Chapter 801

801.15 Annotation Excusable neglect is conduct that might have been the act of a reasonably prudent person under the same circumstances. A court must look beyond the cause of the neglect to the interests of justice, considering both the need to afford litigants a day in court and to ensure prompt adjudication. Whether the dilatory party acted in good faith, whether the opposing party was prejudiced, and whether prompt remedial action took place are factors to consider. An attorney who relied on an oral courtesy agreement whose terms were not disputed and promptly filed for an extension acted with excusable neglect. Rutan v. Miller, 213 Wis. 2d 94, 570 N.W.2d 54 (Ct. App. 1997), 97-0547.

801.15 Annotation Under sub. (1) (b), the last day is included in determining time periods unless it is “a day the clerk of courts office is closed.” Whether or not the day is a “holiday” under sub. (1) (a) is not relevant. Klingbeil v. Perschke, 228 Wis. 2d 421, 596 N.W.2d 488 (Ct. App. 1999), 99-0488.

801.15 Annotation A courtesy extension agreement is not required to be in writing, but a court may consider the lack of documentation in making a determination as to whether an agreement existed. Connor v. Connor, 2001 WI 49, 243 Wis. 2d 279, 627 N.W.2d 182, 99-0157.

801.15 Annotation The trial court erroneously exercised its discretion by entering default judgment without hearing offered testimony on the question of whether an oral courtesy agreement existed and, if so, what the agreement provided. Johnson Bank v. Brandon Apparel Group, Inc., 2001 WI App 159, 246 Wis. 2d 828, 632 N.W.2d 107, 00-2839.

801.15 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 s. 801.10 (2) when the failure to answer in a timely manner amounted to nothing more than carelessness and inattentiveness on the part of the parties involved. While prompt remedial action after the expiration of the statutory time limit is a material factor bearing on whether relief should be granted, it does not eliminate the requirement that a dilatory party demonstrate excusable neglect for its initial failure to meet the statutory deadline. Williams Corner Investors, LLC v. Areawide Cellular, LLC, 2004 WI App 27, 269 Wis. 2d 682, 676 N.W.2d 168, 03-0824.

801.15 Annotation In the absence of excusable neglect, the court is not obligated to address the interests of justice. Estate of Otto v. Physicians Insurance Co. of Wisconsin, 2007 WI App 192, 305 Wis. 2d 198, 738 N.W.2d 599, 06-1566.

801.15 Annotation Affirmed on other grounds. 2008 WI 78, 311 Wis. 2d 84, 751 N.W.2d 805, 06-1566.

801.15 Annotation The excusable neglect standard set forth in sub. (2) (a) does not apply to untimely motions to enlarge scheduling order deadlines. Rather, s. 802.10 provides the applicable standards and procedures courts apply to such motions. Parker v. Wisconsin Patients Compensation Fund, 2009 WI App 42, 317 Wis. 2d 460, 767 N.W.2d 272, 07-1542.

801.15 Annotation Sub. (1) is not a proper vehicle for a criminal defendant to seek a new trial in the interest of justice. During the appellate process under ss. 809.30 and 974.02, defendants may also appeal to the discretionary power of the court of appeals to order a new trial in the interest of justice under s. 752.35 and to the supreme court in an appeal under s. 751.06. State v. Henley, 2010 WI 97, 328 Wis. 2d 544, 787 N.W.2d 350, 08-0697.

801.15 Annotation Precedent has set an extremely high bar to reverse excusable neglect determinations. A court cannot reject out-of-hand the possibility that a packet was actually “lost in the mail,” although courts should be skeptical of glib claims that attribute fault to the U.S. 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 Co., 2011 WI 81, 336 Wis. 2d 267, 800 N.W.2d 880, 06-1229.

801.15 Annotation Sub. (1) (b) is not applicable to an appeal before an administrative agency. Baker v. Department of Health Services, 2012 WI App 71, 342 Wis. 2d 174, 816 N.W.2d 337, 11-1529.

