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Council to file proposal to modify state’s default judgment rule

The Judicial Council will be asking the Wisconsin Supreme Court to change the state’s default judgment rule so defendants may file a motion for default judgment when an opposing party fails to answer a counterclaim or cross-claim.

The council, a 21-member independent body charged with studying changes to the state’s court procedures, approved the filing of the rules-change petition at its meeting last week.

The state’s default judgement rule, Wis. Stat. 806.02, allows a plaintiff to obtain a default judgement against a defendant who is properly served but ignores or doesn’t answer a complaint. In doing so, the defendant admits to the allegations pleaded in the complaint.

But the statute is silent on what happens if a party, typically a plaintiff or third party, fails to respond to a counterclaim or cross claim.

The council is proposing amending Wis. Stat. 806.02 to allow courts to grant a party default judgment when an opposing party fails to respond to a counterclaim or cross-claim.

“We can’t think of a reason why it shouldn’t be the case,” member Tom Shriner said. “It’s a different situation because the parties have already appeared before the court and already have lawyers.”

He said the amendment cures an anomaly in the law that has been pointed out by the Court of Appeals over the years. The legislature, he noted, was told 28 years ago about the problem, but hasn’t done anything about it.

“It’s not something you can’t live without, but there ought to be authority to do it,” Shriner said. “It provides what Rule 55 does in federal court cases.”

The council, at its meeting Friday, gave its blessing to its evidence and civil procedure committee to draft proposed legislation that would update Wisconsin’s unsworn declarations statute, Wis. Stat. 887.015, so that it extends not just to unsworn declarations made by people in other countries but also such declarations made within the U.S.

The goal is to introduce the proposal in the next legislative session.

Shriner noted that Wis. Stat. 887.015 was enacted in 2009, before the Uniform Law Commission changed its mind and decided to recommend that states put no limit on the use of unsworn declarations based on the location of the person making the declaration.

Changing Wisconsin’s rule would make it easier on practitioners because, under the commission’s new version of the Uniform Unsworn Declarations Act, there would be no need to have to notarize an unsworn statement; lawyers would only need a person’s signature before filing and serving it. The issue often comes up in civil practice, when making motions for summary judgment or filing answers to interrogatories.

“We want to bring Wisconsin to the modern age entirely,” Shriner said.  “We’re only halfway there with regard to overseas practice and what’s done in federal court.”


About Erika Strebel, [email protected]

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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