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Hermann v. State

United States District Court, W.D. Wisconsin

August 24, 2017

TIMOTHY LOUIS HERMANN and KAREN ELAINE HERMANN, Plaintiffs,
v.
STATE OF WISCONSIN, DUNN COUNTY, MEGAN MITTLESTAD, NICHOLAS P. LANGE, DENNIS P. SMITH, DUNN COUNTY SHERIFF'S OFFICE, and PLANNING, RESOURCES, AND DEVELOPMENT COMMITTEE, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Pro se plaintiffs Timothy Louis Hermann and Karen Elaine Hermann, who reside in Otter Creek, Wisconsin, bring this lawsuit alleging that State of Wisconsin and various Dunn County officials conspired unlawfully to foreclose on their home and reject their offer to buy the real estate back.

         On initial review of the Hermanns' complaint, I permitted them to serve their summonses on the various defendants, minus the “John Doe” defendants that I dismissed. Dkt. 7. The Hermanns filed proof of service for the remaining defendants on February 3, 2017. Two groups of defendants subsequently filed motions to dismiss, one on behalf of the state, and one on behalf of the Dunn County defendants. The Hermanns have also filed a motion for injunctive relief, a motion to strike the Dunn County defendants' brief opposing that motion, and two motions for entry of default.

         After considering these motions and the responsive filings, I will dismiss the State of Wisconsin and will grant the Dunn County defendants' motion to dismiss in part. Most of the claims against the Dunn County defendants will be dismissed, and the following Dunn County defendants will be dismissed from the case: Dunn County Sheriff's Office, Dunn County's Planning, Resources, and Development Committee, Megan Mittlestad, and Nicholas Lange. I will deny the Hermanns' motion for injunctive relief and motion to strike. I will direct the Hermanns to file an amended complaint further explaining their claims against defendants Dunn County and Smith.

         BACKGROUND

         I stated previously that “plaintiffs' complaint is relatively vague regarding the actions they believe violated their rights, and the electronically available court records are not detailed enough for me to conclusively rule . . . at this point in the proceedings.” Dkt 7, at 5. The parties' subsequent filings, including copies of various state court documents, have provided me with helpful clarification of the Hermanns' claims and the state court proceedings initiated against them.

         The Hermanns state that they owned a parcel of land and home in Otter Creek, Wisconsin, but that Dunn County initiated foreclosure proceedings against them because they failed to stay current on their taxes. Judgment was entered against them in September 2013 in Dunn County case number 13-cv-20. Dkt. 14-3. The circuit court proceedings show this to be an in rem tax foreclosure lawsuit under Wis.Stat. § 75.521.

         The Hermanns believe this judgment was unjustly entered and filed numerous documents with the register of deeds and circuit court stating that the judgment was void for fraud. Dkt. 1, at 6-7. They remained on the property during this period. At some point after this judgment, they began seeking what they have called “alternatives to protect their property.” One method they chose was to file a land patent, declaring their title to be absolute, with the register of deeds on February 5, 2015. Dkt. 1-1, at 8.

         In 2016, Dunn County initiated a new proceeding, case number 16-cv-210, against the Hermanns to remove them from the property. A judgment to vacate was entered on December 12, 2016. Dkt. 14-9. The judgment gave the Hermanns until December 26 to leave the property and authorized Dunn County “to remove the [Hermanns] and all of their personal property with the assistance of the Sheriff if they have not vacated the property.”

         The sheriff, defendant Smith, left a “notice to vacate” at the Hermanns' door on December 16. The Hermanns then met with defendant Lange and stated that they were willing to pay off their delinquent taxes. They also contacted the Dunn County treasurer's office, run by defendant Mittlestad, and made the same offer. Neither Lange nor the treasurer's office would accept the payment. But Lange said that they could possibly repurchase the land and that he would direct their request to the county Planning, Resources, and Development Committee, the board responsible for making these decisions. The committee would not meet until January 10, 2017, so Lange said that they would still need to vacate the property, which they did. The committee ultimately did not agree to the Hermanns' offer to repurchase the land. The Hermanns returned to the property sometime following the committee's decision.

         On February 6, Smith came to the property to remove anyone he found there. The Hermanns and their three children were on the property when Smith arrived. Timothy Hermann was arrested for trespassing. According to Wisconsin's online court records, both he and Karen were charged with trespassing and later entered into deferred prosecution agreements after pleading no contest. See Dunn County case nos. 17-cm-89 and 17-cm-90. The Hermanns say that Smith unlawfully arrested Timothy and used excessive force during the arrest.

         ANALYSIS[1]

         A. Incorrect parties

         I will begin by dismissing defendants Dunn County Sheriff's Office and the Dunn County Planning, Resources, and Development Committee as defendants. These entities are not subject to suit because they are not separable from the county government they serve. Whiting v. Marathon Cty. Sheriff's Dep't, 382 F.3d 700, 704 (7th Cir. 2004). With Dunn County already named as a defendant, there is no reason for these extraneous defendants to remain.

