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Legal Memorandum: Motion to Dismiss a Complaint in WI

Issue: Under Wisconsin law, what is the legal standard for a motion to dismiss a complaint for failure to state a claim upon which relief may be granted?

Area of Law: Litigation & Procedure
Keywords: Motion to dismiss; Failure to state a claim
Jurisdiction: Wisconsin
Cited Cases: 360 N.W.2d 25; 749 N.W.2d 544
Cited Statutes: Wis. Stat. § 802.06(2); Wis. Stat. § 802.08; Wis. Stat. § 802.06(2)(b)
Date: 09/01/2008

Under Wisconsin law, the court must dismiss a complaint for failure to state a claim upon which relief may be granted under Wis. Stat. § 802.06(2), if, taking the facts pled as admitted and liberally construing the complaint, “‘it is quite clear that under no conditions can the plaintiff recover.'”  Evans v. Cameron, 121 Wis. 2d 421, 426, 360 N.W.2d 25, 28 (1985) (citation omitted).  When the defendant moves for dismissal on such grounds, and presents matters outside of the pleadings that are not excluded by the court, the court treats the motion as a motion for summary judgment under Wis. Stat. § 802.08.  See Wis. Stat. § 802.06(2)(b).  A motion for summary judgment may be granted if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.  Novell v. Migliaccio, 208 WI 44, ¶ 23, 749 N.W.2d 544, 549 (2008).

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