sum to be demanded by the complaint. (4) There may be as many authenticated copies of the summons and the complaint issued to the plaintiff or counsel as are needed for the purpose of effecting service on the defendant. Authentication shall be accomplished by the clerk’s placing a filing stamp indicating the case number on each copy of the summons and the complaint. History: Sup. Ct. Order, 67 Wis. 2d 585, 598 (1975); Sup. Ct. Order, 67 Wis. 2d viii; 1975 c. 218; Sup. Ct. Order, 112 Wis. 2d xi; Sup. Ct. Order, 171 Wis. 2d xxv; 1993 a. 365, 486; 1997 a. 133, 187; 2001 a. 16; 2005 a. 442. Cross-reference: See s. 802.06 (1) for a provision giving the state 45 days to serve an answer. Judicial Council Note, 1983: Sub. (2) (a) is amended by applying the extended response time for state officers and agencies to state agents and employees as well. The extended time is intended to allow investigation of the claim by the department of justice to determine whether representation of the defendant by the department is warranted under s. 893.82 or 895.46, Stats. [Re Order effective July 1, 1983] When a defective summons does not prejudice the defendant, non-compliance with sub. (2) (a) is not jurisdictional error. Canadian Pacific Ltd. v. Omark-Prentice Hydraulics, Inc., 86 Wis. 2d 369, 272 N.W.2d 407 (Ct. App. 1978). See also Flana-
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gan v. Stumble Inn LLC, 2023 WI App 31, 408 Wis. 2d 532, 992 N.W.2d 867, 220584. Failure to name a party in the summons means that the court has no authority over that party regarding the case. Prejudice need not be shown. Bulik v. Arrow Realty, Inc., 148 Wis. 2d 441, 434 N.W.2d 853 (Ct. App. 1988). An unsigned summons served with a signed complaint is a technical defect, which in the absence of prejudice does not deny the trial court personal jurisdiction. Gaddis v. La Crosse Products, Inc., 198 Wis. 2d 396, 542 N.W.2d 454 (1996), 942121. A stamped reproduction of a signature does not satisfy sub. (3), and correcting the signature a year after receiving notice of the defect is not timely under former s. 802.05 (1) (a), 1999 stats. The error must be promptly corrected, or else the certification statute and the protection it was intended to afford is rendered meaningless. Novak v. Phillips, 2001 WI App 156, 246 Wis. 2d 673, 631 N.W.2d 635, 00-2416. But see Schaefer v. Riegelman, 2002 WI 18, 250 Wis. 2d 494, 639 N.W.2d 715, 002157. A summons and complaint signed by an attorney not licensed in the state contained a fundamental defect that deprived the circuit court of jurisdiction even though the signature was made on behalf and at the direction of a licensed attorney. Schaefer v. Riegelman, 2002 WI 18, 250 Wis. 2d 494, 639 N.W.2d 715, 00-2157. Default judgment entered immediately after the trial court permitted amendment of the pleadings to correct the defendant’s name was void because the original summons and complaint named the wrong corporate entity, the defendant’s parent. The general rule is that, if a misnomer or misdescription does not leave in doubt the identity of the party intended to be sued or, even when there is room for doubt as to identity, if service of process is made on the party intended to be sued, the misnomer or misdescription may be corrected by amendment at any stage of the suit, and a judgment taken by default is enforceable. However, if the amendment is to bring in a new party, it will be refused. Johnson v. Cintas Corp., 2011 WI App 5, 331 Wis. 2d 51, 794 N.W.2d 475, 09-2549. A wholly owned subsidiary of a corporation is a legal entity that exists independently of the parent. The failure to name the subsidiary in a summons and complaint when the subsidiary was the correct party constituted a fundamental defect that precluded the circuit court of personal jurisdiction over the subsidiary, regardless of whether or not the defect prejudiced the subsidiary. It was irrelevant that the summons and complaint was served upon the registered agent for the subsidiary and the subsidiary might have had knowledge that it was meant to be a party. Johnson v. Cintas Corp., 2011 WI App 5, 331 Wis. 2d 51, 794 N.W.2d 475, 09-2549. When a defect in a summons is technical, the court has personal jurisdiction only if the complainant can show the defendant was not prejudiced. When a defect is fundamental, no personal jurisdiction attaches regardless of prejudice. In this case, the summons incorrectly indicated that the answers were due in 20 days, as opposed to 45 days. That error was a mere technical defect and, absent prejudice to the defendants, would not result in a dismissal on the basis of a lack of personal jurisdiction. Flanagan v. Stumble Inn LLC, 2023 WI App 31, 408 Wis. 2d 532, 992 N.W.2d 867, 22-0584. That the plaintiff’s publication summons in this case used the updated caption from the amended complaint was of no legal significance. Wisconsin law requires only that the publication summons be substantially in the form detailed in s. 801.095 (4). The updated caption reflected the correct state of the parties at the time of publication and service, and the defendants did not point to any confusion or prejudice they could possibly have suffered by use of an accurate caption, which included each of them, while omitting other persons no longer being pursued in the litigation. Colborn v. Netflix Inc., 541 F. Supp. 3d 888 (2021).
