When an act is required to be done at or within a specified time, the court may order the period enlarged but only on motion for cause shown and upon just terms. The 90 day period under s. 801.02
may not be enlarged. If the motion is made after the expiration of the specified time, it shall not be granted unless the court finds that the failure to act was the result of excusable neglect. The order of enlargement shall recite by its terms or by reference to an affidavit in the record the grounds for granting the motion.
The time within which a motion challenging the sufficiency of the evidence or for a new trial must be decided shall not be enlarged except for good cause. The order of extension must be made prior to the expiration of the initial decision period.
The time for initiating an appeal under s. 808.04
, for deciding motions after verdict under s. 805.16 (3)
, and for making motions for reconsideration under s. 805.17 (3)
or for relief from judgment or order under s. 48.46 (2)
may not be enlarged.
A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing, unless a different period is fixed by statute or by order of the court. Such an order may for cause shown be made on ex parte motion. When a motion is supported by affidavit, the affidavit shall be served with the motion; and opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time. All written motions shall be heard on notice unless a statute or rule permits the motion to be heard ex parte.
Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party:
If the notice or paper is served by mail, 3 days shall be added to the prescribed period.
If the notice or paper is served by facsimile transmission or by the electronic filing system under s. 801.18
and such transmission is completed between 5 p.m. and midnight, 1 day shall be added to the prescribed period.
Sup. Ct. Order, 67 Wis. 2d 585, 610 (1975); 1975 c. 218
; Sup. Ct. Order, 73 Wis. 2d xxxi (1976); 1977 c. 187
; 1977 c. 449
; 1979 c. 89
; 1983 a. 192
; 1985 a. 145
; Sup Ct. Order, 130 Wis. 2d xi (1986); 1985 a. 332
; Sup. Ct. Order, 136 Wis. 2d xxv (1987); Sup. Ct. Order, 146 Wis. 2d xxxiii (1988); Sup. Ct. Order, 160 Wis. 2d xiv (1991); Sup. Ct. Order, 161 Wis. 2d xvii (1991); Sup. Ct. Order No. 94-05
, 183 Wis. 2d xix; 1997 a. 187
; 2005 a. 155
; Sup. Ct. Order No. 14-03
, 2016 WI 29, filed 4-28-16, eff. 7-1-16.
See s. 32.05 (4)
for exception to provision for added time in case of mailing.
Law Revision Committee Note, 1985: [Sub. (1)] Under the current statute, the time period specified by law or by a court relating to a court action or special proceeding is extended if the last day of the time period falls on a Saturday, Sunday or legal holiday. This amendment adds Good Friday, Christmas eve and New Year's eve. The afternoon of Good Friday and the full day on December 24 and 31 are holidays for state employees, and the amendment will permit clerks to close their offices at these times. [85 Act 145]
Judicial Council Committee's Note, 1976: The procedure under s. 801.15 (2) (a) for enlarging the period in which an act is required to be done under the rules of civil procedure cannot be used to enlarge the 60-day period under s. 801.02. See also s. 802.06 (2) (e) and (8).
Pars. (2) (b) and (c) are independent provisions. The enlargement of time “for good cause" provision in par. (b) does not apply to the time for appeal under s. 817.01, for motion after verdict under s. 805.16, and for relief from judgment under s. 806.07 as such a result would substantially impair the finality of judgments. The word “extended" is replaced by the word “enlarged" in par. (c) to comply with similar language in pars. (2) (a) and (b). [Re Order effective Jan. 1, 1977]
Effective date note
Judicial Council Note, 1986: Sub. (1) is amended by extending from 7 to 11 days the periods from which Saturdays, Sundays and legal holidays are excluded. The change conforms to that made in Rule 6 (a), F.R.C.P. in 1985. [Re Order eff. 7-1-86]
Effective date note
Judicial Council Note, 1986: Sub. (2) (c) is amended to clarify that, while the time for deciding motions after verdict may not be enlarged, the time for filing and hearing such motions may be enlarged by the court under revised s. 805.16 (1) and (2). [Re Order eff. 7-1-87]
Effective date note
Judicial Council Note, 1991: The amendment to sub. (2) (c) prohibits the court form extending the time for making reconsideration motions under s. 805.17 (3). [Re Order eff. 7-1-91]
Effective date note
Judicial Council Note, 1991: Sub. (5) (b) is created to allow one extra day to respond to papers served by facsimile transmission after normal business hours. Additional response time may be available under the computation rules of sub. (1) (b) if papers are so served on weekends or holidays. [Re Order eff. 7-1-91]
Judicial Council Note, 1994: Subsection (1) (b) is amended by excluding the last day of a time period from the computation if the clerk of courts office is closed all day.
