801.15 Note
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.
801.15 Annotation
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 (1979).
801.15 Annotation
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 (1980).
801.15 Annotation
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).
801.15 Annotation
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 (1982).
801.15 Annotation
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 (1983).
801.15 Annotation
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 (1986).
801.15 Annotation
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).
801.15 Annotation
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).
801.15 Annotation
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).
801.15 Annotation
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).
801.15 Annotation
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.
801.15 Annotation
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.
801.15 Annotation
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.
801.15 Annotation
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,
99-0157.
801.15 Annotation
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.
801.15 Annotation
The trial court 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,
03-0824.
801.15 Annotation
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,
07-1542.
801.15 Annotation
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,
08-0697.
801.15 Annotation
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,
06-1229.
801.15 Annotation
Avoiding and obtaining relief from default judgments. Parlee, WBB April, 1985.
801.16(1)(1) 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.
801.16(2)
(2) For papers that do not require a filing fee:
801.16(2)(a)
(a) 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.
801.16(2)(b)
(b) 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.
801.16(2)(c)
(c) 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.
801.16(2)(d)
(d) 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.
801.16(2)(e)
(e) 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.
801.16(2)(f)
(f) Papers filed by facsimile transmission completed after regular business hours of the clerk of circuit court's office are considered filed the next business day.
801.16 History
History: 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.
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.]
801.16 Annotation
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,
08-2827.
801.17
801.17
Electronic filing. 801.17(1)(a)
(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.
801.17(1)(b)
(b) "Document" means a pleading, form, notice, motion, order, affidavit, paper exhibit, brief, judgment, writ of execution, or other filing. For purposes of this rule, a document includes the transmittal page submitted with the filing.
801.17(1)(c)1.1. "Electronic filing system" means a web-based system established by the director of state courts for the purpose of filing documents with a circuit court, automatically integrating them into the consolidated court automation program case management system, and electronically serving them on the parties.
801.17(1)(c)2.
2. "Electronic filing" does not include submission by electronic mail, facsimile, floppy disks, or other electronic methods.
801.17(1)(d)
(d) "Electronic filing system administrator" means an individual appointed by the director of state courts to receive information and take action as necessary to run the electronic filing system.
801.17(1)(e)
(e) "Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a document, that can be executed or adopted by the user with the intent to sign the document.
801.17(1)(f)
(f) "Initiating document" means a summons and complaint, petition, application, citation, criminal complaint, or any other document filed to commence a court action.
801.17(1)(g)
(g) "Traditional methods" means those methods of filing and serving documents, other than electronic filing, provided under statutes and local rules.
801.17(1)(h)
(h) "Transmittal page" means a page generated by the electronic filing system containing the case management information necessary to transmit and file a document.
801.17(1)(i)
(i) "User" means an individual who has registered to use the electronic filing system under section (3).
801.17(2)(a)(a) The director of state courts shall implement an electronic filing system for the Wisconsin circuit courts.
801.17(2)(b)
(b) Use of the electronic filing system is voluntary. Parties or their attorneys may choose to participate in the electronic filing system on a case-by-case basis. Parties or attorneys who choose not to participate shall file, serve, and receive paper documents by traditional methods.
801.17(2)(c)
(c) Any action that may be brought in circuit court may be brought using electronic filing, subject to the ability of the electronic filing system to accept the documents. This section does not guarantee anyone the right to file electronically.
801.17(2)(d)
(d) The procedures in this section shall be interpreted in a manner consistent with existing procedural rules.
801.17(3)(a)(a) The following individuals may register for access to the electronic filing system:
801.17(3)(a)3.
3. Parties to an action who are not represented by an attorney.
801.17(3)(b)
(b) Users of the electronic filing system shall be individuals, not law firms, agencies, corporations, or other groups.
801.17(3)(c)
(c) Users shall register through the electronic filing system Web site by executing a user agreement governing the terms of use of the electronic filing system. To register, users must have the capability to produce, file, and receive electronic documents meeting the technical requirements of the electronic filing system. By registering, users agree to electronically file all documents to the extent the electronic filing system can accept them.
801.17(3)(d)
(d) Upon completion of a properly executed user agreement, the electronic filing system shall assign to the user a confidential, secure access code. The access code shall be used only by the user to whom it is assigned and by any agents or employees that the user authorizes. Upon learning that the confidentiality of the access code has been inadvertently or improperly disclosed, the user shall immediately report that fact through the electronic filing system.
801.17(3)(e)
(e) Users shall notify the electronic filing system within 10 days of any change in the information provided for registration. Attorneys shall notify the electronic filing system within 10 days of beginning representation of a formerly self-represented user.
801.17(3)(f)
(f) Nonresident attorneys may register following court approval of a motion to appear pro hac vice under
SCR 10.03 (4).
