2010AP1637 Mahoney v. Menard, Inc.

Listen to this article

Civil Procedure
Service of process; unsigned complaints

Where the complaint filed with the court was signed, it is not fundamental defect that the copy served on the defendant was not.

“Obviously, the copy of the summons and complaint received by Menards was not identical to the one filed in that it was missing signatures, so the clerk erred by authenticating the unsigned copy, and the attorney erred by failing to sign it. However, Menards has not alleged that its copy differed in any substantive way from the original. So, it is obvious to us that the copy of the summons and complaint Menards received gave it notice that the allegations contained within it were on file with the court. As we already explained, the purpose of the signature requirement was fulfilled in the signed complaint on file with the court. We cannot see how the purpose of the authentication requirement in WIS. STAT. § 801.02 was unfulfilled based on the missing signature alone. So, yes, there was a defect. But it was a technical defect, not a fundamental one. Mahoney asserts that the defect was not prejudicial, and Menards does not dispute that assertion, so we need go no further. See Mervosh v. LIRC, 2010 WI App 36, ¶10, 324 Wis. 2d 134, 781 N.W.2d 236 (arguments not refuted are deemed admitted).”

Affirmed.

Recommended for publication in the official reports.

2010AP1637 Mahoney v. Menard, Inc.

Dist. II, Kenosha County, Schroeder, J., Brown, J.

Attorneys: For Appellant: Fertl, Jeffrey S., Milwaukee; Lauritch, Melissa J., Milwaukee; For Respondent: Steinle, W. Timothy, Milwaukee

Full Text