The new Wisconsin rules of civil procedure: Chapters 801—803. Clausen and Lowe. 59 MLR 1.
Commencement of action. 801.02(1)
A civil action in which a personal judgment is sought is commenced as to any defendant when a summons and a complaint naming the person as defendant are filed with the court, provided service of an authenticated copy of the summons and of the complaint is made upon the defendant under this chapter within 60 days after filing.
A civil action in which only an in rem or quasi in rem judgment is sought is commenced as to any defendant when a summons and a complaint are filed with the court, provided service of an authenticated copy of the summons and of either the complaint or a notice of object of action under s. 801.12
is made upon the defendant under this chapter within 60 days after filing.
The original summons and complaint shall be filed together. The authenticated copies shall be served together except:
In actions in which a personal judgment is sought, if the summons is served by publication, only the summons need be published, but a copy of the complaint shall be mailed with a copy of the summons as required by s. 801.11
In actions in which only an in rem or quasi in rem judgment is sought, the summons may be accompanied by a notice of object of action pursuant to s. 801.12
in lieu of a copy of the complaint and, when the summons is served by publication, only the summons need be published, but a copy of the complaint or notice of object of action shall be mailed with the copy of the summons as required by s. 801.12
No service shall be made under sub. (3)
until the action has been commenced in accordance with sub. (1)
An action seeking a remedy available by certiorari, quo warranto, habeas corpus, mandamus or prohibition may be commenced under sub. (1)
, by service of an appropriate original writ on the defendant named in the writ if a copy of the writ is filed forthwith, or by filing a complaint demanding and specifying the remedy, if service of an authenticated copy of the complaint and of an order signed by the judge of the court in which the complaint is filed is made upon the defendant under this chapter within the time period specified in the order. The order may specify a time period shorter than that allowed by s. 802.06
for filing an answer or other responsive pleading.
Fees payable upon commencement of a civil action shall be paid to the clerk at the time of filing.
No prisoner, as defined in s. 301.01 (2)
, may commence a civil action or special proceeding against an officer, employe or agent of the department of corrections in his or her official capacity or as an individual for acts or omissions committed while carrying out his or her duties as an officer, employe or agent or while acting within the scope of his or her office, employment or agency until the person has exhausted any administrative remedies that the department of corrections has promulgated by rule.
Sup. Ct. Order, 67 W (2d) 585, 589 (1975); 1975 c. 218
; 1981 c. 289
; 1995 a. 27
Judicial Council Note, 1981: Sub. (1) is amended to allow an action seeking an extraordinary remedy to be commenced in the same manner as any other civil action. Sub. (5) allows the additional option of using an order to shorten the time for filing a response to the complaint in lieu of a summons. This option is for the emergency situation when the case may be moot before a response would be filed. The order serves the same purpose as the alternative writ and the order to show cause used to initiate the action under writ procedures. In all other matters of procedure, the rules of civil procedure govern to the extent applicable. Sub. (5) applies only to procedure in the circuit court. In seeking an extraordinary remedy in the supreme court or court of appeals, s. 809.51, stats., should be followed. [Bill 613-A]
Pursuant to (5), certiorari action may be commenced in three ways: pursuant to (1) allowing for summons and complaint, by service of appropriate writ, or by filing a complaint and serving it along with an order, in lieu of summons, upon defendant. Nickel River Inv. v. LaCrosse Review Bd., 156 W (2d) 429, 457 NW (2d) 333 (Ct. App 1990).
Certiorari action may be commenced by filing and serving summons and complaint pursuant to (1). Tobler v. Door County, 158 W (2d) 19, 461 NW (2d) 775 (1990).
Test to determine whether defects in summons and complaints are fatal set forth. Court has jurisdiction where error is technical and complainant can show defendant was not prejudiced; where error is fundamental no jurisdiction may attach. Am. Family Mut. Ins. v. Royal Ins. Co., 167 W (2d) 524, 481 NW (2d) 629 (1992).
Summons which designated an attorney to receive the defendant's answer but was signed by the plaintiff was technically defective and did not deprive the court of personal jurisdiction. Dungan v. County of Pierce, 170 W (2d) 89, 486 NW (2d) 77 (Ct. App. 1992).
A summons served by publication under sub. (3) must be authenticated for the trial court to obtain personal jurisdiction. Burnett v. Hill, 199 W (2d) 163, 544 NW (2d) 580 (Ct. App. 1996).
In this chapter, the following words have the designated meanings:
"Defendant" means the person named as defendant in a civil action, and where in this chapter acts of the defendant are referred to, the reference attributes to the defendant any person's acts for which acts the defendant is legally responsible. In determining for jurisdiction purposes the defendant's legal responsibility for the acts of another, the substantive liability of the defendant to the plaintiff is irrelevant.
"Person" means any natural person, partnership, association, and body politic and corporate.
"Plaintiff" means the person named as plaintiff in a civil action, and where in this chapter acts of the plaintiff are referred to, the reference attributes to the plaintiff the acts of an agent within the scope of the agent's authority.
Sup. Ct. Order, 67 W (2d) 585, 591 (1975); 1975 c. 218
; 1983 a. 189
Illegal aliens have right to sue in Wisconsin for injuries negligently inflicted upon them. Arteaga v. Literski, 83 W (2d) 128, 265 NW (2d) 148 (1978).
