The trial 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. Williams Corner Investors, LLC v. Areawide Cellular, LLC, 2004 WI App 27
, 269 Wis. 2d 682
, 676 N.W.2d 168
Personal jurisdiction, manner of serving summons for.
A court of this state having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in s. 801.05
may exercise personal jurisdiction over a defendant by service of a summons as follows:
(1) Natural person.
Except as provided in sub. (2)
upon a natural person:
By personally serving the summons upon the defendant either within or without this state.
If with reasonable diligence the defendant cannot be served under par. (a)
, then by leaving a copy of the summons at the defendant's usual place of abode:
In the presence of some competent member of the family at least 14 years of age, who shall be informed of the contents thereof;
In the presence of a competent adult, currently residing in the abode of the defendant, who shall be informed of the contents of the summons; or
Pursuant to the law for the substituted service of summons or like process upon defendants in actions brought in courts of general jurisdiction of the state in which service is made.
If with reasonable diligence the defendant cannot be served under par. (a)
, service may be made by publication of the summons as a class 3 notice, under ch. 985
, and by mailing. If the defendant's post-office address is known or can with reasonable diligence be ascertained, there shall be mailed to the defendant, at or immediately prior to the first publication, a copy of the summons and a copy of the complaint. The mailing may be omitted if the post-office address cannot be ascertained with reasonable diligence.
In any case, by serving the summons in a manner specified by any other statute upon the defendant or upon an agent authorized by appointment or by law to accept service of the summons for the defendant.
(2) Natural person under disability.
Upon a natural person under disability by serving the summons in any manner prescribed in sub. (1)
upon the person under disability and, in addition, where required by par. (a)
, upon a person therein designated. A minor 14 years of age or older who is not adjudicated incompetent and not otherwise under guardianship is not a person under disability for purposes of this subsection.
Where the person under disability is a minor under the age of 14 years, summons shall be served separately in any manner prescribed in sub. (1)
upon a parent or guardian having custody of the child, or if there is none, upon any other person having the care and control of the child. If there is no parent, guardian or other person having care and control of the child when service is made upon the child, then service of the summons shall also be made upon the guardian ad litem after appointment under s. 803.01
Where the person under disability is known by the plaintiff to be under guardianship of any kind, a summons shall be served separately upon the guardian in any manner prescribed in sub. (1)
. If no guardian has been appointed when service is made upon a person alleged by the plaintiff to be incompetent to have charge of the person's affairs, then service of the summons shall be made upon the guardian ad litem after appointment under s. 803.01
Upon the state, by delivering a copy of the summons and of the complaint to the attorney general or leaving them at the attorney general's office in the capitol with an assistant or clerk.
(4) Other political corporations or bodies politic. 801.11(4)(a)(a)
Upon a political corporation or other body politic, by personally serving any of the specified officers, directors, or agents:
If the action is against a county, the chairperson of the county board or the county clerk;
If against a town, the chairperson or clerk thereof;
If against a city, the mayor, city manager or clerk thereof;
If against a village, the president or clerk thereof;
If against a technical college district, the district board chairperson or secretary thereof;
If against a school district or school board, the president or clerk thereof; and
If against any other body politic, an officer, director, or managing agent thereof.
In lieu of delivering the copy of the summons to the person specified, the copy may be left in the office of such officer, director or managing agent with the person who is apparently in charge of the office.
(5) Domestic or foreign corporations or limited liability companies, generally.
Upon a domestic or foreign corporation or domestic or foreign limited liability company:
By personally serving the summons upon an officer, director or managing agent of the corporation or limited liability company either within or without this state. In lieu of delivering the copy of the summons to the officer specified, the copy may be left in the office of such officer, director or managing agent with the person who is apparently in charge of the office.
