Misjoinder and nonjoinder of parties. 803.06(1)
Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately. Oral argument permitted on motions under this subsection may be heard by telephone under s. 807.13 (1)
When it comes to the attention of the court that the summons has not been served upon a named defendant, the court may enter an order on its own initiative, after notice to parties of record, dismissing the action as to that defendant without prejudice.
History: Sup. Ct. Order, 67 Wis. 2d 585, 649 (1975); Sup. Ct. Order, 73 Wis. 2d xxxi (1976); Sup. Ct. Order, 141 Wis. 2d xiii (1987).
Judicial Council Committee's Note, 1976: Sub. (2) establishes an efficient procedure for dismissing an action against a defendant who has not been served. It will help alleviate situations such as clouds on title that could result from a summons that was not served being on file with the clerk of court. [Re Order effective Jan. 1, 1977]
Judicial Council Note, 1988: Sub. (1) is amended to permit oral argument on motions to drop or add parties to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross claim or counterclaim. The provisions of this section supplement and do not in any way limit the joinder of parties permitted in s. 803.04
Sup. Ct. Order, 67 Wis. 2d 585, 649 (1975); 1975 c. 218
; 2007 a. 97
Class actions may be maintained.
When the question before the court is one of a common or general interest of many persons or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole, except that no claim may be maintained against the state or any other party under this section if the relief sought includes the refund of or damages associated with a tax administered by the state.
“Residual Funds" means funds that remain after the payment of all approved class member claims, expenses, litigation costs, attorney fees and other court-approved disbursements in an action under this section.
“WisTAF" means the Wisconsin Trust Account Foundation, Inc.
Any order entering a judgment or approving a proposed compromise of a class action that establishes a process for
identifying and compensating members of the class shall provide for disbursement of any residual funds. In class actions in which residual funds remain, not less than fifty percent of the residual funds shall be disbursed to WisTAF to support direct delivery of legal services to persons of limited means in non-criminal matters. The circuit court may disburse the balance of any residual funds beyond the minimum percentage to WisTAF for purposes that have a direct or indirect relationship to the objectives of the underlying litigation or otherwise promote the substantive or procedural interests of members of the certified class.
This subsection does not prohibit the trial court from approving a settlement that does not create residual funds.
Sup. Ct. Order, 67 Wis. 2d 585, 650 (1975); 2011 a. 68
; Sup. Ct. Order No. 15-06
, 2016 WI 50, filed 6-24-16, eff. 1-1-17.
The class action statute, s. 260.12 [now s. 803.08], is part of title XXV of the statutes [now chs. 801 to 823], and the scope of title XXV is restricted to civil actions in courts of record. The county board is not a court of record. The class action statute can have no application to making claims against a county. Multiple claims must identify each claimant and show each claimant's authorization. Hicks v. Milwaukee County, 71 Wis. 2d 401
, 238 N.W.2d 509
(1974). But see also Townsend v. Neenah Joint School District, 2014 WI App 117
, 358 Wis. 2d 618
, 856 N.W.2d 644
The trial court did not abuse its discretion in determining that an action for damages caused by the negligent withdrawal of groundwater was not an appropriate class action. Nolte v. Michels Pipeline Const. Inc. 83 Wis. 2d 171
, 265 N.W.2d 482
The test of common interest to maintain a class action is whether all members of the purported class desire the same outcome that their alleged representatives desire. Goebel v. First Federal Savings & Loan Association, 83 Wis. 2d 668
, 266 N.W.2d 352
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
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).
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).
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
The trial court did not err when it determined that a proposed class of “tens of thousands of presently and formerly employed hourly paid Wal-Mart employees" should not be certified because, among other reasons, the proposed class would be unmanageable, recognizing that much of the pertinent Wal-Mart payroll records were generated in the first instance by members of the proposed class and that, therefore, Wal-Mart had a right to examine each individual claimant regarding the circumstances of his or her employment, and each instance of missed break time or off-the-clock work. Hermanson v. Wal Mart Stores, Inc. 2006 WI App 36
, 290 Wis. 2d 225
, 711 N.W.2d 694
Nothing in Wisconsin law bars class action against a governmental body that is a mass action of named claimants bringing similar claims, provided that each claimant has complied with s. 893.80. Townsend v. Neenah Joint School District, 2014 WI App 117
, 358 Wis. 2d 618
, 856 N.W.2d 644
A Call to Reform: Wisconsin's Class-Action Statute. Benson, Olson, & Kaplan. Wis. Law. Sept. 2011.
