Harding, Linda et al v. Oneida County et al
Filing
4
ORDER that plaintiffs are to serve their complaint on defendants promptly. They should file proof of service of their complaint as soon as they have served each defendant. By May 8, 2012, plaintiffs are to file proof of service of their complaint on the defendants or tell the court why they cannot do so. Signed by Magistrate Judge Stephen L. Crocker on 3/12/2012. (Attachments: # 1 Procedure for serving individuals, # 2 Notice of lawsuit form, # 3 Waiver of summons form, # 4 Federal Rule of Civil Procedure 4, # 5 Wisconsin Statutes 801, # 6 Oneida County Summons) (jef),(ps)
Electronic reproduction of 2005−06 Wis. Stats. database, updated and current through Sept. 30, 2008 and 2007 Wis. Act 242.
Updated 05−06 Wis. Stats. Database
8
Not certified under s. 35.18 (2), stats.
COMMENCEMENT OF ACTION AND VENUE
801.095
Phone No: ....
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.
801.10 Summons, by whom served. (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.
(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.
(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.
(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.
(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:
(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.
(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.
(c) The written admission of the defendant, whose signature
or the subscription of whose name to such admission shall be presumptive evidence of genuineness.
History: Sup. Ct. Order, 67 Wis. 2d 585, 600 (1975); 1975 c. 218; Sup. Ct. Order,
92 Wis. 2d xiii (1979); 2005 a. 439.
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 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.
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]
A party is required to show strict compliance with the requirements of this section
when service is challenged. Dietrich v. Elliot, 190 Wis. 2d 816, 528 N.W.2d 17 (Ct.
App. 1995).
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.
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.
The trial court 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. Williams Corner Investors, LLC v. Areawide Cellular, LLC, 2004
WI App 27, 269 Wis. 2d 682, 676 N.W.2d 168, 03−0824.
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:
(1) NATURAL PERSON. Except as provided in sub. (2) upon a
natural person:
(a) By personally serving the summons upon the defendant
either within or without this state.
(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:
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;
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
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.
(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.
(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.
(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.
(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.
(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
Text from the 2005−06 Wis. Stats. database updated by the Legislative Reference Bureau. Only printed statutes are certified
under s. 35.18 (2), stats. Statutory changes effective prior to 10−2−08 are printed as if currently in effect. Statutory changes
effective on or after 10−2−08 are designated by NOTES. Report errors at (608) 266−3561, FAX 264−6948, http://www.legis.state.wi.us/rsb/stats.html
9
Electronic reproduction of 2005−06 Wis. Stats. database, updated and current through Sept. 30, 2008 and 2007 Wis. Act 242.
Updated 05−06 Wis. Stats. Database
COMMENCEMENT OF ACTION AND VENUE
801.12
Not certified under s. 35.18 (2), stats.
be made upon the guardian ad litem after appointment under s.
803.01.
(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.
(4) OTHER POLITICAL CORPORATIONS OR BODIES POLITIC. (a)
Upon a political corporation or other body politic, by personally
serving any of the specified officers, directors, or agents:
1. If the action is against a county, the chairperson of the
county board or the county clerk;
2. If against a town, the chairperson or clerk thereof;
3. If against a city, the mayor, city manager or clerk thereof;
4. If against a village, the president or clerk thereof;
5. If against a technical college district, the district board
chairperson or secretary thereof;
6. If against a school district or school board, the president or
clerk thereof; and
7. If against any other body politic, an officer, director, or
managing agent thereof.
(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.
(5) DOMESTIC OR FOREIGN CORPORATIONS OR LIMITED LIABILITY
COMPANIES, GENERALLY. Upon a domestic or foreign corporation
or domestic or foreign limited liability company:
(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.
(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).
(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.
(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).
(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.
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.
Cross−reference: As to service on corporation, see also s. 180.0504.
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]
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 2 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).
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).
“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 her 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).
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).
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).
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).
A county civil service commission is a “body politic” under sub. (4) (a) 7. Watkins
v. Milwaukee County Civil Service Comm. 88 Wis. 2d 411, 276 N.W.2d 775 (1979).
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 office” under sub. (5) (a).
Horrigan v. State Farm Ins. Co. 106 Wis. 2d 675, 317 N.W.2d 474 (1982).
“Reasonable diligence” under sub. (1) is discussed. Welty v. Heggy, 124 Wis. 2d
318, 369 N.W.2d 763 (Ct. App. 1985).
Indian tribal sovereignty is not infringed by service of process in a state action
made on tribal lands. Landerman v. Martin, 191 Wis. 2d 788, 530 N.W.2d 62 (Ct.
App. 1995).
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.
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.
Prom v. Sumitomo Rubber Industries, Ltd. 224 Wis. 2d 743, 592 N.W.2d 657 (Ct.
App. 1999), 98−0938.
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, Inc. 229 Wis. 2d 287, 599 N.W.2d 872 (Ct. App. 1999),
98−1314.
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 Corporation, 2002 WI App 271, 258 Wis. 2d 378, 654 N.W.2d 265,
01−3077.
Neither s. 801.02 (1) nor s. 801.11 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 officer as an individual. Useni
v. Boudron, 2003 WI App 98, 264 Wis. 2d 783, 662 N.W.2d 672, 02−1475.
Personal jurisdiction over a body politic may be obtained by service of the summons and complaint on an officer, director, or managing agent, or 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 and Pension Board, 2003 WI
56, 262 Wis. 2d 113, 663 N.W.2d 268, 01−3198.
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.
“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.
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.
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).
801.12 Jurisdiction in rem or quasi in rem, manner of
serving summons for; notice of object of action. (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:
(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
Text from the 2005−06 Wis. Stats. database updated by the Legislative Reference Bureau. Only printed statutes are certified
under s. 35.18 (2), stats. Statutory changes effective prior to 10−2−08 are printed as if currently in effect. Statutory changes
effective on or after 10−2−08 are designated by NOTES. Report errors at (608) 266−3561, FAX 264−6948, http://www.legis.state.wi.us/rsb/stats.html
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