Wisconsin Civil Procedure

Question 1

Long Arm Laundry List

Answer 1

Any of the following that occur in Wisconsin:
- Act or omission
- Injury
- Contract for goods or services
- deficiency judgment on foreclosure of WI property
- Local Property
- Director or Officer of WI Corporation
- Insurance if insured was resident or event occurred
- Marital Actions

Question 2

Courts of General Jurisdiction

Answer 2

Circuit Courts

Question 3

Transfer of Venue

Answer 3

Procedural Differences:
1) Motions to change venue are heard on affidavits
2) Oral argument of the motion is by telephone

Question 4

Service of Process Requirements

Answer 4

 Summons must: title, court, case classification and code number. Tell timely filing
 Document: authenticated and signed copy of S+C served to D
 Manner: depends on type of person
Natural Person w/out disability
1) Personal service: preferred- handing documents directly
2) Substituted service: after reasonable diligence by either residence- must be usual place of abode 14 years old or adult residing
3) Pursuant to law of the state where service is made
4) Publication: if neither personal or substituted can be accomplished- limited circumstances must publish and mail
Natural w/Disability
- Same as without disability but also need to serve the guardian or parent
Corporations
1) Personal service: with officer or agent or leaving in office with someone
2) Publication: if not able to personally serve- publish +mail
3) Partners: serve each general partner individually otherwise not liable
In Rem
- If known: service as above
- If Unknown: publication is allowed

Question 5

Complaint Requirements

Answer 5

• Federal: statement of SMJ, statement of claim and demand for relief
• WI: do not need SMJ
• WI: statement of claim: short and plain statement of claim identifying the transaction or occurrence and demand for relief (do not specify amount)
• WI: must plead fraud and mistake and libel and slander be pleaded with particularity, must put words that are libel in complaint

Question 6

Answer to Complaint

Answer 6

• Timing: WI must respond within 20 days after service or 45 days if action against 1) state or agencies 2) insurance co, or 3) claims in tort
• Pre-answer Motions:
   If pre-answer is denied the answer is due 10 days after the ruling

Question 7

Amendments

Answer 7

Fed: 21 days
WI: 6 months
- Relation back: WI allow actions against an unknown defendant- plaintiff may use fictitious name and description but real defendant must be served within 90 days of filing fictitious name

Question 8

Signature Requirement

Answer 8

certifies: 1) conducted reasonable inquiry, 2) doc is not improper purpose, 3) nonfrivolous and 4) factual contentions have evidentiary support

Question 9

Change of Judge

Answer 9

• Allows one preemptory challenge to the trial judge, must:
  1) Request to clerk of court
  2) Timing: before preliminary contested matters and no later than 60 days after S+C
  3) New judge: if a new judge is provided without request, must request within 10 days
  4) Only one request per action

Question 10

Impleader

Answer 10

Right to implead for 6 months

Question 11

Discovery Meeting

Answer 11

Not required in WI

Question 12

Required Disclosures

Answer 12

• Required Disclosures: WI does not require parties to make required disclosed like the federal rules
• Exceptions: required production of agreement for contingent third party compensation: any agreement that give anyone other than atty on contingency a right to compensation contingent on claim
• Must request insurance liability if you want it

Question 13

ESI

Answer 13

• Additional regulation, parties may not request unless:
  1) parties must have conference about ESI
  2) Conference must address:
   when the discovery should be completed; whether it will be conducted in phases;
   preservation of ESI pending discovery; the form(s) in which the ESI will be produced;
   the method for asserting or preserving privilege and work product protection and the extent to which such claims may be asserted after production;
   the cost of proposed discovery; and
   the utility of appointing a referee to supervise discovery of ESI.
• Absent conferring any party may move the court for relief
• Specific limitation of ESI: absent substantial need and good cause not required to provide discovery of the following:
   Data that cannot be retrieved without substantial reprogramming or without transforming it into another form before search and retrieval can be obtained
   Backup data that are substantially duplicative of data that are more accessible elsewhere
   Legacy data remaining from obsolete systems that are unintelligible on successor systems
   Any other data that are not available to the producing party in the ordinary course of business and that the party identifies as not reasonably accessible because of undue burden or cost

Question 14

Depositions

Answer 14

Use of a deposition is permitted at trial under the following circumstances: (1) to impeach the deponent; (2) for any purpose if the deponent is an adverse party*WI only; (3) for any purpose if the deponent (regardless of whether a party) is unavailable for trial (that it, the witness is dead, more than 100 miles from the court, or is unable to testify due to age, illness, etc.); or (4) for any purpose if the deponent is a medical expert.

