United States: Wisconsin Courts Can Consider Documents Referred To In A Complaint, Even If They Are Not Attached To The Complaint

Last Updated: September 29 2015
Article by Philip C. Babler

Wisconsin's court of appeals recently adopted the incorporation-by-reference doctrine as part of the state's pleading standard in Soderlund v. Zibolski, No. 14AP2479 (Sept. 22, 2015). The decision, written by Judge Cane of District III (and recommended for publication in the official reports), allows a circuit court to consider documents referred to in a complaint even if those documents were not attached to the complaint.

Eric Soderlund spent 19 years working in the state crime lab in Wausau. In 2006, he failed a footwear identification proficiency exam. He then began a campaign that extended over the next 5-1/2 years, complaining to his superiors in the Department of Justice, to the national crime lab accrediting board, and even to that board's accrediting body about the crime lab's quality assurance standards regarding the test he had failed. His superiors told him a couple of times to knock it off and get back to work, but to no avail. In February 2012, he wrote a final letter to the accrediting board (copying two state legislators). Shortly thereafter, on the eve of a disciplinary hearing into whether his long-running campaign violated DOJ work rules, Soderlund retired, fearing that he would be fired and lose retirement benefits.

In December 2012, he sued a DOJ supervisor for retaliating against him for exercising his First Amendment rights. His complaint described the sequence of events and referred to his February letter but did not attach it. But he had a few months earlier filed the letter with the court, when he tried unsuccessfully to file his claim pro se, and the court had retained it in its files. When Zibolski moved for judgment on the pleadings and the parties briefed the issue of whether his conduct was protected by the First Amendment, without submitting the letter to the court, the judge took the letter out of the file and relied on it in granting the defendant's motion, using it to demonstrate that Soderlund's campaign was all about his job grievance, and not about a matter of public concern, the test under Garcetti v. Ceballos, 547 U.S. 410 (2006).

On appeal, Soderlund complained that the court should not have relied on the letter without converting the motion to one for summary judgment and permitting him to submit additional evidence, because the letter was "matter[] outside the pleadings [] presented to and not excluded by the court." Wis. Stat § 802.06(3) (the rule on motions to dismiss contains a similar provision, § 802.06(2)(b)).

Noting that federal courts have developed an exception to comparable Fed. R. Civ. P. 12(d), the court of appeals decided to adopt the exception for Wisconsin. The exception is that "a court may consider a document attached to a motion to dismiss or for judgment on the pleadings without converting the motion into one for summary judgment, if the document was referred to in the plaintiff's complaint, is central to his or her claim, and its authenticity has not been disputed." Slip op. ¶27. Soderlund's letter fit this exception like a glove (or, perhaps, under the circumstances, like a shoe). The court also noted that, even if it hadn't applied the exception, Soderlund had ample opportunity to submit additional evidence in response to the letter but had not done so. So, at the worst, any error in considering the letter was harmless. ¶30.

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