801.095 Summons form. The summons shall be substantially in one of the forms specified in subs. (1) to (4). The applicable form depends on the type of service and on whether a complaint is served with the summons, in accordance with s. 801.09. The forms are: (1) PERSONAL SERVICE; COMPLAINT ATTACHED. STATE OF WISCONSIN CIRCUIT COURT: .... COUNTY A. B. Address City, State Zip Code File No. .... , Plaintiff vs. SUMMONS C. D. Address .... (Case Classification Type): .... (Code No.) City, State Zip Code , Defendant THE STATE OF WISCONSIN, To each person named above as a Defendant: You are hereby notified that the Plaintiff named above has filed a lawsuit or other legal action against you. The complaint, which is attached, states the nature and basis of the legal action. Within (20) (45) days of receiving this summons, you must respond with a written answer, as that term is used in chapter 802 of
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the Wisconsin Statutes, to the complaint. The court may reject or disregard an answer that does not follow the requirements of the statutes. The answer must be sent or delivered to the court, whose address is ...., and to ...., Plaintiff’s attorney, whose address is ..... You may have an attorney help or represent you. If you do not provide a proper answer within (20) (45) days, the court may grant judgment against you for the award of money or other legal action requested in the complaint, and you may lose your right to object to anything that is or may be incorrect in the complaint. A judgment may be enforced as provided by law. A judgment awarding money may become a lien against any real estate you own now or in the future, and may also be enforced by garnishment or seizure of property. Dated: ...., .... (year) Signed: .... .... A. B., Plaintiff or E. F., Plaintiff’s Attorney State Bar No.: .... Address: .... City, State Zip Code: .... Phone No: .... (2) PERSONAL SERVICE; NO COMPLAINT ATTACHED. STATE OF WISCONSIN CIRCUIT COURT: .... COUNTY A. B. Address City, State Zip Code File No. .... , Plaintiff vs. SUMMONS C. D. Address .... (Case Classification Type): .... (Code No.) City, State Zip Code , Defendant THE STATE OF WISCONSIN, To each person named above as a Defendant: You are hereby notified that the Plaintiff named above has filed a lawsuit or other legal action against you. Within (20) (45) days of receiving this summons, you must respond with a written demand for a copy of the complaint. The demand must be sent or delivered to the court, whose address is ...., and to ...., Plaintiff’s attorney, whose address is ..... You may have an attorney help or represent you. If you do not demand a copy of the complaint within (20) (45) days, the court may grant judgment against you for the award of money or other legal action requested in the complaint, and you may lose your right to object to anything that is or may be incorrect in the complaint. A judgment may be enforced as provided by law. A judgment awarding money may become a lien against any real estate you own now or in the future, and may also be enforced by garnishment or seizure of property. Dated: ...., .... (year) Signed: .... .... A. B., Plaintiff or E. F., Plaintiff’s Attorney State Bar No.: .... Address: .... City, State Zip Code: .... Phone No.: ....
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(3) NO PERSONAL SERVICE; COMPLAINT SERVED AT THE SAME TIME. STATE OF WISCONSIN
CIRCUIT COURT: .... COUNTY
A. B. Address City, State Zip Code File No. .... , Plaintiff vs. SUMMONS C. D. Address .... (Case Classification Type): .... (Code No.) City, State Zip Code , Defendant THE STATE OF WISCONSIN, To each person named above as a Defendant: You are hereby notified that the Plaintiff named above has filed a lawsuit or other legal action against you. The complaint, which is also served upon you, states the nature and basis of the legal action. Within 40 days after ...., .... (year), you must respond with a written answer, as that term is used in chapter 802 of the Wisconsin Statutes, to the complaint. The court may reject or disregard an answer that does not follow the requirements of the statutes. The answer must be sent or delivered to the court, whose address is ...., and to ...., Plaintiff’s attorney, whose address is ..... You may have an attorney help or represent you. If you do not provide a proper answer within 40 days, the court may grant judgment against you for the award of money or other legal action requested in the complaint, and you may lose your right to object to anything that is or may be incorrect in the complaint. A judgment may be enforced as provided by law. A judgment awarding money may become a lien against any real estate you own now or in the future, and may also be enforced by garnishment or seizure of property. Dated: ...., .... (year) Signed: .... .... A. B., Plaintiff or E. F., Plaintiff’s Attorney State Bar No.: .... Address: .... City, State Zip Code: .... Phone No: .... (4) NO PERSONAL SERVICE; COMPLAINT NOT SERVED AT THE SAME TIME. STATE OF WISCONSIN CIRCUIT COURT: .... COUNTY A. B. Address City, State Zip Code File No. .... , Plaintiff vs. SUMMONS C. D. Address .... (Case Classification Type): .... (Code No.) City, State Zip Code , Defendant
801.10
