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  • September 15, 2017

    Filers Beware: Dangers Lurk in Commencing Civil Actions

    There are pitfalls and perils associated with properly commencing a civil action in Wisconsin. Michael Gill talks about those perils, and offers defenses to raise when defects exist.

    Michael W. Gill


    Commencing a civil lawsuit in Wisconsin and alleging defenses to it are basic tasks that all civil litigators should be able to perform. What may appear to be simple, however, has proven to be a vexing problem for civil litigators over the years.

    Here are some common traps awaiting civil litigators who commence and defend civil actions.

    The Basics of Commencing an Action: A Trap for the Unwary

    The statute controlling civil action commencement is Wis. Stat. section 801.02(1). It requires filing a summons and complaint that names the defendant(s), provided an authenticated copy of the summons and the complaint is served upon the defendant(s) pursuant to the service rules in Chapter 801 within 90 days.

    Michael Gill Michael Gill, Minnesota 1982, is a partner with Hale, Skemp, Hanson, Skemp & Sleik, La Crosse, where he specializes in civil trial work in the state and federal courts of Wisconsin and Minnesota.

    Filing a summons and a complaint before the applicable statute of limitations expires allows a party to preserve the claim(s) alleged, provided service is effectuated under the rules within the 90-day period.1

    Case law shows that, under a variety of circumstances, section 801.02(1) is a trap for the unwary.

    These traps include failing to serve an authenticated copy of the summons and complaint, and only serving an amended summons and complaint – as opposed to both the initially-filed and amended pleadings. These defects have been declared to be “fundamental” defects in the commencement of the action that deprive the court of jurisdiction.

    The Dichotomy: Fundamental versus Technical Defects

    The Wisconsin Supreme Court has recognized the distinction between fundamentally defective service – such that the court lacks personal jurisdiction over the defendant in the first instance – and merely technically defective service.2

    • If the defect is “fundamental,” then the court lacks personal jurisdiction over the defendant, regardless of whether the defect resulted in prejudice to the defendant.3

    • A “technical” defect, however, does not deprive the court of personal jurisdiction if the complainant can show that the defect did not prejudice the defendant.4 The burden rests on the complainant to show that the service defect was merely technical and did not prejudice the defendant.5

    In Am. Family Mut. Ins. v. Royal Ins.,6 the supreme court held that service of an unauthenticated photocopy of the summons and complaint that had been filed in the action constituted a fundamental error depriving the court of personal jurisdiction, regardless of prejudice. The court stated that the failure to comply with the literal requirements of section 801.02 was fatal and granted the motion to dismiss brought by the defendant served with the unauthenticated photocopy of the summons and complaint.

    This decision identified what would constitute a “technical” defect, which would not deprive the court of jurisdiction. If the clerk of court placed the wrong case number on the summons and complaint, e.g., giving the action a family law or criminal case number instead of a civil case number, the defect was deemed to be beyond the control of the complainant, and the complainant would be allowed to establish that the defendant was not prejudiced by the defect and the action should not be dismissed.7

    Practitioners should keep in mind that, even if the defect in the commencement of the action is only technical, the burden of proving that the defendant was not prejudiced still rests with the complainant.8 Therefore, even if the complainant’s attorney did not cause the defect, counsel should vigilantly identify defects and correct them.

    Service of Amended Pleadings: Am. Family Mut. Ins., Schlumpf, Bartels

    The Wisconsin Court of Appeals has been asked to determine whether or not service of an authenticated amended summons and an authenticated amended complaint constitutes proper commencement of an action under section 801.02(1).

    Previously, the supreme court held that serving only an amended summons and an amended complaint within the time permitted for service after the filing of the initial summons and complaint did constitute proper commencement of the action.9

    As discussed above, in Am. Family Mut. Ins. v. Royal Ins. Co., the supreme court established the dichotomy between fundamental and technical defects. Literal compliance with the requirements of section 801.02(1) was deemed to be “fundamental.” Since service of an amended summons and an amended complaint does not meet the strict requirements of section 801.02(1), Am. Family would seem to overrule Schlumpf v. Yellick.10

    The Schlumpf holding is further questioned by the case Bartels v. Rural Mut. Ins. Co.11 In Bartels, the plaintiff commenced an action the day before the statute of limitations was due to expire. The original summons and complaint named, among others, Rural Mutual Insurance Company as a defendant. The “original” summons and complaint was never served upon Rural Mutual. The plaintiffs later amended their summons and complaint, and then served Rural Mutual with the amended summons and complaint within 90 days after filing the amended summons.

    Although the Bartels court dealt with both “relation back” and “fundamental defect” in the commencement of an action, Bartels, like the Am. Family Mut. Ins. v. Royal Ins. Co. case before it, recognized that the failure to serve the summons and the complaint as required by section 801.02(1) was a fundamental defect.

    Original versus Amended Complaints: The Difference Matters

    More recently, the Wisconsin Court of Appeals in two unpublished decisions concluded that service of an amended summons and amended complaint without service of the original summons and complaint, constitutes a fundamental defect depriving the court of jurisdiction of the action.

