Failure to State a Claim – First Amendment

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WI Court of Appeals – District III

Case Name: Eric N. Soderlund v. David B. Zibolski

Case No: 2014AP2479

Officials: Stark, P.J., Hruz, J., and Thomas Cane, Reserve Judge.

Practice Area: Failure to State a Claim – First Amendment

Eric Soderlund appeals an order granting David Zibolski’s motion for judgment on the pleadings and dismissing Soderlund’s claims. Soderlund argues the circuit court erroneously determined he failed to state a retaliation claim under 42 U.S.C. § 1983 (2012) for violation of his First Amendment rights. We hold: (1) Soderlund failed to plead a claim against Zibolski in his official capacity; (2) based on our adoption of the federal incorporation-by-reference doctrine, the circuit court properly considered a document referenced in the complaint without transforming Zibolski’s motion into one for summary judgment; and (3) Soderlund’s speech was not protected by the First Amendment, because he spoke on a matter of personal concern, rather than public concern, and because he spoke in his capacity as a public employee, rather than as a citizen. Accordingly, we affirm

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.