803.08 Annotation
The maintenance of a class action involving nonresident class members does not exceed the constitutional limits of the jurisdiction of the courts of this state. The due process requisites for the exercise of jurisdiction over unnamed nonresident plaintiffs are adequate notice and representation. Schlosser v. Allis-Chalmers Corp.
86 Wis. 2d 226,
271 N.W.2d 879 (1978).
803.08 Annotation
The trial court must decide if the named plaintiffs can fairly represent the common class interest that they share with the represented class and if joinder of all members is impracticable. O'Leary v. Howard Young Medical Center,
89 Wis. 2d 156,
278 N.W.2d 217 (Ct. App. 1979).
803.08 Annotation
To bring a class action: 1) there must be a common or general interest shared by all members of the class; 2) the named parties must represent the interest involved; and 3) it must be impractical to bring all interested parties before the court. Mercury Record v. Economic Consultants,
91 Wis. 2d 482,
283 N.W.2d 613 (Ct. App. 1979).
803.08 Annotation
In addition to considering the Mercury factors, the trial court must weigh the advantages of disposing of the entire controversy in one proceeding against the difficulties of combining divergent issues and persons. Cruz v. All Saints Healthcare System, Inc. 2001 WI App 67,
242 Wis. 2d 432,
625 N.W.2d 344.
803.09(1)(1) Upon timely motion anyone shall be permitted to intervene in an action when the movant claims an interest relating to the property or transaction which is the subject of the action and the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant's ability to protect that interest, unless the movant's interest is adequately represented by existing parties.
803.09(2)
(2) Upon timely motion anyone may be permitted to intervene in an action when a movant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order or rule administered by a federal or state governmental officer or agency or upon any regulation, order, rule, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely motion may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
803.09(3)
(3) A person desiring to intervene shall serve a motion to intervene upon the parties as provided in
s. 801.14. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute gives a right to intervene.
803.09 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 650 (1975);
1975 c. 218.
803.09 Annotation
A postjudgment applicant for leave to intervene must show sufficient reason for having waited. Milwaukee Sewerage Commission v. DNR,
104 Wis. 2d 182,
311 N.W.2d 677 (Ct. App. 1981).
803.09 Annotation
Intervenors in an action cannot continue their claim once the original action is dismissed. Intervention will not be permitted to breathe life into a nonexistent lawsuit. Fox v. DHSS,
112 Wis. 2d 514,
334 N.W.2d 532 (1983).
803.09 Annotation
A newspaper could intervene to protect the right to examine a sealed court file. State ex rel. Bilder v. Town of Delavan,
112 Wis. 2d 539,
334 N.W.2d 252 (1983).
803.09 Annotation
A newspaper's postjudgment motion to intervene to open sealed court records was timely and proper. C. L. v. Edson,
140 Wis. 2d 168,
409 N.W.2d 417 (Ct. App. 1987).
803.09 Annotation
Motions to intervene are evaluated practically, and not technically, with an eye toward disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process. There is no requirement that the intervenor's interest be judicially enforceable in a separate proceeding. Wolff v. Town of Jamestown,
229 Wis. 2d 738,
601 N.W.2d 301 (Ct. App. 1999).
803.09 Annotation
After intervention, an intervenor's status is the same as all other parties. Once a party intervenes, all claims and defenses against it may be asserted. Kohler Co. v. Sogen International Fund, Inc. 2000 WI App 60,
233 Wis. 2d 592,
608 N.W.2d 746.
803.09 Annotation
A non-party to a circuit court action may intervene in an appeal brought by another party, even after the time for filing a notice of appeal has passed. City of Madison v. WERC, 2000 WI 39,
234 Wis. 2d 550,
610 N.W.2d 94.
803.10
803.10
Substitution of parties. 803.10(1)(a)(a) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in
s. 801.14 and upon persons not parties in the manner provided in
s. 801.11 for the service of a summons. Unless the motion for substitution is made not later than 90 days after the death is suggested on the record by service of a statement of the facts of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.
803.10(1)(b)
(b) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in the action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.
803.10(2)
(2) Incompetency. If a party becomes incompetent, the court upon motion served as provided in
sub. (1) may allow the action to be continued by or against the incompetent party's representative.
803.10(3)
(3) Transfer of interest. In case of any transfer of interest, the action may be continued by or against the original party unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in
sub. (1).
803.10(4)
(4) Public officers; death or separation from office. 803.10(4)(a)(a) When a public officer, including a receiver or trustee appointed by virtue of any statute, is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.
803.10(4)(b)
(b) When a public officer sues or is sued in an official capacity, the public officer may be described as a party by the official title rather than by name; but the court may require the officer's name to be added.
803.10(5)
(5) Death after verdict or findings. After an accepted offer to allow judgment to be taken or to settle pursuant to
s. 807.01, or after a verdict, report of a referee or finding by the court in any action, the action does not abate by the death of any party, but shall be further proceeded with in the same manner as if the cause of action survived by law; or the court may enter judgment in the names of the original parties if such offer, verdict, report or finding be not set aside. But a verdict, report or finding rendered against a party after death is void.
803.10 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 652 (1975);
1975 c. 200,
218;
1993 a. 486.
803.10 Annotation
A letter to the court and opposing counsel stating that the plaintiff had died was not a "suggestion of death" under sub. (1) (a). Wheeler v. General Tire & Rubber Co.,
142 Wis. 2d 798,
419 N.W.2d 331 (Ct. App. 1987).
803.10 Annotation
A "suggestion of death" that failed to identify the proper party to substitute for the deceased did not trigger the running of the 90-day period under sub. (1) (a). Wick v. Waterman,
143 Wis. 2d 676,
421 N.W.2d 872 (Ct. App. 1988).
803.10 Annotation
Service of the suggestion of death only on the deceased plaintiff's attorney was insufficient to activate the 90-day period in which a sub. (1) (a) motion for substitution is to be filed. Sub. (1) (a) does not require service of the suggestion of death on all interested nonparties in every case but requires a determination of what nonparties should be served in that case and how burdensome the task will be to protect the interests of all persons and move the litigation toward a fair and expeditious resolution. Schwister v. Schoenecker, 2002 WI 132,
258 Wis. 2d 1,
654 N.W.2d 852,
01-2621.