    In Maas v. Am. Family Mut. Ins. Co.,12 the plaintiff served an amended summons and complaint upon the defendants, but not the original summons and complaint. The court found that this was a fundamental defect depriving the court of jurisdiction because the action had not been properly commenced.

    In Wahal v. Weiss,13 the District III Court of Appeals issued a per curiam decision holding that service in a timely fashion of an amended summons and complaint, but not the original summons and complaint, deprived the court of jurisdiction because the action was not properly commenced.

    Schlumpf: No Longer Applicable?

    Although Wahal cannot be cited for any purpose, it is noteworthy that the court specifically commented that reliance upon Schlumpf for the proposition that an action could be properly commenced by service of an amended summons and amended complaint was “entirely without merit.”

    The court noted that the distinction between “fundamental” and “technical” defects had been established by the supreme court in Am. Family Mut. Ins. v. Royal Ins. subsequent to the Schlumpf decision, and therefore Schlumpf was no longer applicable. The Wahal court went so far as to find that the appeal was frivolous and remanded the matter to the circuit court for a determination of costs and reasonable attorney’s fees in favor of the respondent.

    E-filing: No Effect on Commencement of Actions?

    Wisconsin courts have largely, if not exclusively, converted to electronic filing, pursuant to Wis. Stat. section 801.18. No case has yet determined whether the e-filing rules impact literal compliance with section 801.02(1).

    Section 801.18(5) addresses commencement of an action by e-filing and refers to an “initiating document,” rather than “a summons” and “a complaint.” Could this mean that service of an electronically filed amended summons and amended complaint would now constitute proper commencement of an action? This seems to be a doubtful proposition given the language contained in section 801.18(5).

    Authentication of the “initiating document” is still required. Section 801.18(5)(d) specifically states that 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. It also requires serving a notice on the responding party stating that the case has been electronically filed, together with instructions on how to use the e-filing system.

    Until the rules are further interpreted by our appellate courts, it should be assumed that failure to serve an authenticated copy of the summons and complaint, albeit by electronic authentication, and failure to serve “the summons” and “the complaint” remain fundamental defects that can result in dismissal of the action and statute of limitations problems.

    The fact that the e-filing rules refer to an initiating document, as opposed to a summons and complaint, may simply be an acknowledgment that not all civil actions are commenced by the filing of a summons and complaint.14

    Be Attentive to Potential Defects

    Defense attorneys need to be attentive to potential jurisdictional defenses due to the failure to properly commence an action under section 801.02.

    Wis. Stat. section 802.06(8) provides that the defenses of lack of jurisdiction over the person or the property, insufficiency of process, and untimeliness or insufficiency of service of process will be waived if a motion is not made before or with the responsive pleading, or if the defense is not alleged affirmatively.

    It is important for defense counsel to evaluate whether jurisdictional defects may exist for one of these reasons, and to assure that the responsive pleading includes the defense in motion form or by way of affirmative defense. General averments in the pleading have been deemed sufficient to preserve the jurisdictional defenses.15

    Conclusion: Literal Compliance is Prudent

    Proper commencement of a civil action in Wisconsin remains a potential trap for the unwary with potentially “harsh consequences,” as noted by the supreme court in Am. Family Mut. Ins. v. Royal Ins. Co. The prudent practitioner commencing an action should make sure that there is literal compliance with section 801.02(1). An attentive defense counsel must make sure that potential defenses are not inadvertently waived.

    This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section web pages to learn more about the benefits of section membership.


    1 Wis. Stat. section 801.02 has special rules for in rem and quasi in rem actions, as well as prisoner actions. Special rules apply to these less common cases and will not be addressed in this article.

    2 Johnson v. Cintas Corp. No. 2, 2012 WI 31, ¶ 26, 339 Wis.2d 493, 811 N.W.2d 756.

    3 Am. Family Mut. Ins. v. Royal Ins. Co., 167 Wis.2d 524, 533, 41 N.W.2d 629 (1992).

    4 Id.

    5 Id.

    6 Id.

    7 Id. at 534.

    8 Id. at 533.

    9 See Schlumpf v. Yellick, 94 Wis.2d 504, 288 N.W.2d 834 (1980). The holding in Schlumpf is of questionable viability at this time given more recent supreme court decisions and other indications from the appellate courts.

    10 94 Wis.2d 504, 288 N.W.2d 834 (1980).

    11 2004 WI App. 166, 275 Wis.2d 730, 687 N.W.2d 84.

    12 2002 WI App. 106, 344 Wis.2d 297, 821 N.W.2d 412, 2012 Wisc. App. LEXIS 607, *2-3 (unpublished).

    13 2016 WI App 57, 370 Wis. 2d 788, 882 N.W.2d 871, 2016 Wisc. App. LEXIS 353.

    14 Minor settlement approvals, appeals from administrative agencies, and other types of civil actions are initiated by the filing of documents other than a summons and complaint.

    15 Studelska v. Avercamp, 178 Wis.2d 457, 504 N.W.2d 125 (App. 1993).

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    Litigation Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Matthew Lein and Heather L. Nelson and review Author Submission Guidelines. Learn more about the Litigation Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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