         B. Service of process

         The remaining defendants argue that they were not properly served. I will first address defendant State of Wisconsin. The Hermanns' proof of service shows that they served “Cristin Clerk” at the front window of the Dunn County government building located at 800 Wilson Avenue in Menomonie.[2] Federal Rule of Civil Procedure 4(j)(2) permits service of a state or local government by delivering a copy of the summons and complaint to either its chief executive officer or in the manner prescribed by that state's law for service. In Wisconsin, the chief executive officer is the governor. Wis.Stat. § 801.11(3) permits service by delivering a copy of the summons and the complaint to the state attorney general or the state attorney general's office. None of these options was satisfied by handing the documents to a clerk at the Dunn County government building.

         The Hermanns argue that service of the state was proper under Rule 4(j)(2)(A) because “The Dunn County, Wisconsin Clerk is a chief executive officer for the State in that county” and because “there is a fundamental principal [sic] of law that is ‘Notice to the Agent is Notice to the Principal, Notice to the Principal is Notice to the Agent'” and the local agent for the state was served. Dkt. 35, ¶¶ 7, 8. The Hermanns are mistaken. The federal rules and state statutes discussed above are what govern service of process, and mere notice of a lawsuit does not accomplish service in Wisconsin. See Heaston v. Austin, 47 Wis.2d 67, 71, 176 N.W.2d 309 (1970). Therefore, I conclude that the state has not been properly served.

         I turn to the Dunn County defendants, starting with the county itself. The Hermanns say that they accomplished service on the county under Rule 4(j)(2) by serving Cristin Clerk “at [the] window” of the Dunn County government building. Dkt. 8-1, at 2. Service under Rule 4(j)(2)(A) was plainly not accomplished because a clerk at a window of a government office is not the chief executive officer of the county. Alternatively, Wis.Stat. § 801.11 (4)(a) 1. allows for service against a county to be made by delivering the summons to the chairperson of the county board or to the county clerk. It is again clear that the Hermanns did not directly serve either of these officials. But Wis.Stat. § 801.11(4)(b) also permits service of the appropriate governmental official by leaving a copy of the summons “in the office of such officer, director, or managing agent with the person who is apparently in charge of the office.” So, the question is whether the individual that the Hermanns did serve was the person “apparently in charge” of either the county clerk's office or the chairperson of the county board's office.

         The Wisconsin Supreme Court has held that the “apparently in charge” language of the statute is functionally similar to the same language in Wis.Stat. § 801.11(5)(a) regarding corporate defendants. Hagen v. City of Milwaukee Employee's Ret. Sys. Annuity & Pension Bd, 2003 WI 56, ¶ 17, 262 Wis.2d 113, 663 N.W.2d 268. The Hagen court reviewed corporate service cases and stated that “these cases stand for the proposition that personal jurisdiction . . . may be acquired if the facts demonstrate that in effectuating substitute service on ‘the person who is apparently in charge of the office' of an officer, director, or managing agent of the defendant, the process server reasonably but mistakenly serves a person who appears to be, but in fact is not, ‘in charge' of that office.” Id. ¶ 21 (citing Keske v. Square D Co., 58 Wis.2d 307, 309, 206 N.W.2d 189 (1973); Horrigan v. State Farm Ins. Co., 106 Wis.2d 675, 683-84, 317 N.W.2d 474 (1982)). The “circumstances surrounding the service of process, as they appeared to the process server” must be considered, but “there must be more than the unsupported assumption of the process server” that the person served was in charge of the appropriate office. Horrigan, 106 Wis.2d at 683-84.

         Here, I conclude that the Hermanns' process server could not reasonably believe that the person he served was in charge of either the Dunn County clerk's office or the chairperson's office. In both Keske and Horrigan, the process server attempted to find the person in charge of the office, who could accept service, by first speaking with the receptionist at the front desk. There is no similar diligence here. The server attempted to serve both the state and county defendants together at this location by handing it to the first person he saw. This shows that the server thought he could serve all of the defendants under incorrect agency theories. It does not show any effort to serve the correct official under the state statutes.

         The remaining three defendants-Mittlestad, Lange, and Smith-are all natural persons who were not personally served pursuant to the requirements of Federal Rule of Civil Procedure 4(e) or Wis.Stat. § 801.11(1). The Hermanns argue that each of these three defendants was properly served under Rule 4(e)(2)(C), which allows service of an individual by “delivering a copy of [the summons and complaint] to an agent authorized by appointment or by law to receive service of process.” Here, the Hermanns again served “Cristin Clerk” for defendants Mittlestad and Lange. The Hermanns served “Maria Clerk, ” the person at the front window of the Dunn County Sheriff's Office, in lieu of defendant Smith. But there is no indication on the proof of service or any of the parties' filings in this case showing that either of these persons are authorized by appointment or law to receive service of process on behalf of Mittlestad, Lange, or Smith.

         To be authorized to receive service of process in Wisconsin, a defendant would have had to designate the clerks “to perform the function, job, or duty of accepting service.” Mared Industries, Inc. v. Mansfield,2005 WI 5, ¶ 33, 277 Wis.2d 350, 690 N.W.2d 835. Unlike service for a corporate defendant, there is no “reasonably but mistaken” analysis for personal service under Wis.Stat. § 801.11(1)(d). Id. ¶ 2 (“We hold that ‘authorized by appointment' requires the principal to provide an agent with actual ...


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