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.
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.
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.
Sup. Ct. Order, 67 Wis. 2d 585, 650 (1975); 1975 c. 218
; 2007 a. 20
; 2015 a. 55
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).
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
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
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).
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), 98-2974
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
A nonparty 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
In order to prevail, a prospective intervenor must demonstrate that: 1) the movant claims an interest relating to the property or transaction subject of the action; 2) the disposition of the action may as a practical matter impair or impede the proposed intervenor's ability to protect that interest; 3) the movant's interest will not be adequately represented by existing parties to the action; and 4) the motion to intervene was made in a timely fashion. Motions to intervene must be evaluated with an eye toward disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process. M&I Marshall & Ilsley Bank v. Urquhart Companies, 2005 WI App 225
, 287 Wis. 2d 623
, 706 N.W.2d 335
Timeliness is not defined by statute, and there is no precise formula to determine whether a motion to intervene is timely. The question of timeliness is a determination necessarily left to the discretion of the circuit court and turns on whether, under all the circumstances, a proposed intervenor acted promptly and whether intervention will prejudice the original parties. Postjudgment motions for intervention will be granted only upon a strong showing of justification for failure to request intervention sooner. Olivarez v. Unitrin Property & Casualty Insurance Co. 2006 WI App 189
, 296 Wis. 2d 337
, 723 N.W. 2d 131
Intervention by the legislature in a case with policy or budgetary ramifications when the executive branch, through the attorney general, fulfills its traditional role defending legislation before the court is not required. Legislators may often have a preference for how the judicial branch should interpret a statute, but such mere preferences do not constitute sufficiently related or potentially impaired interests within the meaning of sub. (1). Helgeland v. Wisconsin Municipalities, 2006 WI App 216
, 296 Wis. 2d 880
, 724 N.W. 2d 208
In the context of sub. (2), “defense" conveys that the person seeking to intervene, although not named as a defendant, could be a defendant to a claim in the main action or a defendant to a similar or related claim. Sub. (3) supports this construction of “defense,"conveying that the “claim" or “defense" is more than arguments or issues a non-party wishes to address and is the type of matter presented in a pleading — either allegations that show why a party is entitled to the relief sought on a claim or allegations that show why a party proceeded against is entitled to prevail against the claim. Helgeland v. Wisconsin Municipalities, 2006 WI App 216
, 296 Wis. 2d 880
, 724 N.W. 2d 208
Courts have no precise formula for determining whether a potential intervenor meets the requirements of sub. (1) The analysis is holistic, flexible, and highly fact-specific. Sub. (1) attempts to strike a balance between two conflicting public policies: that the original parties to a lawsuit should be allowed to conduct and conclude their own lawsuit and that persons should be allowed to join a lawsuit in the interest of the speedy and economical resolution of controversies. Despite its nomenclature, intervention “as of right" usually turns on judgment calls and fact assessments that a reviewing court is unlikely to disturb except for clear mistakes. Helgeland v. Wisconsin Municipalities, 2008 WI 9
, 307 Wis. 2d 1
, 745 N.W.2d 1
If a person has no right of intervention under sub. (1), the courts have no duty to join that person sua sponte
as a necessary party under s. 803.03 (1) (b) 1. Whether a movant is a necessary party under s. 803.03 (1) (b) 1. is in all significant respects the same inquiry under sub. (1) as to whether a movant is entitled to intervene in an action as a matter of right, including the requirement that the interest of the movant is adequately represented by existing parties. A movant who fails to meet that requirement for intervention as of right may not force its way into the action by arguing that the court must join the movant, sua sponte
, as a necessary party under s. 803.03 (1) (b) 1. Helgeland v. Wisconsin Municipalities, 2008 WI 9
, 307 Wis. 2d 1
, 745 N.W.2d 1
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.
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.
If a party is adjudicated incompetent, the court upon motion served as provided in sub. (1)
may allow the action to be continued by or against the party's representative.
(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)
(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.
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.
(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.
Sup. Ct. Order, 67 Wis. 2d 585, 652 (1975); 1975 c. 200
; 1993 a. 486
; 2005 a. 387
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).
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).
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