V v. Kratz

Filing 14

MOTION to Dismiss or alternatively for Summary Judgment by Kenneth R Kratz.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN S.V. vs. KENNETH KRATZ

Plaintiff,

Case No.: 10-919

Defendant.

DEFENDANT'S MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT

NOW COMES the Defendant, Kenneth Kratz, individually, by his attorneys, Hammett, Bellin & Oswald, LLC, and for his Motion to Dismiss and Motion for Summary Judgment states as follows: 1. Plaintiff's Complaint fails to identity any constitutional rights that were violated by the actions of the Defendant, and therefore, fails to state a claim on which relief can be granted. Plaintiff's Complaint fails to identify any rights or privileges that were violated by the actions of the Defendant pursuant to Wisconsin law, and therefore, fails to state a claim on which relief can be granted. Plaintiff's Complaint fails to clearly state what damages, if any, she is seeking and what damages were sustained by her as a result of Defendant's actions, and therefore, fails to state a claim on which relief can be granted. Defendant is entitled to absolute immunity with respect to all allegations in the Complaint because he was acting as Calumet County District Attorney at all times therein. In the alternative, Defendant is entitled to qualified immunity with respect to all allegations in the Complaint because he was acting on behalf of the State at all times therein and Plaintiff identified no clearly established constitutional right that was violated.

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WHEREFORE, Defendant requests the following relief: 1. 2. Dismissal of Plaintiff's Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). Summary Judgment pursuant to Federal Rule of Civil Procedure 56 granting dismissal of Plaintiff's Complaint based on the fact that the

Defendant is entitled to absolute and qualified immunity with respect to all allegations therein. 3. 4. All costs and fees incurred in this action. Such other and further relief as the Court deems just and equitable under circumstances. Dated this 7th day of April, 2011. HAMMETT, BELLIN & OSWALD L.L.C. /s/ Robert E. Bellin, Jr.____________ ROBERT E. BELLIN, JR. Attorney for Defendant 675 Deerwood Avenue Neenah, Wisconsin 54956 [phone] State Bar No.: 1023945

CERTIFICATE OF SERVICE I hereby certify that on April 7, 2011, I electronically filed this DEFENDANT'S MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following:
Attorney Michael R. Fox Fox & Fox, S.C. 124 West Broadway Monona, WI 53716 Attorney Carrie Benedon Attorney Monica Burkett-Brist Assistant Attorney General Wisconsin Department of Justice Post Office Box 7857 Madison, WI 543707-7857 Attorney for Plaintiff

Attorneys for State of Wisconsin

HAMMETT, BELLIN & OSWALD L.L.C. /s/ Robert E. Bellin, Jr.__________ ROBERT E. BELLIN, JR. Attorney for Defendant 675 Deerwood Avenue Neenah, Wisconsin 54956 [phone] State Bar No.: 1023945