A court has no authority to enlarge the time in which to file a complaint. Pulchinski v. Strnad, 88 Wis. 2d 423
, 276 N.W.2d 781
Error based on late service and filing of an affidavit was waived by the failure to object at a hearing. In re Spring Valley Meats, Inc. 94 Wis. 2d 600
, 288 N.W.2d 852
Notice of entry of judgment was “given" under s. 806.06 (5) when it was mailed. Sub. (5) was inapplicable. Bruns v. Muniz, 97 Wis. 2d 742
, 295 N.W.2d 112
(Ct. App. 1980).
The trial court abused its discretion in enlarging the time to file an answer when the answer was served 9 days after the deadline. Hedtcke v. Sentry Ins. Co. 109 Wis. 2d 461
, 326 N.W.2d 727
Time computations under ss. 32.05 (10) (a) and 32.06 (10) are controlled by s. 801.15 (1), not s. 990.001 (4). In Matter of Petition of Electric Power Co. 110 Wis. 2d 649
, 329 N.W.2d 186
Service of an answer was timely under the terms of a courtesy agreement. Oostburg Bank v. United Savings, 130 Wis. 2d 4
, 386 N.W.2d 53
Time periods under s. 805.16 may not be enlarged by showing excusable neglect under s. 801.15 (2) (a). Brookhouse v. State Farm Mutual Insurance Co. 130 Wis. 2d 166
, 387 N.W.2d 82
(Ct. App. 1986).
The trial court lost jurisdiction to decide motions after verdict by consecutively extending the time for its decision under sub. (2) (b). Ford Motor Co. v. Lyons, 137 Wis. 2d 397
, 405 N.W.2d 354
(Ct. App. 1987).
Because a courtesy agreement was made after default, the court did not abuse its discretion by insisting on compliance with sub. (2) (a). Clark County v. B.T.U. Structures, 144 Wis. 2d 11
, 422 N.W.2d 910
(Ct. App. 1988).
The trial court had discretion to allow a jury trial when fees under s. 814.61 (4) were not timely paid. Chitwood v. A. O. Smith Harvestore, 170 Wis. 2d 622
, 489 N.W.2d 697
(Ct. App. 1992).
While clerical error is not always excusable, it is not as a matter of law inexcusable neglect. Sentry Insurance v. Royal Insurance Co. 196 Wis. 2d 907
, 539 N.W.2d 911
(Ct. App. 1995), 94-3428
Excusable neglect is conduct that might have been the act of a reasonably prudent person under the same circumstances. A court must look beyond the cause of the neglect to the interests of justice, considering both the need to afford litigants a day in court and to ensure prompt adjudication. Whether the dilatory party acted in good faith, whether the opposing party was prejudiced, and whether prompt remedial action took place are factors to consider. An attorney who relied on an oral courtesy agreement whose terms were not disputed and promptly filed for an extension acted with excusable neglect. Rutan v. Miller, 213 Wis. 2d 94
, 570 N.W.2d 54
(Ct. App. 1997), 97-0547
Under sub. (1) (b) the last day is included in determining time periods unless it is “a day the clerk of courts office is closed." Whether or not the day is a “holiday" under sub. (1) (a) is not relevant. Klingbeil v. Perschke, 228 Wis. 2d 421
, 596 N.W.2d 488
(Ct. App. 1999), 99-0488
A courtesy extension agreement is not required to be in writing, but a court may consider the lack of documentation in making a determination as to whether an agreement existed. Connor v. Connor, 2001 WI 49
, 243 Wis. 2d 279
, 627 N.W.2d 182
The trial court erroneously exercised its discretion by entering default judgment without hearing offered testimony on the question of whether an oral courtesy agreement existed and, if so, what the agreement provided. Johnson Bank v. Brandon Apparel Group, Inc. 2001 WI App 159
, 246 Wis. 2d 828
, 632 N.W.2d 107
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 s. 801.10 (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. While prompt remedial action after the expiration of the statutory time limit is a material factor bearing on whether relief should be granted, it does not eliminate the requirement that a dilatory party demonstrate excusable neglect for its initial failure to meet the statutory deadline. Williams Corner Investors, LLC v. Areawide Cellular, LLC, 2004 WI App 27
, 269 Wis. 2d 682
, 676 N.W.2d 168
The excusable neglect standard set forth in sub. (2) (a) does not apply to untimely motions to enlarge scheduling order deadlines. Rather, s. 802.10 provides the applicable standards and procedures courts apply to such motions. Parker v. Wisconsin Patients Compensation Fund, 2009 WI App 42
