United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
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.
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.
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
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.
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.
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.
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.”
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.
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.
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.
Service of process
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. 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
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
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.
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.
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.
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.
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 ...