Wis. Stat. » CHAPTER 805 — CIVIL PROCEDURE — TRIALS
Wisconsin Statutes

Wis. Stat. § 805.03 (2026)

Failure to prosecute or comply with procedure statutes

✓ current as of July 2026
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805.03805.03 Failure to prosecute or comply with procedure statutes. For failure of any claimant to prosecute or for failure of any party to comply with the statutes governing procedure in civil actions or to obey any order of court, the court in which the action is pending may make such orders in regard to the failure as are just, including but not limited to orders authorized under s. 804.12 (2) (a). Any dismissal under this section operates as an adjudication on the merits unless the court in its order for dismissal otherwise specifies for good cause shown recited in the order. A dismissal on the merits may be set aside by the court on the grounds specified in and in accordance with s. 806.07. A dismissal not on the merits may be set aside by the court for good cause shown and within a reasonable time.
805.03 HistoryHistory: Sup. Ct. Order, 67 Wis. 2d 585, 690 (1975).
805.03 AnnotationIn order to demonstrate that a dismissal order based on failure to prosecute is an abuse of discretion, the aggrieved party must show a clear and justifiable excuse for the delay. Trispel v. Haefer, 89 Wis. 2d 725, 279 N.W.2d 242 (1979).
805.03 AnnotationA judgment dismissing an action was void for lack of advance actual notice of dismissal that defined the “failure to prosecute” standard. Neylan v. Vorwald, 124 Wis. 2d 85, 368 N.W.2d 648 (1985).
805.03 AnnotationDismissal for failure to prosecute within a year of filing required actual or constructive notice of the applicable standards. Rupert v. Home Mutual Insurance Co., 138 Wis. 2d 1, 405 N.W.2d 661 (Ct. App. 1987).
805.03 AnnotationDismissal under this section is presumptively with prejudice. When the plaintiff failed to show “good cause” for delay, the appeals court erred in dismissing without prejudice. Marshall-Wisconsin Co. v. Juneau Square Corp., 139 Wis. 2d 112, 406 N.W.2d 764 (1987).
805.03 AnnotationThe court of appeals’ remand “for trial” after reversal of a summary judgement order did not mandate the court to schedule and hold a trial. Dismissal for failure to prosecute was not an abuse of discretion. Prahl v. Brosamle, 142 Wis. 2d 658, 420 N.W.2d 372 (Ct. App. 1987).
805.03 AnnotationWhen conduct in failing to comply with a court order is egregious and without clear and justifiable excuse, the court may, in its discretion, order dismissal. Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 470 N.W.2d 859 (1991).
805.03 AnnotationOrdering a criminal defendant to pay the state’s trial expenses upon mistrial for violation of a pretrial order was authorized by this section. State v. Heyer, 174 Wis. 2d 164, 496 N.W.2d 779 (Ct. App. 1993).
805.03 AnnotationIn cases that do not fit squarely within this section, a trial court has certain inherent powers to sanction the parties, including the awarding of attorney fees. Schaefer v. Northern Assurance Co. of America, 182 Wis. 2d 148, 513 N.W.2d 615 (Ct. App. 1994).
805.03 AnnotationA party’s failure to appear at a scheduled hearing, after writing the court indicating that unless the party heard otherwise from the court the party would consider itself excused, was insufficient to excuse the party’s appearance and was grounds for dismissal of the party under this section. Buchanan v. General Casualty Co., 191 Wis. 2d 1, 528 N.W.2d 457 (Ct. App. 1995).
805.03 AnnotationThe trial court erred in not considering other less severe sanctions before dismissing an action for failure to comply with a demand for discovery when no bad faith was found. Hudson Diesel, Inc. v. Kenall, 194 Wis. 2d 531, 535 N.W.2d 65 (Ct. App. 1995).
805.03 AnnotationA default judgment entered as a sanction is not governed by s. 806.02 and does not require a full evidentiary hearing if damages are contested. The proper form of hearing on damages is left to trial court discretion. Chevron Chemical Co. v. Deloitte & Touche LLP, 207 Wis. 2d 43, 557 N.W.2d 775 (1997), 94-2827.
805.03 AnnotationThis section and s. 802.10 (7) apply in criminal cases. A court has power to sanction a tardy attorney under these sections. Failure to delineate the reasons for the sanctions is an erroneous exercise of discretion. Anderson v. Circuit Court, 219 Wis. 2d 1, 578 N.W.2d 633 (1998), 96-3281.
805.03 AnnotationCounsel’s egregious acts may be imputed to the client. Smith v. Golde, 224 Wis. 2d 518, 592 N.W.2d 287 (Ct. App. 1999), 97-3404.