801.15 Annotation Avoiding and obtaining relief from default judgments. Parlee. WBB Apr. 1985.

801.16 801.16 Filing.

801.16(1) (1) The filing of pleadings and other papers with the court as required by these statutes shall be made by filing them with the clerk of circuit court. The judge may require that the person filing the papers provide a copy to the judge.

801.16(2) (2) For papers that do not require a filing fee:

801.16(2)(a) (a) A court may adopt a local rule, if it is approved by the chief judge, that permits the filing of papers with the clerk of circuit court by facsimile transmission to a plain-paper facsimile machine at a telephone number designated by the court. To provide uniformity, any local rule shall specify a 15-page limit for a facsimile transmission, unless an exception is approved by the assigned judge or court commissioner on a case-by-case basis.

801.16(2)(b) (b) If no rule has been adopted under par. (a), the assigned judge or court commissioner may permit a party or attorney in a specific matter to file papers with the clerk of circuit court by facsimile transmission to a plain-paper facsimile machine at a telephone number designated by the assigned judge or court commissioner.

801.16(2)(c) (c) If the facsimile transmission exceeds 15 pages or is filed in the absence of a local rule, the party or attorney shall certify that the assigned judge or court commissioner has approved the facsimile transmission.

801.16(2)(d) (d) If papers are transmitted to a plain-paper facsimile machine of a noncourt agency, party, or company for the receipt, transmittal, and delivery to the clerk of circuit court, the clerk of circuit court shall accept the papers for filing only if the transmission complies with the local rule or has been approved by the assigned judge or court commissioner and certified by the party or attorney.

801.16(2)(e) (e) Facsimile papers are considered filed upon receipt by the clerk of circuit court and are the official record of the court and may not be substituted. No additional copies may be sent. The clerk of circuit court shall discard any duplicate papers subsequently received by the clerk of circuit court, assigned judge, or court commissioner.

801.16(2)(f) (f) Papers filed with the circuit court by facsimile transmission completed after regular business hours of the clerk of circuit court’s office are considered filed on a particular day if the submission is made by 11:59 p.m. central time, as recorded by the court facsimile machine, so long as it is subsequently accepted by the clerk upon review. The expanded availability of time to file shall not affect the calculation of time under other statutes, rules, and court orders. Documents submitted by facsimile transmission completed after 11:59 p.m. are considered filed the next day the clerk’s office is open.

801.16 History History: Sup. Ct. Order, 161 Wis. 2d xvii (1991); Sup. Ct. Order No. 94-11, 187 Wis. 2d xxiii (1994); Sup. Ct. Order No. 00-09, 2001 WI 33, 241 Wis. 2d xix; Sup. Ct. Order No. 14-03, 2016 WI 29, 368 Wis. 2d xiii; Sup. Ct. Order No. 14-03A, 2016 WI 80, 370 Wis. 2d xxxiii; 2017 a. 365 s. 111.

Effective date note Judicial Council Note, 1991: Sub. (2) clarifies that papers (other than those requiring a filing fee) may be filed by facsimile transmission to the judge or clerk, if a local court rule, or the judge in a specific matter, so permits. [Re Order eff. 7-1-91.]

801.16 Note NOTE: Sup. Ct. Order No. 14-03 states: “The Comments to the statutes and to the supreme court rules created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”

801.16 Note Comment, 2016: Sub. (2) (f) is a change to circuit court law and practice. Under prior law, fax filings were required to arrive at the office of the clerk of court before the end of the regular business day in order to be considered filed on that day. In contrast, the mandatory electronic filing statute, s. 801.18 (4) (e), allows any filing made before midnight to be considered filed on that day. After July 1, 2016, parties who do not use the electronic filing system are given the advantage of the extended filing hours.

801.16 Annotation A notice of appeal does not require a filing fee and may be filed by facsimile transmission under sub. (2). State v. Sorenson, 2000 WI 43, 234 Wis. 2d 648, 611 N.W.2d 240, 98-3107.

