Oct. 10, 2018 – The Wisconsin Supreme Court is holding a public hearing tomorrow morning on a petition that would allow parties filing counterclaims or cross claims to move for a default judgment when an opposing party fails to timely reply.
Currently, Wis. Stat section 806.02 only grants plaintiffs the right to move for default judgment if the defendant timely fails to reply to a complaint. A 1990 Wisconsin Court of Appeals decision concluded that a defendant does not have standing to move for default judgment if the plaintiff fails to reply to defendant’s counterclaim.
The Wisconsin Judicial Council requests a modification through petition 18-03, submitted to the Wisconsin Supreme Court in April. The supreme court has rulemaking authority to create and modify rules and statutes of pleading, practice, and procedure.
“Section 806.02 permits a plaintiff to obtain a default judgment against a defendant who fails to comply with § 802.06(1), but it does not permit any other party to obtain a default judgment when an opposing party fails to comply with § 802.06(1) by failing to file a timely response to a counterclaim or cross claim,” a supporting memo notes.
“The Committee could find no logical basis for this disparity,” the memo continues, referring to the Judicial Council’s Evidence & Civil Procedure Committee, which also noted that federal rules allow defendants to obtain default judgments against plaintiffs.
The State Bar’s Litigation Section Board voted to support the petition, and the State Bar’s Board of Governors voted to support the petition at its last board meeting.