If personal service of a summons and complaint cannot be accomplished, a plaintiff in Wisconsin is permitted to serve process by publication. A plaintiff serving by publication must also mail a copy of the summons and complaint to the defendant’s address when known or ascertainable. Wis. Stat. § 801.11.

In O’Donnell v. Kaye, No. 13AP2651 (Ct. App. Dec. 3, 2014), the latest foray by Wisconsin’s court of appeals into the service-by-publication rule, the court held that pleadings must be sent to the correct address when served by publication and mail.

When William O’Donnell sued Roxanne Kaye, he correctly listed her address in his complaint. After a process server was unable to serve Kaye, O’Donnell published legal notice and mailed a copy of the summons and complaint to Kaye. The mail was incorrectly addressed, both as to house number (W138 instead of W136) and as to street name (Avenue instead of Drive). Kaye did obtain a copy of the complaint and answered it, listing her correct address in the answer. O’Donnell argued that the mailed copy must, therefore, have been delivered, but Kaye represented that she obtained a copy from the court file. The trial court and the court of appeals did not resolve the issue.

Unsurprisingly the court of appeals held that mailing a complaint to the wrong address was a fundamental defect in service. The court of appeals placed the blame for the mistaken address solely on O’Donnell, who knew Kaye’s correct address but nevertheless sent mail to a different address. The court’s analysis emphasized the act of mailing over the receipt of process. Kaye, after all, did obtain a copy of the complaint. The court explained: “It might be a different case if the mail were sent to the correct address, but somewhere along the line, an error by the postal service, shenanigans by the defendant or some other third party interfered with delivery to the defendant.”

If the mail is not sent to the correct address, and if the correct address is known, the rule is clear: Service by publication and mailing requires that the mail be properly addressed.

What isn’t clear is why Kaye’s answer didn’t amount to a waiver of the defenses of lack of personal jurisdiction and insufficient process. See Wis. Stat. § 802.06(8)(a) (challenge to personal jurisdiction or service must be raised in answer or by motion before answer).

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