801.16 Annotation Under sub. (1), the filing of pleadings and other papers with the court shall be made by filing them with the clerk of circuit court. The circuit court should have rejected an affidavit and proposed order submitted by a child support agency that was submitted directly and exclusively to the judge. Meyer v. Teasdale, 2009 WI App 152, 321 Wis. 2d 647, 775 N.W.2d 123, 08-2827.

801.18 801.18 Electronic filing.

801.18(1) (1) Definitions. In this section:

801.18(1)(a) (a) “Clerk of court” or “clerk” means the official circuit court recordkeeper for the case in question, which may be the clerk of circuit court, juvenile clerk, or register in probate for that county.

801.18(1)(b) (b) “Converted” means that all documents in a paper case file have been imaged by the clerk of court and the case file is available to accept filings via the electronic filing system.

801.18(1)(c) (c) “Director” means the director of state courts.

801.18(1)(d) (d) “Document” means a pleading, notice of appeal, petition, writ, form, notice, motion, order, affidavit, exhibit, brief, judgment, opinion, writ of execution, or other filing in an action or proceeding.

801.18(1)(e) (e) “Electronic filing system” means an Internet-accessible system established by the director for the purpose of filing documents in a circuit court, automatically integrating them into the court case management system, and electronically serving them on the parties.

801.18(1)(f) (f) “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the document. To be considered electronically signed, a document must be submitted by or on behalf of a user through the electronic filing system. An electronic signature shall state “Electronically signed by” followed by the name of the signatory, and shall be placed where the person’s signature would otherwise appear. “Electronic signature” includes only those signature technologies specifically approved by the director.

801.18(1)(g) (g) “Filing agent” means a person authorized under s. 799.06 (2) to appear on behalf of another.

801.18(1)(h) (h) “High-volume filing agent” means a person authorized under s. 799.06 (2) who appears on behalf of an entity filing 10 or more actions per calendar year in the county where the action is being filed.

801.18(1)(i) (i) “Imaged document” means an electronic copy of a document originally created or submitted on paper.

801.18(1)(j) (j) “Initiating document” means a summons and complaint, petition, application, citation, criminal complaint, notice of appeal, or any other document filed to commence a court action or proceeding.

801.18(1)(k) (k) “Mandatory user” means a user who is subject to sub. (3) (a).

801.18(1)(kg) (kg) “Notice of activity” means a notice sent by the electronic filing system to alert the parties that there has been a new user, filing, or activity on the case.

801.18(1)(km) (km) “Opt in” means to agree to receive electronic service and file electronic documents on a particular case, after first registering for access to the electronic filing system.

801.18(1)(kr) (kr) “Opt out” means to cease participation as a voluntary user or to indicate withdrawal from the case as an attorney.

801.18(1)(L) (L) “Paper party” means a party who is not subject to sub. (3) (a) who chooses not to participate in the electronic filing system as described in sub. (3) (c).

801.18(1)(Lm) (Lm) “Registration” means entering into an agreement to access the electronic filing system prior to filing documents under sub. (3) (d) or s. 809.801 (3) (d).

801.18(1)(m) (m) “Traditional methods” means those methods of filing and serving documents, other than electronic filing, provided under statutes and local rules.

801.18(1)(mm) (mm) “Transmit” means to send or transfer documents and records from one court to another and may be completed by making the documents and records electronically available to the other court.

801.18(1)(n) (n) “User” means an individual who has registered to use the electronic filing system. Users of the electronic filing system shall be individuals, not law firms, agencies, corporations, or other groups.

801.18(1)(o) (o) “Voluntary user” means a party who is not subject to sub. (3) (a) who voluntarily registers to use the electronic filing system under sub. (3) (b).

801.18(2) (2) Effective date; applicability.

