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).
In this subsection, “holiday" means any day that is a holiday provided in s. 230.35 (4) (a)
or a statewide legal holiday provided in s. 995.20
or both, and a full day on Good Friday.
Notwithstanding ss. 985.09
and 990.001 (4)
, in computing any period of time prescribed or allowed by chs. 801
, by any other statute governing actions and special proceedings, or by order of court, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a day the clerk of courts office is closed. When the period of time prescribed or allowed is less than 11 days, Saturdays, Sundays and holidays shall be excluded in the computation.
When an act is required to be done at or within a specified time, the court may order the period enlarged but only on motion for cause shown and upon just terms. The 90 day period under s. 801.02
may not be enlarged. If the motion is made after the expiration of the specified time, it shall not be granted unless the court finds that the failure to act was the result of excusable neglect. The order of enlargement shall recite by its terms or by reference to an affidavit in the record the grounds for granting the motion.
The time within which a motion challenging the sufficiency of the evidence or for a new trial must be decided shall not be enlarged except for good cause. The order of extension must be made prior to the expiration of the initial decision period.
The time for initiating an appeal under s. 808.04
, for deciding motions after verdict under s. 805.16 (3)
, and for making motions for reconsideration under s. 805.17 (3)
or for relief from judgment or order under s. 48.46 (2)
may not be enlarged.
A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing, unless a different period is fixed by statute or by order of the court. Such an order may for cause shown be made on ex parte motion. When a motion is supported by affidavit, the affidavit shall be served with the motion; and opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time. All written motions shall be heard on notice unless a statute or rule permits the motion to be heard ex parte.
Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party:
If the notice or paper is served by mail, 3 days shall be added to the prescribed period.
If the notice or paper is served by facsimile transmission or by the electronic filing system under s. 801.18
and such transmission is completed between 5 p.m. and midnight, 1 day shall be added to the prescribed period.
Sup. Ct. Order, 67 Wis. 2d 585, 610 (1975); 1975 c. 218
; Sup. Ct. Order, 73 Wis. 2d xxxi (1976); 1977 c. 187
; 1977 c. 449
; 1979 c. 89
; 1983 a. 192
; 1985 a. 145
; Sup Ct. Order, 130 Wis. 2d xi (1986); 1985 a. 332
; Sup. Ct. Order, 136 Wis. 2d xxv (1987); Sup. Ct. Order, 146 Wis. 2d xxxiii (1988); Sup. Ct. Order, 160 Wis. 2d xiv (1991); Sup. Ct. Order, 161 Wis. 2d xvii (1991); Sup. Ct. Order No. 94-05
, 183 Wis. 2d xix; 1997 a. 187
; 2005 a. 155
; Sup. Ct. Order No. 14-03
, 2016 WI 29, filed 4-28-16, eff. 7-1-16.
See s. 32.05 (4)
for exception to provision for added time in case of mailing.
Law Revision Committee Note, 1985: [Sub. (1)] Under the current statute, the time period specified by law or by a court relating to a court action or special proceeding is extended if the last day of the time period falls on a Saturday, Sunday or legal holiday. This amendment adds Good Friday, Christmas eve and New Year's eve. The afternoon of Good Friday and the full day on December 24 and 31 are holidays for state employees, and the amendment will permit clerks to close their offices at these times. [85 Act 145]
Judicial Council Committee's Note, 1976: The procedure under s. 801.15 (2) (a) for enlarging the period in which an act is required to be done under the rules of civil procedure cannot be used to enlarge the 60-day period under s. 801.02. See also s. 802.06 (2) (e) and (8).
Pars. (2) (b) and (c) are independent provisions. The enlargement of time “for good cause" provision in par. (b) does not apply to the time for appeal under s. 817.01, for motion after verdict under s. 805.16, and for relief from judgment under s. 806.07 as such a result would substantially impair the finality of judgments. The word “extended" is replaced by the word “enlarged" in par. (c) to comply with similar language in pars. (2) (a) and (b). [Re Order effective Jan. 1, 1977]
Effective date note
Judicial Council Note, 1986: Sub. (1) is amended by extending from 7 to 11 days the periods from which Saturdays, Sundays and legal holidays are excluded. The change conforms to that made in Rule 6 (a), F.R.C.P. in 1985. [Re Order eff. 7-1-86]
Effective date note
Judicial Council Note, 1986: Sub. (2) (c) is amended to clarify that, while the time for deciding motions after verdict may not be enlarged, the time for filing and hearing such motions may be enlarged by the court under revised s. 805.16 (1) and (2). [Re Order eff. 7-1-87]
Effective date note
Judicial Council Note, 1991: The amendment to sub. (2) (c) prohibits the court form extending the time for making reconsideration motions under s. 805.17 (3). [Re Order eff. 7-1-91]
Effective date note
Judicial Council Note, 1991: Sub. (5) (b) is created to allow one extra day to respond to papers served by facsimile transmission after normal business hours. Additional response time may be available under the computation rules of sub. (1) (b) if papers are so served on weekends or holidays. [Re Order eff. 7-1-91]
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.
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
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
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).
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
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
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
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).
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).
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).
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).
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
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
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
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
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
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. 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
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
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
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
Avoiding and obtaining relief from default judgments. Parlee, WBB April, 1985.
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.
For papers that do not require a filing fee:
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.
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.
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.
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.
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.
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.
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; 2017 a. 365
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.]
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
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."
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.
Electronic filing. 801.18(1)(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.