, 317 Wis. 2d 460
, 767 N.W.2d 272
Sub. (1) is not a proper vehicle for a criminal defendant to seek a new trial in the interest of justice. During the appellate process under ss. 809.30 and 974.02, defendants may also appeal to the discretionary power of the court of appeals to order a new trial in the interest of justice under s. 752.35 and to the supreme court in an appeal under s. 751.06. State v. Henley, 2010 WI 97
, 328 Wis. 2d 544
, 787 N.W.2d 350
Precedent has set an extremely high bar to reverse excusable neglect determinations. A court cannot reject out-of-hand the possibility that a packet was actually “lost in the mail," although courts should be skeptical of glib claims that attribute fault to the United States Postal Service. Courts should carefully scrutinize what steps an organization has taken to avoid such mishaps, how quickly the organization responds when it discovers its delinquency, and whether its delay has caused prejudice to the plaintiffs. Casper v. American International South Insurance Company, 2011 WI 81
, 336 Wis. 2d 267
, 800 N.W.2d 880
Avoiding and obtaining relief from default judgments. Parlee, WBB April, 1985.
The filing of pleadings and other papers with the court as required by these statutes shall be made by filing them with the clerk of circuit court. The judge may require that the person filing the papers provide a copy to the judge.
For papers that do not require a filing fee:
A court may adopt a local rule, if it is approved by the chief judge, that permits the filing of papers with the clerk of circuit court by facsimile transmission to a plain-paper facsimile machine at a telephone number designated by the court. To provide uniformity, any local rule shall specify a 15-page limit for a facsimile transmission, unless an exception is approved by the assigned judge or court commissioner on a case-by-case basis.
If no rule has been adopted under par. (a)
, the assigned judge or court commissioner may permit a party or attorney in a specific matter to file papers with the clerk of circuit court by facsimile transmission to a plain-paper facsimile machine at a telephone number designated by the assigned judge or court commissioner.
If the facsimile transmission exceeds 15 pages or is filed in the absence of a local rule, the party or attorney shall certify that the assigned judge or court commissioner has approved the facsimile transmission.
If papers are transmitted to a plain-paper facsimile machine of a noncourt agency, party, or company for the receipt, transmittal, and delivery to the clerk of circuit court, the clerk of circuit court shall accept the papers for filing only if the transmission complies with the local rule or has been approved by the assigned judge or court commissioner and certified by the party or attorney.
Facsimile papers are considered filed upon receipt by the clerk of circuit court and are the official record of the court and may not be substituted. No additional copies may be sent. The clerk of circuit court shall discard any duplicate papers subsequently received by the clerk of circuit court, assigned judge, or court commissioner.
Papers filed with the circuit court by facsimile transmission completed after regular business hours of the clerk of circuit court's office are considered filed on a particular day if the submission is made by 11:59 p.m. central time, as recorded by the court facsimile machine, so long as it is subsequently accepted by the clerk upon review. The expanded availability of time to file shall not affect the calculation of time under other statutes, rules, and court orders. Documents submitted by facsimile transmission completed after 11:59 p.m. are considered filed the next day the clerk's office is open.
Sup. Ct. Order, 161 Wis. 2d xvii (1991); Sup. Ct. Order No. 94-11
, 187 Wis. 2d xxiii; Sup. Ct. Order No. 00-09
, 2001 WI 33, 241 Wis. 2d xix; Sup. Ct. Order No. 14-03
, 2016 WI 29, filed 4-28-16, eff. 7-1-16; Sup. Ct. Order No. 14-03A
, filed 8-17-16, eff. 8-17-16; 2017 a. 365
Effective date note
Judicial Council Note, 1991: Sub. (2) clarifies that papers (other than those requiring a filing fee) may be filed by facsimile transmission to the judge or clerk, if a local court rule, or the judge in a specific matter, so permits. [Re Order eff. 7-1-91.]
