2023 Wisconsin Statutes & Annotations › Chapter 801 - Civil procedure — commencement of action and venue. › 801.02 - Commencement of action.

801.02
Commencement of action.
(1)
A civil action in which a personal judgment is sought is commenced as to any defendant when a summons and a 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.
(2)
A civil action in which only an in rem or quasi in rem judgment is sought is commenced as to any defendant when a summons and a complaint are filed with the court, provided service of an authenticated copy of the summons and of either the complaint or a notice of object of action under s. 801.12 is made upon the defendant under this chapter within 90 days after filing.
(3)
The original summons and complaint shall be filed together. The authenticated copies shall be served together except:
(a)
In actions in which a personal judgment is sought, if the summons is served by publication, only the summons need be published, but a copy of the complaint shall be mailed with a copy of the summons as required by s. 801.11, and;
(b)
In actions in which only an in rem or quasi in rem judgment is sought, the summons may be accompanied by a notice of object of action pursuant to s. 801.12 in lieu of a copy of the complaint and, when the summons is served by publication, only the summons need be published, but a copy of the complaint or notice of object of action shall be mailed with the copy of the summons as required by s. 801.12.
(4)
No service shall be made under sub. (3) until the action has been commenced in accordance with sub. (1) or (2).
(5)
An action seeking a remedy available by certiorari, quo warranto, habeas corpus, mandamus or prohibition may be commenced under sub. (1), by service of an appropriate original writ on the defendant named in the writ if a copy of the writ is filed forthwith, or by filing a complaint demanding and specifying the remedy, if service of an authenticated copy of the complaint and of an order signed by the judge of the court in which the complaint is filed is made upon the defendant under this chapter within the time period specified in the order. The order may specify a time period shorter than that allowed by s. 802.06 for filing an answer or other responsive pleading.
(6)
Fees payable upon commencement of a civil action shall be paid to the clerk at the time of filing.
(7)
(a)
In this subsection:
1.
“Correctional institution" means any state or local facility that incarcerates or detains any adult accused of, charged with, convicted of, or sentenced for any crime. A correctional institution includes a Type 1 prison, as defined in s. 301.01 (5), a Type 2 prison, as defined in s. 301.01 (6), a county jail and a house of correction.
2.
“Prisoner" means any person who is incarcerated, imprisoned or otherwise detained in a correctional institution or who is arrested or otherwise detained by a law enforcement officer. “Prisoner" does not include any of the following:
a.
A person committed under ch. 980.
b.
A person bringing an action seeking relief from a judgment terminating parental rights.
c.
A person bringing an action seeking relief from a judgment of conviction or a sentence of a court, including an action for an extraordinary writ or a supervisory writ seeking relief from a judgment of conviction or a sentence of a court or an action under s. 809.30, 809.40, 973.19, 974.06 or 974.07.
d.
A person bringing an action under s. 809.50 seeking relief from an order or judgment not appealable as of right that was entered in a proceeding under ch. 980 or in a case specified under s. 809.30 or 809.40.
e.
A person who is not serving a sentence for the conviction of a crime but who is detained, admitted or committed under ch. 51 or 55 or s. 971.14 (2) or (5).
3.
“Prison or jail conditions" means any matter related to the conditions of confinement or to the effects of actions by government officers, employees or agents on the lives of prisoners.
(b)
No prisoner may commence a civil action or special proceeding, including a petition for a common law writ of certiorari, with respect to the prison or jail conditions in the facility in which he or she is or has been incarcerated, imprisoned or detained until the person has exhausted all available administrative remedies that the department of corrections has promulgated by rule or, in the case of prisoners not in the custody of the department of corrections, that the sheriff, superintendent or other keeper of a jail or house of correction has reduced to writing and provided reasonable notice of to the prisoners.
(bm)
A prisoner commencing an action or special proceeding shall first comply with the provisions of s. 893.80 or 893.82 unless one of the following applies:
1.
The prisoner is filing a petition for a common law writ of certiorari.
2.
The prisoner is commencing an action seeking injunctive relief and the court finds that there is a substantial risk to the prisoner's health or safety.
