Challenging Plaintiff’s Inappropriate Use of a 20 Day Summons—When and How to Do It

WDC Journal Edition: Winter 2012
By: Russell M. Ware, SmithAmundsen LLC

I. Introduction

A named defendant in a civil action who believes service of process has not been properly accomplished can raise an objection to jurisdiction in the answer or through pre-trial motion.[1] A potential basis for such an objection to jurisdiction is the insufficiency of the process document itself.[2] One way in which the process document—the summons—may be deemed insufficient would be if it states the wrong time in which an answer to a complaint is required.

In 2006, the Wisconsin Legislature created a system which provides for two different deadlines for answering a complaint, depending on the nature of the action.[3] In actions involving tort claims and claims against insurance companies or government-related defendants, a 45 day deadline for answer will apply,[4] while in all other actions a 20 day deadline will apply.[5]

Sometimes a defendant may decide the plaintiff’s inappropriate use of a 20 day summons is of no real importance. In other cases, however, the defendant may conclude that raising such a summons defect is crucial to the defense effort. This article will identify situations in which a vigorous objection to the incorrect use of a 20 day summons is advisable, and discuss how to effectively assert such objection in appropriate cases.

II. Situations Where the Defense May Choose Not to Challenge the Incorrect Use of a 20 Day Summons

In cases which are filed and in which service is attempted long before any applicable statute of limitations is about to expire, defense counsel may conclude that obtaining any dismissal of the action on “insufficiency of process” grounds accomplishes little—because the dismissal will be without prejudice, the plaintiff can simply re-file the action using a correct summons at any time prior to the expiration of the statute of limitations and so commence the action in a timely manner. In other situations, the statute of limitations’ anniversary date may have passed since the filing of the action, but the plaintiff may still have sufficient time within the 90 days allowed by Wis. Stat. § 801.02(1) for service to correct the summons error. If the plaintiff’s counsel sees the objection to the use of the 20 day summons in a defense motion or affirmative defense and asks defense counsel to withdraw the jurisdictional defense, defense counsel may rightly conclude that the alert plaintiff’s counsel will indeed timely file an amended summons—this time correctly stating the time for answer—and re-serve the defendant within the original 90 days allowed by Wis. Stat. § 801.02(1).[6] In either situation, defense counsel might, after consultation with the client, formally withdraw or merely decline to persist in an objection to jurisdiction based on the summons defect.

III. Situations Where the Defense Must Forcefully Challenge the Incorrect Use of a 20 Day Summons

Sometimes, however, the defense will choose to not only raise the summons defect by motion or affirmative defense, but also pursue the jurisdictional objection aggressively. This will likely be the case in one of three situations.

Situation 1: Where a Default Judgment Has Been Entered. In some cases, defense counsel’s first knowledge of a suit is a call from a client stating that the client failed to attend to the suit promptly, and that a default judgment has already been granted. If defense counsel learns that a 20 day summons was used where a 45 day summons was required, a challenge to jurisdiction may be the only basis for reopening the judgment. In such a situation, a vigorous challenge to the sufficiency of the summons is all but mandatory.

Situation 2: Where the Defendant May Be Subject to a Motion for Default Judgment. In other cases involving the incorrect use of a 20 day summons, defense counsel may learn that although no default judgment has been entered or sought, the statutory 45 days for answer has in fact expired. In such situations, unless the defendant can obtain a voluntary extension of time to answer, or demonstrate that the failure to answer in a timely way was the result of excusable neglect,[7] a successful challenge to the sufficiency of the 20 day summons may be the only way of defeating a plaintiff’s motion for default judgment.

Situation 3: Where the Use of a 20 Day Summons May Be Fatal to any Claim—Present or Future—by the Plaintiff. An aggressive challenge to the use of the 20 day summons may sometimes be used by the defense not as a shield (as in the case when a defendant is in default or at risk of default) but as a sword. This situation will arise where both the 90 day period for proper service under Wis. Stat. § 801.02 and the applicable statute of limitations have expired before the plaintiff can or does take any action to replace the 20 day summons with a 45 day summons. In such situations, if the service of the 20 day summons is held ineffective to commence the action, then even the mandated dismissal without prejudice will be fatal to the plaintiff’s claim, as any new action later filed by the plaintiff will be met with a statute of limitations defense.

In any one of these three situations, the defense should be ready to argue forcefully that use of a 20 day summons is ineffective to confer jurisdiction over a defendant. How to do this will be described below.

