Chapter 801

E. F., Plaintiff’s Attorney

State Bar No.: ....

Address: ....

City, State Zip Code: ....

Phone No: ....

801.095 History History: 1983 a. 323; Sup Ct. Order, 171 Wis. 2d xix (1992); 1997 a. 187, 250; 1999 a. 32, 186; 2001 a. 16; 2005 a. 442.

801.095 Annotation Where service is made by publication, Wisconsin law requires the plaintiff to arrange for publication of a publication summons, the contents of which must be substantially in the form detailed in sub. (4). The complaint itself is not published of course; Wisconsin does not absurdly require publication of the entire pleading, which could fill up multiple newspaper pages. Rather, service by publication is intended to provide notice of the existence of the complaint and lawsuit. Section 801.11 (1) (c) thus requires the plaintiff to mail copies of the summons and complaint to the defendant at or immediately prior to the first publication. Colborn v. Netflix Inc., 541 F. Supp. 3d 888 (2021).

801.095 Annotation That the plaintiff’s publication summons in this case used the updated caption from the amended complaint was of no legal significance. Wisconsin law requires only that the publication summons be substantially in the form detailed in sub. (4). The updated caption reflected the correct state of the parties at the time of publication and service, and the defendants did not point to any confusion or prejudice they could possibly have suffered by use of an accurate caption, which included each of them, while omitting other persons no longer being pursued in the litigation. Colborn v. Netflix Inc., 541 F. Supp. 3d 888 (2021).

801.10 801.10 Summons, by whom served.

801.10(1) (1) Who may serve. An authenticated copy of the summons may be served by any adult resident of the state where service is made who is not a party to the action. Service shall be made with reasonable diligence.

801.10(1m) (1m) Service by certain nonresidents. Notwithstanding sub. (1), an adult who is not a party to the action and who resides in Illinois, Iowa, Michigan, or Minnesota may serve an authenticated copy of the summons in this state.

801.10(2) (2) Endorsement. At the time of service, the person who serves a copy of the summons shall sign the summons and shall indicate thereon the time and date, place and manner of service and upon whom service was made. If the server is a sheriff or deputy sheriff, the server’s official title shall be stated. Failure to make the endorsement shall not invalidate a service but the server shall not collect fees for the service.

801.10(3) (3) Proof of service. The person making service shall make and deliver proof of service to the person on whose behalf service was made who shall promptly file such proof of service. Failure to make, deliver, or file proof of service shall not affect the validity of the service.

801.10(4) (4) Proof if service challenged. If the defendant appears in the action and challenges the service of summons upon the defendant, proof of service shall be as follows:

801.10(4)(a) (a) Personal or substituted personal service shall be proved by the affidavit of the server indicating the time and date, place and manner of service; that the server is an adult resident of the state of service or, if service is made in this state, an adult resident of this state or of Illinois, Iowa, Michigan, or Minnesota and is not a party to the action; that the server knew the person served to be the defendant named in the summons; and that the server delivered to and left with the defendant an authenticated copy of the summons. If the defendant is not personally served, the server shall state in the affidavit when, where and with whom the copy was left, and shall state such facts as show reasonable diligence in attempting to effect personal service on the defendant. If the copy of the summons is served by a sheriff or deputy sheriff of the county in this state where the defendant was found, proof may be by the sheriff’s or deputy’s certificate of service indicating time and date, place, manner of service and, if the defendant is not personally served, the information required in the preceding sentence. The affidavit or certificate constituting proof of service under this paragraph may be made on an authenticated copy of the summons or as a separate document.

801.10(4)(b) (b) Service by publication shall be proved by the affidavit of the publisher or printer, or the foreman or principal clerk, stating that the summons was published and specifying the date of each insertion, and by an affidavit of mailing of an authenticated copy of the summons, with the complaint or notice of the object of the action, as the case may require, made by the person who mailed the same.

801.10(4)(c) (c) The written admission of the defendant, whose signature or the subscription of whose name to such admission shall be presumptive evidence of genuineness.

801.10 History History: Sup. Ct. Order, 67 Wis. 2d 585, 600 (1975); 1975 c. 218; Sup. Ct. Order, 92 Wis. 2d xiii (1979); 2005 a. 439.

801.10 Note Judicial Council Committee’s Note, 1979: Sub. (2) is amended to clarify that the individual who serves the summons on behalf of the plaintiff under the procedures in the Wisconsin Rules of Civil Procedure must indicate on the copy of the summons served both the time and date of service. There is presently a lack of uniformity of interpretation in Wisconsin of the term “time” in s. 801.10 (2). Some jurisdictions interpret it to include time and date of service while other jurisdictions interpret it as only the date of service. Clarifying that both the time and date of service must be indicated in the serving of the summons will insure that this potentially valuable information is noted on the served copy of every summons in Wisconsin.

