Challenging Service of Process and Unique Issues Which Can Arise
Patricia Epstein Putney, Bell, Moore & Richter, S.C.

Defense attorneys should always pay close and careful attention to circumstances surrounding service of process when a new case comes in. Never assume service was properly effectuated. Far too often, process servers a) are unfamiliar with the strict statutory requirements of service; b) are familiar with the requirements but disregard them out of laziness or carelessness; and/or c) are untruthful on their affidavits of service (unfortunately something that happens too often). A careful analysis should be undertaken of the individuals and corporate entities who received the “summons and complaint” to ensure strict compliance. This includes prompt interviews of the individuals served to determine exactly how service was carried out, including where and how it was delivered, and whether the person served was authorized to accept service (for a corporate entity) or whether substitute service was appropriate. Since the client likely will be unfamiliar with whether service was proper, you need to ask the right questions and soon – before they forget.

If service of process is ever in question, it must be raised as an affirmative defense in the answer or it is waived.[1] This affirmative defense can include failure to serve an “authenticated” copy of the summons and complaint, or failure to properly comply with the strict and mandatory statutory provisions governing service on a natural person or corporate entity. If you have not yet confirmed the circumstances of service with your clients or have any reason to doubt the sufficiency of service, it is advisable to raise the affirmative defense. An affirmative defense can always be withdrawn later if you determine service was proper.

This Article will not focus upon the strict requirements for proper service of process under Wis. Stat. §§ 801.11(a)-(c). Rather, the focus of this Article is how best to proceed once you have reason to believe service was defective. In addition, the article will explore potential ramifications and concerns if you are unsuccessful in your pursuit of this defense on behalf of the client following an evidentiary hearing. Specifically, what can, or should you do when the judge concludes that your client has taken the stand and testified untruthfully?

I.              How to Proceed When You Have a Viable Service of Process Defense

 An initial determination must be made as to when the applicable statute of limitations will run. A plaintiff has 90 days from filing of the complaint to effectuate service.[2] If the lawsuit was filed shortly before the expiration of the statute of limitations, you should calculate that deadline carefully. A motion filed too early will defeat the purpose of securing dismissal as it gives the plaintiff ample time and opportunity to re-serve the defendant. Many forego the service defense on this basis if there is plenty of time for a process server to re-do it and get it right. However, this author always raises the defense where appropriate, even if there is plenty of time left, and calendars the expiration of the statute of limitations. Oftentimes, affirmative defenses are overlooked by busy plaintiffs’ attorneys. This affirmative defense is simply too important to give up.

Once you have determined that you have a valid argument that service was defective, and when the time is right, you file a motion on this basis. This can be done in lieu of an answer or more typically, after the answer is filed preserving the affirmative defense; either is appropriate – it depends on the timing. There is some dispute as to whether this should be fashioned as a motion to dismiss under Wis. Stat. § 802.06[3] or a summary judgment motion under Wis. Stat. § 802.08. In a recent matter the author handled, the judge converted the motion to dismiss to a summary judgment motion because affidavits were filed in support. It is well established that trial courts have the authority to convert a motion to dismiss to a motion for summary judgment when matters outside of the pleadings are considered.[4] Wis. Stat. § 802.06(2)(b) simply requires the Court to provide the parties with reasonable notice that it will or might convert a motion to dismiss into a motion for summary judgment, but it does not require the Court to request additional briefs or affidavits.[5] It is recommended that in the motion, you reserve the right to file a summary judgment on the merits at a later date to preserve the right to do so (since this is a threshold jurisdictional issue, there should be no argument that one has waived a dispositive summary judgment motion).

If it is a situation of ‘he said/she said,’ which is often the case, an evidentiary hearing is envisioned and appropriate under the Wisconsin statutes. Wis. Stat. § 802.06 (4) provides that: “The hearing on the defense of lack of jurisdiction over the person or property shall be conducted in accordance with s. 801.08.” Wis. Stat. § 801.08(1) provides that:

All issues of fact and law raised by an objection to the court's jurisdiction over the person or property as provided by s. 802.06 (2) shall be heard by the court without a jury in advance of any issue going to the merits of the case. If, after such a hearing on the objection, the court decides that it has jurisdiction, the case may proceed on the merits; if the court decides that it lacks jurisdiction, the defendant shall be given the relief required by such decision.[6]

This express statutory scheme allows the judge to make a credibility determination as to the service of process issue. Notably, the burden of proof at such a hearing lies with the plaintiff when a defendant challenges service.[7] However, the affidavit of service by the process server is afforded a statutory advantage or presumption as the statute states that “personal or substituted personal service shall be proved by the affidavit of the server….” This language arguably shifts the burden of proof to the defense in an evidentiary hearing when service is challenged.