If with reasonable diligence the defendant cannot be served under par. (a)
, then the summons may be served upon an officer, director or managing agent of the corporation or limited liability company by publication and mailing as provided in sub. (1)
By serving the summons in a manner specified by any other statute upon the defendant or upon an agent authorized by appointment or by law to accept service of the summons for the defendant.
If against any insurer, to any agent of the insurer as defined by s. 628.02
. Service upon an agent of the insurer is not valid unless a copy of the summons and proof of service is sent by registered mail to the principal place of business of the insurer within 5 days after service upon the agent. Service upon any insurer may also be made under par. (a)
(6) Partners and partnerships.
A summons shall be served individually upon each general partner known to the plaintiff by service in any manner prescribed in sub. (1)
where the claim sued upon arises out of or relates to partnership activities within this state sufficient to subject a defendant to personal jurisdiction under s. 801.05 (2)
. A judgment rendered under such circumstances is a binding adjudication individually against each partner so served and is a binding adjudication against the partnership as to its assets anywhere.
Sup. Ct. Order, 67 Wis. 2d 585, 602 (1975); 1975 c. 218
; 1977 c. 339
; 1979 c. 89
; 1983 a. 192
s. 303 (2)
; 1985 a. 225
; Sup. Ct. Order, 130 Wis. 2d xix (1986); 1993 a. 112
; 1997 a. 140
; 1999 a. 32
; 2005 a. 387
As to service on corporation, see also s. 180.0504
Effective date note
Judicial Council Note, 1986: Sub. (1) (b) is amended to permit substituted service upon residents of other states. Service upon nonresidents may be made either as provided for Wisconsin residents or in accordance with the substituted service rule of the state wherein service is made. [Re Order eff. 7-1-86]
There is no requirement in cases of substituted service that the affidavit recite that the process server used “reasonable diligence" in attempting to make personal service, but substituted service after 2 calls when the defendant was not found, with no effort to learn where the defendant was, was not sufficient to support jurisdiction. Heaston v. Austin, 47 Wis. 2d 67
, 176 N.W.2d 309
When a village was a defendant, service was void when it was made upon the clerk's spouse in the clerk's absence. Town of Washington v. Village of Cecil, 53 Wis. 2d 710
, 193 N.W.2d 674
“Apparently in charge of the office" in sub. (5) (a) refers to what is apparent to the process server. When a receptionist referred the process server to her superior, who did not send the server to the proper office, the server could serve the superior, particularly since the superior had accepted service of process in other actions without objection by the company. Keske v. Square D Co. 58 Wis. 2d 307
, 206 N.W.2d 189
When personal jurisdiction is challenged under the “long arm" statutes, the burden is on the plaintiff to prove prima facie the facts supporting jurisdiction. A plaintiff who relies on sub. (5) is required to establish as a predicate that the defendant entered into some consensual agreement with the plaintiff that contemplated a substantial contact in Wisconsin. Afram v. Balfour, Maclaine, Inc. 63 Wis. 2d 702
, 218 N.W.2d 288
No presumption of due service was raised when an affidavit of service under sub. (5) (a) did not identify the person served as the one specified in sub. (5) (a). Danielson v. Brody Seating Co. 71 Wis. 2d 424
, 238 N.W.2d 531
The prerequisite “due diligence" for service by publication was not established, despite the sheriff's affidavit, when a husband could have ascertained his wife's address by contacting any one of several relatives or in-laws. West v. West, 82 Wis. 2d 158
, 262 N.W.2d 87
A county civil service commission is a “body politic" under sub. (4) (a) 7. Watkins v. Milwaukee County Civil Service Comm. 88 Wis. 2d 411
, 276 N.W.2d 775
The exact identity and job title of the person upon whom service was made was not critical to whether the person was “apparently in charge of office" under sub. (5) (a). Horrigan v. State Farm Ins. Co. 106 Wis. 2d 675
, 317 N.W.2d 474
Indian tribal sovereignty is not infringed by service of process in a state action made on tribal lands. Landerman v. Martin, 191 Wis. 2d 788
, 530 N.W.2d 62
(Ct. App. 1995).