801.10 Note Sub. (4) (a) is amended to also apply the requirement for indicating time and date of service to the affidavits and certificates of service used when proof of service is challenged. [Re Order effective Jan. 1, 1980]

801.10 Annotation A party is required to show strict compliance with the requirements of this section when service is challenged. Dietrich v. Elliott, 190 Wis. 2d 816, 528 N.W.2d 17 (Ct. App. 1995).

801.10 Annotation Service by a nonresident constitutes a fundamental defect compelling dismissal for lack of jurisdiction. Bendimez v. Neidermire, 222 Wis. 2d 356, 588 N.W.2d 55 (Ct. App. 1998), 98-0656.

801.10 Annotation Sub. (4) does not require the affiant to have first hand knowledge of how the documents were authenticated, nor does it require that the affiant’s statements must be unqualified; it requires that the affiant affirm that an authenticated copy of the summons was served. State v. Boyd, 2000 WI App 208, 238 Wis. 2d 693, 618 N.W.2d 251, 99-2633.

801.10 Annotation 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 sub. (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, 03-0824.

801.10 Annotation An affidavit of service is entitled to a presumption of correctness. If the affidavit sets forth prima facie evidence of proper service, the defendant must provide proof that clearly and satisfactorily disputes the facts set forth. The court has discretion regarding the nature of proof considered, including witnesses, which may be preferable when the issue of service is largely a matter of credibility because the evidence is irreconcilably in conflict. Culver v. Kaza, 2021 WI App 57, 399 Wis. 2d 131, 963 N.W.2d 865, 20-0309.

801.10 Annotation Under sub. (4) (a), a process server who is unable to effect personal service is directed to state such facts as show reasonable diligence in attempting to effect personal service on the defendant. The statute imposes a duty by law that undoubtedly will include hearsay at times. A process server’s affidavit is clothed with circumstantial guarantees of trustworthiness comparable to the recognized hearsay exceptions. Culver v. Kaza, 2021 WI App 57, 399 Wis. 2d 131, 963 N.W.2d 865, 20-0309.

801.11 801.11 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:

801.11(1) (1) Natural person. Except as provided in sub. (2) upon a natural person:

801.11(1)(a) (a) By personally serving the summons upon the defendant either within or without this state.

801.11(1)(b) (b) 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:

801.11(1)(b)1. 1. In the presence of some competent member of the family at least 14 years of age, who shall be informed of the contents thereof;

801.11(1)(b)1m. 1m. 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

801.11(1)(b)2. 2. 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.

801.11(1)(c) (c) If with reasonable diligence the defendant cannot be served under par. (a) or (b), 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.

801.11(1)(d) (d) 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.

801.11(2) (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) or (b), 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.

801.11(2)(a) (a) 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.

801.11(2)(b) (b) 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), (5) or (6). 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.

801.11(3) (3) State. 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.

801.11(4) (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:

801.11(4)(a)1. 1. If the action is against a county, the chairperson of the county board or the county clerk;

801.11(4)(a)2. 2. If against a town, the chairperson or clerk thereof;

801.11(4)(a)3. 3. If against a city, the mayor, city manager or clerk thereof;

801.11(4)(a)4. 4. If against a village, the president or clerk thereof;

801.11(4)(a)5. 5. If against a technical college district, the district board chairperson or secretary thereof;

801.11(4)(a)6. 6. If against a school district or school board, the president or clerk thereof; and

801.11(4)(a)7. 7. If against any other body politic, an officer, director, or managing agent thereof.

801.11(4)(b) (b) 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.

801.11(5) (5) Domestic or foreign corporations or limited liability companies, generally. Upon a domestic or foreign corporation or domestic or foreign limited liability company:

801.11(5)(a) (a) 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.

801.11(5)(b) (b) 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).

801.11(5)(c) (c) 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.

801.11(5)(d) (d) 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).

801.11(6) (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), (2) or (5) 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) to (10). 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.

801.11 History History: Sup. Ct. Order, 67 Wis. 2d 585, 602 (1975); 1975 c. 218; 1977 c. 339 s. 43; 1979 c. 89, 102, 177; 1983 a. 192 s. 303 (2); 1985 a. 225; Sup. Ct. Order, 130 Wis. 2d xix (1986); 1993 a. 112, 184, 265, 399, 491; 1997 a. 140; 1999 a. 32; 2005 a. 387.

801.11 Cross-reference Cross-reference: 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]

801.11 Annotation 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 two 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 (1970).

801.11 Annotation 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 (1972).

801.11 Annotation “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 the receptionist’s 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 (1973).