(c)
At the time of filing the initial pleading to commence an action or special proceeding, including a petition for a common law writ of certiorari, related to prison or jail conditions, a prisoner shall include, as part of the initial pleading, documentation showing that he or she has exhausted all available administrative remedies. The documentation shall include copies of all of the written materials that he or she provided to the administrative agency as part of the administrative proceeding and all of the written materials the administrative agency provided to him or her related to that administrative proceeding. The documentation shall also include all written materials included as part of any administrative appeal. The court shall deny a prisoner's request to proceed without the prepayment of fees and costs under s. 814.29 (1m) if the prisoner fails to comply with this paragraph or if the prisoner has failed to exhaust all available administrative remedies.
(d)
If the prisoner seeks leave to proceed without giving security for costs or without the payment of any service or fee under s. 814.29, the court shall dismiss any action or special proceeding, including a petition for a common law writ of certiorari, commenced by any prisoner if that prisoner has, on 3 or more prior occasions, while he or she was incarcerated, imprisoned, confined or detained in a jail or prison, brought an appeal, writ of error, action or special proceeding, including a petition for a common law writ of certiorari, that was dismissed by a state or federal court for any of the reasons listed in s. 802.05 (4) (b) 1. to 4. The court may permit a prisoner to commence the action or special proceeding, notwithstanding this paragraph, if the court determines that the prisoner is in imminent danger of serious physical injury.
History:  Sup. Ct. Order, 67 Wis. 2d 585, 589 (1975); 1975 c. 218; 1981 c. 289, 317; 1995 a. 27; 1997 a. 133, 187; 2001 a. 16; Sup. Ct. Order No. 03-06A, 2005 WI 86, 280 Wis. 2d xiii; 2007 a. 20; 2015 a. 55.
Judicial Council Note, 1981: Sub. (1) is amended to allow an action seeking an extraordinary remedy to be commenced in the same manner as any other civil action. Sub. (5) allows the additional option of using an order to shorten the time for filing a response to the complaint in lieu of a summons. This option is for the emergency situation when the case may be moot before a response would be filed. The order serves the same purpose as the alternative writ and the order to show cause used to initiate the action under writ procedures. In all other matters of procedure, the rules of civil procedure govern to the extent applicable. Sub. (5) applies only to procedure in the circuit court. In seeking an extraordinary remedy in the supreme court or court of appeals, s. 809.51, stats., should be followed. [Bill 613-A]
Pursuant to sub. (5), a certiorari action may be commenced in three ways: 1) under sub. (1) by summons and complaint; 2) by service of an appropriate writ; or 3) by filing a complaint and serving it along with an order, in lieu of a summons, upon the defendant. Nickel River Investments v. LaCrosse Review Board, 156 Wis. 2d 429, 457 N.W.2d 333 (Ct. App 1990). See also Tobler v. Door County, 158 Wis. 2d 19, 461 N.W.2d 775 (1990).
The test to determine whether defects in summons and complaints are fatal is set forth. The trial court has jurisdiction if the error is technical and the complainant can show that the defendant was not prejudiced. When the error is fundamental, no jurisdiction may attach. American Family Mutual Insurance v. Royal Ins. Co., 167 Wis. 2d 524, 481 N.W.2d 629 (1992).
A summons that designated an attorney to receive the defendant's answer, but was signed by the plaintiff, was technically defective and did not deprive the court of personal jurisdiction. Dungan v. County of Pierce, 170 Wis. 2d 89, 486 N.W.2d 77 (Ct. App. 1992).
Sub. (1) applies to the service of amended complaints. Archambault v. A-C Product Liability Trust, 205 Wis. 2d 400, 556 N.W.2d 392 (Ct. App. 1996), 95-3266.
A summons served by publication under sub. (3) must be authenticated. When an authenticated copy of the summons was published, but an unauthenticated copy was mailed, together with authenticated copies of the original summons and complaint, there was a technical, but no fundamental, error. Burnett v. Hill, 207 Wis. 2d 110, 557 N.W.2d 800 (1997), 94-2011.
An inmate challenging the calculation of his mandatory release date is not seeking relief from a judgment of conviction or a sentence of a court, does not fall within sub. (7) (a) 2. c., and is therefore a “prisoner" within the meaning of sub. (7) who must comply with the requirements of that subsection. State ex rel. Stinson v. Morgan, 226 Wis. 2d 100, 593 N.W.2d 924 (Ct. App. 1999), 98-2971.
For a document to be filed, it must be properly deposited with the clerk under s. 59.40 (2). “Properly" connotes complying with formality or correctness, but is not susceptible to exact definition. The delivery of papers to the clerk at his home after business hours was too far removed from legislative guidelines to be considered properly deposited. Granado v. Sentry Insurance, 228 Wis. 2d 794, 599 N.W.2d 62 (Ct. App. 1999), 98-3675.
