801.02 Annotation
The requirement of exhaustion of administrative remedies under sub. (7) (b) is applicable to a case advancing a constitutional challenge. There is no common law futility exception. This section also controls over s. 227.40, which in some cases allows obtaining a declaratory judgment without exhausting all administrative remedies. State ex rel. Hensley v. Endicott,
2001 WI 105,
245 Wis. 2d 607,
629 N.W.2d 686,
00-0076.
801.02 Annotation
Neither s. 801.02 (1) nor s. 801.11 allows a defendant who is being sued in a dual capacity, personally and officially, to be served in only one of those capacities. When an officer of a company received service on behalf of the company, receiving one copy of a summons and complaint, but was not served as an individual, although named individually, there was no jurisdiction over him as an individual. Useni v. Boudron,
2003 WI App 98,
264 Wis. 2d 783,
662 N.W.2d 672,
02-1475.
801.02 Annotation
Sub. (7) (d) plainly provides that a dismissal must be of an appeal, writ of error, action, or special proceeding to be counted as a dismissal, and a partial dismissal — i.e., the dismissal of a claim or claims from a suit that proceeds on one or more viable claims — is not the dismissal of an action. Thus, a partial dismissal cannot be counted as dismissal of an action under sub. (7) (d). Henderson v. Raemisch,
2010 WI App 114,
329 Wis. 2d 109,
790 N.W.2d 242,
09-1850.
801.02 Annotation
When the complaint served on the defendant was unsigned, even though it was nonetheless authenticated by the clerk of courts, and the complaint on file with the trial court was signed, the filing of the signed summons and complaint properly commenced the lawsuit, and the authenticated copy served on the defendant gave the defendant sufficient notice to that effect. Mahoney v. Menard Inc.
2011 WI App 128,
337 Wis. 2d 170,
805 N.W.2d 728,
10-1637.
801.02 Annotation
A plaintiff need not demonstrate the existence of an emergency in order to initiate a certiorari action using the complaint and order method under sub. (5). Koenig v. Pierce County Department of Human Services,
2016 WI App 23, ___ Wis. 2d ___, ___ N.W.2d ___,
15-0410.
801.02 Annotation
Under sub. (5), it is the filing of a complaint that matters for purposes of determining whether a certiorari action was commenced within the applicable time limitation, not the obtaining and serving of an order. Koenig v. Pierce County Department of Human Services,
2016 WI App 23, ___ Wis. 2d ___, ___ N.W.2d ___,
15-0410.
801.02 Annotation
Timely Service Abroad in Diversity Suits. La Fave. Wis.Law. Nov. 2000.
801.03
801.03
Jurisdiction; definitions. In this chapter, the following words have the designated meanings:
801.03(1)
(1) “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.
801.03(2)
(2) “Person" means any natural person, partnership, association, and body politic and corporate.
801.03(3)
(3) “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.
801.03 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 591 (1975);
1975 c. 218;
1983 a. 189.
801.03 Annotation
Illegal aliens have the right to sue in Wisconsin for injuries negligently inflicted upon them. Arteaga v. Literski,
83 Wis. 2d 128,
265 N.W.2d 148 (1978).
801.04
801.04
Jurisdictional requirements for judgments against persons, status and things. 801.04(1)
(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. Except as provided in
s. 813.015, nothing in
chs. 801 to
847 affects the subject matter jurisdiction of any court of this state.
801.04(2)
(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 or
801.06 and in addition either:
801.04(2)(b)
(b) Service of a summons is dispensed with under the conditions in
s. 801.06.
801.04(3)
(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.
801.04 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 591 (1975);
1979 c. 89;
2015 a. 4.
