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BENCH BLOG: Error in service-of-process dooms tort lawsuit

By: Jean DiMotto//January 8, 2015//

BENCH BLOG: Error in service-of-process dooms tort lawsuit

By: Jean DiMotto//January 8, 2015//

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Court of Appeals rules jurisdiction essential to case

Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler & Condon SC. She can be reached at [email protected].

The Wisconsin Court of Appeals has declared the fundamental importance of appropriate service of process to the viability of a lawsuit.

On Feb. 20, 2013, William O’Donnell filed a complaint in Waukesha County alleging an intentional tort against Roxanne Kaye. The authenticated summons and complaint were given to a process server to personally serve Kaye.

That server tried to serve Kaye at her residence in Muskego on six separate occasions between Feb. 23 and March 9. He varied the times of day for service from early morning to mid-evening.

Despite there being lights on during the evening attempts, there never was an answer. The server noted that the outside lights were on during every attempt except the first and that a garbage can was in the ditch. He reported that, based on a lack of tracks during that snowy winter, no one had arrived there or left since Feb. 25.

Rather than letting those six attempts serve as a springboard for substitute service by publication and mailing, O’Donnell hired another process server. That server made five unsuccessful attempts during three dates in mid-March. He, too, varied the times of day he attempted service.

O’Donnell also hired a private investigator. She watched the residence at different times on four separate dates in mid-March. There never was an answer at the front or back doors, nor was there any sign of anyone being home despite the outdoor lights being on.

The investigator noted there were two cars in the garage and Christmas decorations still on the front door and in the picture window. On her fourth unsuccessful attempt at service, she saw video cameras taped near the front and back doors.

Based on the 15 unsuccessful service attempts during four weeks, O’Donnell resorted to publication and mailing. He published pursuant to sec. 801.11(1)(c) and mailed an authenticated summons and complaint.

Motion to dismiss

Kaye never received the mailed summons and complaint. After hearing about the lawsuit, she paid for copies of them in the Waukesha County Courthouse. She filed an answer the first week of May.

She then moved to dismiss the suit for lack of personal jurisdiction due to insufficient service of process, first asserting that O’Donnell had failed to exercise reasonable diligence in serving her personally.

O’Donnell countered with three affidavits from the process servers and investigator about the 15 attempts at personal service.

Unsurprisingly, given the remarkable number of attempts, Waukesha County Circuit Judge J. Mac Davis found that O’Donnell had used reasonable diligence in attempting personal service and that substitute service was permissible.

Kaye next argued that the substitute service by mailing and publication was ineffective because the documents were mailed to the wrong address: W136 S7513 Fairfield Drive instead of W138 S7513 Fairfield Ave.

Davis stated that he had “no discretion” to disregard the mistake, and granted Kaye’s motion to dismiss.

O’Donnell moved for reconsideration on the basis that the error was technical and that Kaye was not prejudiced. To the contrary, Davis ruled that the error was “substantive” and affirmed his original order of dismissal.

O’Donnell appealed.

Court of Appeals

In an opinion by Court of Appeals Chief Judge Richard Brown, the court zeroed in on the defect in the service by mail. The question was whether that was a technical defect with no prejudice to the defendant or a fundamental defect requiring dismissal.

The court first looked at the purpose of the statutory mailing requirement in substitute service. The twofold purpose of the statute is to give the defendant notice of the suit and confer the court’s personal jurisdiction over the defendant.

Because it is jurisdictional, the statute must be complied with strictly. Failure to do so is a fundamental defect.

No jurisdiction is conferred when the defendant’s known address is not the one where the documents were mailed. Thus the typographical defect was fatal.


The opinion is short but forcefully worded. The mailing address error made the case one of first impression in Wisconsin, so its publication is important.

It’s a shame that the plaintiff, having taken extraordinary care with personal-service attempts, doomed his lawsuit with a careless mistake in the mailing address. Justice often is better served when a controversy is fully aired in a courtroom, rather than stopped at the threshold.

Nonetheless, as the opinion makes clear, appropriate and accurate service of process is a crucial component of a lawsuit. A court cannot act on the merits without personal jurisdiction over the defendant, and the only way to confer that jurisdiction is absolute compliance with the service of process statute.

The case is a strong dose of tough love for plaintiffs.


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