801.09 Annotation
An unsigned summons served with a signed complaint is a technical defect, which in the absence of prejudice does not deny the trial court personal jurisdiction. Gaddis v. La Crosse Products, Inc.,
198 Wis. 2d 396,
542 N.W.2d 454 (1996),
94-2121.
801.09 Annotation
A stamped reproduction of a signature does not satisfy sub. (3), and correcting the signature a year after receiving notice of the defect is not timely under former s. 802.05 (1) (a), 1999 stats. The error must be promptly corrected or else the certification statute and the protection it was intended to afford is rendered meaningless. Novak v. Phillips,
2001 WI App 156,
246 Wis. 2d 673,
631 N.W.2d 635,
00-2416. But see Schaefer v. Riegelman,
2002 WI 18,
250 Wis. 2d 494,
639 N.W.2d 715,
00-2157.
801.09 Annotation
A summons and complaint signed by an attorney not licensed in the state contained a fundamental defect that deprived the circuit court of jurisdiction even though the signature was made on behalf and at the direction of a licensed attorney. Schaefer v. Riegelman,
2002 WI 18,
250 Wis. 2d 494,
639 N.W.2d 715,
00-2157.
801.09 Annotation
Default judgment entered immediately after the trial court permitted amendment of the pleadings to correct the defendant's name was void because the original summons and complaint named the wrong corporate entity, the defendant's parent. The general rule is that, if a misnomer or misdescription does not leave in doubt the identity of the party intended to be sued or, even when there is room for doubt as to identity, if service of process is made on the party intended to be sued, the misnomer or misdescription may be corrected by amendment at any stage of the suit, and a judgment taken by default is enforceable. However, if the amendment is to bring in a new party, it will be refused. Johnson v. Cintas Corp.,
2011 WI App 5,
331 Wis. 2d 51,
794 N.W.2d 475,
09-2549.
801.09 Annotation
A wholly owned subsidiary of a corporation is a legal entity that exists independently of the parent. The failure to name the subsidiary in a summons and complaint when the subsidiary was the correct party constituted a fundamental defect that precluded the circuit court of personal jurisdiction over the subsidiary, regardless of whether or not the defect prejudiced the subsidiary. It was irrelevant that the summons and complaint was served upon the registered agent for the subsidiary and the subsidiary might have had knowledge that it was meant to be a party. Johnson v. Cintas Corp.,
2011 WI App 5,
331 Wis. 2d 51,
794 N.W.2d 475,
09-2549.
801.09 Annotation
When a defect in a summons is technical, the court has personal jurisdiction only if the complainant can show the defendant was not prejudiced. When a defect is fundamental, no personal jurisdiction attaches regardless of prejudice. In this case, the summons incorrectly indicated that the answers were due in 20 days, as opposed to 45 days. That error was a mere technical defect and, absent prejudice to the defendants, would not result in a dismissal on the basis of a lack of personal jurisdiction. Flanagan v. Stumble Inn LLC,
2023 WI App 31,
408 Wis. 2d 532,
992 N.W.2d 867,
22-0584.
801.09 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 s. 801.095 (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).
801.095
801.095
Summons form. The summons shall be substantially in one of the forms specified in subs.
(1) to
(4). The applicable form depends on the type of service and on whether a complaint is served with the summons, in accordance with s.
801.09. The forms are:
801.095(1)
(1) Personal service; complaint attached.
STATE OF WISCONSIN CIRCUIT COURT: .... COUNTY
A. B.
Address
City, State Zip Code File No. ....
, Plaintiff
vs. S U M M O N S
C. D.
Address .... (Case Classification Type): .... (Code No.)
City, State Zip Code
, Defendant
THE STATE OF WISCONSIN, To each person named above as a Defendant:
You are hereby notified that the Plaintiff named above has filed a lawsuit or other legal action against you. The complaint, which is attached, states the nature and basis of the legal action.
