Chapter 801

801.15(2) (2) 

801.15(2)(a) (a) 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.

801.15(2)(b) (b) 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.

801.15(2)(c) (c) 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) or 806.07 may not be enlarged.

801.15(4) (4) 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.

801.15(5) (5) 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:

801.15(5)(a) (a) If the notice or paper is served by mail, 3 days shall be added to the prescribed period.

801.15(5)(b) (b) If the notice or paper is served by facsimile transmission, by electronic mail, or by the electronic filing system under s. 801.18 and such transmission is completed between 5 p.m. and midnight, one day shall be added to the prescribed period.

801.15 History History: Sup. Ct. Order, 67 Wis. 2d 585, 610 (1975); 1975 c. 218; Sup. Ct. Order, 73 Wis. 2d xxxi (1976); 1977 c. 187 s. 135; 1977 c. 449; 1979 c. 89; 1983 a. 192 s. 304; 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 (1994); 1997 a. 187; 2005 a. 155; Sup. Ct. Order No. 14-03, 2016 WI 29, 368 Wis. 2d xiii; 2019 a. 30.

801.15 Cross-reference Cross-reference: See s. 32.05 (4) for exception to provision for added time in case of mailing.

801.15 Note 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]

801.15 Note 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).

801.15 Note 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]

801.15 Note 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.

801.15 Annotation 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 (1979).

801.15 Annotation Error based on late service and filing of an affidavit was waived by the failure to object at a hearing. Dairyland Equipment Leasing, Inc. v. Bohen, 94 Wis. 2d 600, 288 N.W.2d 852 (1980).

801.15 Annotation 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 11 (Ct. App. 1980).

801.15 Annotation The trial court abused its discretion in enlarging the time to file an answer when the answer was served nine days after the deadline. Hedtcke v. Sentry Insurance Co., 109 Wis. 2d 461, 326 N.W.2d 727 (1982).

801.15 Annotation Time computations under ss. 32.05 (10) (a) and 32.06 (10) are controlled by sub. (1), not s. 990.001 (4). Gangler v. Wisconsin Electric Power Co., 110 Wis. 2d 649, 329 N.W.2d 186 (1983).

801.15 Annotation Service of an answer was timely under the terms of a courtesy agreement. Oostburg State Bank v. United Savings & Loan Ass’n, 130 Wis. 2d 4, 386 N.W.2d 53 (1986).

801.15 Annotation Time periods under s. 805.16 may not be enlarged by showing excusable neglect under sub. (2) (a). Brookhouse v. State Farm Mutual Automobile Insurance Co., 130 Wis. 2d 166, 387 N.W.2d 82 (Ct. App. 1986).

801.15 Annotation 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).

801.15 Annotation 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, Inc., 144 Wis. 2d 11, 422 N.W.2d 910 (Ct. App. 1988).

801.15 Annotation 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 Products, Inc., 170 Wis. 2d 622, 489 N.W.2d 697 (Ct. App. 1992).

801.15 Annotation While clerical error is not always excusable, it is not as a matter of law inexcusable neglect. Sentry Insurance v. Royal Insurance Co. of America, 196 Wis. 2d 907, 539 N.W.2d 911 (Ct. App. 1995), 94-3428.

801.15 Annotation Sub. (2) (a) is applicable to excusable neglect by a trial judge. State v. Elliott, 203 Wis. 2d 95, 551 N.W.2d 850 (Ct. App. 1996), 96-0012.

801.15 Annotation Trial courts have discretion to shorten the five-day notice requirement for motions. Schopper v. Gehring, 210 Wis. 2d 208, 565 N.W.2d 187 (Ct. App. 1997), 96-2782.

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.