(1) AVAILABILITY. A party may, within 8 months of the filing of a summons and complaint or within the time set in a scheduling order under s. 802.10, move for summary judgment on any claim, counterclaim, cross claim, or 3rd-party claim which is asserted by or against the party. Amendment of pleadings is allowed as in cases where objection or defense is made by motion to dismiss.
802.08.Summary judgment.
Ch. 802: Pleadings, Motions and Pretrial Practice · Last amended 2007 · Last verified July 15, 2026
In one sentenceSection 802.08 lets any party move for summary judgment within eight months of filing or within a scheduling order’s deadline, spells out the affidavit and response requirements, and directs the court to grant judgment when the record shows no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Full Text of Section 802.08
(2) MOTION. Unless earlier times are specified in the scheduling order, the motion shall be served at least 20 days before the time fixed for the hearing and the adverse party shall serve opposing affidavits, if any, at least 5 days before the time fixed for the hearing. 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. The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
(3) SUPPORTING PAPERS. Supporting and opposing affidavits shall be made on personal knowledge and shall set forth such evidentiary facts as would be admissible in evidence. Copies of all papers or parts thereof referred to in an affidavit shall be attached thereto and served therewith, if not already of record. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of the pleadings but the adverse party’s response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against such party.
(4) WHEN AFFIDAVITS UNAVAILABLE. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the motion for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(5) AFFIDAVITS MADE IN BAD FAITH. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this section is presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney fees.
(6) JUDGMENT FOR OPPONENT. If it shall appear to the court that the party against whom a motion for summary judgment is asserted is entitled to a summary judgment, the summary judgment may be awarded to such party even though the party has not moved therefor.
(7) TELEPHONE HEARINGS. Oral argument permitted on mo- tions under this section may be heard as prescribed in s. 807.13
(1) .
Official Notes
Judicial Council Committee’s Note, 1977: Sub. (1) is revised to allow a party at any time within 8 months after the summons and complaint are filed or the time established in a scheduling order under s. 802.10 to move for a summary judgment. The 8-month time period has been created as the old procedure requiring a party to move for summary judgment not later than the time provided under s. 802.10 can no longer apply in most cases as the use of such a scheduling order is now completely discretionary with the trial judge. The 8-month time period is subject to enlargement under s. 801.15 (2) (a). [Re Order effective July 1, 1978]
Judicial Council Note, 1988: Sub. (7) [created] allows oral arguments permitted on motions for summary judgment to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
Judicial Council Note, 1992: The prior sub. (2), allowing service of affidavits opposing summary judgment up to the date of hearing, afforded such minimal notice to the court and moving party that a plethora of local court rules resulted. Community Newspapers, Inc. v. West Allis, 158 Wis. 2d 28, 461 N.W.2d 785 (Ct. App. 1990). Requiring such affidavits to be served at least 5 days before the hearing is intended to preclude such local rules and promote uniformity of practice. Courts may require earlier filing by scheduling orders, however. [Re Order effective July 1, 1992]
Plain-English Summary
A party may move for summary judgment on any claim, counterclaim, cross claim, or third-party claim within eight months of the summons and complaint being filed, or within the time a scheduling order under section 802.10 sets, and pleadings may be amended around the motion the same way they can around a motion to dismiss. Unless the scheduling order sets earlier deadlines, the motion has to be served at least 20 days before the hearing, with opposing affidavits due at least 5 days before it. Judgment is granted if the pleadings, depositions, interrogatory answers, admissions, and affidavits on file show no genuine issue of material fact and the moving party is entitled to judgment as a matter of law; an interlocutory summary judgment on liability alone can be entered even while a genuine dispute over the amount of damages remains.
Supporting and opposing affidavits must rest on personal knowledge and set out facts that would be admissible in evidence, with any referenced papers attached. Once a properly supported motion is on file, the party opposing it cannot rest on the bare allegations or denials in its own pleadings; it must set out specific facts, by affidavit or otherwise, showing a genuine issue for trial, or judgment may be entered against it. If an opposing party cannot yet present the facts it needs, the court can refuse the motion or grant a continuance for further affidavits, depositions, or discovery.
Affidavits filed in bad faith or purely to cause delay trigger a mandatory order requiring the offending party to cover the other side’s reasonable expenses, including attorney fees, and a court can award summary judgment to the party opposing the motion, even without a cross-motion, if the record shows that party is entitled to it. Oral argument on these motions may be heard by telephone conference.
Frequently Asked Questions
Is there a Wisconsin equivalent to a motion for summary judgment?
Yes. Section 802.08, sometimes shorthanded as a motion for summary judgment or MSJ, sets the standard: no genuine issue of material fact and entitlement to judgment as a matter of law.
How long do I have to file a summary judgment motion in Wisconsin?
Within 8 months of the summons and complaint being filed, or within the time set by a scheduling order under section 802.10.
Can I win summary judgment on liability alone while damages remain disputed?
Yes. Section 802.08(2) allows an interlocutory summary judgment on liability alone even though a genuine issue remains about the amount of damages.
What happens if I don’t respond to a summary judgment motion with specific facts?
You cannot rest on the bare allegations or denials in your pleadings; you must set forth specific facts showing a genuine issue for trial, or judgment may be entered against you.
Can the court grant summary judgment to the party who didn’t file the motion?
Yes. Section 802.08(6) lets the court award summary judgment to the party opposing the motion if the record shows that party is entitled to it, even without its own motion.
Amendment History
History: Sup. Ct. Order, 67 Wis. 2d 585, 630 (1975); 1975 c. 218; Sup. Ct. Order, 82 Wis. 2d ix; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1987 a. 256; Sup. Ct. Order, 168 Wis. 2d xxi (1992); 1993 a. 490; 1997 a. 254; 2005 a. 253; 2007 a. 97.
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 for summary judgmentwisconsin MSJ rulegenuine issue of material fact wisconsinsummary judgment affidavit requirements wisconsinpartial summary judgment on liability wisconsin