Question 15

Medical Exam

Answer 15

copy must be given to patient without medical record limitation

Question 16

Default Judgment

Answer 16

WI does not provide for an entry of default prior to default judgment, judge must enter all DJ unless there is an express contract for liquidated damages- clerk can

Question 17

SJ

Answer 17

Timing: anytime within 8 months of filing action

Question 18

Motion Challenging Sufficiency of Evidence

Answer 18

• WI uses different labels for the motions depending on the motion
   Standard: considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such a party.
   Motion at Close of P’s Evidence: move for dismissal on ground of insufficiency of evidence- either dismissal or directed verdict
   Motion at Close of all evidence: directed verdict

Question 19

Jury

Answer 19

Do not require unanimous- 5/6 must agree
Almost always uses special verdicts

Question 20

SMJ: Essay Application

Answer 20

• Same as Federal: either federal question or diversity
• Federal question: applies when claim arises under federal law
• Diversity: must have diversity and claim above 75,000
• Motion to dismiss for lack of SMJ: can be made anytime, even on appeal
• FF& C: if no SMJ: failure to appeal will result in FF&C because otherwise it triggers issue preclusion

Question 21

Personal Jurisdiction Essay Application

Answer 21

• Long arm Statute: must authorize jurisdiction and be subject to due process
• Long arm in WI is liberally construed in favor of jurisdiction over nonresident defendants
• To determine WI courts consider whether the d’s activities in the state are substantial and not isolated and whether holding the defendant is amenable to fulfill the requirements of due process
• General Jurisdiction: at home in WI- domiciled or PPB or incorporation
• Specific d’s conduct gave rise to cause of action with contacts in WI
• Due Process: minimum contacts test: purposeful availment, reasonable anticipation, and fairness

Question 22

Full Faith & Credit: Essay Application

Answer 22

• For state and Federal courts- Requires: 1) proper jurisdiction; 2 judgment must have been on the merits and 3) must be final

Question 23

Joinder: Essay

Answer 23

• May be compulsory or permissive
• Compulsory: involves indispensable parties- p must join all interested parties or face dismissal
• Permissive: when claim is made by each p and d is relating to and arising from the same series of occurrences and there is a question of fact or law common to all the parties

Question 24

Interpleader: Essay

Answer 24

• Permits a stakeholders to require 2 or more claimants to litigate among themselves to determine which has the valid claim where separate actions might result in double liability on a single obligation

Question 25

Intervention: Essay

Answer 25

• Purpose is to foster efficiency, speedy and orderly determination of right in litigation and attempt to settle all controversies in one action
• Must be timely
• Intervention of Right: when the applicant claims an interest in property or transaction that is the subject matter of the litigation and they must be there to protect their interest. Court will 1) look for the property, 2) impairment of the ability to protect interest and 3) whether it is adequately represented by a different party
• Permissive intervention is when the claim or defense and the main action have a question of fact or law in common- no direct personal or pecuniary interest is required. May add as a p or d, depending on facts and show their position or claims are not adequately represented by one of the present parties

Question 26

Summary Judgment: Essay

Answer 26

• In general, SJ must be granted if, from the pleadings, affidavits, and discovery, it appears that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law
• Nonmoving party has opportunity to counter

Question 27

Claim Preclusion: Essay

Answer 27

1) must have been valid, final judgment on the merits,
2) both parties must be the same or in privity with a party in the prior suit and
3) the new action must involve the same cause of action—all claims must arise out of the same transaction or occurrence

Question 28

Issue Preclusion: Essay

Answer 28

1) Issues must be the same
2) Must have been final judgment as to that issue
3) Party against whom collateral estoppel is asserted had a fair opportunity to be heard on the matter as to not be unfair or inequitable