Service of process on some of the partners in a general partnership is sufficient to properly commence a civil action against the partnership that will be binding on the partnership assets and the partners served. CH2M Hill, Inc. v. Black & Veatch, 206 Wis. 2d 370
, 557 N.W.2d 829
(Ct. App. 1996), 95-2619
The existence of a parent-subsidiary corporate relationship does not automatically establish the subsidiary as an agent of the parent for purposes of receiving process. Prom v. Sumitomo Rubber Industries, Ltd. 224 Wis. 2d 743
, 592 N.W.2d 657
(Ct. App. 1999), 98-0938
A corporation whose offices were located on the 23rd floor of an office building was not properly served under sub. (5) (a) when the papers were left with a security guard in the building lobby who stated that he was authorized to accept service. Bar Code Resources v. Ameritech, Inc. 229 Wis. 2d 287
, 599 N.W.2d 872
(Ct. App. 1999), 98-1314
Service on a limited partnership is governed by sub. (6), not ch. 179. Sub. (6) requires service upon all the general partners known to the plaintiff. When the only person served was a maintenance man, service was insufficient. Carmain v. Affiliated Capital Corporation, 2002 WI App 271
, 258 Wis. 2d 378
, 654 N.W.2d 265
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 the officer as an individual. Useni v. Boudron, 2003 WI App 98
, 264 Wis. 2d 783
, 662 N.W.2d 672
Personal jurisdiction over a body politic may be obtained by service of the summons and complaint on an officer, director, or managing agent, or substitute service on a “person who is apparently in charge of the office." Service on a nonparty, even when it occurs erroneously in reliance on the mistaken direction of a person in the office of the defendant, does not constitute service on the defendant. Hagen v. City of Milwaukee Employee's Retirement System Annuity and Pension Board, 2003 WI 56
, 262 Wis. 2d 113
, 663 N.W.2d 268
Sub. (1) (d) permits substituted service on a natural person's agent who has actual express authority to accept service of summons for the principal. Apparent authority does not satisfy the requirement that the agent be “authorized by appointment" to accept service of summons. Mared Industries, Inc. v. Mansfield, 2005 WI 5
, 277 Wis. 2d 350
, 690 N.W.2d 835
“Managing agent" as it appears in sub. (5) relates to an agent having general supervision of the affairs of the corporation. “Superintendent" and “managing agent" have corresponding meanings in the statute. Both terms relate to a person possessing and exercising the right of general control, authority, judgment, and discretion over the business or affairs of the corporation, either everywhere or in a particular branch or district. Richards v. First Union Securities, Inc. 2006 WI 55
, 290 Wis. 2d 620
, 714 N.W.2d 913
The guiding principle in reasonable diligence cases is that, when pursuing any leads or information reasonably calculated to make personal service possible, the plaintiff must not stop short of pursuing a viable lead or, in other words, stop short of the place where if the diligence were continued it might reasonably be expected to uncover an address of the person on whom service is sought. Loppnow v. Bielik, 2010 WI App 66
, 324 Wis. 2d 803
, 783 N.W.2d 450
Chapter 801 explicitly applies to a certiorari action initiated by the filing of a summons and complaint. Special circumstances cannot establish personal jurisdiction in a certiorari action when the defendant has not been served in accordance with this section. Bergstrom v. Polk County, 2011 WI App 20
, 331 Wis. 2d 678
, 795 N.W.2d 482
Publication of the summons and complaint in this case failed to meet the requirements of sub. (1) (c), requiring vacation of a default judgment. While the plaintiff asserted that the newspaper used was the predominant newspaper to publish legal notices in the Milwaukee Metropolitan area, it failed to provide any evidence to that effect. The undisputed record as it stood at the time of the default judgment failed to establish that publication in a newspaper “printed and published daily in the City of Milwaukee, in said county" would have been likely to provide notice to a resident of Menomonee Falls in Waukesha county. PHH Mortgage Corporation v. Scott P. Mattfeld, 2011 WI App 62
, 333 Wis. 2d 129
, 799 N.W.2d 455
Service by publication and mailing under sub. (1) (c) requires both publication and mailing to the defendant's “known" address. An error in the address used during the “mailing" component of service by publication and mailing was a “fundamental" defect depriving the court of jurisdiction. Strict compliance with the procedures for alternative forms of service is no less important than strict compliance with the requirements for personal service. O'Donnell v. Kaye, 2015 WI App 7
, 359 Wis. 2d 511
, 859 N.W.2d 441
Admission of service by an assistant attorney general or a clerk specifically designated for that purpose by the attorney general will constitute service of process within the meaning of sub. (3). 63 Atty. Gen. 467.
