District II
January 15, 2014
To:
Hon. Barbara H. Key
Circuit Court Judge
Winnebago County Courthouse
P.O. Box 2808
Oshkosh, WI 54903-2808
Melissa M. Konrad
Clerk of Circuit Court
Winnebago County Courthouse
P.O. Box 2808
Oshkosh, WI 54903
Kathryn R. Anderson
Legal Counsel Office
Wisconsin Department of Corrections
P. O. Box 7925
Madison, WI 53707-7925
Brandon Flugaur
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Jasxbreen Massey 324766
Oshkosh Corr. Inst.
P.O. Box 3310
Oshkosh, WI 54903-3310
You are hereby notified that the Court has entered the following opinion and order:
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Jasxbreen Massey v. James Greer (L.C. # 2012CV1714) |
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Before Brown, C.J., Neubauer, P.J., and Reilly, J.
Jasxbreen Massey appeals pro se from
a circuit court order dismissing his case for failure to serve an authenticated
copy of his summons and complaint upon the defendants within the required
statutory time period. Based upon our review of the
briefs and record, we conclude at conference that this case is appropriate for
summary disposition. See Wis.
Stat. Rule 809.21 (2011-12).[1] We affirm the order of the circuit court.
In November 2012, Massey filed a civil complaint
against James Greer, et al. In March
2013, the circuit court dismissed Massey’s case without prejudice because no
service was made of an authenticated copy of the summons and complaint upon the
defendants within the required statutory time period. Massey moved the court to reconsider the
dismissal. The court denied his
request. This appeal follows.
Defects in the commencement of an action are either
fundamental or technical. American
Family Mut. Ins. Co. v. Royal Ins. Co., 167 Wis. 2d 524, 533, 481
N.W.2d 629 (1992). Where the defect is
technical, the circuit court “has personal jurisdiction only if the complainant
can show the defendant was not prejudiced.”
Id. However, “where the defect
is fundamental, no personal jurisdiction attaches regardless of prejudice.” Id.
The general requirements for commencement and service
of a civil action are contained in Wis.
Stat. § 801.02(1), which provides:
[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.
A fundamental defect occurs
when the complainant fails to meet these requirements. See
American
Family Mut. Ins. Co., 167 Wis. 2d at 533.
Here, it is undisputed that Massey failed to meet the requirements of Wis. Stat. § 801.02(1) when he did not serve an authenticated copy of his summons and complaint upon the defendants within ninety days after filing. This was a fundamental defect in service, denying the circuit court of personal jurisdiction over the defendants. Although Massey complains that the circuit court should have done more to make him aware of these requirements, it was under no obligation to do so. See Waushara Cnty. v. Graf, 166 Wis. 2d 442, 452, 480 N.W.2d 16 (1992) (neither a circuit court nor a reviewing court has the duty to walk pro se litigants through procedural requirements). As a result, we are satisfied that the circuit court properly dismissed Massey’s case.
Upon the foregoing reasons,
IT IS ORDERED that the order of the circuit court is
summarily affirmed, pursuant to Wis.
Stat. Rule 809.21.
Diane M. Fremgen
Clerk of Court of Appeals