Motion to Dismiss

STATE OF WISCONSIN

CIRCUIT COURT, [________________________________] COUNTY

[PLAINTIFF'S FULL NAME],
Plaintiff,

v.

[DEFENDANT'S FULL NAME],
Defendant.

Case No.: [____________________]

Branch: [____________________]

The Honorable [________________________________]

DEFENDANT'S MOTION TO DISMISS

Pursuant to Wisconsin Statutes Section 802.06

I. NOTICE OF MOTION AND MOTION

PLEASE TAKE NOTICE that Defendant [________________________________] ("Defendant"), by its attorneys, will move this Court at the courthouse located at [________________________________], in [________________________________] County, Wisconsin, on [__/__/____] at [____]:[____] [☐ AM / ☐ PM], or as soon thereafter as counsel may be heard, for an Order dismissing [☐ the entire Complaint / ☐ the following claims: ________________________________] filed by Plaintiff [________________________________] ("Plaintiff").

This motion is made pursuant to Wis. Stat. § 802.06 on the grounds that:

(Check all that apply)

☐ § 802.06(2)(a)1. — This Court lacks jurisdiction over the subject matter of the action;
☐ § 802.06(2)(a)2. — This Court lacks jurisdiction over the person of Defendant;
☐ § 802.06(2)(a)3. — Venue is improper;
☐ § 802.06(2)(a)4. — Process was insufficient;
☐ § 802.06(2)(a)5. — Service of process was insufficient;
☐ § 802.06(2)(a)6. — The Complaint fails to state a claim upon which relief can be granted;
☐ § 802.06(2)(a)7. — Plaintiff has failed to join a party required under Wis. Stat. § 803.05;
☐ Statute of Limitations — Claims are time-barred under Wis. Stat. § 893;
☐ Other: [________________________________].

This motion is supported by the Memorandum of Law filed herewith.

II. PROCEDURAL INFORMATION

A. Filing Deadlines

Under Wis. Stat. § 802.06(1), a defendant must serve an answer within 20 days after service of the summons and complaint (or 45 days if service was made by publication under Wis. Stat. § 801.11). A motion asserting any of the defenses under § 802.06(2)(a)2.–5. must be presented before or at the time of the responsive pleading. Defenses under § 802.06(2)(a)6. (failure to state a claim) and § 802.06(2)(a)7. may be raised in any pleading, in a motion for judgment on the pleadings, or otherwise by motion within the time limits established in the scheduling order under § 802.10(3).

• Complaint served: [__/__/____]
• Answer/motion due (20 days after service): [__/__/____]
• This motion filed: [__/__/____]

B. Conversion to Summary Judgment

Important: Under Wis. Stat. § 802.06(2)(b), if matters outside the pleadings are presented to and not excluded by the court on a motion to dismiss for failure to state a claim, the motion must be treated as one for summary judgment under § 802.08. If the court converts the motion, the parties must be given a reasonable opportunity to present pertinent materials. This motion does not submit matters outside the pleadings.

C. Electronic Filing

Wisconsin courts use Wisconsin eCourts for electronic filing. Most Wisconsin circuit courts have implemented mandatory electronic filing for civil cases through the eCourts portal at: https://ecourts.wicourts.gov/. Check local county court requirements for specific e-filing mandates and exceptions.

III. STATEMENT OF THE CASE

A. The Parties

1. Plaintiff [________________________________] is [☐ an individual residing at ________________________________ / ☐ a [state] corporation with its principal place of business at ________________________________ / ☐ other: ________________________________].

2. Defendant [________________________________] is [☐ an individual residing at ________________________________ / ☐ a [state] corporation with its principal place of business at ________________________________ / ☐ other: ________________________________].

B. Claims Asserted by Plaintiff

C. Key Factual Allegations

Plaintiff's Complaint alleges: [________________________________].

IV. MEMORANDUM OF LAW

A. Wisconsin's Notice Pleading Standard

Wisconsin's notice pleading standard is codified at Wis. Stat. § 802.02(1), which requires "a short and plain statement of the claim, identifying the transaction or occurrence or series of transactions or occurrences out of which the claim arises and showing that the pleader is entitled to relief."

Under Wisconsin law, a motion to dismiss for failure to state a claim should be viewed with disfavor and is rarely granted. Strid v. Converse, 111 Wis. 2d 418 (1983). Wisconsin courts construe pleadings liberally in favor of the pleader. The question on a § 802.06(2)(a)6. motion is whether the complaint, construed in the light most favorable to the plaintiff, with all well-pleaded facts taken as true, states any valid ground for relief.

Key Principles:

• Accept all factual allegations in the complaint as true;
• Draw all reasonable inferences from the allegations in the plaintiff's favor;
• Dismiss only if no set of facts that could be proven under the allegations would entitle the plaintiff to relief;
• General allegations are sufficient; evidentiary specificity is not required.

