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 sub. (5), a certiorari action may be commenced in three ways: 1) under sub. (1) by summons and complaint; 2) by service of an appropriate writ; or 3) by filing a complaint and serving it along with an order, in lieu of a summons, upon the defendant. Nickel River Investments v. LaCrosse Review Board, 156 Wis. 2d 429
, 457 N.W.2d 333
(Ct. App 1990). See also Tobler v. Door County, 158 Wis. 2d 19
, 461 N.W.2d 775
The test to determine whether defects in summons and complaints are fatal is set forth. The trial court has jurisdiction if the error is technical and the complainant can show that the defendant was not prejudiced. When the error is fundamental, no jurisdiction may attach. American Family Mutual Insurance v. Royal Ins. Co. 167 Wis. 2d 524
, 481 N.W.2d 629
A summons that 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 Wis. 2d 89
, 486 N.W.2d 77
(Ct. App. 1992).
A summons served by publication under sub. (3) must be authenticated. When an authenticated copy of the summons was published, but an unauthenticated copy was mailed, together with authenticated copies of the original summons and complaint, there was a technical, but no fundamental, error. Burnett v. Hill, 207 Wis. 2d 110
, 557 N.W.2d 800
An inmate challenging the calculation of his mandatory release date is not seeking relief from a judgment of conviction or a sentence of a court, does not fall within sub. (7) (a) 2. c., and is therefore a “prisoner" within the meaning of sub. (7) who must comply with the requirements of that subsection. State ex rel. Stinson v. Morgan, 226 Wis. 2d 100
, 593 N.W.2d 924
(Ct. App. 1999), 98-2971
For a document to be filed, it must be properly deposited with the clerk under s. 59.40 (2). “Properly" connotes complying with formality or correctness, but is not susceptible to exact definition. The delivery of papers to the clerk at his home after business hours was too far removed from legislative guidelines to be considered properly deposited. Granado v. Sentry Insurance, 228 Wis. 2d 794
, 599 N.W.2d 62
(Ct. App. 1999), 98-3675
The sub. (7) (d) dismissals rule does not apply when a prisoner has sufficient prison trust funds to pay the filing fee in full. A court order under s. 814.29 (1m) (d) is required to release the funds. State ex rel. Coleman v. Sullivan, 229 Wis. 2d 804
, 601 N.W.2d 335
(Ct. App. 1999), 98-2599
The definition of “correctional institution" in sub. (7) (a) 1. does not include an out-of-state county jail and therefore a Wisconsin inmate sent to such a jail is not a prisoner under sub. (7) (a) 2. State ex rel. Speener v. Gudmanson, 2000 WI App 78
, 234 Wis. 2d 461
, 610 N.W.2d 136
A petitioner who seeks to overturn the revocation of probation by a writ of certiorari is a prisoner under sub. (7) (a) 2. A probation revocation is not analogous to a judgment of conviction or a sentence, and a writ of certiorari challenging revocation is not subject to the exclusion under sub. (7) (a) 2. c. State ex rel. Cramer v. Wisconsin Court of Appeals, 2000 WI 86
, 236 Wis. 2d 473
, 613 N.W.2d 591
Sub. (7), 95-96 stats., did not apply to a petition for a writ of certiorari seeking judicial review of a probation revocation by the department of administration. State ex rel. Mentek v. Schwarz, 2001 WI 32
, 242 Wis. 2d 94
, 624 N.W.2d 150
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
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
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
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
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
, 367 Wis. 2d 633
, 877 N.W.2d 632
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
, 367 Wis. 2d 633
, 877 N.W.2d 632
Timely Service Abroad in Diversity Suits. La Fave. Wis.Law. Nov. 2000.
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 Wis. 2d 585, 591 (1975); 1975 c. 218
; 1983 a. 189
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
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. Except as provided in s. 813.015
, 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 Wis. 2d 585, 591 (1975); 1979 c. 89
; 2015 a. 4
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
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
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).
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
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 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
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. 822.08
as provided in s. 822.06
(11m) Certain restraining orders or injunctions. 801.05(11m)(a)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.
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.
Personal jurisdiction is permissible under the constitution of the United States or of the state of Wisconsin.
(b) Paragraph (a) 1.
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.
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.
(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 Wis. 2d 585, 592 (1975); 1975 c. 218
; 1977 c. 105
; 1979 c. 196
; 1979 c. 352
; 1993 a. 112
; 2005 a. 130
; 2015 a. 4
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
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
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
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
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
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
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
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
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).