IV. Demonstrating the Fatal Insufficiency of a 20 Day Summons in a Case Where a 45 Day Summons Was Required

A. Summary of Suggested Defense Arguments

In asserting that the service of a 20 day summons does not confer personal jurisdiction in a matter where a 45 day summons is required, the defense must invoke the ruling of the Wisconsin Supreme Court in American Family Mut. Ins. Co. v. Royal Ins. Co.,[8] concerning the “fundamental versus technical” dichotomy to be used in Wisconsin in summons-defect cases. In American Family, the Wisconsin Supreme Court said that a summons which contained a fundamental defect was insufficient for all purposes to confer jurisdiction on a defendant, regardless of the circumstances of service or other facts in the case. If the defect was merely technical, said the court in American Family, a defect could be overlooked unless it was shown that the technical defect actually prejudiced the defendant.[9] This fundamental versus technical approach to determining the effect of a defect in a summons has continued to be applied in cases where the defect in the summons is the basis for a jurisdictional challenge.[10]

A strong argument can be made that a statement in the summons of an incorrect time for answer is a fundamental defect. It is said that a defect is fundamental if the presence of the defect defeats or fails to fulfill the purpose of the statute.[11] The purpose of a summons is said to provide notice to the defendant that an action has been commenced and to confer personal jurisdiction on the court.[12] Those portions of a summons which tell the defendant of the importance of answering, describe the manner in which an answer is to be transmitted, or specify the manner of calculating when an answer becomes due represent the very essence of what a summons is supposed to do. It follows, therefore, that any summons which neglects to tell the defendant the consequences of a failure to answer, or does not tell the defendant where to send the answer or when to answer, lacks fundamental—not minor or technical—elements of a proper summons.

In fact, the court should be reminded that any misstatement as to the time for answer is actually more fundamental than the defects that have already been declared fundamental—and therefore fatal—by the supreme court in American Family and its progeny. In American Family, the absence of a clerk’s authentication stamp was held to be a fundamental defect because it did not give the defendant the assurance of the genuineness of the document and its congruence with what was on file with the court. Then, in Schaefer v. Riegelman,[13] a defect in the signature on the summons (the signing lawyer was not licensed in Wisconsin) was held to be a fundamental defect. How much more fundamental than these defects is a defect which did not tell the defendant when or how to answer?

B. Anticipating and Overcoming the Plaintiff’s Arguments in Support of the 20 Day Summons

The plaintiff can be expected to argue that the inadvertent use of a 20 day summons is best called a mere technical defect because the defect is in reality minor and easily curable. This section discusses specific ways such arguments are likely to be phrased by the plaintiff and how they can be countered.

1. “The defendant probably knew that the time for answer was 45 days.”

This argument is a species of the “actual notice” argument sometimes made in improper service of process cases, wherein knowledge by the defendant of the pendency of the suit is offered by the plaintiff as a substitute for proper service of suit papers to the defendant. This argument has been rejected by Wisconsin courts. It has been specifically held that, if service of process is improper, actual notice on the part of the defendant of the pendency of the suit is insufficient to confer personal jurisdiction over a party.[14] Indeed, it has been said that “strict compliance” with the statutory scheme for acquiring personal jurisdiction is mandatory.[15] If a contrary approach were to be adopted, and the sophistication of or state of mind of the defendant were held a substitute for a proper summons, there would be no just and logical stopping point; under such approach, no service of any summons would be needed at all if actual notice of the filing of the lawsuit somehow reached the defendant!

2. “When no default judgment is being sought, rules for the contents of the summons should be relaxed.”

Under this approach, a plaintiff would argue that a court should apply different levels of scrutiny in examining the adequacy of a summons depending on which side in the suit is at risk for legal harm. If a defendant is faced with a default judgment for not answering within the 45 day statutory period (the argument by the plaintiff would go), the court should look with considerable scrutiny at the summons to see whether it contains a sufficiently “fundamental” defect. However, (the plaintiff may argue) if there is no claim that the defendant is in default, and if instead the defendant is seeking to dismiss the case with effective finality because only a 20 day summons was used, the court should relax the standard in assessing the sufficiency of the summons. It will be argued by plaintiffs in such cases that while the court may wish to avoid the harshness of a default judgment against a defendant never served with proper process, the court should avoid similar harshness on a plaintiff when dismissal of the action will result unless the summons is not given a “sympathetic” reading—i.e., unless the use of the 20 day period is found to be only technical.

The defense should argue that this variable-level-of-scrutiny argument should be rejected on its face. When the court looks at a summons and determines whether it is jurisdictionally adequate or not, the same rule should apply in all cases. Either the summons is a jurisdictionally-inadequate summons—that is, the defect is fundamental—or it is not. The same defect cannot be declared to be a technical defect in one case and a fundamental defect in another, depending on the context in which the summons is challenged and depending on which party in the lawsuit will be disappointed by the ruling. Such result-oriented analysis cannot be countenanced. It has in fact been specifically held that a failure to strictly comply with the statutory scheme for subjecting a defendant to jurisdiction cannot be ignored merely because the consequences of the failure—dismissal of the action—is harsh.[16]

3. “Pre-American Family authority supports a forgiving approach to such a 'time to answer' summons defect.”