THE STATE OF WISCONSIN, To each person named above as a Defendant: You are hereby notified that the plaintiff named above has filed a lawsuit or other legal action against you. Within 40 days after ...., .... (year), you must respond with a written demand for a copy of the complaint. The demand must be sent or delivered to the court, whose address is ...., and to ...., Plaintiff’s attorney, whose address is ..... You may have an attorney help or represent you. If you do not demand a copy of the complaint within 40 days, the court may grant judgment against you for the award of money or other legal action requested in the complaint, and you may lose your right to object to anything that is or may be incorrect in the complaint. A judgment may be enforced as provided by law. A judgment awarding money may become a lien against any real estate you own now or in the future, and may also be enforced by garnishment or seizure of property. Dated: ...., .... (year) Signed: .... .... A. B., Plaintiff or E. F., Plaintiff’s Attorney State Bar No.: .... Address: .... City, State Zip Code: .... Phone No: .... History: 1983 a. 323; Sup Ct. Order, 171 Wis. 2d xix (1992); 1997 a. 187, 250; 1999 a. 32, 186; 2001 a. 16; 2005 a. 442. Where service is made by publication, Wisconsin law requires the plaintiff to arrange for publication of a publication summons, the contents of which must be substantially in the form detailed in sub. (4). The complaint itself is not published of course; Wisconsin does not absurdly require publication of the entire pleading, which could fill up multiple newspaper pages. Rather, service by publication is intended to provide notice of the existence of the complaint and lawsuit. Section 801.11 (1) (c) thus requires the plaintiff to mail copies of the summons and complaint to the defendant at or immediately prior to the first publication. Colborn v. Netflix Inc., 541 F. Supp. 3d 888 (2021). That the plaintiff’s publication summons in this case used the updated caption from the amended complaint was of no legal significance. Wisconsin law requires only that the publication summons be substantially in the form detailed in sub. (4). The updated caption reflected the correct state of the parties at the time of publication and service, and the defendants did not point to any confusion or prejudice they could possibly have suffered by use of an accurate caption, which included each of them, while omitting other persons no longer being pursued in the litigation. Colborn v. Netflix Inc., 541 F. Supp. 3d 888 (2021).
801.10 Summons, by whom served. (1) WHO MAY SERVE. An authenticated copy of the summons may be served by any adult resident of the state where service is made who is not a party to the action. Service shall be made with reasonable diligence. (1m) SERVICE BY CERTAIN NONRESIDENTS. Notwithstanding sub. (1), an adult who is not a party to the action and who resides in Illinois, Iowa, Michigan, or Minnesota may serve an authenticated copy of the summons in this state. (2) ENDORSEMENT. At the time of service, the person who serves a copy of the summons shall sign the summons and shall indicate thereon the time and date, place and manner of service and upon whom service was made. If the server is a sheriff or deputy sheriff, the server’s official title shall be stated. Failure to make the endorsement shall not invalidate a service but the server shall not collect fees for the service. (3) PROOF OF SERVICE. The person making service shall make and deliver proof of service to the person on whose behalf service was made who shall promptly file such proof of service. Failure to make, deliver, or file proof of service shall not affect the validity of the service. (4) PROOF IF SERVICE CHALLENGED. If the defendant appears in the action and challenges the service of summons upon the defendant, proof of service shall be as follows:
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(a) Personal or substituted personal service shall be proved by the affidavit of the server indicating the time and date, place and manner of service; that the server is an adult resident of the state of service or, if service is made in this state, an adult resident of this state or of Illinois, Iowa, Michigan, or Minnesota and is not a party to the action; that the server knew the person served to be the defendant named in the summons; and that the server delivered to and left with the defendant an authenticated copy of the summons. If the defendant is not personally served, the server shall state in the affidavit when, where and with whom the copy was left, and shall state such facts as show reasonable diligence in attempting to effect personal service on the defendant. If the copy of the summons is served by a sheriff or deputy sheriff of the county in this state where the defendant was found, proof may be by the sheriff’s or deputy’s certificate of service indicating time and date, place, manner of service and, if the defendant is not personally served, the information required in the preceding sentence. The affidavit or certificate constituting proof of service under this paragraph may be made on an authenticated copy of the summons or as a separate document. (b) Service by publication shall be proved by the affidavit of the publisher or printer, or the foreman or principal clerk, stating that the summons was published and specifying the date of each insertion, and by an affidavit of mailing of an authenticated copy of the summons, with the complaint or notice of the object of the action, as the case may require, made by the person who mailed the same. (c) The written admission of the defendant, whose signature or the subscription of whose name to such admission shall be presumptive evidence of genuineness. History: Sup. Ct. Order, 67 Wis. 2d 585, 600 (1975); 1975 c. 218; Sup. Ct. Order, 92 Wis. 2d xiii (1979); 2005 a. 439. Judicial Council Committee’s Note, 1979: Sub. (2) is amended to clarify that the individual who serves the summons on behalf of the plaintiff under the procedures in the Wisconsin Rules of Civil Procedure must indicate on the copy of the summons served both the time and date of service. There is presently a lack of uniformity of interpretation in Wisconsin of the