Jurisdictional requirements for judgments against persons, status and things. 801.04(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. Nothing in chs. 801
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
and in addition either:
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.
Sup. Ct. Order, 67 W (2d) 585, 591 (1975); 1979 c. 89
A court having jurisdiction may decline to exercise it if there are sufficient policy reasons to do so. Jones v. Jones, 54 W (2d) 41, 194 NW (2d) 627.
State courts, including small claims courts, have a constitutional obligation to hear and decide 42 USC sec. 1983 cases whether or not the federal right asserted is pendent to a state claim. Terry v. Kolski, 78 W (2d) 475, 254 NW (2d) 704.
See note to 753.03, citing In Matter of Guardianship of Eberhardy, 102 W (2d) 539, 307 NW (2d) 881 (1981).
Prior adult proceeding which litigated question of respondent's age collaterally estopped state from relitigating same question in juvenile court and juvenile court has subject matter jurisdiction of case. In Interest of H.N.T. 125 W (2d) 242, 371 NW (2d) 395 (Ct. App. 1985).
Subject to limited exception, complainants in 42 USC 1983 actions need not exhaust administrative remedies prior to bringing action in state court. Casteel v. Vaade, 167 W (2d) 1, 481 NW (2d) 277 (1992).
State court jurisdiction. 1978 WLR 533.
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:
Is a natural person present within this state when served; or
Is a natural person domiciled within this state; or
Is a domestic corporation or limited liability company; or
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:
Solicitation or service activities were carried on within this state by or on behalf of the defendant; or
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:
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
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
Arises out of a promise, made anywhere to the plaintiff or 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
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
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 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
A claim to recover any benefit derived by the defendant through the use, ownership, control or possession by the defend-ant 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
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:
In an action in this state to foreclose upon real property situated in this state; or
Following sale of real property in this state by the plaintiff under ch. 846
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:
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
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 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. 822.05
as provided in s. 822.12
(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)
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)
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.
Sup. Ct. Order, 67 W (2d) 585, 592 (1975); 1975 c. 218
; 1977 c. 105
; 1979 c. 196
; 1979 c. 352
; 1993 a. 112
Jurisdiction over foreign executor under sub. (12) cannot be based on substantial activities in Wisconsin under sub. (1) (d). Rauser v. Rauser, 47 W (2d) 295, 177 NW (2d) 115.
In an action against an Illinois corporate defendant and its officer alleging fraudulent advertising, the trial court possessed jurisdiction over the officer where 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, and where testimony indicated that defendant had participated in one such transaction in the state. State v. Advance Marketing Consultants, Inc. 66 W (2d) 706, 225 NW (2d) 887.
Wisconsin courts may issue in personam orders which may operate on out-of-state property. Dalton v. Meister, 71 W (2d) 504, 239 NW (2d) 9.
Trial court was entitled to consider complaint and answer in determining whether court had jurisdiction. Merco Distrib. Corp. v. O & R Engines, Inc. 71 W (2d) 792, 239 NW (2d) 97.
Manufacturer having no dealers or distributors in Wisconsin held amenable to jurisdiction under (4) by virtue of magazine advertisement solicitations and out-of-state sales to Wisconsin residents. See note to Art. I, sec. 1, citing Fields v. Playboy Club of Lake Geneva, Inc. 75 W (2d) 644, 250 NW (2d) 311.
Findings of the facts requisite to jurisdiction under (4) (b) may properly be made by reasonable inference from facts proven in the record. Stevens v. White Motor Corp. 77 W (2d) 64, 252 NW (2d) 88.
Standards of "long-arm" statute prima facie meet due process requirements. Schmitz v. Hunter Machinery Co. 89 W (2d) 388, 279 NW (2d) 172 (1979).
Burden of proof is on plaintiff to establish jurisdiction under this section. Lincoln v. Seawright, 104 W (2d) 4, 310 NW (2d) 596 (1981).
Substantially higher "doing business" contacts under (1) (d) are required when nonresident plaintiff brings foreign cause of action. Vermont Yogurt v. Blanke Baer Fruit & Flavor, 107 W (2d) 603, 321 NW (2d) 315 (Ct. App. 1982).
Sub. (11) provides three independent sources of personal jurisdiction which must be considered in disjunctive. In re Marriage of McAleavy v. McAleavy, 150 W (2d) 26, 440 NW (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. Patients Compensation Board, 169 W (2d) 471, 485 NW (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 W (2d) 585, 486 NW (2d) 533, (Ct. App. 1992).
See note to Art. I, sec. 1, citing Kulko v. California Superior Court, 436 US 84 (1978).
See note to Art. I, sec. 1, citing Rush v. Savchuk, 444 US 320 (1980).
See note to Art. I, sec. 1, citing Allstate Ins. Co. v. Hague, 449 US 302 (1981).
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 Ins. v. Inland Power & Light, 18 F 3d 389 (1994).
Where out-of-state defendant placed order in Wisconsin, but conducted no other activities in state, minimum contacts test was not satisfied. Lakeside Bridge & Steel v. Mountain State Const. 597 F (2d) 596 (1979).
New York corporation was subject to long-arm statute where agents of corporation made 2 visits to state in connection with business on which claim was based. Wisconsin Elec. Mfg. Co., Inc. v. Pennant Products, 619 F (2d) 676 (1980).