801.18(2)(a) (a) The director shall implement an electronic filing system for the Wisconsin circuit courts. The requirements of this section shall govern the electronic filing of documents in all types of actions and proceedings in circuit court.

801.18(2)(b) (b) Mandatory use of the electronic filing system shall be phased in according to a schedule set by the director until the system has been fully implemented.

801.18(2)(c) (c) Mandatory users shall be required to use the electronic filing system for all new filings. Electronic filing shall be required for all new actions brought in circuit court and for all new documents submitted in previously filed cases, except as otherwise provided in this section.

801.18(2)(e) (e) Electronic filing is limited to methods specifically approved by the director. The director may enter into an agreement with any state agency to allow electronic filing through a custom data exchange between the court case management system and the agency’s automated information system. Parties using a custom data exchange are considered mandatory users and are subject to the requirements of this section.

801.18(2)(f) (f) The procedures in this section shall be interpreted in a manner consistent with existing procedures. This section is not intended to limit the director’s approval of new technologies that accomplish the same functions.

801.18(2)(g) (g) All judicial officers, the clerk of court, and all court staff shall cooperate and assist with the implementation of electronic filing.

801.18(2)(h) (h) This section does not apply to documents required by law to be filed with court officials that are not filed in an action before the court. These documents may be filed by traditional methods unless otherwise required by the director.

801.18(2)(i) (i) This section does not apply to filing of documents or transcripts with the court of appeals or supreme court.

801.18(2)(k) (k) The procedures under this section are intended to be consistent with the procedures governing electronic filing and service in the appellate courts under s. 809.801. The circuit and appellate court electronic filing and service rules shall be interpreted consistently to the extent practicable.

801.18(3) (3) Registration requirements.

801.18(3)(a) (a) The following individuals shall register for access to the electronic filing system prior to filing documents in circuit court:

801.18(3)(a)1. 1. Licensed Wisconsin attorneys.

801.18(3)(a)2. 2. Attorneys appearing under SCR 10.03 (4).

801.18(3)(a)3. 3. High-volume filing agents.

801.18(3)(b) (b) Parties who are not subject to par. (a) may voluntarily register to use the electronic filing system.

801.18(3)(c) (c) Except as otherwise provided by law, a party not subject to par. (a) who does not choose to participate in the electronic filing system under par. (b) shall file, serve, and receive paper documents by traditional methods.

801.18(3)(d) (d) All users shall register through the electronic filing system by executing a user agreement governing the system’s terms of use. To register, users must have the capability to produce, file, and receive electronic documents meeting the technical requirements of the electronic filing system. The electronic filing system shall make information on the technical requirements for filing readily available. By registering, users agree to electronically file all documents to the extent the electronic filing system can accept them. Users shall promptly provide notice through the electronic filing system of any change in the information provided for registration.

801.18(3)(e) (e) Upon completion of a properly executed user agreement under par. (d), the electronic filing system shall provide the user with a confidential, secure authentication procedure for access to the electronic filing system. This authentication procedure shall be used only by that user and by any agents or employees that the user authorizes. The same authentication procedure shall be used for all cases on which the user is an attorney or a party. The electronic filing system may reset authentication procedures as needed for administrative and security purposes. Upon learning that the confidentiality of the authentication procedure has been inadvertently or improperly disclosed, the user shall immediately report that fact through the electronic filing system.

801.18(3)(f) (f) After registering to use the electronic filing system, a user shall also opt in as an attorney or party on any case in which the user intends to participate. Users shall promptly opt in or out on each case upon beginning or ending appearance as an attorney or as a party. Filing agents appearing under par. (a) or (b) shall promptly opt in or out upon any change in the identity of a filing agent. Mandatory users who do not opt in on a case will not receive notices of activity or service of documents.

801.18(3)(g) (g) Attorneys appearing under SCR 10.03 (4) shall register following court approval of a motion to appear pro hac vice.

