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 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.
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; 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; s. 35.17 correction in (2) (f).
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.
801.16 Note
NOTE: 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."
801.16 Note
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.
801.18
801.18
Electronic filing. 801.18(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.
801.18(1)(b)
(b) “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.
801.18(1)(c)
(c) “Director" means the director of state courts.
801.18(1)(d)
(d) “Document" means a pleading, form, notice, motion, order, affidavit, paper exhibit, brief, judgment, writ of execution, or other filing in an action.
801.18(1)(e)
(e) “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.
801.18(1)(f)
(f) “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.
801.18(1)(h)
(h) “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.
801.18(1)(i)
(i) “Imaged document" means an electronic copy of a document originally created or submitted on paper.
801.18(1)(j)
(j) “Initiating document" means a summons and complaint, petition, application, citation, criminal complaint, or any other document filed to commence a court action.
801.18(1)(L)
(L) “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).
801.18(1)(m)
(m) “Traditional methods" means those methods of filing and serving documents, other than electronic filing, provided under statutes and local rules.
801.18(1)(n)
(n) “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.
801.18(1)(o)
(o) “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).
801.18(2)(a)(a) 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.
801.18(2)(b)
(b) 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.
801.18(2)(c)
(c) 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.
801.18(2)(d)
(d) 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.
801.18(2)(e)
(e) 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.
801.18(2)(f)
(f) 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.
801.18(2)(g)
(g) The judges of the circuit court, the clerk of court, and all court staff shall cooperate and assist with the implementation of electronic filing.
801.18(2)(h)
(h) 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.
801.18(2)(i)
(i) This section does not apply to filing of documents or transcripts with the court of appeals or supreme court.
801.18(2)(j)
(j) 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.
801.18(3)(a)(a) 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:
801.18(3)(a)1.
1. Licensed Wisconsin attorneys, other than those who are representing only themselves.
801.18(3)(b)
(b) Parties who are not subject to
par. (a) may voluntarily register to use the electronic filing system.
801.18(3)(c)
(c) A party not subject to
par. (a) who does not choose to participate in the electronic filing system under
par. (b) shall file, serve, and receive paper documents by traditional methods.
801.18(3)(d)
(d) All users shall register through the electronic filing system by executing a user agreement governing the system's terms of use. To register, users must have the capability to produce, file, and receive electronic documents meeting the technical requirements of the electronic filing system. The electronic filing system shall make information on the technical requirements for filing readily available. By registering, users agree to electronically file all documents to the extent the electronic filing system can accept them.
801.18(3)(e)
(e) Upon completion of a properly executed user agreement under
par. (d), the electronic filing system shall provide the user with a confidential, secure authentication procedure for access to the electronic filing system. This authentication procedure shall be used only by that user and by any agents or employees that the user authorizes. Upon learning that the confidentiality of the authentication procedure has been inadvertently or improperly disclosed, the user shall immediately report that fact through the electronic filing system.
801.18(3)(f)
(f) Users shall notify the electronic filing system within 10 business days of any change in the information provided for registration. Attorneys shall notify the electronic filing system within 10 business days of beginning representation of a formerly self-represented party. Entities appearing by a filing agent shall notify the electronic filing system within 10 business days of any change in the identity of a filing agent.
801.18(3)(g)
(g) Nonresident attorneys shall register following court approval of a motion to appear
pro hac vice under
SCR 10.03 (4).
801.18(3)(h)
(h) After registering to use the electronic filing system, a user shall also register as an attorney or party on any previously filed cases in which the user intends to continue to participate. The same authentication procedure shall be used for all cases on which the user is an attorney or a party. The electronic filing system may reset authentication procedures as needed for administrative and security purposes.
801.18(3)(i)
(i) Voluntary users who wish to stop using the electronic filing system in a particular case must notify the electronic filing system or the clerk of court. The electronic filing system shall indicate that traditional methods must be used for this party for future filings and service.
801.18(3)(j)
(j) The electronic filing system may provide a method for filing documents by individuals who are not parties to the case. It may also provide a method for professionals and agencies associated with the case to receive information and file reports.
801.18(4)
(4) Time and effect of electronic filing. 801.18(4)(a)(a) The electronic filing system is an agent of the circuit courts for purposes of filing, receipt, service, and retrieval of electronic documents.
801.18(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.
801.18(4)(c)
(c) If the clerk of court accepts a document for filing, it shall be considered filed with the court at the date and time of the original submission, as recorded by the electronic filing system. Upon acceptance, the electronic filing system shall issue a confirmation to serve as proof of filing. When personal service is not required, the confirmation shall also serve as proof of service on the other users in the case.
801.18(4)(d)
(d) The electronic filing system shall receive electronic filings 24 hours per day except when undergoing maintenance or repair.
801.18(4)(e)
(e) A document is considered filed on a particular day if the submission is completed by 11:59 p.m. central time, as recorded by the electronic filing system, so long as it is subsequently accepted by the clerk of court upon review. Documents filed after 11:59 p.m. are considered filed the next day the clerk's office is open. The expanded availability of time to file shall not affect the calculation of time under other statutes, rules, and court orders.
801.18(5)(a)(a) A user seeking to initiate an action shall first register with the electronic filing system as provided in
sub. (3). The user shall then file an initiating document in the county where the action is to be commenced and provide the additional information requested by the electronic filing system to open a case.
801.18(5)(b)
(b) If a filing fee is required, the clerk of court may reject the document unless it has been submitted as provided in
sub. (7) (b). At the written or oral request of the filer, the clerk of court may reject the document for filings made in error, if the request is made before the clerk of court has accepted the document.
801.18(5)(c)
(c) 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 case shall then be available through the electronic filing system. If the clerk of court rejects an initiating document, the filer shall be notified of the rejection.
801.18(5)(d)
(d) 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 with instructions for how to use the electronic filing system.
801.18(5)(e)
(e) A mandatory user who represents a responding party shall register to use the electronic filing system as provided by this section. After registering to use the electronic filing system, the user shall also register as a user on the particular case. The electronic filing system will note the new user on the case.
801.18(6)
(6) Filing and service of subsequent documents. 801.18(6)(a)(a) The electronic filing system shall generate a notice of activity to the other users in the case when documents other than initiating documents are filed. Users shall access filed documents through the electronic filing system. 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. (b).
801.18(6)(b)
(b) If a document other than an initiating document requires personal service, it shall be served by traditional methods unless the responding party has consented in writing to accept electronic service or service by some other method.
801.18(6)(c)
(c) Paper parties shall be served by traditional methods. The electronic case record shall indicate which parties are to be served electronically and which are to be served by traditional methods
.
801.18(6)(d)
(d) Paper parties shall file documents with the court by traditional methods. The clerk of court shall image the documents and enter the imaged documents into the electronic filing system promptly. The notice of activity generated by the entry shall constitute service on the users in the case. Paper parties must serve other paper parties by traditional methods.
801.18(6)(e)
(e) If a notice sent to a user is returned undeliverable, the electronic filing system shall automatically notify the user who filed the document. The filing user shall then serve the document on that party by traditional methods. That party shall be treated as a paper party until the party corrects the problem and reregisters with the electronic filing system.
