802.06.Defenses and objection; when and how presented; by pleading or motion; motion for judgment on the pleadings.

Ch. 802: Pleadings, Motions and Pretrial Practice · Last amended 2017 · Last verified July 15, 2026

In one sentenceSection 802.06 sets the deadline to answer a complaint, lists defenses -- including failure to state a claim and lack of jurisdiction -- that a defendant may raise by pre-answer motion, and explains how such a motion converts into a summary judgment motion when outside materials come in.

Full Text of Section 802.06

Text sizeJump to: (1) (2) (3) (4) (5) (6) (7) (8) (9)

(1) WHEN PRESENTED.

(a) 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. If a guardian ad litem is appointed for a defendant, the guardian ad litem shall have 20 days after appointment to serve the answer. 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 any pleading is ordered by the court, it shall be served within 20 days after service of the order, unless the order otherwise directs. 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 service of a motion permitted under sub. (2) alters these periods of time as follows, unless a different time is fixed by order of the court: 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.

(b) 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.

(2) HOW PRESENTED.

(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 3rd-party 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.

(b) A motion making any of the defenses in par. (a) 1. to 10. shall be made before pleading if a further pleading is permitted. Objection to venue shall be made in accordance with s. 801.51. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. 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.

(3) JUDGMENT ON THE PLEADINGS. 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. If, on a motion for judgment on the pleadings, matters outside 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 the motion by s. 802.08.

(4) PRELIMINARY HEARINGS. The defenses specifically listed in sub. (2), whether made in a pleading or by motion, the motion for judgment under sub. (3) and the motion to strike under sub. (6) shall be heard and determined before trial on motion of any party, unless the judge to whom the case has been assigned orders that the hearing and determination thereof be deferred until the trial. The hearing on the defense of lack of jurisdiction over the person or property shall be conducted in accordance with s. 801.08.

(5) MOTION FOR MORE DEFINITE STATEMENT. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

(6) MOTION TO STRIKE. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, scandalous, or indecent matter. If a defendant in the action is an insurance company, if any cause of action raised in the original pleading, cross-claim, or counterclaim is founded in tort, or if the moving party is the state or an officer, agent, employee, or agency of the state, the 20-day time period under this subsection is increased to 45 days.

(7) CONSOLIDATION OF DEFENSES IN MOTIONS. A party who makes a motion under this section may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this section but omits therefrom any defense or objection then available to the party which this section permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in sub. (8) (b) to (d) on any of the grounds there stated.

(8) WAIVER OR PRESERVATION OF CERTAIN DEFENSES.

(a) A defense of lack of jurisdiction over the person or the property, insufficiency of process, untimeliness or insufficiency of service of process or another action pending between the same parties for the same cause is waived only if any of the following conditions is met:

1. The defense is omitted from a motion in the circumstances described in sub. (7).

2. The defense is neither made by motion under this section nor included in a responsive pleading.

(b) A defense of failure to join a party indispensable under s. 803.03 or of res judicata may be made in any pleading permitted or ordered under s. 802.01 (1), or by motion before entry of the final pretrial conference order. A defense of statute of limitations, failure to state a claim upon which relief can be granted, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under s. 802.01 (1), or by a motion for judgment on the pleadings, or otherwise by motion within the time limits established in the scheduling order under s. 802.10 (3).

(c) If it appears by motion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.

(d) A defense of lack of capacity may be raised within the time permitted under s. 803.01.

(9) TELEPHONE HEARINGS. Oral argument permitted on motions under this section may be heard as prescribed in s. 807.13 (1).

End

Official Notes

Judicial Council Committee’s Note, 1976: Subs. (2) (e) and (8) make clear that, unless waived, a motion can be made to claim as a defense lack of timely service within the 60 day period that is required by s. 801.02 to properly commence an action. See also s. 893.39. Defenses under sub. (8) cannot be raised by an amendment

to a responsive pleading permitted by s. 802.09 (1). [Re Order effective Jan. 1, 1977]

Judicial Council Committee’s Note, 1977: Sub. (1) which governs when defenses and objections are presented, has been amended to delete references to the use of the scheduling conference under s. 802.10 (1) as the use of such a scheduling procedure is now discretionary rather than mandatory. The time periods under s. 802.06 are still subject to modification through the use of amended and supplemental pleadings under s. 802.09, the new calendaring practice under s. 802.10, and the pretrial conference under s. 802.11. [Re Order effective July 1, 1978]

Judicial Council Note, 1983: Sub. (1) is amended by applying the extended response time for state agencies, officers and employees to state agents. The extended time is intended to allow investigation of the claim by the department of justice to determine whether representation of the defendant by the department is warranted under s. 893.82 or 895.46, Stats. [Re Order effective July 1, 1983]

Judicial Council Note, 1988: Sub. (9) [created] allows oral arguments permitted on motions under this section to be heard by telephone conference. [Re Order effective Jan. 1, 1988]

Plain-English Summary

A defendant generally has 20 days after being served with the complaint to answer, extended to 45 days if the defendant is an insurance company, the state or a state officer, employee, or agent, or if any claim in the case sounds in tort; a reply to a counterclaim and an answer to a cross claim each follow the same timing pattern. Filing a motion to dismiss for failure to state a claim, a motion for judgment on the pleadings, or a motion for a more definite statement stays discovery and other proceedings for up to 180 days or until the court rules, unless the court finds good cause for particularized discovery in the meantime.