Wis. Stat. § 802.06(2) also provides that “(f)actual determinations made by the court in determining the question of personal jurisdiction over the defendant shall not be binding on the parties in the trial of the action on the merits.”[8] A reasonable interpretation of this provision is that when the court assesses the credibility of witnesses and makes factual determinations to resolve the threshold issue of personal jurisdiction, it is not unlawfully usurping power from the jury. If the case proceeds to trial, the jury will be permitted to reach its own credibility determinations at trial in regard to the merits of the underlying action.

II.            What Problems Arise if Defendant Loses the Evidentiary Hearing on Service of Process?

You file your motion and ask for an evidentiary hearing where the judge must decide the credibility of the witnesses. The witnesses will generally include the defendant, any witnesses involved in the attempted service (e.g., a spouse), and the process server. It is wise to subpoena the process server to the hearing unless your adversary agrees to produce him or her in writing. If you prevail, your clients are dismissed and the case either goes on with the remaining parties or is dismissed outright if none remain. But what happens if you lose?

By filing your motion to dismiss based on defective service, you have expressly authorized and asked the circuit court judge to rule upon the credibility of the witnesses to decide the jurisdictional issue. If you put a defendant on the stand and perhaps supporting witnesses as well, such as a spouse who was present during the service attempt, and if the court chooses to believe the process server over your client, this inherently means that the court has concluded that your client has been untruthful on the stand.

How do you move forward with the same judge who has decided that your client has been untruthful? That presents quite the quandary. If your case is being tried to a jury, you could rationalize that it will be the jury ultimately deciding your client’s credibility later on. If it is a bench trial, however, you have a problem. Even if it is a jury case, however, additional issues may come up during trial which hinge on your client’s testimony and credibility. What do you do? How do you advocate for your client in this scenario?

III.          Whether or Not to Seek Judicial Recusal

An obvious thought that comes to mind is whether the judge – who concluded that your client was untruthful on the stand – should recuse him or herself. But the recusal standard in this situation is entirely determined by the judge. And if you request that the judge recuse him or herself, and the request is denied, you run the risk of incurring the ire of a judge who already thinks your client is a liar. So, the judge will thereafter potentially be mad at your client and at you. Not a great situation as the litigation continues.

Wis. Stat. § 757.19(2) sets forth circumstances under which a judge must disqualify him or herself from proceedings. It states:

                        757.19  Disqualification of judge.

… (2) Any judge shall disqualify himself or herself from any civil or criminal action or proceeding when one of the following situations occurs:

(a) When a judge is related to any party or counsel thereto or their spouses within the 3rd degree of kinship.

(b) When a judge is a party or a material witness, except that a judge need not disqualify himself or herself if the judge determines that any pleading purporting to make him or her a party is false, sham or frivolous.

(c) When a judge previously acted as counsel to any party in the same action or proceeding.

(d) When a judge prepared as counsel any legal instrument or paper whose validity or construction is at issue.

(e) When a judge of an appellate court previously handled the action or proceeding while judge of an inferior court.

(f) When a judge has a significant financial or personal interest in the outcome of the matter. Such interest does not occur solely by the judge being a member of a political or taxing body that is a party.

 (g) When a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.[9]

The Wisconsin Supreme Court has held that subsections (a)-(f) contain objective standards that require recusal if established, but subsection (g) contains a standard that is determined entirely by the judge.[10] Subsection (g) requires disqualification “only when that judge makes a determination that, in fact or in appearance, he or she cannot act in an impartial manner.”[11] In other words, under subsection (g), the self-disqualification is subjective, and a judge must disqualify herself from a case if she subjectively determines, in fact or appearance, that she is unable to remain impartial.[12]

Of note, “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.”[13] Further, opinions formed by the judge based on facts introduced or events occurring, during current or prior proceedings, do not establish a basis for a bias or partiality motion unless they demonstrate a “deep-seated favoritism or antagonism that would make fair judgment impossible.”[14] Judicial disqualification based on general allegations of prejudice or bias is only required in the most extreme cases.[15]

IV.          Conclusion

While there is no clear answer to when you should ask the judge to consider self-recusal based upon the inability to be impartial moving forward, one should tread lightly. It is recommended that if your client’s credibility will be a significant factor in the underlying case (e.g., if there is a credibility dispute about what happened in the underlying matter which the judge may ultimately need to resolve), then it is worth seriously considering filing a motion for the judge to recuse him or herself. But one runs the risk of an insulted judge and future rulings that might reflect the judge’s subconscious feelings towards both the client and his or her attorney.

