The Wisconsin motion to dismiss: ten defenses, and a 180-day discovery stay

Wisconsin's dismissal statute does two things no federal practitioner expects. It lets you raise res judicata and the statute of limitations by motion, which most systems treat as affirmative defenses. And filing certain motions stops discovery for up to 180 days, automatically.

That stay is the most consequential provision in the section, and it is easy to miss because it sits in the subsection about timing rather than the one about motions.

The ten defenses

Wis. Stat. § 802.06(2)(a):

Every defense, in law or fact, except the defense of improper venue, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or 3rdparty claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: 1. Lack of capacity to sue or be sued. 2. Lack of jurisdiction over the subject matter. 3. Lack of jurisdiction over the person or property. 4. Insufficiency of summons or process. 5. Untimeliness or insufficiency of service of summons or process. 6. Failure to state a claim upon which relief can be granted. 7. Failure to join a party under s. 803.03. 8. Res judicata. 9. Statute of limitations. 10. Another action pending between the same parties for the same cause.

Four of these have no counterpart in the federal Rule 12(b) list:

• 8. Res judicata
• 9. Statute of limitations
• 10. Another action pending between the same parties for the same cause
• 1. Lack of capacity

Being able to raise limitations by motion is a substantial practical advantage in a debt case or any stale claim. Elsewhere it usually has to be pleaded and then tested at summary judgment.

Note also what is excluded: "except the defense of improper venue." Venue is not on this list and is handled separately — § 802.06(2)(b): "Objection to venue shall be made in accordance with s. 801.51."

When the motion must be made

The same paragraph:

A motion making any of the defenses in par. (a) 1. to 10. shall be made before pleading if a further pleading is permitted.

Before pleading. A defendant who answers first has given up the option of raising these by motion, though the defenses themselves generally survive in the answer.

The 180-day stay

§ 802.06(1)(b) is the provision to know:

Upon the filing of a motion to dismiss under sub. (2) (a) 6., a motion for judgment on the pleadings under sub. (3), or a motion for more definite statement under sub. (5), all discovery and other proceedings shall be stayed for a period of 180 days after the filing of the motion or until the ruling of the court on the motion, whichever is sooner, unless the court finds good cause upon the motion of any party that particularized discovery is necessary.

Read the components:

• It is triggered by three motions — failure to state a claim under (2)(a)6, judgment on the pleadings under (3), and more definite statement under (5). Not by the other nine defenses.
• It stays "all discovery and other proceedings", not just discovery.
• It runs for 180 days or until the ruling, whichever is sooner.
• The only way round it is a court finding of good cause that particularized discovery is necessary, on a party's motion.

For a defendant, that is a powerful and automatic pause. For a plaintiff, it is a reason to be ready with a particularized-discovery motion if the case cannot afford six months of silence.

The answer clock, and the tort and insurer exception

§ 802.06(1)(a) sets the periods, and Wisconsin's are shorter than most — with a large exception:

Except when a court dismisses an action or special proceeding under s. 802.05 (4), a defendant shall serve an answer within 20 days after the service of the complaint upon the defendant. … A party served with a pleading stating a cross claim against the party shall serve an answer thereto within 20 days after the service upon the party. The plaintiff shall serve a reply to a counterclaim in the answer within 20 days after service of the answer. The state or an agency of the state or an officer, employee, or agent of the state shall serve an answer to the complaint or to a cross claim or a reply to a counterclaim within 45 days after service of the pleading in which the claim is asserted. … If a defendant in the action is an insurance company, or if any cause of action raised in the original pleading, cross claim, or counterclaim is founded in tort, the periods of time to serve a reply or answer shall be 45 days.

The tort trigger is worth reading twice: **45 days applies if any cause of action in the pleading is founded in tort** — not only if the whole case is. A mixed contract-and-tort complaint carries the longer period.

And if you move instead of answering:

if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after notice of the court's action; or if the court grants a motion for a more definite statement, the responsive pleading shall be served within 10 days after the service of the more definite statement.

Ten days after a denial — shorter than the original period in every case.

Conversion to summary judgment

§ 802.06(2)(b) converts three of the motions if outside material comes in:

If on a motion asserting the defense described in par. (a) 6. to dismiss for failure of the pleading to state a claim upon which relief can be granted, or on a motion asserting the defenses described in par. (a) 8. or 9., matters outside of the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in s. 802.08, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by s. 802.08.

Note which ones: (a)6 failure to state a claim, (a)8 res judicata, and (a)9 limitations. Those last two are the ones most likely to need documents — a prior judgment, or the date of accrual — so conversion is a live risk whenever you use them.

If conversion happens, see opposing summary judgment in Wisconsin.

Judgment on the pleadings

§ 802.06(3):

After issue is joined between all parties but within time so as not to delay the trial, any party may move for judgment on the pleadings. Prior to a hearing on the motion, any party who was prohibited under s. 802.02 (1m) from specifying the amount of money sought in the demand for judgment shall specify that amount to the court and to the other parties.

That second sentence is a Wisconsin quirk worth knowing: where the pleading rules barred a party from stating a money figure, the figure must be disclosed before this motion is heard.

How Wisconsin compares

A short checklist

1. Check whether any claim is founded in tort, or whether a defendant is an insurer. Either makes it 45 days, not 20.
2. Move before pleading if you want to use the motion route. Answering forfeits it.
3. Consider limitations and res judicata as motions, not just defenses — Wisconsin allows both.
4. Expect the 180-day stay if you file a failure-to-state-a-claim motion, a judgment on the pleadings motion, or a more definite statement motion.
5. If you are the plaintiff and cannot afford the stay, move for particularized discovery and be ready to show good cause.
6. Watch for conversion — outside material on grounds 6, 8 or 9 turns the motion into summary judgment.
7. Diarise ten days from notice of a denial; that is all you get to answer.
8. Raise venue separately under s. 801.51. It is expressly outside this section.

Where these rules live

• Wis. Stat. § 801.15 — Time
• Wis. Stat. § 801.51 — Challenges to improper venue
• Wis. Stat. § 802.02 — General rules of pleading
• Wis. Stat. § 802.06 — Defenses and objection to pleadings
• Wis. Stat. § 802.08 — Summary judgment
• Wis. Stat. § 803.03 — Joinder of persons needed for just and complete adjudication

This page explains what the statute says. It isn't legal advice, and the standard applied to a motion to dismiss for failure to state a claim under § 802.06(2)(a)6 is developed in case law this site doesn't cover.