Service on a nonresident defendant's father at the father's residence was insufficient for the exercise of personal jurisdiction over the nonresident, despite claimed actual notice, when no attempt was made to comply with s. 345.09. Chilcote v. Shertzer, 372 F. Supp. 86
Jurisdiction in rem or quasi in rem, manner of serving summons for; notice of object of action. 801.12(1)
A court of this state exercising jurisdiction in rem or quasi in rem pursuant to s. 801.07
may affect the interests of a defendant in such action only if a summons and either a copy of the complaint or a notice of the object of the action under sub. (2)
have been served upon the defendant as follows:
If the defendant is known, defendant may be served in the manner prescribed for service of a summons in s. 801.11
, but service in such a case shall not bind the defendant personally to the jurisdiction of the court unless some ground for the exercise of personal jurisdiction exists.
If the defendant is unknown the summons may be served by publication thereof as a class 3 notice, under ch. 985
The notice of object of action shall be subscribed by the plaintiff or attorney and shall state the general object of the action, a brief description of all the property affected by it, if it affects specific real or personal property, the fact that no personal claim is made against such defendant, and that a copy of the complaint will be delivered personally or by mail to such defendant upon request made within the time fixed in s. 801.09 (2)
. If a defendant upon whom such notice is served unreasonably defends the action the defendant shall pay costs to the plaintiff.
Sup. Ct. Order, 67 Wis. 2d 585, 606 (1975); 1975 c. 218
Personal jurisdiction in fact, in addition to statutorily acceptable service, is a condition precedent to the exercise of jurisdiction in rem
or quasi in rem
upon a status or upon a property. Montalvo v. U.S. Title and Closing Services, LLC, 2013 WI App 8
, 345 Wis. 2d 653
, 827 N.W.2d 635
Summons; when deemed served.
A summons is deemed served as follows:
A summons served personally upon the defendant or by substituted personal service upon another authorized to accept service of the summons for the defendant is deemed served on the day of service.
A summons served by publication is deemed served on the first day of required publication.
History: Sup. Ct. Order, 67 Wis. 2d 585, 607 (1975).
Service and filing of pleadings and other papers. 801.14(1)(1)
Every order required by its terms to be served, every pleading unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, undertaking, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in s. 801.11
Whenever under these statutes, service of pleadings and other papers is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party in person is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy or by mailing it to the last-known address, or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this section means: handing it to the attorney or to the party; transmitting a copy of the paper by facsimile machine to his or her office; or leaving it at his or her office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his or her dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing. Service by facsimile is complete upon transmission. The first sentence of this subsection shall not apply to service of a summons or of any process of court or of any paper to bring a party into contempt of court.
When an attorney has filed a limited appearance under s. 802.045 (2)
on behalf of an otherwise self-represented person, anything required to be served under sub. (1)
shall be served upon both the otherwise self-represented person who is receiving the limited scope representation and the attorney who filed the limited appearance under s. 802.045 (2)
. After the attorney files a notice of termination under s. 802.045 (4)
, no further service upon that attorney is required.