Under sub. (1), the filing of pleadings and other papers with the court shall be made by filing them with the clerk of circuit court. The circuit court should have rejected an affidavit and proposed order submitted by a child support agency that was submitted directly and exclusively to the judge. Teasdale v. Marinette County Child Support Agency, 2009 WI App 152
, 321 Wis. 2d 647
, 775 N.W.2d 123
Sup. Ct. Order No. 14-03
states: “The Comments to the statutes and to the supreme court rules created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule."
Comment, 2016: Sub. (2) (f) is a change to circuit court law and practice. Under prior law, fax filings were required to arrive at the office of the clerk of court before the end of the regular business day in order to be considered filed on that day. In contrast, the mandatory electronic filing statute, s. 801.18 (4) (e), allows any filing made before midnight to be considered filed on that day. After July 1, 2016, parties who do not use the electronic filing system are given the advantage of the extended filing hours.
Electronic filing. 801.18(1)(a)
“Clerk of court" means the official circuit court recordkeeper for the case in question, which may be the clerk of circuit court, juvenile clerk, or register in probate for that county.
“Converted" means that all documents in a paper case file have been imaged by the clerk of court and the case file is available to accept filings via the electronic filing system.
“Director" means the director of state courts.
“Document" means a pleading, form, notice, motion, order, affidavit, paper exhibit, brief, judgment, writ of execution, or other filing in an action.
“Electronic filing system" means an internet-accessible system established by the director for the purpose of filing documents with a circuit court, automatically integrating them into the court case management system, and electronically serving them on the parties.
“Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the document. For purposes of the electronic filing system, a document is electronically signed if it is submitted by or on behalf of a user or court official through the electronic filing system and bears the name of the user in the place where a signature would otherwise appear. “Electronic signature" includes only those signature technologies specifically approved by the director.
“High-volume filing agent" means a person authorized under s. 799.06 (2)
who appears on behalf of an entity filing 10 or more actions a year in the county where the action is being filed.
“Imaged document" means an electronic copy of a document originally created or submitted on paper.
“Initiating document" means a summons and complaint, petition, application, citation, criminal complaint, or any other document filed to commence a court action.
“Paper party" means a party who is not subject to sub. (3) (a)
who chooses not to participate in the electronic filing system as described in sub. (3) (c)
“Traditional methods" means those methods of filing and serving documents, other than electronic filing, provided under statutes and local rules.
“User" means an individual who has registered to use the electronic filing system under sub. (3)
. Users of the electronic filing system shall be individuals, not law firms, agencies, corporations, or other groups.
“Voluntary user" means a party who is not subject to sub. (3) (a)
who voluntarily registers to use the electronic filing system under sub. (3) (b)
The director of state courts shall implement an electronic filing system for the Wisconsin circuit courts. The requirements of this section shall govern the electronic filing of documents in all types of actions and proceedings in circuit court.
Mandatory use of the electronic filing system shall be phased in according to a schedule set by the director until the system has been fully implemented. The director shall make information about the transition schedule readily available to the public in advance of its application.
Subject to the schedule set by the director under par. (b)
, mandatory users shall be required to use the electronic filing system for all new filings covered by the schedule. Electronic filing shall be required for all new actions brought in circuit court and for all new documents submitted in previously filed cases, except as otherwise provided in this section.
After July 1, 2016 and prior to the date that electronic filing becomes mandatory under par. (b)
, parties may choose to electronically file actions and documents under the provisions of this statute or may continue to file by traditional methods.
Electronic filing is limited to methods specifically approved by the director. The director may enter into an agreement with any state agency to allow electronic filing through a custom data exchange between the court case management system and the agency's automated information system. Parties using a custom data exchange are considered mandatory users and are subject to the requirements of this section.
The procedures in this section shall be interpreted in a manner consistent with existing procedures. This section is not intended to limit the director's approval of new technologies that accomplish the same functions.
The judges of the circuit court, the clerk of court, and all court staff shall cooperate and assist with the implementation of electronic filing.
This section does not address documents required by law to be filed with court officials that are not filed in an action before the court. These documents may be filed by traditional methods unless otherwise required by the director of state courts.
This section does not apply to filing of documents or transcripts with the court of appeals or supreme court.
Prior to the effective date of this section, the director may require that electronic filing be mandatory in one or more pilot counties for purposes of testing and improving the mandatory electronic filing system.
Subject to the schedule set by the director under sub. (2) (b)
, the following individuals shall register for access to the electronic filing system prior to filing documents in circuit court:
Licensed Wisconsin attorneys, other than those who are representing only themselves.