805.03 AnnotationIf the constitution or statutes require proof before the circuit court can enter a particular judgment or order, the court cannot enter the judgment or order without the appropriate showing. The circuit court may determine that a party’s action or inaction provides adequate cause for sanctions against that party, but that does not allow the court to dispense with any constitutional or statutory burden of proof that must be satisfied prior to entering a judgment or order. Evelyn C.R. v. Tykila S., 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768, 00-1739.
805.03 AnnotationThe trial court abused its discretion by ordering the defendant in a civil suit to forego its rights to insurance coverage for punitive damages when the issue of rights to insurance coverage was not before the court. City of West Allis v. Wisconsin Electric Power Co., 2001 WI App 226, 248 Wis. 2d 10, 635 N.W.2d 873, 99-2944.
805.03 AnnotationCircuit courts have inherent authority to sanction by dismissal a party who has attempted to suborn perjury from a witness. In assessing the severity of the misconduct and need for an appropriate sanction, the trial court was within its authority to consider a previous attempt to suborn perjury in another case, in addition to the attempt in the case before the court. Schultz v. Sykes, 2001 WI App 255, 248 Wis. 2d 746, 638 N.W.2d 604, 00-0915.
805.03 AnnotationThe American Rule does not bar courts from exercising their inherent power to assess attorney fees, and, when a court does so, the limitations of fee awards under former s. 814.025, 1997 stats., do not control. Schultz v. Sykes, 2001 WI App 255, 248 Wis. 2d 746, 638 N.W.2d 604, 00-0915.
805.03 AnnotationBecause a guardian ad litem’s allegedly contumacious act or omission had nothing to do with the violation of a pretrial, scheduling, or procedural order, the circuit court’s authority to sanction the guardian ad litem for noncompliance with its substantive order directing the disposition of a minor’s settlement proceeds was more firmly grounded in s. 785.03 (1) (a). Evans v. Luebke, 2003 WI App 207, 267 Wis. 2d 596, 671 N.W.2d 304, 02-2210.
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805.03 AnnotationIt is an erroneous exercise of discretion for a circuit court to enter a sanction of dismissal with prejudice, imputing the attorney’s conduct to the client, if the client is blameless. Industrial Roofing Services, Inc. v. Marquardt, 2007 WI 19, 299 Wis. 2d 81, 726 N.W.2d 898, 05-0189.
805.03 AnnotationThere is no requirement that conduct must be persistent in order to be egregious. When a defendant in a medical malpractice case destroyed all of the defendant’s medical records in a single act, the magnitude of the loss under the circumstances was sufficient to constitute egregious conduct. Morrison v. Rankin, 2007 WI App 186, 305 Wis. 2d 240, 738 N.W.2d 588, 06-0980.
805.03 AnnotationIn light of the facts and the need of circuit courts to control their calendars to ensure the orderly administration of justice, the circuit court did not erroneously exercise its discretion when it determined that a civil defendant’s violation of a scheduling order was “egregious” and grounds for entering default judgment when the defendant failed to attend the scheduling conference, file a witness list, file an itemization of damages in connection with the defendant’s counterclaim, file a pretrial report, and attend the pretrial conference. East Winds Properties, LLC v. Jahnke, 2009 WI App 125, 320 Wis. 2d 797, 772 N.W.2d 738, 08-2453.
805.03 AnnotationWhen the trial court imposed sanctions because it found that a party had brought what was essentially a motion for reconsideration without any new evidence or evidence of manifest error of law by the trial court, that was a basis for the court to deny the motion for reconsideration. It was not a basis for an award of attorney fees without a finding of bad faith or egregious conduct. No statute authorizes sanctions for bringing a motion for reconsideration, and the trial court made no finding of misconduct nor does the record reveal misconduct. Lee v. Geico Indemnity Co., 2009 WI App 168, 321 Wis. 2d 698, 776 N.W.2d 622, 08-3125.
805.03 AnnotationDismissal for failure to prosecute violated due process requirements when the petitioner had no actual or constructive notice that the petitioner’s conduct might result in dismissal before the motion to dismiss for failure to prosecute was filed. More than notice of a motion to dismiss for failure to prosecute and a hearing are required to provide due process. Before imposing a sanction as drastic as dismissal, advanced notice is required that a party’s conduct might result in dismissal to satisfy due process requirements. Theis v. Short, 2010 WI App 108, 328 Wis. 2d 162, 789 N.W.2d 585, 09-1591.
805.03 AnnotationWhen a circuit court concludes that a party’s failure to follow court orders, although unintentional, is “so extreme, substantial and persistent” that the conduct may be considered egregious, the circuit court may make a finding of egregiousness. Conversely, a party may also act in bad faith, which by its nature cannot be unintentional conduct. To find that a party acts in bad faith, the circuit court must find that the noncomplying party “intentionally or deliberately” delayed, obstructed, or refused to comply with the court order. Dane County Department of Human Services v. Mable K., 2013 WI 28, 346 Wis. 2d 396, 828 N.W.2d 198, 11-0825.