term “time” in s. 801.10 (2). Some jurisdictions interpret it to include time and date of service while other jurisdictions interpret it as only the date of service. Clarifying that both the time and date of service must be indicated in the serving of the summons will insure that this potentially valuable information is noted on the served copy of every summons in Wisconsin. Sub. (4) (a) is amended to also apply the requirement for indicating time and date of service to the affidavits and certificates of service used when proof of service is challenged. [Re Order effective Jan. 1, 1980] A party is required to show strict compliance with the requirements of this section when service is challenged. Dietrich v. Elliott, 190 Wis. 2d 816, 528 N.W.2d 17 (Ct. App. 1995). Service by a nonresident constitutes a fundamental defect compelling dismissal for lack of jurisdiction. Bendimez v. Neidermire, 222 Wis. 2d 356, 588 N.W.2d 55 (Ct. App. 1998), 98-0656. Sub. (4) does not require the affiant to have first hand knowledge of how the documents were authenticated, nor does it require that the affiant’s statements must be unqualified; it requires that the affiant affirm that an authenticated copy of the summons was served. State v. Boyd, 2000 WI App 208, 238 Wis. 2d 693, 618 N.W.2d 251, 99-2633. The trial court was not required to find excusable neglect for failing to file a timely answer due to a process server’s failure to endorse and date the summons and complaint as required under sub. (2) when the failure to answer in a timely manner amounted to nothing more than carelessness and inattentiveness on the part of the parties involved. Williams Corner Investors, LLC v. Areawide Cellular, LLC, 2004 WI App 27, 269 Wis. 2d 682, 676 N.W.2d 168, 03-0824. An affidavit of service is entitled to a presumption of correctness. If the affidavit sets forth prima facie evidence of proper service, the defendant must provide proof that clearly and satisfactorily disputes the facts set forth. The court has discretion regarding the nature of proof considered, including witnesses, which may be preferable when the issue of service is largely a matter of credibility because the evidence is irreconcilably in conflict. Culver v. Kaza, 2021 WI App 57, 399 Wis. 2d 131, 963 N.W.2d 865, 20-0309. Under sub. (4) (a), a process server who is unable to effect personal service is directed to state such facts as show reasonable diligence in attempting to effect personal service on the defendant. The statute imposes a duty by law that undoubtedly will include hearsay at times. A process server’s affidavit is clothed with circumstantial guarantees of trustworthiness comparable to the recognized hearsay exceptions. Culver v. Kaza, 2021 WI App 57, 399 Wis. 2d 131, 963 N.W.2d 865, 200309.
801.11 Personal jurisdiction, manner of serving summons for. A court of this state having jurisdiction of the subject
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matter and grounds for personal jurisdiction as provided in s. 801.05 may exercise personal jurisdiction over a defendant by service of a summons as follows: (1) NATURAL PERSON. Except as provided in sub. (2) upon a natural person: (a) By personally serving the summons upon the defendant either within or without this state. (b) If with reasonable diligence the defendant cannot be served under par. (a), then by leaving a copy of the summons at the defendant’s usual place of abode: 1. In the presence of some competent member of the family at least 14 years of age, who shall be informed of the contents thereof; 1m. In the presence of a competent adult, currently residing in the abode of the defendant, who shall be informed of the contents of the summons; or 2. Pursuant to the law for the substituted service of summons or like process upon defendants in actions brought in courts of general jurisdiction of the state in which service is made. (c) If with reasonable diligence the defendant cannot be served under par. (a) or (b), service may be made by publication of the summons as a class 3 notice, under ch. 985, and by mailing. If the defendant’s post-office address is known or can with reasonable diligence be ascertained, there shall be mailed to the defendant, at or immediately prior to the first publication, a copy of the summons and a copy of the complaint. The mailing may be omitted if the post-office address cannot be ascertained with reasonable diligence. (d) In any case, by serving the summons in a manner specified by any other statute upon the defendant or upon an agent authorized by appointment or by law to accept service of the summons for the defendant. (2) NATURAL PERSON UNDER DISABILITY. Upon a natural person under disability by serving the summons in any manner prescribed in sub. (1) upon the person under disability and, in addition, where required by par. (a) or (b), upon a person therein designated. A minor 14 years of age or older who is not adjudicated incompetent and not otherwise under guardianship is not a person under disability for purposes of this subsection. (a) Where the person under disability is a minor under the age of 14 years, summons shall be served separately in any manner prescribed in sub. (1) upon a parent or guardian having custody of the child, or if there is none, upon any other person having the care and control of the child. If there is no parent, guardian or other person having care and control of the child when service is made upon the child, then service of the summons shall also be made upon the guardian ad litem after appointment under s. 803.01. (b) Where the person under disability is known by the plaintiff to be under guardianship of any kind, a summons shall be served separately upon the guardian in any manner prescribed in sub. (1), (5) or (6). If no guardian has been appointed when service is made upon a person alleged by the plaintiff to be incompetent to have charge of the person’s affairs, then service of the summons shall be made upon the guardian ad litem after appointment under s. 803.01. (3) STATE. Upon the state, by delivering a copy of the summons and of the complaint to the attorney general or leaving them at the attorney general’s office in the capitol with an assistant or clerk. (4) OTHER POLITICAL CORPORATIONS OR BODIES POLITIC. (a) Upon a political corporation or other body politic, by personally serving any of the specified officers, directors, or agents:
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1. If the action is against a county, the chairperson of the county board or the county clerk; 2. If against a town, the chairperson or clerk thereof; 3. If against a city, the mayor, city manager or clerk thereof; 4. If against a village, the president or clerk thereof; 5. If against a technical college district, the district board chairperson or secretary thereof; 6. If against a school district or school board, the president or clerk thereof; and 7. If against any other body politic, an officer, director, or managing agent thereof. (b) In lieu of delivering the copy of the summons to the person specified, the copy may be left in the office of such officer, director or managing agent with the person who is apparently in charge of the office. (5) DOMESTIC OR FOREIGN CORPORATIONS OR LIMITED LIABILITY COMPANIES, GENERALLY. Upon a domestic or foreign corporation or domestic or foreign limited liability company: (a) By personally serving the summons upon an officer, director or managing agent of the corporation or limited liability company either within or without this state. In lieu of delivering the copy of the summons to the officer specified, the copy may be left in the office of such officer, director or managing agent with the person who is apparently in charge of the office. (b) If with reasonable diligence the defendant cannot be served under par. (a), then the summons may be served upon an officer, director or managing agent of the corporation or limited liability company by publication and mailing as provided in sub. (1). (c) By serving the summons in a manner specified by any other statute upon the defendant or upon an agent authorized by appointment or by law to accept service of the summons for the defendant. (d) If against any insurer, to any agent of the insurer as defined by s. 628.02. Service upon an agent of the insurer is not valid unless a copy of the summons and proof of service is sent by registered mail to the principal place of business of the insurer within 5 days after service upon the agent. Service upon any insurer may also be made under par. (a). (6) PARTNERS AND PARTNERSHIPS. A summons shall be served individually upon each general partner known to the plaintiff by service in any manner prescribed in sub. (1), (2) or (5) where the claim sued upon arises out of or relates to partnership activities within this state sufficient to subject a defendant to personal jurisdiction under s. 801.05 (2) to (10). A judgment rendered under such circumstances is a binding adjudication individually against each partner so served and is a binding adjudication against the partnership as to its assets anywhere. History: Sup. Ct. Order, 67 Wis. 2d 585, 602 (1975); 1975 c. 218; 1977 c. 339 s. 43; 1979 c. 89, 102, 177; 1983 a. 192 s. 303 (2); 1985 a. 225; Sup. Ct. Order, 130 Wis. 2d xix (1986); 1993 a. 112, 184, 265, 399, 491; 1997 a. 140; 1999 a. 32; 2005 a. 387. Cross-reference: As to service on corporation, see also s. 180.0504. Judicial Council Note, 1986: Sub. (1) (b) is amended to permit substituted service upon residents of other states. Service upon nonresidents may be made either as provided for Wisconsin residents or in accordance with the substituted service rule of the state wherein service is made. [Re Order eff. 7-1-86] There is no requirement in cases of substituted service that the affidavit recite that the process server used “reasonable diligence” in attempting to make personal service, but substituted service after two calls when the defendant was not found, with no effort to learn where the defendant was, was not sufficient to support jurisdiction. Heaston v. Austin, 47 Wis. 2d 67, 176 N.W.2d 309 (1970). When a village was a defendant, service was void when it was made upon the clerk’s spouse in the clerk’s absence. Town of Washington v. Village of Cecil, 53 Wis. 2d 710, 193 N.W.2d 674 (1972). “Apparently in charge of the office” in sub. (5) (a) refers to what is apparent to the process server. When a receptionist referred the process server to the receptionist’s superior, who did not send the server to the proper office, the server could serve the superior, particularly since the superior had accepted service of process in other ac-