801.04 Annotation
A court having jurisdiction may decline to exercise it if there are sufficient policy reasons to do so. Jones v. Jones,
54 Wis. 2d 41,
194 N.W.2d 627 (1972).
801.04 Annotation
State courts, including small claims courts, have a constitutional obligation to hear and decide 42 USC s. 1983 cases whether or not the federal right asserted is pendent to a state claim. Terry v. Kolski,
78 Wis. 2d 475,
254 N.W.2d 704 (1977).
801.04 Annotation
A prior adult proceeding that litigated the question of the respondent's age collaterally estopped the state from relitigating the same question in juvenile court. The juvenile court has subject matter jurisdiction of the case. In Interest of H.N.T.
125 Wis. 2d 242,
371 N.W.2d 395 (Ct. App. 1985).
801.04 Annotation
Subject to limited exceptions, complainants in 42 USC 1983 actions need not exhaust administrative remedies prior to being brought in state court. Casteel v. Vaade,
167 Wis. 2d 1,
481 N.W.2d 277 (1992).
801.04 Annotation
State court jurisdiction. 1978 WLR 533.
801.05
801.05
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:
801.05(1)
(1) Local presence or status. In any action whether arising within or without this state, against a defendant who when the action is commenced:
801.05(1)(a)
(a) Is a natural person present within this state when served; or
801.05(1)(b)
(b) Is a natural person domiciled within this state; or
801.05(1)(c)
(c) Is a domestic corporation or limited liability company; or
801.05(1)(d)
(d) Is engaged in substantial and not isolated activities within this state, whether such activities are wholly interstate, intrastate, or otherwise.
801.05(2)
(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.
801.05(3)
(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.
801.05(4)
(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:
801.05(4)(a)
(a) Solicitation or service activities were carried on within this state by or on behalf of the defendant; or
801.05(4)(b)
(b) Products, materials or things processed, serviced or manufactured by the defendant were used or consumed within this state in the ordinary course of trade.
801.05(5)
(5) Local services, goods or contracts. In any action which:
801.05(5)(a)
(a) 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
801.05(5)(b)
(b) 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
801.05(5)(c)
(c) 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
801.05(5)(d)
(d) 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
801.05(5)(e)
(e) 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.
801.05(6)
(6) Local property. In any action which arises out of:
801.05(6)(a)
(a) 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
801.05(6)(b)
(b) A claim to recover any benefit derived by the defendant through the use, ownership, control or possession by the defendant 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
801.05(6)(c)
(c) 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.
801.05(7)
(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:
801.05(7)(a)
(a) In an action in this state to foreclose upon real property situated in this state; or
801.05(7)(b)
(b) Following sale of real property in this state by the plaintiff under
ch. 846; or
801.05(7)(c)
(c) Following resale of tangible property in this state by the plaintiff under
ch. 409.
801.05(8)
(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.
801.05(9)
(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.
801.05(10)
(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:
801.05(10)(a)
(a) 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
801.05(10)(b)
(b) The event out of which the cause of action is claimed to arise occurred within this state, regardless of where the person insured resided.
801.05(11)
(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. 822.08 as provided in
s. 822.06.
801.05(11m)
(11m) Certain restraining orders or injunctions. 801.05(11m)(a)1.
1. Subject to
par. (b), an act or threat of the respondent giving rise to the petition occurred outside the state and is part of an ongoing pattern of harassment that has an adverse effect on the petitioner or a member of the petitioner's family or household, and the petitioner resides in this state.
801.05(11m)(a)2.
2. Subject to
par. (b), the petitioner or a member of the petitioner's family or household has sought safety or protection in this state as a result of an act or threat of the respondent giving rise to the petition.
801.05(11m)(a)3.
3. Personal jurisdiction is permissible under the constitution of the United States or of the state of Wisconsin.
801.05(11m)(b)
(b) Paragraph (a) 1. or
2. applies if, while the petitioner or a member of the petitioner's family or household resides or is temporarily living in this state, the respondent has had direct or indirect communication with the petitioner or a member of the petitioner's family or household or if the respondent has indicated a threat to the physical health or safety of the petitioner or of a member of the petitioner's family or household. A communication or indication for the purpose of this paragraph includes communication through mail, telephone, electronic message or transmittal, and posting on an electronic communication site, web page, or other electronic medium. Communication on any electronic medium that is generally available to any individual residing in this state is sufficient to exercise jurisdiction under
par. (a) 1. or
2.