805.03 AnnotationWhile a circuit court may dismiss a civil action as a sanction for an attorney’s egregious conduct, the court must first consider the two prongs set out in Garfoot, 228 Wis. 2d 707 (1999), and find that 1) the client failed to act in a reasonable and prudent manner in monitoring the attorney’s conduct in the litigation and 2) the client had knowledge of, should have known, or was complicit in the attorney’s egregious conduct. Scudder v. Concordia University, Inc., 2025 WI App 13, 415 Wis. 2d 318, 18 N.W.3d 173, 23-2218.
805.03 AnnotationSanctions, including the sanctions of dismissal or default judgment, must be proportionately and appropriately applied. They can be graduated to meet the circumstances and then increased when there is a further lack of compliance. They can be imposed against the attorney, the party, or both. But above all, they must be just. Scudder v. Concordia University, Inc., 2025 WI App 13, 415 Wis. 2d 318, 18 N.W.3d 173, 23-2218.
Notes of Decisions
Cited in 101 cases (25 in the last 5 years), 1979–2026 · leading case: Hefty v. Strickhouser, 2008 WI 96 (Wis. 2008).
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Hefty v. Strickhouser, 2008 WI 96 (Wis. 2008). · cites it 26× “¶ 74 Under Wis. Stat. § 805.03 , a court may make such orders "as are just," including dismissal of actions or entry of default judgment, where a party fails to obey any court order.”
Split Rock Hardwoods, Inc. v. Lumber Liquidators, Inc., 2002 WI 66 (Wis. 2002). · cites it 22× “If a defendant fails to file a timely served answer within a reasonable time after service, the plaintiff may move for a "just" order under Wis. Stat. § 805.03 . [17] This rule authorizes the circuit court to issue a full range of orders in response to a party's failure "to…”
Marshall-Wisconsin Co. v. Juneau Square Corp., 406 N.W.2d 764 (Wis. 1987). · cites it 28× “The delays are the basis of petitioners' claim that Wisconsin's failure to prosecute statute, sec. 805.03, Stats., [2] should now provide the foundation for *117 dismissal, with prejudice, of each of the foreclosure actions.”
Dane Cnty. Dep't of Human Servs. v. Mable K., 2013 WI 28 (Wis. 2013). · cites it 14× “¶14 Following the testimony from Dane County's witness, the circuit court "found by default" both grounds for termination.”
Indus. Roofing Servs., Inc. v. Marquardt, 2007 WI 19 (Wis. 2007). · cites it 12× “ś 94 I look next at Wis. Stat. § 805.03 . That section provides in relevant part that "for failure of any party to comply with the statutes governing procedure in civil actions or to obey any order of court, the court .”
Prahl v. Brosamle, 420 N.W.2d 372 (Wis. Ct. App. 1987). · cites it 20× “, and Dynatron Research Corporation (collectively, Prahl) appeal from an order dismissing their complaint for failure to prosecute the action under sec. 805.03, Stats. The issues are: (1) whether secs.”
Christensen v. Sullivan, 2009 WI 87 (Wis. 2009). · cites it 18× “Because the original guardian ad litem failed to repay the funds as ordered, the circuit court entered judgment against her for the full amount of the funds using its power under Wis. Stat. § 805.03 . [12] See *815 id., ¶¶ 8, 10 .”
Neylan v. Vorwald, 368 N.W.2d 648 (Wis. 1985). · cites it 12× “In this case, because sec. 805.03, Stats., by its language does not provide the constructive notice required under Link , actual notice to the parties of the court’s dismissal for failure to prosecute is required.”
Evans v. Luebke, 2003 WI App 207 (Wis. Ct. App. 2003). · cites it 12× “Hodan views the circuit court as simply exercising its authority under Wis. Stat. § 805.03 to impose sanctions *607 for violations of its orders.”
Evelyn C. R. v. Tykila S., 2001 WI 110 (Wis. 2001). · cites it 4× “[8] Section 805.03 of the Wisconsin Statutes provides in part: [F]or failure of any party to comply with the statutes governing procedure in civil actions or to obey any order of court, the court in which the action is pending may make such orders in regard to the failure as are…”
Rupert v. Home Mut. Ins., 405 N.W.2d 661 (Wis. Ct. App. 1987). · cites it 12× “*7 Rupert argues that the trial court erred by dismissing his action under sec. 805.03, Stats., or under the trial court's inherent authority, for failure to prosecute.”
Johnson v. Allis Chalmers Corp., 470 N.W.2d 859 (Wis. 1991). · cites it 6× “" Although this language could be viewed as permitting dismissal for noncompliance with even trivial procedural orders, closer examination of the statute reveals that the court may only impose such orders "as are just.”
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