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Wisconsin Motion to Dismiss

In Wisconsin you move to dismiss under Wis. Stat. 802.06(2) within the 20-day answer window in Circuit Court.

Introduction

In Wisconsin you challenge a complaint before answering by filing a motion to dismiss under Wis. Stat. 802.06(2). Wisconsin civil procedure is statute-based rather than court-rule-based, so the dismissal defenses live in the legislature's civil-procedure code at chapter 802 rather than in a separate set of rules. Section 802.06(2)(a) lets a pleader raise certain enumerated defenses by motion at the pleader's option, and the defenses track the federal Rule 12(b) menu. Failure to state a claim upon which relief can be granted is the most common ground and sits at 802.06(2)(a)6. Under 802.06(2)(b), a motion making any of the 802.06(2)(a)1. to 10. defenses must be made before pleading if a further pleading is permitted, so it is filed in place of the answer within the same window: 20 days after service of the complaint under Wis. Stat. 802.06(1). That window increases to 45 days if a defendant is an insurance company, if any cause of action is founded in tort, or if the moving party is the state or a state officer, agent, employee, or agency. Improper venue is carved out of the motion list and is handled separately under s. 801.51. Missing the window risks default judgment. DocDraft drafts a Wisconsin-formatted motion to dismiss from your facts, with attorney review available before you file.

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Key Things to Know

  1. 1

    Wisconsin's vehicle is a statutory motion to dismiss under Wis. Stat. 802.06(2). Wisconsin civil procedure is statute-based, so this defense lives in chapter 802 of the statutes rather than in a separate court rule, and the enumerated defenses track the federal Rule 12(b) menu.

  2. 2

    Section 802.06(2)(a) enumerates defenses 1. through 10. that a pleader may raise by motion. The grounds confirmed by the statute text include lack of jurisdiction over the subject matter at (a)2., lack of jurisdiction over the person or property at (a)3., untimeliness or insufficiency of service of summons or process at (a)5., failure to state a claim upon which relief can be granted at (a)6., and another action pending between the same parties for the same cause at (a)10. Improper venue is excluded from this list and handled under s. 801.51.

  3. 3

    The motion is made before pleading if a further pleading is permitted under 802.06(2)(b), so it falls within the answer window: 20 days after service of the complaint under Wis. Stat. 802.06(1). Filing the motion stands in place of the answer within that window.

  4. 4

    The 20-day window increases to 45 days if a defendant is an insurance company, if any cause of action raised is founded in tort, or if the moving party is the state or a state officer, agent, employee, or agency, under Wis. Stat. 802.06(1).

  5. 5

    Chapter 802 imposes no statewide supporting-memorandum or page-limit requirement specific to a motion to dismiss. Brief and page-limit rules are set by individual circuit-court local rules at the county level, so check the local rules of the circuit court where your case is pending. Pleading and caption format is governed by Wis. Stat. 802.04.

  6. 6

    The most common ground is 802.06(2)(a)6., failure to state a claim upon which relief can be granted, which tests the legal sufficiency of the complaint.

  7. 7

    File in the Circuit Court, Wisconsin's trial court of general jurisdiction under Wis. Stat. 753.03, with the clerk of the circuit court for the county named in the summons.

Key Decisions

Choosing the Grounds for Dismissal

Timing and Strategy

Filing and Serving the Motion

Customize your Motion to Dismiss Template with DocDraft

STATE OF WISCONSIN CIRCUIT COURT ___________ COUNTY

____________________________, Plaintiff,

 v.                                    Case No. ______________

____________________________, Defendant.

DEFENDANT'S MOTION TO DISMISS UNDER WIS. STAT. 802.06(2)

Now comes the Defendant, ____________________, and pursuant to Wis. Stat. 802.06(2), moves this Court for an order dismissing Plaintiff's Complaint. This motion is made before the service of a responsive pleading and within the time otherwise allowed for the answer under Wis. Stat. 802.06(1), as required by Wis. Stat. 802.06(2)(b). The grounds for this motion are set forth below and in the accompanying memorandum in support.

GROUNDS FOR DISMISSAL

Defendant moves to dismiss on the following ground(s) enumerated in Wis. Stat. 802.06(2)(a):

____ (a)2. lack of jurisdiction over the subject matter; ____ (a)3. lack of jurisdiction over the person or property; ____ (a)5. untimeliness or insufficiency of service of summons or process; ____ (a)6. failure to state a claim upon which relief can be granted; ____ (a)10. another action pending between the same parties for the same cause.

[Section 802.06(2)(a) enumerates defenses 1. through 10. Identify by paragraph number any additional enumerated 802.06(2)(a) defense you intend to raise, and confirm its exact statutory wording against the current text of Wis. Stat. 802.06(2). Note that improper venue is not raised by this motion and is handled under Wis. Stat. 801.51.]

[State the specific facts and basis for each ground checked above.]

MEMORANDUM IN SUPPORT

[Set out the legal authorities and argument supporting dismissal. Note: chapter 802 sets no statewide page limit or uniform supporting-memorandum requirement specific to a motion to dismiss. Many circuit courts set brief and page-limit requirements by county local rule. Check the local rules of this circuit court and conform this memorandum accordingly. Pleading and caption format is governed by Wis. Stat. 802.04.]