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tions without objection by the company. Keske v. Square D Co., 58 Wis. 2d 307, 206 N.W.2d 189 (1973). When personal jurisdiction is challenged under the “long arm” statutes, the burden is on the plaintiff to prove prima facie the facts supporting jurisdiction. A plaintiff who relies on sub. (5) is required to establish as a predicate that the defendant entered into some consensual agreement with the plaintiff that contemplated a substantial contact in Wisconsin. Afram v. Balfour, Maclaine, Inc., 63 Wis. 2d 702, 218 N.W.2d 288 (1974). No presumption of due service was raised when an affidavit of service under sub. (5) (a) did not identify the person served as the one specified in sub. (5) (a). Danielson v. Brody Seating Co., 71 Wis. 2d 424, 238 N.W.2d 531 (1976). The prerequisite “due diligence” for service by publication was not established, despite the sheriff’s affidavit, when a husband could have ascertained his wife’s address by contacting any one of several relatives or in-laws. West v. West, 82 Wis. 2d 158, 262 N.W.2d 87 (1978). A county civil service commission is a “body politic” under sub. (4) (a) 7. Watkins v. Milwaukee County Civil Service Commission, 88 Wis. 2d 411, 276 N.W.2d 775 (1979). The exact identity and job title of the person upon whom service was made was not critical to whether the person was “apparently in charge of the office” under sub. (5) (a). Horrigan v. State Farm Insurance Co., 106 Wis. 2d 675, 317 N.W.2d 474 (1982). Discussing “reasonable diligence” under sub. (1). Welty v. Heggy, 124 Wis. 2d 318, 369 N.W.2d 763 (Ct. App. 1985). Indian tribal sovereignty is not infringed by service of process in a state action made on tribal lands. Landreman v. Martin, 191 Wis. 2d 787, 530 N.W.2d 62 (Ct. App. 1995). Service of process on some of the partners in a general partnership is sufficient to properly commence a civil action against the partnership that will be binding on the partnership assets and the partners served. CH2M Hill, Inc. v. Black & Veatch, 206 Wis. 2d 370, 557 N.W.2d 829 (Ct. App. 1996), 95-2619. The existence of a parent-subsidiary corporate relationship does not automatically establish the subsidiary as an agent of the parent for purposes of receiving process. Conservatorship of Prom v. Sumitomo Rubber Industries, Ltd., 224 Wis. 2d 743, 592 N.W.2d 657 (Ct. App. 1999), 98-0938. A corporation whose offices were located on the 23rd floor of an office building was not properly served under sub. (5) (a) when the papers were left with a security guard in the building lobby who stated that he was authorized to accept service. Bar Code Resources v. Ameritech Information Systems, Inc., 229 Wis. 2d 287, 599 N.W.2d 872 (Ct. App. 1999), 98-1314. Service on a limited partnership is governed by sub. (6), not ch. 179. Sub. (6) requires service upon all the general partners known to the plaintiff. When the only person served was a maintenance man, service was insufficient. Carmain v. Affiliated Capital Corp., 2002 WI App 271, 258 Wis. 2d 378, 654 N.W.2d 265, 01-3077. Personal jurisdiction over a body politic may be obtained by service of the summons and complaint on an officer, director, or managing agent or by substitute service on a “person who is apparently in charge of the office.” Service on a nonparty, even when it occurs erroneously in reliance on the mistaken direction of a person in the office of the defendant, does not constitute service on the defendant. Hagen v. City of Milwaukee Employee’s Retirement System Annuity & Pension Board, 2003 WI 56, 262 Wis. 2d 113, 663 N.W.2d 268, 01-3198. Neither s. 801.02 (1) nor this section allows a defendant who is being sued in a dual capacity, personally and officially, to be served in only one of those capacities. When an officer of a company received service on behalf of the company, receiving one copy of a summons and complaint, but was not served as an individual, although named individually, there was no jurisdiction over the defendant as an individual. Useni v. Boudron, 2003 WI App 98, 264 Wis. 2d 783, 662 N.W.2d 672, 02-1475. Sub. (1) (d) permits substituted service on a natural person’s agent who has actual express authority to accept service of summons for the principal. Apparent authority does not satisfy the requirement that the agent be “authorized by appointment” to accept service of summons. Mared Industries, Inc. v. Mansfield, 2005 WI 5, 277 Wis. 2d 350, 690 N.W.2d 835, 03-0097. “Managing agent” as it appears in sub. (5) relates to an agent having general supervision of the affairs of the corporation. “Superintendent” and “managing agent” have corresponding meanings in the statute. Both terms relate to a person possessing and exercising the right of general control, authority, judgment, and discretion over the business or affairs of the corporation, either everywhere or in a particular branch or district. Richards v. First Union Securities, Inc., 2006 WI 55, 290 Wis. 2d 620, 714 N.W.2d 913, 04-1877. The guiding principle in reasonable diligence cases is that, when pursuing any leads or information reasonably calculated to make personal service possible, the plaintiff must not stop short of pursuing a viable lead or, in other words, stop short of the place where if the diligence were continued it might reasonably be expected to uncover an address of the person on whom service is sought. Loppnow v. Bielik, 2010 WI App 66, 324 Wis. 2d 803, 783 N.W.2d 450, 09-0747. This chapter explicitly applies to a certiorari action initiated by the filing of a summons and complaint. Special circumstances cannot establish personal jurisdiction in a certiorari action when the defendant has not been served in accordance with this section. Bergstrom v. Polk County, 2011 WI App 20, 331 Wis. 2d 678, 795 N.W.2d 482, 09-2572. Publication of the summons and complaint in this case failed to meet the requirements of sub. (1) (c), requiring vacation of a default judgment. While the plaintiff asserted that the newspaper used was the predominant newspaper to publish legal notices in the Milwaukee metropolitan area, it failed to provide any evidence to that effect. The undisputed record as it stood at the time of the default judgment failed to establish that publication in a newspaper “printed and published daily in the City of Milwaukee, in said county” would have been likely to provide notice to a resident of Menomonee Falls in Waukesha County. PHH Mortgage Corp. v. Mattfeld, 2011 WI App 62, 333 Wis. 2d 129, 799 N.W.2d 455, 10-0612. Service by publication and mailing under sub. (1) (c) requires both publication and mailing to the defendant’s “known” address. An error in the address used dur-