Author Biography:

Patricia (Patti) Epstein Putney is a Shareholder at Bell, Moore & Richter, S.C. in Madison. She obtained her Bachelor of Arts degree in Art History from Bryn Mawr College in 1984 and her Juris Doctor degree from Brooklyn Law School in 1989. She moved from New York City to Madison in 1995. Patti's practice area relates to the defense of all types of civil litigation. This includes defense of physicians, nurses, and other health care professionals in medical malpractice cases, as well as in licensing, disciplinary and credentialing disputes. She regularly defends personal injury and wrongful death actions, including automobile accidents, premises liability, products liability, insurance agent negligence as well as insurance coverage disputes. Patti has had numerous jury trials throughout the state, has litigated in federal courts and appellate courts and has argued before the Wisconsin Supreme Court and the 7th Circuit Court of Appeals. Patti is a member of the State Bar of Wisconsin, Wisconsin Defense Counsel and the Dane County Bar Association. She also started a group called “Lawyer Moms” for working women lawyers with children.

[1] Wis. Stat. § 802.06(8)(a) (“Waiver or preservation of certain defenses. … A defense of lack of jurisdiction over the person or the property, insufficiency of process, untimeliness or insufficiency of service of process or another action pending between the same parties for the same cause is waived only if any of the following conditions is met: … The defense is omitted from a motion in the circumstances described in sub. (7). … The defense is neither made by motion under this section nor included in a responsive pleading.”).

[2] Wis. Stat. § 801.02(1) (“Commencement of action. … 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.”).

[3] If the motion is brought pursuant to Wis. Stat. § 802.06, subsection (1)(b) provides that “all discovery and other proceedings shall be stayed for a period of 180 days after the filing of the motion or until the ruling of the court on the motion, whichever is sooner, unless the court finds good cause upon the motion of any party that particularized discovery is necessary.”

[4] Wis. Stat. § 802.06(2)(b) (2019-20); see also Schopper v. Gehring, 210 Wis. 2d 208, 216, 565 N.W.2d 187 (Ct. App. 1997).

[5] Alliance Laundry Sys. LLC v. Stroh Die Casting Co., Inc., 2008 WI App 180, ¶ 20, 315 Wis. 2d 143, 763 N.W.2d 167.

[6] (Emphasis added).

[7] Kavanaugh Restaurant Supply, Inc. v. M.C.M. Stainless Fabricating, Inc., 2006 WI App 236, 297 Wis. 2d 532, 724 N.W.2d 893.

[8] Wis. Stat. § 802.06(2).

[9] (Emphasis added).

[10] State v. American TV & Appliance of Madison, Inc., 151 Wis. 2d 175, 181–82, 443 N.W.2d 662 (1989).

[11] Id.

[12] State v. Walberg, 109 Wis. 2d 96, 105-06, 325 N.W.2d 687 (1982).

[13] Liteky v. U.S., 510 U.S. 540, 555 (1994) (“The judge who presides at a [prior] trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice [in another trial involving defendant], since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task.”).

[14] State v. Rodriguez, 2006 WI App 163, 295 Wis. 2d 801, 722 N.W.2d 136 (Trial court was not required to recuse itself from hearing defendant's postconviction motion alleging ineffective assistance of counsel, even though trial court, in response to defendant's comment at sentencing that he did not believe that defense counsel had given him good representation, stated in part that defense counsel was “very competent” in how he handled case; defendant did not allege a pervasive and perverse animus on part of trial court).

[15] In re Paternity of B.J.M., 2020 WI 56, ¶ 25, 392 Wis. 2d 49, 944 N.W.2d 542 (“We acknowledge that it is the exceptional case with ‘extreme facts’ which rises to the level of a ‘serious risk of actual bias.’”) (holding that recusal was appropriate because the judge was Facebook friends with the mother in the paternity case, and they publicly interacted on the site before the judge decided in favor of the mother).