Motion to Dismiss - Wisconsin

STATE OF WISCONSIN

CIRCUIT COURT, [________________________________] COUNTY

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(2)(a) (which enumerates ten defenses that may be raised by motion in lieu of the responsive pleading) and, as to venue, Wis. Stat. §§ 801.50–801.52, on the grounds that:

(Check all that apply)

☐ § 802.06(2)(a)1. — Plaintiff lacks capacity to sue, or Defendant lacks capacity to be sued;
☐ § 802.06(2)(a)2. — This Court lacks jurisdiction over the subject matter of the action;
☐ § 802.06(2)(a)3. — This Court lacks jurisdiction over the person (or property) of Defendant;
☐ § 802.06(2)(a)4. — The summons or process was insufficient;
☐ § 802.06(2)(a)5. — Service of the summons or process was untimely or 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. § 803.03;
☐ § 802.06(2)(a)8. — The claim is barred by res judicata;
☐ § 802.06(2)(a)9. — Claims are time-barred under Wis. Stat. ch. 893;
☐ § 802.06(2)(a)10. — Another action is pending between the same parties for the same cause;
☐ Improper Venue — Venue is improper under Wis. Stat. §§ 801.50–801.51. (Note: improper venue is expressly excluded from the ten § 802.06(2)(a) motion grounds and must instead be raised under § 801.51.)
☐ 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 generally serve an answer within 20 days after service of the summons and complaint. The 45-day period applies instead where the defendant is the state (or a state agency, officer, employee, or agent), where a defendant is an insurance company, or where any cause of action is founded in tort. Where service was made by publication (no personal or substituted personal service), Wis. Stat. § 801.09(2)(b) requires an answer or demand within 40 days after the date stated in the summons for first publication.

A defendant may raise any of the ten enumerated § 802.06(2)(a) defenses either in the responsive pleading or, at the defendant's option, by a pre-answer motion. If raised by motion, Wis. Stat. § 802.06(2)(b) requires the motion to be made before pleading, if a further pleading is permitted. A defense of failure to state a claim (¶ (a)6.) preserved in the answer may also later be presented in a motion for judgment on the pleadings under § 802.06(3). Improper venue is not one of the ten enumerated § 802.06(2)(a) defenses; an objection to venue must instead be made in accordance with Wis. Stat. § 801.51.

• 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 the Wisconsin Circuit Court eFiling system (part of the statewide eFile/eCourts program), governed by Wis. Stat. § 801.18. Most Wisconsin circuit courts have implemented mandatory electronic filing for civil cases. Filers register for an eCourts account and file through the portal at: https://efiling.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, 331 N.W.2d 350 (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); Data Key Partners v. Permira Advisers LLC, 2014 WI 86, 356 Wis. 2d 665, 849 N.W.2d 693 (legal conclusions unsupported by any pleaded facts are insufficient); Cattau v. National Insurance Services of Wisconsin, Inc., 2019 WI 46, 386 Wis. 2d 515, 926 N.W.2d 756 (confirming that Data Key Partners did not create a heightened, federal-style pleading standard and that Strid's liberal standard remains controlling).

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 Capacity to Sue or Be Sued

(Complete this section if applicable.)

☐ Plaintiff lacks the legal capacity to sue because [________________________________].

☐ Defendant lacks the legal capacity to be sued because [________________________________].

Authority: [________________________________].

GROUND 2: § 802.06(2)(a)2. — 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 3: § 802.06(2)(a)3. — 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: Improper Venue (Wis. Stat. §§ 801.50–801.52)

(Complete this section if applicable. NOTE: Improper venue is expressly excluded from the ten enumerated § 802.06(2)(a) defenses — Wis. Stat. § 802.06(2)(a) applies to "[e]very defense ... except the defense of improper venue." An objection to venue is instead made under § 801.51.)

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, not the county where this action was filed.

☐ Under Wis. Stat. § 801.52, the court has discretion to change venue for the convenience of witnesses and parties, and [________________________________] County is the more convenient venue because [________________________________]. (Discretionary change of venue under § 801.52 is available only after venue has first been shown to be proper under § 801.50(2).)

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

Requested Relief: Transfer to [________________________________] County under Wis. Stat. § 801.51 (mandatory transfer where venue is improper) or § 801.52 (discretionary transfer).

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, though this does not impose a heightened federal-style pleading standard. Data Key Partners v. Permira Advisers LLC, 2014 WI 86, 356 Wis. 2d 665, 849 N.W.2d 693; Cattau v. National Insurance Services of Wisconsin, Inc., 2019 WI 46, 386 Wis. 2d 515, 926 N.W.2d 756.

☐ Statute of limitations (§ 802.06(2)(a)9.): 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. § 803.03 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 [________________________________].

GROUND 8: § 802.06(2)(a)8. — Res Judicata

(Complete this section if applicable.)

☐ This action is barred by res judicata (claim preclusion) because a court of competent jurisdiction entered a final judgment on the merits in [case name/number], involving the same parties (or their privies) and the same claim(s), specifically [________________________________].

Authority: [________________________________].

GROUND 10: § 802.06(2)(a)10. — Another Action Pending Between the Same Parties for the Same Cause

(Complete this section if applicable.)

☐ Another action, [case name/number], is currently pending between the same parties for the same cause, specifically [________________________________], and this action should therefore be dismissed (or stayed) to avoid duplicative litigation.

Authority: [________________________________].

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 Circuit Court eFiling 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; ten enumerated (2)(a) defenses): 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. § 803.03 (Joinder of Persons Needed for Just and Complete Adjudication): https://docs.legis.wisconsin.gov/document/statutes/803.03
• Wis. Stat. §§ 801.50–801.52 (Venue; Objection to Venue; Discretionary Change of Venue): https://docs.legis.wisconsin.gov/document/statutes/801.50
• 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
• Wis. Stat. § 801.18 (Electronic Filing): https://docs.legis.wisconsin.gov/document/statutes/801.18
• Wisconsin Circuit Court eFiling: https://efiling.wicourts.gov/
• Wisconsin Legislature — Chapter 802: https://docs.legis.wisconsin.gov/statutes/statutes/802