801.11 Annotation 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 (1974).

801.11 Annotation 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 (1976).

801.11 Annotation 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 (1978).

801.11 Annotation A county civil service commission is a “body politic” under sub. (4) (a) 7. Watkins v. Milwaukee County Civil Service Commission, 88 Wis. 2d 411, 276 N.W.2d 775 (1979).

801.11 Annotation 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 the office” under sub. (5) (a). Horrigan v. State Farm Insurance Co., 106 Wis. 2d 675, 317 N.W.2d 474 (1982).

801.11 Annotation Discussing “reasonable diligence” under sub. (1). Welty v. Heggy, 124 Wis. 2d 318, 369 N.W.2d 763 (Ct. App. 1985).

801.11 Annotation Indian tribal sovereignty is not infringed by service of process in a state action made on tribal lands. Landreman v. Martin, 191 Wis. 2d 787, 530 N.W.2d 62 (Ct. App. 1995).

801.11 Annotation 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.

801.11 Annotation 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. Conservatorship of Prom v. Sumitomo Rubber Industries, Ltd., 224 Wis. 2d 743, 592 N.W.2d 657 (Ct. App. 1999), 98-0938.

801.11 Annotation 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 Information Systems, Inc., 229 Wis. 2d 287, 599 N.W.2d 872 (Ct. App. 1999), 98-1314.

801.11 Annotation 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 Corp., 2002 WI App 271, 258 Wis. 2d 378, 654 N.W.2d 265, 01-3077.

801.11 Annotation Personal jurisdiction over a body politic may be obtained by service of the summons and complaint on an officer, director, or managing agent or by 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 & Pension Board, 2003 WI 56, 262 Wis. 2d 113, 663 N.W.2d 268, 01-3198.

801.11 Annotation Neither s. 801.02 (1) nor this section 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 defendant as an individual. Useni v. Boudron, 2003 WI App 98, 264 Wis. 2d 783, 662 N.W.2d 672, 02-1475.

801.11 Annotation 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, 03-0097.

801.11 Annotation “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, 04-1877.

801.11 Annotation 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, 09-0747.

801.11 Annotation This chapter 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, 09-2572.

801.11 Annotation 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 Corp. v. Mattfeld, 2011 WI App 62, 333 Wis. 2d 129, 799 N.W.2d 455, 10-0612.

801.11 Annotation 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, 13-2615.

801.11 Annotation Those attempting personal service under sub. (1) must employ reasonable diligence before resorting to an alternative method of service. Reasonable diligence is a question of what is reasonable under the facts of a particular case. One attempt at service before switching to substitute service may satisfy the reasonable diligence requirement. In this case, the process server exercised reasonable diligence when the process server went to the gated community where the defendant lived in Nevada, was denied entry by the security guard, and executed substitute service on the defendant by leaving the summons and complaint with the guard. It is relevant to the reasonableness analysis that Nevada law permits a single attempt at personal service and then substitute service by leaving the document with the guard of a gated community after the guard denies access. Culver v. Kaza, 2021 WI App 57, 399 Wis. 2d 131, 963 N.W.2d 865, 20-0309.

801.11 Annotation 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.

801.11 Annotation To satisfy the “reasonable diligence” standard under sub. (1), Wisconsin requires a plaintiff who knows or readily can learn that a defendant has multiple addresses to attempt to serve the defendant at each address. Cunningham v. Montes, 883 F.3d 688 (2018).

801.11 Annotation 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 (1974).

801.11 Annotation Where service is made by publication, Wisconsin law requires the plaintiff to arrange for publication of a publication summons, the contents of which must be substantially in the form detailed in s. 801.095 (4). The complaint itself is not published of course; Wisconsin does not absurdly require publication of the entire pleading, which could fill up multiple newspaper pages. Rather, service by publication is intended to provide notice of the existence of the complaint and lawsuit. Sub. (1) (c) thus requires the plaintiff to mail copies of the summons and complaint to the defendant at or immediately prior to the first publication. Colborn v. Netflix Inc., 541 F. Supp. 3d 888 (2021).

801.11 Annotation Under Wisconsin law, whether a plaintiff exercises “reasonable diligence” in attempting personal service for purposes of sub. (1) (c) is a highly factual issue. In this case, the plaintiff’s primary process server undertook multiple efforts to serve each of the defendants at multiple locations and on multiple days. This in itself was sufficient to show reasonable diligence. Further, additional efforts—hiring a second process server and searching the internet for other potential service locations—pushed the plaintiff’s efforts over the “reasonable diligence” line. Colborn v. Netflix Inc., 541 F. Supp. 3d 888 (2021).

801.12 801.12 Jurisdiction in rem or quasi in rem, manner of serving summons for; notice of object of action.

801.12(1) (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:

801.12(1)(a) (a) 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.