That was the first question Chief Justice Abrahamson asked counsel for the defendant during oral argument today in Johnson v. Cintas Corp. (2009 AP 2549). And it was a particularly appropriate one, because the issue before the court was whether the circuit court ever acquired personal jurisdiction over Cintas Corp. No. 2 to enter a default judgment against it, though that entity had never been named in the complaint, which erroneously named only the corporate parent, Cintas Corp.
The question’s answer was “Cintas Corp. No. 2.” Only Cintas Corp. No. 2 (a wholly owned subsidiary of Cintas Corp.) was registered to do business in Wisconsin, and Johnson served that entity, but he named only its parent in the summons and complaint. Six justices of the Wisconsin Supreme Court (Justice Prosser, as reported here, is not sitting on cases this month due to a health issue) tried to sort out the distinction between a fundamental and a technical defect. The circuit court believed that this was only a technical defect and entered a default judgment against Cintas Corp. No. 2, but the court of appeals reversed, vacating the default judgment, because both Cintas Corp. and Cintas Corp. No. 2 were real, operating companies, which made the mistake fundamental. Actual service and knowledge of the lawsuit did not matter.
Perhaps the most interesting discussion from the oral argument was the explanation of the plaintiff’s strategic decision that played a hand in bringing the case to the court. Johnson had the opportunity (indeed, the right) to amend his pleading to add Cintas Corp. No. 2, but he chose not to do so, believing that his best course was to litigate the validity of a default judgment, instead of his case’s merits.
In all events, the case promises to be the latest decision in the long-running line of cases concerning the difference between fundamental and techinical defects, so the court’s opinion is one worth watching for.