Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: MDP Maximize Dealer Performance LTD v. LIRC and DWD, Case No. 2010-CV-18 (Wis. Cir. Ct., Barron Co., March 22, 2010)

Digest Codes: PC 751.3 - Jurisdiction, No cause of action

MDP sought judicial review of a LIRC decision in a Status (Tax) case, finding that certain individuals had performed services for it as employees.  MDP's complaint for judicial review merely identified the parties and stated that MDP sought review of  LIRC's decision;    it did not allege any of the three grounds for review stated in Wis. Stat. sec. 102.23(1)(e).  LIRC moved to dismiss for failure to comply with the requirement of Wis. Stat. sec. 102.23(1)(b) that the complaint "shall state the grounds upon which a review is sought."

Held: Motion to Dismiss granted, complaint dismissed.  the requirements for obtaining judicial rebiew of a LIRC decision are clearly set forth in the statutes and strict compliance with those requirements is necessary.  Plaintiff acknowledges, that none of the three grounds for setting aside a LIRC order, as required by sec. 102.23(1)(e), are specifically enumerated in the complaint.  Even ignoring technical forms of pleading and construing the complaint most favorably to the plaintiffs, the Court still cannot discern the ground on which plaintiffs are relying.  Each ground is a distinct legal ground for review.  The standard of review to apply is specifically tied to each ground.  Although "magic words" need not be used, the Court needs to know what the ground is in order to make a decision.

Separate decision issued on May 18, 2010 in response to Plaintiff's Motion for Leave to Amend:

Held: Plaintiff's Motion for Leave to Amend denied. Plaintiff's reliance on Estate of Kitzman v. Kitzman, 163 Wis. 2d 399 (Ct. App. 1991), is misplaced. Kitzman, holding that a "poorly drawn" complaint provided "fair notice" and did not affect substantial rights of the defendant, does not control.  A later dase, Schaefer v. Riegelman, 2002 WI 18, makes clear that failure to state grounds is a fundamental defect, not a technical one, and cannot be cured by amendment.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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