Service of Process: Capitalizing on Statutory Requirements to Attack the Plaintiff’s Case

WDC Journal Edition: Summer/Fall 2008
By: Laura Lyons

The filing of a lawsuit is both the end of the plaintiff’s informal investigation period and the beginning of the defendant’s case. By the time the documents are filed with the court, plaintiff’s counsel has already investigated the claim and planned a course of action. Defense counsel is often unfamiliar with a case until receipt of the summons and complaint.

Service of process might be considered a mere formality in providing the papers to the defense. It should not be. Rather, service of process should also be viewed as an early avenue of attacking the plaintiff’s case. The details of each service of process are important. If investigated, they can lead to information that could have a large, if not definitive, effect on a case Given the complexities of the rules regarding service of process, they should be examined in detail. This article will focus on issues relating to personal service on an individual.

Pertinent statutes

Service of process is the manner in which a defendant is alerted to the plaintiff’s claim. Due process under the 14th Amendment of the United States Constitution and Section 801 of the Wisconsin Statutes requires that service be had to notify the defendant that an action is pending and to give the defendant and opportunity to be heard.[1] Service must be made in a manner prescribed by statute for valid exercise of personal jurisdiction.[2]

Several statutes relate to service of process. Proper commencement of a civil action is governed by Wis. Stat. § 801.02(1) (2005-06), which provides in part:

801.02 Commencement of an action.

(1) A civil action in which a personal judgment is sought is commenced as to any defendant when a summons and complaint naming the person as defendant are filed with the court, provided service of an authenticated copy of the summons and of the complaint is made upon the defendant under this chapter within 90 days after filing.

According to the Wisconsin Supreme Court, both filing and service are required to properly commence an action.[3] If the plaintiff has not satisfied the service requirement, the Court should dismiss the plaintiff’s claims against the insured for want of personal jurisdiction over the defendant.[4]

Section 801.11, Wis. Stat., sets forth the procedural grounds for serving a summons and complaint.[5] Personal jurisdiction is established in one of several ways, depending on the person or entity to be served.[6]


Methods of service on an individual

Section 801.11 sets forth the requirements for service of process on an individual.

The text of the statute states in pertinent part:

801.11 Personal jurisdiction, manner of serving summons for. A court of this state having jurisdiction of the subject manner 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 the 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,

lm. 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.

Section 801.10(1) addresses who may serve a summons. Any adult resident of the state who is not a party to the action can effect service of process.[7] Any adult resident 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 Wisconsin as well.[8] Service is to be made with “reasonable diligence.”[9]

Personal service

Service on the individual means “a direct and actual delivery of the papers to the defendant himself by the one making service.”[10] If the individual will not accept service, service is deemed effective if the papers are left either in the presence of the individual or where it is most likely to come to the individual’s attention.[11]

Substituted service

If service cannot be made on the individual directly, substituted service may be made on a family member over the age of 14 or a competent adult residing in the defendant’s “abode.”[12] Substituted service may also be made pursuant to the law of the state in which service is made.[13]

The requirements for service by publication are set forth in Wis. Stat. § 801.11(1)(c). Prior to resorting to service by publication, one must “exhaust with due diligence any leads of information reasonably calculated to make personal service possible.”[14] If the defendant is not personally served, the server shall state in the affidavit when, where and with whom the copy was left and state facts as show reasonable diligence in attempting to effect personal service on the defendant.[15]

Service by publication requires compliance with the statute: (1) the summons and complaint must be mailed to the defendant’s last known address prior to the first publication (unless it cannot be ascertained with due diligence[16]), and (2) the summons must be published as a class 3 notice under Chapter 985. Proof of publication is satisfied by an affidavit of printing, attaching a copy of the notice of publication and specifying the date of the insertion and the paper it in which it was published.[17] Proper legal publications for service of process in each Wisconsin county are listed in the Wisconsin Lawyer Directory under the “Courts and Selected State Offices” tab.

Two important terms in Wis. Stat. § 801.11(b) are undefined: “reasonable diligence” and “usual place of abode.” Fortunately, the case law provides some guidance.