Within (20) (45) days of receiving this summons, you must respond with a written answer, as that term is used in chapter 802 of the Wisconsin Statutes, to the complaint. The court may reject or disregard an answer that does not follow the requirements of the statutes. The answer must be sent or delivered to the court, whose address is ...., and to ...., Plaintiff's attorney, whose address is ..... You may have an attorney help or represent you.
If you do not provide a proper answer within (20) (45) days, the court may grant judgment against you for the award of money or other legal action requested in the complaint, and you may lose your right to object to anything that is or may be incorrect in the complaint. A judgment may be enforced as provided by law. A judgment awarding money may become a lien against any real estate you own now or in the future, and may also be enforced by garnishment or seizure of property.
Dated: ...., .... (year)
Signed: .... ....
A. B., Plaintiff
or
E. F., Plaintiff's Attorney
State Bar No.: ....
Address: ....
City, State Zip Code: ....
Phone No: ....
801.095(2)
(2) Personal service; no complaint attached.
STATE OF WISCONSIN CIRCUIT COURT: .... COUNTY
A. B.
Address
City, State Zip Code File No. ....
, Plaintiff
vs. S U M M O N S
C. D.
Address .... (Case Classification Type): .... (Code No.)
City, State Zip Code
, Defendant
THE STATE OF WISCONSIN, To each person named above as a Defendant:
You are hereby notified that the Plaintiff named above has filed a lawsuit or other legal action against you.
Within (20) (45) days of receiving this summons, you must respond with a written demand for a copy of the complaint. The demand must be sent or delivered to the court, whose address is ...., and to ...., Plaintiff's attorney, whose address is ..... You may have an attorney help or represent you.
If you do not demand a copy of the complaint within (20) (45) days, the court may grant judgment against you for the award of money or other legal action requested in the complaint, and you may lose your right to object to anything that is or may be incorrect in the complaint. A judgment may be enforced as provided by law. A judgment awarding money may become a lien against any real estate you own now or in the future, and may also be enforced by garnishment or seizure of property.
Dated: ...., .... (year)
Signed: .... ....
A. B., Plaintiff
or
E. F., Plaintiff's Attorney
State Bar No.: ....
Address: ....
City, State Zip Code: ....
Phone No.: ....
801.095(3)
(3) No personal service; complaint served at the same time.
STATE OF WISCONSIN CIRCUIT COURT: .... COUNTY
A. B.
Address
City, State Zip Code File No. ....
, Plaintiff
vs. S U M M O N S
C. D.
Address .... (Case Classification Type): .... (Code No.)
City, State Zip Code
, Defendant
THE STATE OF WISCONSIN, To each person named above as a Defendant:
You are hereby notified that the Plaintiff named above has filed a lawsuit or other legal action against you. The complaint, which is also served upon you, states the nature and basis of the legal action.
Within 40 days after ...., .... (year), you must respond with a written answer, as that term is used in chapter 802 of the Wisconsin Statutes, to the complaint. The court may reject or disregard an answer that does not follow the requirements of the statutes. The answer must be sent or delivered to the court, whose address is ...., and to ...., Plaintiff's attorney, whose address is ..... You may have an attorney help or represent you.
If you do not provide a proper answer within 40 days, the court may grant judgment against you for the award of money or other legal action requested in the complaint, and you may lose your right to object to anything that is or may be incorrect in the complaint. A judgment may be enforced as provided by law. A judgment awarding money may become a lien against any real estate you own now or in the future, and may also be enforced by garnishment or seizure of property.
Dated: ...., .... (year)
Signed: .... ....
A. B., Plaintiff
or
E. F., Plaintiff's Attorney
State Bar No.: ....
Address: ....
City, State Zip Code: ....
Phone No: ....
801.095(4)
(4) No personal service; complaint not served at the same time.
STATE OF WISCONSIN CIRCUIT COURT: .... COUNTY
