WISCONSIN RULES OF CIVIL PROCEDURE
In the state of Wisconsin, a process server license is not
required. However, all process servers
must be authorized by the county court in which he or she is serving. Any adult resident of the state where
service is made who is not a party to the action may serve an authenticated
copy of the summons. Service shall be
made with reasonable diligence.
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.
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 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).
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] Case Notes: 1. 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). 2. 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).
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:
i.
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
ii.
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
such 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 mentally 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 known to the plaintiff to be incompetent to have charge of the
person's affairs, then service of the summons shall 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:
i.
If the action is against a
county, the chairperson of the county board or the county clerk;
ii.
If against a town, the
chairperson or clerk thereof;
iii.
If against a city, the mayor,
city manager or clerk thereof;
iv.
If against a village, the
president or clerk thereof;
v.
If against a technical college
district, the district board chairperson or secretary thereof;
vi.
If against a school district
or school board, the president or clerk thereof; and
vii.
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. 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 defendant was not found, with no effort to learn where he
was, was not sufficient to support jurisdiction. Heaston v. Austin, 47 Wis.2d
67, 176 N.W.2d 309. Where a village is defendant, service is void if made upon
the clerk's wife in his absence. Town of Washington v. Village of Cecil, 53
Wis.2d 710, 193 N.W.2d 674. The words "apparently in charge of the
office" in (5) (a) refer 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 him, 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. Where 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 (5) is required to establish as a predicate that the
defendant entered into some consensual agreement with the plaintiff which
contemplated a substantial contact in Wisconsin. Afram v. Balfour, Maclaine,
Inc. 63 Wis.2d 702, 218 N.W.2d 288. Where affidavit of service under (5) (a)
did not identify person served as one specified in (5) (a), no presumption of
due service was raised. Danielson v. Brody Seating Co. 71 Wis.2d 424, 238
N.W.2d 531. Where husband could have ascertained wife's address by contacting
any one of several relatives and in-laws, prerequisite "due diligence"
for service by publication was not established, despite sheriff's affidavit.
West v. West, 82 Wis.2d 158, 262 N.W.2d 87. County civil service commission is
"body politic" under (4) (a) 7. Watkins v. Milwaukee County Civil
Service Comm. 88 Wis.2d 411, 276 N.W.2d 775 (1979). Exact identity and job
title of person upon whom service was made was not critical to issue of whether
person was "apparently in charge of office" under (5) (a). Horrigan
v. State Farm Ins. Co. 106 Wis.2d 675, 317 N.W.2d 474 (1982). See note to 62.13,
citing Gibson v. Racine Police & Fire Comm. 123 Wis.2d 150, 366 N.W.2d 144
(Ct. App. 1985). "Reasonable diligence" under (1) 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 369, 557 N.W.2d 829 (Ct. App. 1996).
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 (3). 63 Atty. Gen. 467. See note to 801.05,
citing Chilcote v. Shertzer, 372 F Supp. 86. NOTE: Section 801.11 (7) was
repealed by 1997 Wis. Act 140. Corrective legislation is pending.
801.13 SUMMONS;
WHEN DEEMED SERVED. A summons is
deemed served as follows:
1.
A
summons served personally upon the defendant or by substituted personal service
upon another authorized to accept service of the summons for the defendant is
deemed served on the day of service.
2.
A summons served by
publication is deemed served on the first day of required publication. History:
Sup. Ct. Order, 67 Wis.2d 585, 607 (1975).
805.07 SUBPOENA.
ISSUANCE AND SERVICE
Subpoenas shall be issued and served in accordance
with ch. 885. A subpoena may also be issued by any attorney of record in a
civil action or special proceeding to compel attendance of witnesses for
deposition, hearing or trial in the action or special proceeding.
SUBPOENA REQUIRING THE PRODUCTION OF
MATERIAL.
- A subpoena may
command the person to whom it is directed to produce the books, papers,
documents or tangible things designated therein.
- Notice of a
third-party subpoena issued for discovery purposes shall be provided to
all parties at least 10 days before the scheduled deposition in order to
preserve their right to object. If a third-party subpoena requests the
production of books, papers, documents or tangible things that are within
the scope of discovery under s. 804.01 (2) (a), those objects shall not be
provided before the time and date specified in the subpoena. The
provisions under this paragraph apply unless all of the parties otherwise
agree.
PROTECTIVE ORDERS.
Upon motion made promptly and in any event at or before the
time specified in the subpoena for compliance therewith, the court may (a)
quash or modify the subpoena if it is unreasonable and oppressive or (b)
condition denial of the motion upon the advancement by the person in whose
behalf the subpoena is issued of the reasonable cost of producing the books,
papers, documents, or tangible things designated therein.
885.01
SUBPOENAS, WHO MAY ISSUE.
The
subpoena need not be sealed, and may be signed and issued as follows:
1.
By any judge or clerk of a
court or court commissioner or municipal judge, within the territory in which
the officer or the court of which he or she is the officer has jurisdiction, to
require the attendance of witnesses and their production of lawful instruments
of evidence in any action, matter or proceeding pending or to be examined into
before any court, magistrate, officer, arbitrator, board, committee or other
person authorized to take testimony in the state.
2.
By the attorney general or any
district attorney or person acting in his or her stead, to require the
attendance of witnesses, in behalf of the state, in any court or before any
magistrate and from any part of the state.
3.
By the chairperson of any
committee of any county board, town board, common council or village board to
investigate the affairs of the county, town, city or village, or the official
conduct or affairs of any officer thereof.
4.
By any arbitrator, coroner,
medical examiner, board, commission, commissioner, examiner, committee or other
person authorized to take testimony, or by any member of a board, commission,
authority or committee which is authorized to take testimony, within their
jurisdictions, to require the attendance of witnesses, and their production of
documentary evidence before them, respectively, in any matter, proceeding or
examination authorized by law; and likewise by the secretary of revenue and by
any agent of the department of agriculture, trade and consumer protection.
5.
By the department of workforce
development or a county child support agency under s. 59.53 (5) in the
administration of ss. 49.145, 49.19, 49.22, 49.46 and 49.47 and programs
carrying out the purposes of 7 U.S.C. § 2011 to 2029. History: 1971 c. 164;
1973 c. 272, 305, 336; 1977 c. 29 s. 1650m (4); 1977 c. 305; 1979 c. 34; 1989
a. 56; 1993 a. 486; 1997 a. 191. Cross-reference: See s. 805.07 concerning
issuance of subpoenas by attorneys of record. See note to 71.74, citing State
v. Beno, 99 Wis.2d 77, 298 N.W.2d 405 (Ct. App. 1980). See note to 120.13,
citing Racine Unified School Dist. v. Thompson, 107 Wis.2d 657, 321 N.W.2d 334
(Ct. App. 1982). See note to 227.46, citing 68 Atty. Gen. 251.
885.03 SERVICE OF SUBPOENA.
Any subpoena may be served by any person by
exhibiting and reading it to the witness, or by giving the witness a copy
thereof, or by leaving such copy at the witness's abode.
885.04 MUNICIPAL JUDGE; SUBPOENA SERVED IN STATE.
A subpoena to require attendance before a
municipal judge may be served anywhere in the state if authorized by the
municipal judge, and shall require the attendance of any witness so served.
History: 1977 c. 305.History: 1993 a. 486.
In
Wisconsin, lobbyists and state officials are always active in transforming laws
concerning civil procedure. As a result,
state information offered on our website may have been amended recently. For contemporary process serving and civil
statutes, visit the official Wisconsin Judicial System Court website:
http://www.courts.state.wi.us/