Reasonable diligence

Reasonable diligence is required to justify substituted service or service by publication.[18] The “reasonable diligence” required under § 801.11 is generally met when a plaintiff exhausts information or “leads” reasonably calculated to effectuate personal service.[19] Reasonable diligence does not require “all possible diligence that may be conceived.”[20] As there is not exact definition of what constitutes reasonable diligence, factual analysis of each case is required.

For example, in Haselow v. Gauthier, the court upheld a trial court determination that plaintiff did not use “due diligence” in attempting to serve defendant personally before reverting to substituted service.[21] In that case, plaintiff’s process server was told that defendant did not reside at the address where service was attempted, and that defendant was residing in Hawaii. The court reasoned that plaintiff’s failure to verify or check locally among associates to find another local address did not satisfy the “reasonable diligence” standard imposed by statute.[22] The “reasonable diligence” required under § 801.11 includes pursuit of “leads or information reasonably calculated to make personal service possible.”[23]

Conversely, in Welty v. Heggy, the court concluded that plaintiffs’ counsel had exercised “reasonable diligence” in attempting to serve defendant personally, before resorting to service by publication.[24] In Welty, county sheriff’s deputies made repeated attempts to personally serve the defendant at his home, where they knew he resided at the time, and where it was obvious that the defendant was at the residence, but was evading the attempts at service.[25] The deputies made nineteen service attempts. The court concluded that such efforts satisfied the “reasonable diligence” standard.[26]

Below are brief examples from Wisconsin case law of distinctions drawn regarding reasonable diligence:

Reasonable Diligence

Not Reasonable Diligence

Nineteen (19) service attempts followed by service by publication where defendant was evading service of process. Welty,124 Wis. 2d at 325.

Leaving summons and complaint with spouse and not asking where the defendant was or attempting a second visit. Beneficial Finance Co. v. Lee, 37 Wis. 2d 263, 268-69, 155 N.W. 2d 153 (1967).

Two service attempts and substituting service on son where deputy has previously served defendant on 84 occasions and knew that further attempts would not be successful. Sprayer Supply, Inc. v. Feider, 133 Wis. 2d 397, 403-04, 395 N.W.2d 624 (Ct. App. 1986).

Obtaining information that plaintiff is in another state and substituting service without trying to find another local address. Haselow, 212 Wis. 2d at 580.

Leaving papers in an executive’s office with a person apparently in charge thereof. See, e.g., Danielson, 71 Wis. 2d at 430.

Also, leaving papers with an agent who has actual express authority to receive service of a summons on the principal's behalf. Mared Industries, Inc. v. Mansfield

277 Wis.2d 350, 376, 690 N.W.2d 835

(2005)

Two attempts on one day and substituting service by giving papers to brother without asking where the defendant could be found. Heaston v. Austin, 47 Wis. 2d 67, 74, 176 N.W.2d 309 (1970).

Usual place of abode

“Usual place of abode” is another undefined phrase in Section 801.11. There is relatively little case law on this particular issue. Wisconsin courts have held that one’s usual place of abode is a regular, fixed and permanent residence as distinguished from a temporary stopping or abiding place.[27] The phrase is viewed restrictively:

‘Place of abode’ is sometimes treated as synonymous with ‘domicile,’ or ‘residence.’ But ordinarily ‘usual place of abode’ is a much more restricted term than ‘residence,’ and means the place where the defendant is actually living at the time when service is made. Therefore, ‘usual place of abode’ means ‘present place of abode.’[28]

The issue of one’s “usual place of abode” may arise in cases involving students or persons with permanent addresses who are traveling or temporarily living elsewhere. There is little to no guidance on these issues in the case law. Seemingly, the court would have to make a determination based on the facts of the case.