In any action in which there are unusually large numbers of defendants, the court, upon motion or on its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.
All papers after the summons required to be served upon a party, except as provided in s. 804.01 (6)
, shall be filed with the court within a reasonable time after service. The filing of any paper required to be served constitutes a certification by the party or attorney effecting the filing that a copy of such paper has been timely served on all parties required to be served, except as the person effecting the filing may otherwise stipulate in writing.
If an action pertaining to the subject matter of the compact authorized under s. 304.16
may affect the powers, responsibilities, or actions of the interstate commission, as defined in s. 304.16 (2) (f)
, the plaintiff shall deliver or mail a copy of the complaint to the interstate commission at its last-known address.
Sup. Ct. Order, 67 Wis. 2d 585, 607 (1975); 1975 c. 218
; Sup. Ct. Order, 130 Wis. 2d xix (1986); Sup. Ct. Order, 161 Wis. 2d xvii (1991); 2001 a. 96
; 2007 a. 97
; Sup. Ct. Order No. 13-10
, 2014 WI 45, filed 6-27-14, eff. 1-1-15.
Effective date note
Judicial Council Note, 1986: Sub. (4) is amended by insertion of a cross-reference to s. 804.01 (6), providing that discovery documents need not be filed with the court unless the court so orders. [Re Order eff. 7-1-86]
Effective date note
Judicial Council Note, 1991: Sub. (2) is amended to clarify that facsimile transmission can be used to serve pleadings and other papers. Such service is deemed complete upon transmission. The change is not intended to expand the permissible means of serving a summons or writ conferring court jurisdiction under s. 799.12 and ch. 801, stats. [Re Order eff. 7-1-91]
Once an action has been commenced, service of the summons and complaint has been made on the defendant, and an attorney has appeared on behalf of the defendant, an amended complaint may be served on the defendant's attorney. Bell v. Employers Mutual Casualty Co. 198 Wis. 2d 347
, 541 N.W.2d 824
(Ct. App. 1995), 095-0301.
A motion to dismiss with prejudice cannot be heard ex parte and should be granted only on finding egregious conduct or bad faith. Failure to obtain personal service with due diligence does not amount to egregious conduct or bad faith. Haselow v. Gauthier, 212 Wis. 2d 580
, 569 N.W.2d 97
(Ct. App. 1997), 96-3589
An amended complaint that makes no reference to or incorporates any of the original complaint supersedes the original complaint when the amended complaint is filed in court. When such a complaint was filed prior to the time for answering the original complaint had run, it was improper to enter a default judgment on the original complaint. Holman v. Family Health Plan, 227 Wis. 2d 478
, 596 N.W.2d 358
A party in default for failing to answer an original complaint cannot answer an amended complaint, thereby attempting to cure its default, unless the amended complaint relates to a new or additional claim for relief. Ness v. Digital Dial Communications, Inc. 227 Wis. 2d 592
, 596 N.W.2d 365
A receptionist who accepted the receipt of pleadings delivered to an attorney's office by a delivery service was a person in charge of the office within the meaning of sub. (2) and the papers had been properly “delivered." Varda v. General Motors Corporation, 2001 WI App 89
, 242 Wis. 2d 756
, 626 N.W.2d 346
A circuit court may not enter a default judgment against a defendant on grounds that the defendant failed to file an answer with the court “within a reasonable time after service" under sub. (4) unless the court first determines that the late filing prejudiced either the plaintiff or the court. Split Rock Hardwoods, Inc. v. Lumber Liquidators, Inc. 2002 WI 66
, 253 Wis. 2d 238
, 646 N.W.2d 19
Except for exhibits and wills, the size of all papers filed in court shall be no larger than 8 1/2 inches by 11 inches.
The clerk of circuit court or register in probate shall return any paper not in conformity with sub. (1)
to the person or party attempting to file it.
History: Sup. Ct. Order, 120 Wis. 2d xv (1984).