801.17(3)(g)
(g) The same access code shall be used for all cases on which the user is an attorney or a party. The user's access code shall expire 6 months from the last activity on any case for which the user is registered. The electronic filing system may reset access codes and electronic signatures as needed for administrative and security purposes.
801.17(3)(h)
(h) Users who wish to stop using the electronic filing system in a particular case must notify the director of state courts through the electronic filing system. The electronic filing system shall generate a notice to all parties that traditional methods must be used for this party for future filings and service.
801.17(3)(i)
(i) The electronic filing system may provide a method for filing documents by individuals who are not parties to the case, such as witnesses seeking protective orders, intervenors, and amicus curiae. It may also provide a method for submitting reports by individuals who are not parties to the case, such as presentence investigators and social workers.
801.17(4)
(4) Time and effect of electronic filing. 801.17(4)(a)(a) The electronic filing system is an agent of the circuit court for purposes of electronic filing, receipt, service, and retrieval of electronic documents.
801.17(4)(b)
(b) When a document is submitted by a user to the electronic filing system, the electronic filing system shall transmit it to the appropriate clerk of court in the county where the case is filed. The electronic filing system shall issue a confirmation that submission to the electronic filing system is complete.
801.17(4)(c)
(c) The clerk of court may review the document to determine if the document should be accepted for filing. If the clerk accepts the document, the document shall be considered filed with the court at the time the original submission to the electronic filing system was complete. Upon acceptance, the electronic filing system shall issue a confirmation with the date and time of the original submission to serve as proof of filing. If the clerk rejects the document, the document shall not become part of the court record and the filer shall receive notification of the rejection. The filer may be required to refile the document.
801.17(4)(d)
(d) The date the document is considered filed shall be determined by the regular designated business hours of the clerk of court. Any document submitted to the electronic filing system before the close of regular business hours shall be considered filed on that date, so long as it is subsequently accepted by the clerk upon review. A document submitted after the close of regular business hours shall be considered filed the next business day. The electronic filing system shall note the date and time the document is submitted.
801.17(4)(e)
(e) Whenever a party has the right or duty to do some act within a prescribed period after the service of a document on the party, one day shall be added to the prescribed period if the document is served through the electronic filing system between 5 p.m. and 12 midnight.
801.17(4)(f)
(f) The calculation of time for reply under other statutes and rules is neither expanded nor contracted by this section.
801.17(4)(g)
(g) The electronic filing system shall receive electronic filings 24 hours per day except when undergoing maintenance or repair.
801.17(5)(a)(a) If the clerk of court accepts an initiating document for filing, the clerk of court shall assign a case number and authenticate the document as provided in
sub. (10). The electronic filing system shall send a notice to the filer that the filing has been accepted and is available through the electronic filing system Web site.
801.17(5)(b)
(b) Initiating documents shall be served by traditional methods unless the responding party has consented in writing to accept electronic service or service by some other method. Initiating documents shall be served together with a notice to the responding party stating that the case has been electronically filed and giving instructions for how to use the electronic filing system if the responding party chooses to do so.
801.17(5)(c)
(c) A responding party or attorney for a responding party may register to use the electronic filing system as provided by this section. After registering to use the electronic filing system, the responding party or attorney shall also register as a user on the particular case. A notice indicating the new user will be sent to the other users on the case.
801.17(6)
(6) Filing and service of subsequent documents. 801.17(6)(a)(a) Filing of documents other than initiating documents through the electronic filing system shall cause a notice of activity to be sent to the electronic mail account of the other users who are parties to the action. Users shall access filed documents through the electronic filing system.
801.17(6)(b)
(b) For documents that do not require personal service, the notice of activity is valid and effective service on the other users and shall have the same effect as traditional service of a paper document, except as provided in
par. (d).
801.17(6)(c)
(c) Documents requiring personal service shall be served by traditional methods unless the responding party has consented in writing to accept electronic service or service by some other method.
801.17(6)(d)
(d) If a notice of activity sent to a user's electronic mail account is rejected or returned undeliverable, the electronic filing system shall automatically notify the filing party. The filing party shall then serve the document on that user by traditional methods. The user whose electronic mail account rejected the notice shall be treated as a nonregistered party until the party corrects the problem and reregisters with the electronic filing system.
801.17(6)(e)
(e) Unrepresented parties or attorneys who are not users shall be served by traditional methods. The clerk shall maintain a list indicating which unrepresented parties or attorneys are to be served electronically and which are to be served by traditional methods.
801.17(6)(f)
(f) An unrepresented party or attorney may submit a request to the clerk of court to begin electronic filing of documents after commencement of the case. The decision to allow electronic filing of documents after the case has been commenced is in the sole discretion of the clerk of court. If the request is granted, the requester shall register under this section and shall send a notice to the other parties by traditional methods stating that the case has been electronically filed and shall include instructions for how to use the electronic filing system if the other parties choose to do so.