Strict compliance with service requirements is mandated

The statutes regarding service of process are to be strictly enforced.[29] Even though failure to comply with the service requirements will result in a dismissal of the action and appear harsh under the circumstances, strict adherence to the procedural provisions is required.[30] Uniformity, consistency, and compliance with procedural rules are important aspects of the administration of justice. The requirements have further been described as “unbending.”[31]

Courts require strict compliance with the terms of statutory service. This is true even though the consequences may appear to be harsh.[32] As stated in Horrigan v. State Farm Ins. Co.:

This court has held that when a statute prescribes how service is to be made, compliance with the statute is required for personal jurisdiction even where the defendant has actual notice of the summons and complaint.[33]

Even if the defendant has knowledge of the action, the statute must be followed precisely. For instance, in Danielson v. Brody Seating Co., the Wisconsin Supreme Court held that the service of a summons in a manner prescribed by statute is a condition precedent to a valid exercise of personal jurisdiction, even though a different method might properly have been prescribed, and despite actual knowledge by the defendant.[34]

Plaintiffs must strictly obey the demands of the statutes or their entire claim is in jeopardy. In Wisconsin civil practice, close is not good enough. The Supreme Court has held that defects pertaining to the commencement of actions pursuant to § 801.02(1), Wis. Stat., constitute fundamental defects that are incurable by the law of substantial compliance.[35] Defects are either technical or fundamental-where the defect is technical, the court has personal jurisdiction only if the complainant can show the defendant was not prejudiced, and, where the defect is fundamental, no personal jurisdiction attaches regardless of prejudice or lack thereof.[36] Of note, the plaintiff may not “relate back” to correct prior errors, as relation back applies only to “commenced actions.”[37]

An example of a fundamental defect that the defendant should attack would be if the plaintiff failed to serve an authenticated copy of the summons and complaint. Failure to comply with Wis. Stat. § 801.09 is merely a technical defect.[38] As such, if there is an issue with form or content of the summons, the defendant will likely not persuade the court that there is a fundamental defect with the service. The burden is on the plaintiff, however, to show that the defect was technical and did not prejudice the defendant.[39]


Challenging service of process

Insufficiency of summons or process must be raised by motion, before pleading, or in a responsive pleading, otherwise it is deemed waived.[40] Insufficiency of service of process may also be raised as a response to a motion for default judgment.[41] Defense counsel should note that objections to personal jurisdiction may not be raised for the first time in an amended pleading.[42]

The burden of showing proper service is on the plaintiff. The court in American Family Mutual Insurance Co. v. Royal Ins. Co. of America held that the burden of proving that there was no defect in service lies with the party alleged to have served the defective pleading.[43]

Proof of personal or substituted personal service may be proved by one of the following: (1) the process server’s affidavit; (2) the sheriff or deputy’s certificate of service; or (3) the defendant’s written admission.[44] Proof of service may be made on an authenticated copy of the summons or in a separate document.[45] An affidavit from the process server must contain the following information:

1. The time and date of service;

2. The place and manner of service;

3. A statement that the server is an adult resident of the state where service was made (or IL, IA, MI or MN) and is not a party to the case;

4. A statement that the server knew the defendant to be the person named in the summons; and

5. A statement that the server delivered to and left with the defendant an authenticated copy of the summons.[46]

Of note, the statute states that the person making service is to deliver proof of service promptly; however, failure to do so does not affect the validity of the service.[47] The same is true for failure to endorse the summons.[48]

A process server’s fully completed affidavit of service creates a rebuttable presumption that the summons and complaint were properly served.[49] The defendant must present “clear and satisfactory proof” that rebuts the presumption to establish that he was not served.[50]

A defendant may establish that he was not served with a summons or complaint, even if an affidavit of service exists.[51] In practice, an affidavit may be obtained from the insured and attached to a brief in support of summary judgment. Counsel should be careful not to assert any legal conclusions in the insured or the defense attorney’s affidavit, however: legal assertions should only be set forth in the defendant’s brief.[52]


Potential basis for summary judgment

Improper service of process can have serious consequences for the plaintiff. Defendants may bring a motion for summary judgment under Wis. Stat. § 802.08. In Lak v. Richardson, the Supreme Court cited Heifetz v. Johnson for the proposition that:

In Wisconsin the running of the statute of limitations absolutely extinguishes the cause of action for in Wisconsin limitations are not treated as statutes of repose. The limitation of actions is a right as well as a remedy, extinguishing the right on one side and creating a right on the other, which is as of high dignity as regards judicial remedies as any other right and it is a right which enjoys constitutional protection...[53]

Thus, if the plaintiff has waited to file suit until the statute of limitations is about to expire, proper service of process is particularly important.[54] The plaintiff has 90 days to effect service of process after filing the summons and complaint.[55] If the plaintiff improperly serves the defendant and fails to remedy the error prior to the expiration of the 90 days, the claim may be barred.