801.05(11m)(c)
(c) If a court has personal jurisdiction pursuant to
par. (a) and a respondent has been served but does not appear or does not file a response or motion asserting the defense of lack of personal jurisdiction, the court shall hear the action. This paragraph does not limit the respondent's right to challenge personal jurisdiction on appeal.
801.05(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) to
(11) 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.
801.05(13)
(13) Joinder of claims in the same action. In any action brought in reliance upon jurisdictional grounds stated in
subs. (2) to
(11) 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.
801.05 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 592 (1975);
1975 c. 218;
1977 c. 105,
203,
418;
1979 c. 196;
1979 c. 352 s.
39;
1993 a. 112,
326,
486;
2005 a. 130;
2015 a. 4.
801.05 Annotation
Jurisdiction over a foreign executor under sub. (12) cannot be based on substantial activities in Wisconsin under sub. (1) (d). Rauser v. Rauser,
47 Wis. 2d 295,
177 N.W.2d 115 (1970).
801.05 Annotation
In an action against an Illinois corporate defendant and its officer alleging fraudulent advertising, the trial court possessed jurisdiction over the officer when 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 when testimony indicated that the defendant had participated in one such transaction in the state. State v. Advance Marketing Consultants, Inc.
66 Wis. 2d 706,
225 N.W.2d 887 (1975).
801.05 Annotation
Wisconsin courts may issue in personam orders that may operate on out-of-state property. Dalton v. Meister,
71 Wis. 2d 504,
239 N.W.2d 9 (1976).
801.05 Annotation
The trial court was entitled to consider the complaint and answer in determining whether the court had jurisdiction. Merco Distributing Corp. v. O & R Engines, Inc.
71 Wis. 2d 792,
239 N.W.2d 97 (1976).
801.05 Annotation
A manufacturer having no dealers or distributors in Wisconsin was amenable to jurisdiction under sub. (4) by virtue of magazine advertisement solicitations and out-of-state sales to Wisconsin residents. Fields v. Playboy Club of Lake Geneva, Inc.
75 Wis. 2d 644,
250 N.W.2d 311 (1977).
801.05 Annotation
Findings of the facts requisite for jurisdiction under sub. (4) (b) may properly be made by reasonable inference from facts proven in the record. Stevens v. White Motor Corp.
77 Wis. 2d 64,
252 N.W.2d 88 (1977).
801.05 Annotation
Standards of the “long-arm" statute prima facie meet due process requirements. Schmitz v. Hunter Machinery Co.
89 Wis. 2d 388,
279 N.W.2d 172 (1979).
801.05 Annotation
The burden of proof is on the plaintiff to establish jurisdiction under this section. Lincoln v. Seawright,
104 Wis. 2d 4,
310 N.W.2d 596 (1981).
801.05 Annotation
Substantially higher “doing business" contacts under sub. (1) (d) are required when a nonresident plaintiff brings a foreign cause of action. Vermont Yogurt v. Blanke Baer Fruit & Flavor,
107 Wis. 2d 603,
321 N.W.2d 315 (Ct. App. 1982).
801.05 Annotation
Sub. (11) provides 3 independent sources of personal jurisdiction that must be considered in the disjunctive. McAleavy v. McAleavy,
150 Wis. 2d 26,
440 N.W.2d 566 (1989).
801.05 Annotation
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 Wis. 2d 471,
485 N.W.2d 614 (Ct. App. 1992).
801.05 Annotation
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 Wis. 2d 585,
486 N.W.2d 533, (Ct. App. 1992).
801.05 Annotation
The term “service activities" under sub. (4) (a) requires that a defendant be engaged in some type of regular ongoing or repetitive activities in Wisconsin. Two meetings does not constitute service activities carried on with in the state. Housing Horizons, LLC v. Alexander Company, Inc.