Ollerman v. O'Rourke Co., Inc., 94 Wis. 2d 17, 24 (1980); DeBadts v. Breznay, 2016 WI App 10.

Despite the liberal standard, claims must still be anchored to a recognized legal theory and must allege the basic factual predicate for each element.

B. Argument on Each Ground

GROUND 1: § 802.06(2)(a)1. — Lack of Subject-Matter Jurisdiction

(Complete this section if applicable.)

This Court lacks subject-matter jurisdiction over [☐ all claims / ☐ the following claims: ________________________________] because:

☐ State immunity: The claim is barred by Wisconsin's governmental immunity doctrine under Wis. Stat. § 893.80 (claims against governmental bodies and officers). Specifically, [________________________________].

☐ Exclusive jurisdiction: Exclusive jurisdiction over this matter is vested in [the Wisconsin Supreme Court / the Department of Workforce Development / the Public Service Commission / federal court] by virtue of [________________________________].

☐ Mootness: The controversy is moot because [________________________________] and there is no justiciable controversy remaining.

☐ Standing: Plaintiff lacks standing to bring this action because [________________________________].

☐ Other: [________________________________].

Authority: [________________________________].

GROUND 2: § 802.06(2)(a)2. — Lack of Personal Jurisdiction

(Complete this section if applicable.)

This Court lacks personal jurisdiction over Defendant because:

Wisconsin Long-Arm Statute (Wis. Stat. § 801.05): Defendant is not amenable to personal jurisdiction under Wisconsin's long-arm statute because Defendant has not:

☐ Engaged in substantial and not isolated activities within Wisconsin (§ 801.05(1)(d));
☐ Committed an act in Wisconsin that gave rise to this action (§ 801.05(3));
☐ Committed an act outside Wisconsin causing injury in Wisconsin with the requisite Wisconsin connections (§ 801.05(4));
☐ Transacted business in Wisconsin giving rise to this action (§ 801.05(5)(a));
☐ Otherwise satisfied any provision of the long-arm statute (§ 801.05).

Constitutional Minimum Contacts: Even if the long-arm statute were technically satisfied, the exercise of personal jurisdiction would violate due process because Defendant lacks the minimum contacts with Wisconsin necessary to comport with traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310 (1945).

Specifically:
☐ Defendant is not domiciled in Wisconsin;
☐ Defendant has not purposefully availed itself of the privilege of conducting activities in Wisconsin;
☐ The claims do not arise out of any Wisconsin contacts of Defendant.

Authority: Wis. Stat. § 801.05; International Shoe; Kopke v. A. Hartrodt S.R.L., 2001 WI 99.

GROUND 3: § 802.06(2)(a)3. — Improper Venue

(Complete this section if applicable.)

Venue is improper in [________________________________] County because:

☐ Under Wis. Stat. § 801.50, venue is proper in [the county where the defendant resides / where the cause of action arose / where the subject real estate is located], which is [________________________________] County.

☐ Under Wis. Stat. § 801.51, the court has discretion to change venue for the convenience of witnesses and parties, and [________________________________] County is the more convenient venue because [________________________________].

☐ The parties' contract at [Exhibit ____] designates [________________________________] as the exclusive forum for disputes.

Requested Relief: Transfer to [________________________________] County under Wis. Stat. § 801.52.

GROUND 4: § 802.06(2)(a)4. — Insufficiency of Process

(Complete this section if applicable.)

The summons issued in this case is defective because:

☐ It fails to include the time within which the defendant must answer as required by Wis. Stat. § 801.09(2);
☐ It fails to name the parties as required;
☐ It is not properly signed or authenticated;
☐ Other defect: [________________________________].

GROUND 5: § 802.06(2)(a)5. — Insufficiency of Service of Process

(Complete this section if applicable.)

Service of process was insufficient because:

☐ Personal service defective: Service was not made personally on Defendant or an agent authorized to accept service, as required by Wis. Stat. § 801.11(1)(a);

☐ Substituted service defective: Substituted service at Defendant's usual place of abode was not made upon a competent adult member of the household as required by Wis. Stat. § 801.11(1)(b);

☐ Service on entity defective: Service on the defendant entity was not made on an officer, director, or registered agent as required by Wis. Stat. § 801.11(5);

☐ Time for service: Service was not made within 90 days of filing as required by [applicable rule];

☐ Publication service defective: Service by publication did not comply with Wis. Stat. § 801.11(1)(c);

☐ Other defect: [________________________________].

GROUND 6: § 802.06(2)(a)6. — Failure to State a Claim

(Complete for each claim that fails to state a claim.)

Claim 1: [________________________________] — Failure to State a Claim

Elements Under Wisconsin Law: A claim for [________________________________] under Wisconsin law requires: (1) [________________________________]; (2) [________________________________]; (3) [________________________________]; and (4) [________________________________].