In this scenario, the plaintiff would be unable to dismiss the suit without prejudice because the statute of limitations would have run. Time is therefore an important consideration for defense counsel when challenging service of process: it is advantageous to wait until both the statute of limitations and time for service have passed before bringing a motion for summary judgment. Counsel should take care that the service of process issue is addressed prior to any issue on the merits, however.[56]


Conclusions

Although the statutes and case law regarding service of process require strict compliance, important portions of them are open to interpretation and turn on the facts of each case. This gives both sides room for argument and may present hard questions for judges.

For instance, given the mobile nature of today’s society, it may be increasingly difficult for plaintiffs to find a defendant. Even if the plaintiff locates the defendant’s cell phone number, it may be impossible to locate the defendant’s place of abode (e.g. permanent address). Can the plaintiff allege that unreturned calls to the cell phone and subsequent substituted service will suffice? It is not clear from the case law or statute, but it appears that additional attempts would be needed to constitute reasonable diligence. The plaintiff would likely need to show that he attempted other avenues of service, such as performing investigative searches and contacting family members or previous neighbors (assuming a former address is known).

The statutes and case law present plaintiffs with strict requirements for effectuating service of process. Defense counsel should be sure to make sure that the plaintiffs have fulfilled them and be ready to attack if they have not.


[1] See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); Milwaukee County v. Schmidt, Garden & Erickson, 35 Wis. 2d 33, 37, 150 N.W.2d 354 (1967).

[2] See Danielson v. Brody Seating Co., 71 Wis. 2d 424, 429, 238 N.W.2d 3231 (1976).

[3] See Ness v. Digital Dial Comm’ns, Inc., 227 Wis. 2d 592, 602, 596 N.W.2d 365, 370 (1999).

[4] See Honeycrest Farms, Inc. v. Brave Harvestore Sys., Inc., 200 Wis. 2d 256, 262, 546 N.W.2d 192, 194-95 (Ct. App. 1996) (citing Hester v. Williams,117 Wis. 2d 634, 641, 345 N.W.2d 426, 429 (1984) (quoting Lak v. Richardson-Merrel, Inc., 100 Wis. 2d 641, 649, 302 N.W.2d 483; 487 (1981))).

[5] Note: this article assumes that the form of the summons and complaint is proper.

[6] Wis. Stat. § 801.11.

[7] See Wis. Stat. § 801.10(1).

[8] See Wis. Stat. § 801.10(1m).

[9] See Wis. Stat. § 801.10(1).

[10] See Danielson, 71 Wis. 2d at 429 (quoting Punke v. Brody, 17 Wis. 2d 9, 11-12, 115 N.W. 2d 601 (1962)).

[11] See Borden v. Borden, 63 Wis. 374, 377, 23 N.W. 573 (1885).

[12] See Wis. Stat. § 801.11(b)(1) and (1m); see also discussion, infra, p. 6.

[13] See Wis. Stat. § 801.11(b)(2).

[14] See West v. West, 82 Wis. 2d 158, 90, 262 N.W.2d 87 (1978).

[15] Wis. Stat. § 801.10(4)(a).

[16] Note: the phrase “due diligence” is sometimes used instead of “reasonable diligence.” It appears they have the same meaning: the terms are used interchangeably in Haselow v. Gauthier, 212 Wis. 2d 580, 569 N.W.2d 97 (Ct. App. 1997).

[17] See Wis. Stat. § 985.12.

[18] Danielson, 71 Wis. 2d at 427-28.