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ing the mailing component of service by publication and mailing was a fundamental defect depriving the court of jurisdiction. Strict compliance with the procedures for alternative forms of service is no less important than strict compliance with the requirements for personal service. O’Donnell v. Kaye, 2015 WI App 7, 359 Wis. 2d 511, 859 N.W.2d 441, 13-2615. Those attempting personal service under sub. (1) must employ reasonable diligence before resorting to an alternative method of service. Reasonable diligence is a question of what is reasonable under the facts of a particular case. One attempt at service before switching to substitute service may satisfy the reasonable diligence requirement. In this case, the process server exercised reasonable diligence when the process server went to the gated community where the defendant lived in Nevada, was denied entry by the security guard, and executed substitute service on the defendant by leaving the summons and complaint with the guard. It is relevant to the reasonableness analysis that Nevada law permits a single attempt at personal service and then substitute service by leaving the document with the guard of a gated community after the guard denies access. Culver v. Kaza, 2021 WI App 57, 399 Wis. 2d 131, 963 N.W.2d 865, 20-0309. Admission of service by an assistant attorney general or a clerk specifically designated for that purpose by the attorney general will constitute service of process within the meaning of sub. (3). 63 Atty. Gen. 467. To satisfy the “reasonable diligence” standard under sub. (1), Wisconsin requires a plaintiff who knows or readily can learn that a defendant has multiple addresses to attempt to serve the defendant at each address. Cunningham v. Montes, 883 F.3d 688 (2018). Service on a nonresident defendant’s father at the father’s residence was insufficient for the exercise of personal jurisdiction over the nonresident, despite claimed actual notice, when no attempt was made to comply with s. 345.09. Chilcote v. Shertzer, 372 F. Supp. 86 (1974). Where service is made by publication, Wisconsin law requires the plaintiff to arrange for publication of a publication summons, the contents of which must be substantially in the form detailed in s. 801.095 (4). The complaint itself is not published of course; Wisconsin does not absurdly require publication of the entire pleading, which could fill up multiple newspaper pages. Rather, service by publication is intended to provide notice of the existence of the complaint and lawsuit. Sub. (1) (c) thus requires the plaintiff to mail copies of the summons and complaint to the defendant at or immediately prior to the first publication. Colborn v. Netflix Inc., 541 F. Supp. 3d 888 (2021). Under Wisconsin law, whether a plaintiff exercises “reasonable diligence” in attempting personal service for purposes of sub. (1) (c) is a highly factual issue. In this case, the plaintiff’s primary process server undertook multiple efforts to serve each of the defendants at multiple locations and on multiple days. This in itself was sufficient to show reasonable diligence. Further, additional efforts—hiring a second process server and searching the internet for other potential service locations—pushed the plaintiff’s efforts over the “reasonable diligence” line. Colborn v. Netflix Inc., 541 F. Supp. 3d 888 (2021).
801.12 Jurisdiction in rem or quasi in rem, manner of serving summons for; notice of object of action. (1) A court of this state exercising jurisdiction in rem or quasi in rem pursuant to s. 801.07 may affect the interests of a defendant in such action only if a summons and either a copy of the complaint or a notice of the object of the action under sub. (2) have been served upon the defendant as follows: (a) If the defendant is known, defendant may be served in the manner prescribed for service of a summons in s. 801.11, but service in such a case shall not bind the defendant personally to the jurisdiction of the court unless some ground for the exercise of personal jurisdiction exists. (b) If the defendant is unknown the summons may be served by publication thereof as a class 3 notice, under ch. 985. (2) The notice of object of action shall be subscribed by the plaintiff or attorney and shall state the general object of the action, a brief description of all the property affected by it, if it affects specific real or personal property, the fact that no personal claim is made against such defendant, and that a copy of the complaint will be delivered personally or by mail to such defendant upon request made within the time fixed in s. 801.09 (2). If a defendant upon whom such notice is served unreasonably defends the action the defendant shall pay costs to the plaintiff. History: Sup. Ct. Order, 67 Wis. 2d 585, 606 (1975); 1975 c. 218. Personal jurisdiction in fact, in addition to statutorily acceptable service, is a condition precedent to the exercise of jurisdiction in rem or quasi in rem upon a status or upon a property. Montalvo v. U.S. Title & Closing Services, LLC, 2013 WI App 8, 345 Wis. 2d 653, 827 N.W.2d 635, 12-0102.
801.13 Summons; when deemed served. A summons is deemed served as follows: (1) A summons served personally upon the defendant or by substituted personal service upon another authorized to accept
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service of the summons for the defendant is deemed served on the day of service. (2) A summons served by publication is deemed served on the first day of required publication. History: Sup. Ct. Order, 67 Wis. 2d 585, 607 (1975).