Most defenses must go in the responsive pleading, but a defendant may instead raise several specific defenses by motion before answering: lack of capacity, lack of subject-matter or personal jurisdiction, insufficiency of process or service, failure to state a claim upon which relief can be granted, failure to join a necessary party, res judicata, statute of limitations, or another action pending between the same parties for the same cause. If matters outside the pleadings come in on a motion to dismiss for failure to state a claim, or on a motion asserting res judicata or the statute of limitations, and the court does not exclude them, the motion converts into a summary judgment motion under section 802.08, with both sides getting a reasonable chance to present the material that section calls for.

After issue is joined, any party may move for judgment on the pleadings, subject to the same conversion rule if outside material comes in. These preliminary defenses and motions are normally heard and decided before trial unless the assigned judge defers them, and a motion for a more definite statement or a motion to strike each has its own procedure and response deadline. Waiver rules follow: defenses like lack of personal jurisdiction, insufficient process, insufficient service, and another action pending are waived if omitted from an initial motion raising other listed defenses, or if never raised by motion or in the answer. Failure to join a necessary party and res judicata can still be raised in a later pleading or before the final pretrial order; statute of limitations, failure to state a claim, and failure to state a legal defense can be raised in a pleading, by a motion for judgment on the pleadings, or otherwise within the scheduling order’s deadlines. A lack of subject-matter jurisdiction requires dismissal whenever it comes to the court’s attention, and a capacity defense follows the timing in section 803.01.

Frequently Asked Questions

Is there a Wisconsin equivalent to a motion to dismiss for failure to state a claim?

Yes. Section 802.06(2)(a)6, sometimes called a motion to dismiss or an MTD, lets a defendant move to dismiss for failure to state a claim upon which relief can be granted instead of answering that claim.

How long does a defendant have to answer a complaint in Wisconsin?

20 days generally, extended to 45 days if the defendant is the state, a state officer, employee, or agent, an insurance company, or if the underlying claim sounds in tort.

What happens if evidence outside the complaint is submitted with a motion to dismiss?

If the court does not exclude it, a motion to dismiss for failure to state a claim, or one raising res judicata or the statute of limitations, is treated as a motion for summary judgment under section 802.08, with both sides given a reasonable opportunity to present the material that requires.

Can a defendant lose the right to raise lack of personal jurisdiction later in the case?

Yes. That defense is waived if it is left out of an initial motion raising other listed defenses, or if it is never raised by motion or in the responsive pleading.

Does filing a motion to dismiss pause discovery in Wisconsin?

Yes. Filing a motion to dismiss for failure to state a claim, a motion for judgment on the pleadings, or a motion for a more definite statement stays discovery for up to 180 days or until the court rules, unless the court finds good cause for particularized discovery.

Amendment History

History: Sup. Ct. Order, 67 Wis. 2d 585, 623 (1975); 1975 c. 218; Sup. Ct. Order, 73 Wis. 2d xxxi; Sup. Ct. Order, 82 Wis. 2d ix; 1977 c. 260; 1977 c. 447 ss. 196, 210; 1979 c. 110 ss. 51, 60 (7); 1979 c. 323 s. 33; 1981 c. 390 s. 252; Sup. Ct. Order, 112 Wis. 2d xi (1983); 1983 a. 228 s. 16; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1987 a. 256; 1993 a. 213; Sup. Ct. Order No. 95-04, 191 Wis. 2d xxi (1995); 1995 a. 225, 411; 1997 a. 133, 187; 1999 a. 32; 2001 a. 16; Sup. Ct. Order No. 03-06A, 2005 WI 86, 280 Wis. 2d xiii; 2005 a. 442; 2007 a. 97; 2017 a. 235.

Source & verification. Section text and official notes are reproduced verbatim from the Wisconsin Statutes, published by the Wisconsin Legislature (Legislative Reference Bureau). Last verified July 15, 2026. · Official source

Also known as: wisconsin motion to dismisswisconsin MTD rulefailure to state a claim wisconsinmotion for judgment on the pleadings wisconsinwaiver of personal jurisdiction defense wisconsin