2000 WI App 9,
232 Wis. 2d 178,
606 N.W.2d 263,
98-3635.
801.05 Annotation
“Process" in sub. (4) (b) means subjecting something to a particular system of handling to effect a particular result and preparing something for market or other commercial use by subjecting it to a process. Kopke v. A. Hartrodt S.R.L.
2001 WI 99,
245 Wis. 2d 396,
629 N.W.2d 662,
99-3144.
801.05 Annotation
A stream of commerce theory that it is not unreasonable to subject a nonresident manufacturer or distributor to suit if the sale of a product is not simply an isolated occurrence but arises from efforts to serve, directly or indirectly, the market for the product in the state, is applicable in determining whether sufficient minimum contacts exist for jurisdiction to be found. Kopke v. A. Hartrodt S.R.L.
2001 WI 99,
245 Wis. 2d 396,
629 N.W.2d 662,
99-3144.
801.05 Annotation
Every personal jurisdiction issue requires a 2-step inquiry. It must first be determined whether defendants are subject to jurisdiction under Wisconsin's long-arm statute. If the statutory requirements are satisfied, then the court must consider whether the exercise of jurisdiction comports with due process requirements. Kopke v. A. Hardtrodt S.R.L.,
2001 WI 99,
245 Wis. 2d 396,
629 N.W.2d 662,
99-3144.
801.05 Annotation
The presumption of compliance with due process arising from this section may be rebutted by a defendant. There is a 5-factor test to analyze the substantiality of the defendant's contacts for due process purposes: the quantity, nature, and quality of the contacts, the source of the cause of action and its connection with those contacts, the interest of the state in the action, and convenience to the parties. Bushelman v. Bushelman,
2001 WI App 124,
246 Wis. 2d 317,
629 N.W.2d 795,
00-0670.
801.05 Annotation
If a person is induced by false representations to come within the jurisdiction of a court for the purpose of obtaining service of process upon him or her, it is an abuse of legal process, and the service will be set aside. Service on a person who enters the state to engage in settlement talks will not be set aside in the absence of an agreement that service will not be attempted. Manitowoc Western Company, Inc. v. Montonen,
2002 WI 21,
250 Wis. 2d 452,
639 N.W.2d 726,
00-0420.
801.05 Annotation
Traditional personal jurisdiction is not required in child custody proceedings. Child custody proceedings under ch. 822 are valid even in the absence of minimum contacts over an out-of-state parent. Section 801.05 (11) provides sufficient due process protection to out-of-state parents based on notice and an opportunity to be heard. Tammie J. C. v. Robert T. R.
2003 WI 61,
262 Wis. 2d 217,
663 N.W.2d 734,
01-2787.
801.05 Annotation
In analyzing the quality of a defendant's contacts within the state, personal visits are the highest quality of contact. The next highest quality of contact is personal contact of another type. Druschel v. Cloeren,
2006 WI App 190,
295 Wis. 2d 858,
723 N.W. 2d 430,
05-2575.
801.05 Annotation
Minimum contacts require the defendant's conduct and connection with the forum state are such that he or she should reasonably anticipate being haled into court there. The concept that the contacts of an individual, made as an agent of a business, do not count toward the minimum contacts required for personal jurisdiction, commonly referred to as the fiduciary shield doctrine, has not been adopted in Wisconsin. Druschel v. Cloeren,
2006 WI App 190,
295 Wis. 2d 858,
723 N.W. 2d 430,
05-2575.
801.05 Annotation
The constitutional touchstone of long-arm jurisdiction is whether a defendant purposefully availed itself of the privilege of conducting activities within the forum state. If the defendant's efforts are purposefully directed toward another state's resident, jurisdiction may not be avoided merely because he or she did not physically enter the forum state. A substantial amount of business is transacted solely by mail and wire communications across state lines, making physical presence unnecessary. Stayart v. Hance,
2007 WI App 204,
747 N.W. 2d 149,
06-1418.