Finally, plaintiffs may cite to the Canadian Pacific[17] case, in which the court of appeals held that the absence of any statement at all in the summons as to the time allowed for answer would not warrant dismissal. However, the defense must point out that Canadian Pacific long predated the adoption of the “fundamental/technical” test now to be used in Wisconsin since American Family. In Canadian Pacific, decided fourteen years before American Family, the court of appeals never made the now-mandatory analysis of whether the absence of any statement of the time for answer was fundamental or technical. In Canadian Pacific, the court said a factual finding that the defendant was not prejudiced by the failure of the summons to state the time for answer was sufficient and dispositive. Strikingly, under Canadian Pacific’s pre-American Family approach, the “no prejudice” test used would have required upholding the summons even if the defect had been a failure to have a proper authentication stamp—a defect we now know from American Family is fatal, regardless of the presence or absence of prejudice. This demonstrates the inapplicability of the old Canadian Pacific approach in a post-American Family world. Stated another way, the Canadian Pacific case and its toleration of the absence of a time for answer is no longer authoritative.

IV. Conclusion

An effective challenge to the incorrect use of a 20 day summons may avoid unfair default judgments and may, in some cases, lead to the dismissal of a case with finality on statute of limitations grounds. For these reasons, defense counsel must be ready to both recognize the incorrect use of a 20 day summons and, where appropriate, effe

[1] Wis. Stat. § 802.06(2)(a).

[2] Wis. Stat. § 802.06(2)(a)4.

[3] 2005 Wis. Act § 442 (effective 2006).

[4] Wis. Stat. § 801.09(2)(a)3.

[5] Wis. Stat. § 801.09(2)(a)1.

[6] Note that this original 90 days will still represent the outer limit for effective service of even the corrected summons. No case has been found supporting any suggestion by plaintiff’s counsel that filing an amended (corrected) summons within the original 90 days from the filing of the incorrect summons provides the plaintiff with an additional 90 day period to properly complete commencement of the action. Section 801.02(1) provides in part, “the 90 day period under s. 801.02 may not be enlarged . . . .” It seems unlikely that authority denied by statute to a circuit court—authority to enlarge the 90 days—would be given to a party who has simply amended the summons during the original 90 days.

[7] See Wis. Stat. § 801.15(2)(a); see also Wis. Stat. § 806.07(1)(a) (relief from judgment or order).

[8] 167 Wis. 2d 524, 481 N.W.2d 629 (1992).

[9] Id. at 533.

[10] Johnson v. Cintas Corp.No. 2, 2012 WI 31, 339 Wis. 2d 493, 811 N.W.2d 756; see also Schaefer v. Riegelman, 2002 WI 18, 250 Wis. 2d 494, 639 N.W.2d 715, and cases cited therein.

[11] See Jadair, Inc. v. United States Fire Ins. Co., 209 Wis. 2d 187, 208, 562 N.W.2d 401 (1997); see also Logic v. City of South Milwaukee Board of Canvassers, 2004 WI App 219, 277 Wis. 2d 421, 689 N.W.2d 692; Burnett v. Hill, 207 Wis. 2d 110, 123-25, 557 N.W.2d 187 (1997).

[12] Burnett, 207 Wis. 2d at 123; Royal Ins. Co., 167 Wis. 2d 524.

[13] Supra n.10.

[14] Johnson, 339 Wis. 2d 493; see also Danielson v. Brody Seating Co., 71 Wis. 2d 424, 429, 238 N.W.2d 531 (1976); Welty v. Heggy, 124 Wis. 2d 318, 322, 369 N.W.2d 763 (Ct. App. 1985).

[15] Johnson, 339 Wis. 2d 493; 519 Corporation v. State Department of Transportation, 92 Wis. 2d 276, 284 N.W.2d 643 (1979); Danielson, 71 Wis. 2d at 429; Bendimez v. Neidermire, 222 Wis. 2d 556, 588 N.W.2d 55 (Ct. App. 1998); Mech v. Borowski, 116 Wis. 2d 683, 342 N.W.2d 759 (Ct. App. 1983).

[16] American Family, 167 Wis. 2d 524; Mech, 116 Wis. 2d 683.

[17] Canadian Pac. Ltd. v. Omark-Prentice Hydraulics, 86 Wis. 2d 369, 272 N.W.2d 407 (Ct. App. 1978).