Plaintiff's Allegations: Plaintiff alleges [________________________________]. See Complaint ¶¶ [____].

Why the Claim Fails:

☐ Missing element: The Complaint fails to allege any facts supporting [________________________________], a required element. Plaintiff's allegation at paragraph [____] — "[________________________________]" — is conclusory and fails to identify any conduct, act, or omission by Defendant giving rise to liability. Under Wisconsin notice pleading, some factual predicate for each element is still required. Olson v. Brenntag North America, Inc., 2019 WI App 28.

☐ Statute of limitations: The claim is barred by the [____]-year limitations period under Wis. Stat. § 893.[____]. The claim accrued on [__/__/____] and the Complaint was filed on [__/__/____], which is [____] [years/months] too late.

☐ No recognizable cause of action: Wisconsin does not recognize a cause of action for [________________________________] under these circumstances because [________________________________]. See [authority].

☐ Economic loss doctrine: This claim is barred by Wisconsin's economic loss doctrine because Plaintiff seeks purely economic damages arising from a contractual relationship. Digicorp, Inc. v. Ameritech Corp., 2003 WI 54.

☐ Governmental immunity: Defendant is protected by governmental immunity under Wis. Stat. § 893.80 because [________________________________].

☐ Statute of frauds: The underlying agreement is unenforceable under Wis. Stat. § 241.02 because it was not in writing, and no exception applies.

☐ Other: [________________________________].

Authority: [________________________________].

Claim 2: [________________________________] — Failure to State a Claim

Elements: [________________________________].

Plaintiff's Allegations: [________________________________]. See Complaint ¶¶ [____].

Why the Claim Fails:

☐ [________________________________]
☐ [________________________________]
☐ [________________________________]

Claim 3: [________________________________] — Failure to State a Claim

Elements: [________________________________].

Plaintiff's Allegations: [________________________________]. See Complaint ¶¶ [____].

Why the Claim Fails:

☐ [________________________________]
☐ [________________________________]

Claim 4: [________________________________] — Failure to State a Claim

Elements: [________________________________].

Plaintiff's Allegations: [________________________________]. See Complaint ¶¶ [____].

Why the Claim Fails:

☐ [________________________________]
☐ [________________________________]

GROUND 7: § 802.06(2)(a)7. — Failure to Join Required Party

(Complete this section if applicable.)

Plaintiff has failed to join [________________________________] (the "Absent Party"), a party whose presence is required under Wis. Stat. § 803.05 because:

☐ Complete relief cannot be afforded to the existing parties without the Absent Party;

☐ The Absent Party claims an interest in the subject of the action and disposing of the action without the Absent Party would:
☐ Impair the Absent Party's ability to protect its interest; or
☐ Leave an existing party subject to double, multiple, or inconsistent obligations.

☐ The Absent Party is amenable to service of process and its joinder would not deprive this Court of jurisdiction.

☐ If joinder is not feasible, equity and good conscience require dismissal because [________________________________].

V. CONCLUSION AND PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court:

1. GRANT this Motion to Dismiss;

2. DISMISS [☐ all causes of action / ☐ the following causes of action: ________________________________] [☐ with prejudice / ☐ without prejudice];

3. ☐ Grant Plaintiff [____] days to file an Amended Complaint if the Court dismisses without prejudice;

4. ☐ Transfer this action to [________________________________] County if the Court declines to dismiss for improper venue;

5. ☐ Award Defendant its costs as allowed by law; and

6. Grant such other and further relief as the Court deems just and proper.

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]
[Attorney Name]
Wisconsin State Bar No. [____________________]
[Street Address]
[City, WI ZIP]
Telephone: ([____]) [____]-[________]
Fax: ([____]) [____]-[________]
Email: [________________________________]

ATTORNEYS FOR DEFENDANT [________________________________]

Date: [__/__/____]

CERTIFICATE OF SERVICE

I certify that on [__/__/____], I electronically filed the foregoing Motion to Dismiss through Wisconsin eCourts and served a copy upon all counsel of record and/or pro se parties as follows:

[________________________________]
[Attorney Name]

SOURCES AND REFERENCES

• Wis. Stat. § 802.06 (Motion to Dismiss): https://docs.legis.wisconsin.gov/document/statutes/802.06
• Wis. Stat. § 802.02 (Notice Pleading): https://docs.legis.wisconsin.gov/document/statutes/802.02
• Wis. Stat. § 801.05 (Long-Arm Statute): https://docs.legis.wisconsin.gov/document/statutes/801.05
• Wis. Stat. § 893.80 (Governmental Immunity): https://docs.legis.wisconsin.gov/document/statutes/893.80
• Wisconsin eCourts: https://ecourts.wicourts.gov/
• Wisconsin Legislature — Chapter 802: https://docs.legis.wisconsin.gov/statutes/statutes/802