[19] See Haselow v. Gauthier, 212 Wis. 2d 580, 569 N.W.2d 97 (Ct. App. 1997).

[20] See id. at 589.

[21] Id.

[22] Id; see also, American Family Mut. Ins. Co. v. Royal Ins. Co. of America, 167 Wis. 2d 524, 533, 481 N.W.2d 629 (1992).

[23] West, 82 Wis. 2d at 166.

[24] Welty v. Heggy, 124 Wis. 2d 318, 325, 369 N.W.2d 763, 767 (Ct. App. 1985).

[25] Id.

[26] Id.

[27] See Caskey v. Peterson, 220 Wis. 690, 263 N.W. 658 (1935) (citing Healy v. Butler, 66 Wis. 9, 12, 27 N.W. 822 (1887)).

[28] See Caskey, 220 Wis. at 690 (citing Earle v. McVeigh, 91 U.S. 503, 23 L.Ed. 398; note, Ann. Cas. 1912C, 283).

[29] 519 Corp. v. Dep’t of Transp., 92 Wis. 2d 276, 287, 284 N.W.2d 643 (1979).

[30] Id. at 288.

[31] Id.

[32] Mech v. Borowski, 116 Wis. 2d 683, 342 N.W.2d 759 (Ct. App. 1983).

[33] Horrigan, 106 Wis. 2d 675, 681, 317 N.W.2d 474, 477 (1982) (citing 519 Corp., 92 Wis. 2d at 287, and Danielson, 71 Wis. 2d at 429).

[34] Danielson, 71 Wis. 2d at 428-29.

[35] See American Family, 167 Wis. 2d at 533-34; see also, Studelska v. Avercamp, 178 Wis. 2d 457, 464, 504 N.W.2d 125 (Ct. App 1993).

[36] Gaddis v. LaCrosse Products, Inc., 198 Wis. 2d 396, 401, 542 N.W.2d 454 (1996).

[37] See Wurtzler v. Miller, 31 Wis. 2d 310, 317, 143 N.W.2d 27, 30 (1966).

[38] See, e.g., Gaddis, 198 Wis. at 407; see also Cynthia L. Buchko et al., Wisconsin Civil Procedure Before Trial (3d. ed. 2007), Chapter 6 by the Honorable Michael N. Nowakowski, for a discussion of the differences between the two defects. The chapter is also an excellent guide to other service of process matters and issues.

[39] Dungan v. County of Pierce, 170 Wis. 2d 89, 98, 486 N.W.2d 579 (Ct. App. 1992)

[40] See Wis. Stat. § 802.06(2), (8)(a) and Honeycrest Farms, Inc., 200 Wis. 2d 256.

[41] See Wis. Stat. § 802.06 and Honeycrest Farms, Inc. v. A.O. Smith Corp. 169 Wis. 2d 596 (Ct. App. 1992).

[42] Honeycrest Farms, 200 Wis. 2d at 265. (Emphasis added).

[43] 167 Wis. 2d at 524.

[44] Wis. Stat. § 801.10(4)(a), (c).

[45] Wis. Stat. § 801.10(4)(a).

[46] Id.

[47] Wis. Stat. § 801.10(3).

[48] Wis. Stat. § 801.10(2).

[49] See Wis. Stat. § 891.18; Honeycrest Farms 169 Wis. 2d at 603.

[50] Honeycrest Farms 169 Wis. 2d at 603.

[51] Mullins v. LaBahn, 244 Wis. 76, 83, 11 N.W.2d 519 (1943).

[52] See, e.g., Maynard v. Port Publications, Inc., 98 Wis. 2d 555, 562, 297 N.W.2d 500 (1980).

[53] Lak, 100 Wis. 2d 641, 648, 302 N.W.2d 483, 486 (1981) (citing Heifetz v. Johnson, 61 Wis. 2d 111, 115, 211 N.W.2d 834 (1973) (internal citation omitted)).

[54] See Wis. Stat. § 893.54.

[55] See Wis. Stat. § 801.02(1).

[56] Wis. Stat. § 801.08(1).