WHEREFORE, Defendant respectfully requests that this Court dismiss Plaintiff's Complaint and grant such other and further relief as the Court deems just and proper.

Respectfully submitted,

[Name] [Address] [Telephone] / [Email] [State Bar of Wisconsin number, if represented by counsel] Defendant / Counsel for Defendant

PROOF OF SERVICE

I certify that a copy of the foregoing Motion to Dismiss was served upon ____________________, [Plaintiff / counsel for Plaintiff], at ____________________ by ____________________ [method of service] on this ____ day of ________, 20.

[Name]

Wisconsin Requirements for Motion to Dismiss

File within the 20-day answer window

Under Wis. Stat. 802.06(2)(b) a motion to dismiss must be made before pleading if a further pleading is permitted, so it is filed within the answer window: 20 days after service of the complaint under Wis. Stat. 802.06(1). The motion stands in place of the answer within that window.

Check whether the 45-day window applies to you

The 20-day window increases to 45 days if a defendant is an insurance company, if any cause of action raised is founded in tort, or if the moving party is the state or a state officer, agent, employee, or agency, under Wis. Stat. 802.06(1). Confirm the service date and which window applies before you calculate your deadline.

Select your 802.06(2)(a) grounds

Wis. Stat. 802.06(2)(a) enumerates defenses 1. through 10. that may be raised by motion. Confirmed grounds in the statute text include lack of jurisdiction over the subject matter (a)2., lack of jurisdiction over the person or property (a)3., untimeliness or insufficiency of service of summons or process (a)5., failure to state a claim upon which relief can be granted (a)6., and another action pending between the same parties for the same cause (a)10. Improper venue is excluded and handled under s. 801.51.

Consider the failure-to-state-a-claim ground at 802.06(2)(a)6.

The most common ground is Wis. Stat. 802.06(2)(a)6., failure to state a claim upon which relief can be granted. It tests the legal sufficiency of the complaint rather than the underlying facts.

Attach a supporting memorandum if your circuit court requires one

Chapter 802 sets no statewide page limit or uniform supporting-memorandum requirement specific to a motion to dismiss. Brief and page-limit rules are set by individual circuit-court local rules at the county level. Check the local rules of the circuit court where your case is pending and conform the memorandum accordingly. Pleading and caption format is governed by Wis. Stat. 802.04.

Check local rules for a proposed order

No statewide statute in chapter 802 requires a proposed order with a motion to dismiss. Submission of a proposed order is governed by individual circuit-court local rules, which vary by county. Confirm against the local rules of the governing county's circuit court before filing.

Plan for the responsive pleading if the motion is denied

Under Wis. Stat. 802.06(2)(b) the motion is made before pleading and stands in place of the answer. If the court denies the motion, you then file your responsive pleading on the timing set by chapter 802 and the court's order. Confirm the deadline set by the court and the governing statute for your case.

File in the Circuit Court and serve the other party

File the motion with the clerk of the circuit court for the county named in the summons. The Circuit Court is Wisconsin's trial court of general jurisdiction under Wis. Stat. 753.03. Serve a copy on the plaintiff or plaintiff's counsel and include proof of service.

Frequently Asked Questions

File a written motion to dismiss under Wis. Stat. 802.06(2) before serving your answer, identifying which enumerated 802.06(2)(a) defenses apply. Under 802.06(2)(b) the motion must be made before pleading if a further pleading is permitted. File it with the clerk of the circuit court for the county named in the summons. Some circuit courts set local motion-practice procedures by county rule, so check the local rules of your court.

A motion to dismiss is filed within the answer window: 20 days after service of the complaint under Wis. Stat. 802.06(1), because under 802.06(2)(b) it must be made before pleading. That window increases to 45 days if a defendant is an insurance company, if any cause of action is founded in tort, or if the moving party is the state or a state officer, agent, employee, or agency.

Wis. Stat. 802.06(2)(a) enumerates defenses 1. through 10. that may be raised by motion. Confirmed grounds in the statute text include lack of jurisdiction over the subject matter, lack of jurisdiction over the person or property, untimeliness or insufficiency of service of summons or process, failure to state a claim upon which relief can be granted, and another action pending between the same parties for the same cause. Improper venue is excluded and handled under s. 801.51.

Chapter 802 of the Wisconsin Statutes contains no statewide meet-and-confer requirement as a precondition to filing a motion to dismiss under 802.06(2). Some circuit courts impose local motion-practice procedures by county rule, but these vary and are not a single statewide requirement. Check the local rules of the circuit court where your case is pending.

Under Wis. Stat. 802.06(2)(b), a motion making an 802.06(2)(a) defense is made before pleading, so it stands in place of the answer. If the court denies the motion, you then file your responsive pleading. The timing of the responsive pleading after a denial is governed by chapter 802 and the court's order; confirm the deadline set by the court and the governing statute for your case.

File in the Circuit Court, Wisconsin's trial court of general jurisdiction under Wis. Stat. 753.03, with the clerk of the circuit court for the county named in the summons. Serve a copy on the plaintiff or plaintiff's counsel and include proof of service.