Opposing summary judgment in Wisconsin: five days, and you cannot rest on the pleadings
Wisconsin procedure · Last verified August 17, 2026
Wisconsin's summary judgment timetable is the tightest in the country for the party responding. The motion is served 20 days before the hearing. The opposition is due 5 days before it.
Five days. Not fourteen, not ten. And the statute says what happens if you let them pass.
The window to move
Wis. Stat. § 802.08(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.
Eight months from filing is the default outer limit, displaced by any scheduling order. That is a real deadline, and it is measured from the filing of the summons and complaint — not from the answer, and not from the close of discovery.
20 days and 5 days
§ 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.
| Paper | Deadline |
|---|---|
| Motion | 20 days before the hearing |
| Opposing affidavits | 5 days before the hearing |
Both are defaults — "unless earlier times are specified in the scheduling order", so the scheduling order can shorten them but the statute does not contemplate lengthening.
Fifteen days is all the working time an opponent has between service and their own deadline, and that includes obtaining affidavits.
What the affidavits must contain
§ 802.08(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.
Four requirements on the papers:
- personal knowledge;
- evidentiary facts as would be admissible in evidence — not argument, and not conclusions;
- copies of everything referred to must be attached and served unless already of record; and
- specific facts showing a genuine issue — the pleadings will not do it.
That third one causes more avoidable failures than any other. An affidavit that refers to a contract, a letter or a report without attaching it does not comply with the statute.
And the consequence of doing nothing is stated in terms: "If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against such party."
If you need discovery first
§ 802.08(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.
Note how it is triggered: "should it appear from the affidavits of a party opposing the motion." This is itself an affidavit requirement. Explaining in a brief that you need more discovery does not engage subsection (4) — the reasons have to be sworn.
Given the five-day window, this is often the realistic response to a motion filed early in a case: swear what you cannot yet prove and why, and ask for time.
Partial judgment
The last sentence of subsection (2) allows liability to be decided alone: "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."
Where this connects
Two other Wisconsin provisions feed into this one:
Conversion. A motion to dismiss for failure to state a claim, or on res judicata or limitations grounds, becomes a summary judgment motion if outside material is presented and not excluded — and all parties then get "reasonable opportunity to present all material made pertinent" by § 802.08. See the Wisconsin motion to dismiss.
The 180-day stay. Filing a failure-to-state-a-claim motion stays all discovery for up to 180 days under § 802.06(1)(b) — which interacts badly with the eight-month summary judgment window if you are the plaintiff.
How Wisconsin compares
| Wisconsin | New Jersey | Michigan | Federal | |
|---|---|---|---|---|
| Outer limit to move | 8 months from filing, or the scheduling order | returnable 30 days before trial | the scheduling order | the scheduling order |
| Motion served | 20 days before the hearing | 28 days before the return date | 21 days before the hearing | by local rule |
| Opposition due | 5 days before the hearing | 10 days before the return date | 7 days before the hearing | by local rule |
| Reply permitted | not specified | 4 days before | 5 pages, 4 days before | by local rule |
| Attachments required | yes — everything referred to | citations to the record | — | — |
| Separate statement of facts | no | yes | no | by local rule |
| Discovery-needed relief | affidavit, § 802.08(4) | affidavit, R. 4:46-5(a) | affidavit, MCR 2.116(H) | Rule 56(d) declaration |
Wisconsin's five days is the shortest opposition period in that table by some margin.
A short checklist
- Diarise the hearing date and count back five days the moment you are served.
- Check the scheduling order — it can shorten both periods.
- Do not rest on the pleadings. The statute says expressly that you may not.
- Put specific evidentiary facts in an affidavit, on personal knowledge, in admissible form.
- Attach every document you refer to, and serve it, unless it is already of record.
- If you cannot yet prove the facts, say so in an affidavit under § 802.08(4) — not in the brief.
- If you are moving, remember the eight months from filing of the summons and complaint.
- Consider partial judgment on liability where damages are genuinely disputed.
- If your motion to dismiss is converted, use the "reasonable opportunity" the statute gives you to put in summary judgment material.
Where these rules live
- 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. § 802.10 — Calendar practice
- Wis. Stat. § 804.12 — Failure to make discovery; sanctions
- Wis. Stat. § 806.07 — Relief from judgment or order
This page explains what the statute says. It isn't legal advice, and what constitutes a genuine issue of material fact under § 802.08(2) is developed in case law this site doesn't cover.