The sub. (7) (d) dismissals rule does not apply when a prisoner has sufficient prison trust funds to pay the filing fee in full. A court order under s. 814.29 (1m) (d) is required to release the funds. State ex rel. Coleman v. Sullivan, 229 Wis. 2d 804, 601 N.W.2d 335 (Ct. App. 1999), 98-2599.
The definition of “correctional institution" in sub. (7) (a) 1. does not include an out-of-state county jail and therefore a Wisconsin inmate sent to such a jail is not a prisoner under sub. (7) (a) 2. State ex rel. Speener v. Gudmanson, 2000 WI App 78, 234 Wis. 2d 461, 610 N.W.2d 136, 99-0568.
Sub. (7) (d), as applied to the petitioner, did not violate the constitutional guarantees of access to the courts or equal protection. State ex rel. Khan v. Sullivan, 2000 WI App 109, 235 Wis. 2d 260, 613 N.W.2d 203, 99-2102.
A petitioner who seeks to overturn the revocation of probation by a writ of certiorari is a prisoner under sub. (7) (a) 2. A probation revocation is not analogous to a judgment of conviction or a sentence, and a writ of certiorari challenging revocation is not subject to the exclusion under sub. (7) (a) 2. c. State ex rel. Cramer v. Wisconsin Court of Appeals, 2000 WI 86, 236 Wis. 2d 473, 613 N.W.2d 591, 99-1089.
An appeal is not included in “any action or special proceeding" that is subject to dismissal under sub. (7) (d). State ex rel. Adell v. Smith, 2000 WI App 188, 238 Wis. 2d 655, 618 N.W.2d 208, 00-0070.
Former sub. (7), 1995 stats., did not apply to a petition for a writ of certiorari seeking judicial review of a probation revocation by the Department of Administration. State ex rel. Mentek v. Schwarz, 2001 WI 32, 242 Wis. 2d 94, 624 N.W.2d 150, 99-0182.
The requirement of exhaustion of administrative remedies under sub. (7) (b) is applicable to a case advancing a constitutional challenge. There is no common law futility exception. This section also controls over s. 227.40, which in some cases allows obtaining a declaratory judgment without exhausting all administrative remedies. State ex rel. Hensley v. Endicott, 2001 WI 105, 245 Wis. 2d 607, 629 N.W.2d 686, 00-0076.
Neither sub. (1) nor s. 801.11 allows a defendant who is being sued in a dual capacity, personally and officially, to be served in only one of those capacities. When an officer of a company received service on behalf of the company, receiving one copy of a summons and complaint, but was not served as an individual, although named individually, there was no jurisdiction over him as an individual. Useni v. Boudron, 2003 WI App 98, 264 Wis. 2d 783, 662 N.W.2d 672, 02-1475.
Sub. (7) (d) plainly provides that a dismissal must be of an appeal, writ of error, action, or special proceeding to be counted as a dismissal, and a partial dismissal—i.e., the dismissal of a claim or claims from a suit that proceeds on one or more viable claims—is not the dismissal of an action. Thus, a partial dismissal cannot be counted as dismissal of an action under sub. (7) (d). Henderson v. Raemisch, 2010 WI App 114, 329 Wis. 2d 109, 790 N.W.2d 242, 09-1850.
When the complaint served on the defendant was unsigned, even though it was nonetheless authenticated by the clerk of courts, and the complaint on file with the trial court was signed, the filing of the signed summons and complaint properly commenced the lawsuit, and the authenticated copy served on the defendant gave the defendant sufficient notice to that effect. Mahoney v. Menard Inc., 2011 WI App 128, 337 Wis. 2d 170, 805 N.W.2d 728, 10-1637.
A plaintiff need not demonstrate the existence of an emergency in order to initiate a certiorari action using the complaint and order method under sub. (5). Koenig v. Pierce County Department of Human Services, 2016 WI App 23, 367 Wis. 2d 633, 877 N.W.2d 632, 15-0410.
Under sub. (5), it is the filing of a complaint that matters for purposes of determining whether a certiorari action was commenced within the applicable time limitation, not the obtaining and serving of an order. Koenig v. Pierce County Department of Human Services, 2016 WI App 23, 367 Wis. 2d 633, 877 N.W.2d 632, 15-0410.
Timely Service Abroad in Diversity Suits. La Fave. Wis. Law. Nov. 2000.