801.14 Service and filing of pleadings and other papers. (1) Every order required by its terms to be served, every pleading unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, undertaking, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in s. 801.11. (2) Whenever under these statutes, service of pleadings and other papers is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party in person is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy or by mailing it to the last-known address, or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this section means: handing it to the attorney or to the party; transmitting a copy of the paper by facsimile machine to his or her office; or leaving it at his or her office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his or her dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Except as otherwise provided in s. 801.18 (6) (a) and (b), if an attorney, or a party if appropriate, has consented in writing to accept service by electronic mail, delivery of a copy within this section may also include transmitting a copy of the paper by electronic mail to his or her primary or other designated electronic mail address. Service by mail is complete upon mailing. Service by facsimile is complete upon transmission. Service by electronic mail is complete upon transmission, except if the sender receives notification or indication that the message was not delivered. The first sentence of this subsection shall not apply to service of a summons or of any process of court or of any paper to bring a party into contempt of court. (2m) When an attorney has filed a limited appearance under s. 802.045 (2) on behalf of an otherwise self-represented person, anything required to be served under sub. (1) shall be served upon both the otherwise self-represented person who is receiving the limited scope representation and the attorney who filed the limited appearance under s. 802.045 (2). After the attorney files a notice of termination under s. 802.045 (4), no further service upon that attorney is required. (3) In any action in which there are unusually large numbers of defendants, the court, upon motion or on its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs. (4) All papers after the summons required to be served upon a party, except as provided in s. 804.01 (6), shall be filed with the
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court within a reasonable time after service. The filing of any paper required to be served constitutes a certification by the party or attorney effecting the filing that a copy of such paper has been timely served on all parties required to be served, except as the person effecting the filing may otherwise stipulate in writing. (6) If an action pertaining to the subject matter of the compact authorized under s. 304.16 may affect the powers, responsibilities, or actions of the interstate commission, as defined in s. 304.16 (2) (f), the plaintiff shall deliver or mail a copy of the complaint to the interstate commission at its last-known address. History: Sup. Ct. Order, 67 Wis. 2d 585, 607 (1975); 1975 c. 218; Sup. Ct. Order, 130 Wis. 2d xix (1986); Sup. Ct. Order, 161 Wis. 2d xvii (1991); 2001 a. 96; 2007 a. 97; Sup. Ct. Order No. 13-10, 2014 WI 45, 354 Wis. 2d xliii; 2019 a. 30. Judicial Council Note, 1986: Sub. (4) is amended by insertion of a cross-reference to s. 804.01 (6), providing that discovery documents need not be filed with the court unless the court so orders. [Re Order eff. 7-1-86] Judicial Council Note, 1991: Sub. (2) is amended to clarify that facsimile transmission can be used to serve pleadings and other papers. Such service is deemed complete upon transmission. The change is not intended to expand the permissible means of serving a summons or writ conferring court jurisdiction under s. 799.12 and ch. 801, stats. [Re Order eff. 7-1-91] Once an action has been commenced, service of the summons and complaint has been made on the defendant, and an attorney has appeared on behalf of the defendant, an amended complaint may be served on the defendant’s attorney. Bell v. Employers Mutual Casualty Co., 198 Wis. 2d 347, 541 N.W.2d 824 (Ct. App. 1995), 95-0301. A motion to dismiss with prejudice cannot be heard ex parte and should be granted only on finding egregious conduct or bad faith. Failure to obtain personal service with due diligence does not amount to egregious conduct or bad faith. Haselow v. Gauthier, 212 Wis. 2d 580, 569 N.W.2d 97 (Ct. App. 1997), 96-3589. An amended complaint that makes no reference to or incorporates any of the original complaint supersedes the original complaint when the amended complaint is filed in court. When such a complaint was filed prior to the time for answering the original complaint had run, it was improper to enter a default judgment on the original complaint. Holman v. Family Health Plan, 227 Wis. 2d 478, 596 N.W.2d 358 (1999), 97-1490. A party in default for failing to answer an original complaint cannot answer an amended complaint, thereby attempting to cure its default, unless the amended complaint relates to a new or additional claim for relief. Ness v. Digital Dial Communications, Inc., 227 Wis. 2d 592, 596 N.W.2d 365 (1999), 96-3436. A receptionist who accepted the receipt of pleadings delivered to an attorney’s office by a delivery service was a person in charge of the office within the meaning of sub. (2) and the papers had been properly “delivered.” Varda v. General Motors Corp., 2001 WI App 89, 242 Wis. 2d 756, 626 N.W.2d 346, 00-1720. A circuit court may not enter a default judgment against a defendant on grounds that the defendant failed to file an answer with the court “within a reasonable time after service” under sub. (4) unless the court first determines that the late filing prejudiced either the plaintiff or the court. Split Rock Hardwoods, Inc. v. Lumber Liquidators, Inc., 2002 WI 66, 253 Wis. 2d 238, 646 N.W.2d 19, 00-1100.
801.145 Form of papers. (1) Except for exhibits and wills, the size of all papers filed in court shall be no larger than 8 1/2 inches by 11 inches. (2) The clerk of circuit court or register in probate shall return any paper not in conformity with sub. (1) to the person or party attempting to file it. History: Sup. Ct. Order, 120 Wis. 2d xv (1984).