801.18(3)(i) (i) Voluntary users who wish to opt out of a particular case shall notify the electronic filing system or the clerk of court. The electronic filing system shall indicate that traditional methods must be used for this party for future filings and service.

801.18(3)(j) (j) The electronic filing system may provide a method for filing documents by individuals who are not parties to the case. It may also provide a method for professionals and agencies associated with the case to receive information and file reports.

801.18(4) (4) Time and effect of electronic filing.

801.18(4)(a) (a) The electronic filing system is an agent of the circuit courts for purposes of filing, receipt, service, and retrieval of electronic documents. The electronic filing system shall receive electronic filings 24 hours per day except when undergoing maintenance or repair.

801.18(4)(am) (am) A document is considered filed on a particular day if the submission is completed by 11:59 p.m. central time, as recorded by the electronic filing system, so long as it is subsequently accepted by the clerk of court upon review. Documents filed after 11:59 p.m. are considered filed the next day the clerk’s office is open. The expanded availability of time to file shall not affect the calculation of time under other statutes, rules, and court orders. The electronic filing system shall issue a confirmation that submission to the electronic filing system is complete.

801.18(4)(b) (b) When a document is submitted by a user to the electronic filing system, the electronic filing system shall transmit it to the appropriate clerk of court in the county where the case is filed.

801.18(4)(c) (c) If the clerk of court accepts a document for filing, it shall be considered filed with the court at the date and time of the original submission, as recorded by the electronic filing system. The electronic filing system shall issue a notice of activity to serve as proof of filing. When personal service is not required, the notice of activity shall constitute proof of service on the other users in the case.

801.18(4)(cm) (cm) If the clerk rejects the document, the user shall receive notification of the rejection. The user may be required to resubmit the document.

801.18(4)(f) (f) The clerk of the circuit court may not refuse to accept a notice of appeal for failure to pay the appellate court filing fee required by s. 809.25 (2) (a) or the transmittal fee required by s. 814.61 (9).

801.18(5) (5) Commencement of action or proceeding; filing of initiating documents.

801.18(5)(a) (a) A user seeking to initiate an action shall first register with the electronic filing system as provided in sub. (3). The user shall then file an initiating document in the county where the action is to be commenced and provide the additional information requested by the electronic filing system to open a case.

801.18(5)(b) (b) If a filing fee is required, the clerk of court may reject the document unless it has been submitted as provided in sub. (7) (b). At the written or oral request of the filer, the clerk of court may reject the document for filings made in error, if the request is made before the clerk of court has accepted the document.

801.18(5)(c) (c) If the clerk of court accepts an initiating document for filing, the clerk of court shall assign a case number and authenticate the document as provided in sub. (10). The case shall then be available through the electronic filing system. If the clerk of court rejects an initiating document, the filer shall be notified of the rejection.

801.18(5)(d) (d) Initiating documents shall be served by traditional methods unless the responding party has consented in writing to accept electronic service or service by some other method. Initiating documents shall be served together with a notice to the responding party stating that the case has been electronically filed and with instructions for how to use the electronic filing system.

801.18(5)(e) (e) A mandatory user who represents a responding party shall register to use the electronic filing system as provided under this section. After registering to use the electronic filing system, the user shall also opt in as a user on the particular case. The electronic filing system will note the new user on the case.

801.18(6) (6) Filing and service of subsequent documents.

801.18(6)(a) (a) The electronic filing system shall generate a notice of activity to the other users in the case when documents other than initiating documents are filed. Users shall access filed documents through the electronic filing system. For documents that do not require personal service, the notice of activity is valid and effective service on the other users and shall have the same effect as traditional service of a paper document, except as provided in par. (b).

801.18(6)(b) (b) If a document requires personal service, it shall be served by traditional methods unless the responding party has consented in writing to accept electronic service or service by some other method.

801.18(6)(c) (c) Paper parties shall be served by traditional methods. The electronic case record shall indicate which parties are to be served electronically and which are to be served by traditional methods.