Opinion
No. 05-2126.
January 18, 2007.
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
Plaintiff appeals from the district court's order dismissing his petition. AFFIRMED.
Michael P. Holzworth and Jeanne K. Johnson, Des Moines, for appellant.
Sharon Soorholtz Greer of Cartright, Drucker Ryden, Marshalltown, for appellee.
Considered by HUITINK, P.J., and VOGEL and BAKER, JJ.
Greg Rottinghaus filed a petition at law and original notice against Jaime Jo Allpress in Polk County on May 26, 2005, alleging Allpress's negligence in conjunction with a motor vehicle accident that occurred on May 28, 2003. A lawsuit arising out of the same accident was pending in Polk County at the time Rottinghaus filed his petition. Rottinghaus knew Allpress had counsel in the pending lawsuit.
On August 25, 2005, after the ninety-day period for service had expired, see Iowa Rule of Civil Procedure 1.302(5), the case came before the district court for an order setting scheduling conference pursuant to the time standards for case processing. The court entered an "Order re: Setting Deadline for Service of Process," notifying Rottinghaus,
In an effort to comply with the time standards, the court therefore notifies plaintiff(s) that this case will be dismissed, without prejudice, under Iowa Rule of Civil Procedure 1.302(5), on September 29, 2005 unless the party filing the petition applies to the court for an extension, in compliance with rule 1.302(5).
Rottinghaus received the order on August 29, 2005. He never sought an extension. The process server received the petition and original notice on September 16, 2005, and served Allpress on September 19, 2005. Allpress was served in Polk County, where she had lived for five years.
On October 13, 2005, Allpress filed a motion to dismiss the petition, arguing that Rottinghaus failed to comply with the service requirements of rule 1.302(5). Rottinghaus resisted. Following a hearing on the motion, the district court entered a ruling dismissing the petition. The court found Rottinghaus failed to show good cause for the failure of service within the ninety-day period prescribed by rule 1.302(5), noting that "[t]he promptness with which defendant was in fact served, in combination with knowledge of an attorney already representing defendant who might have been contacted to accept service mitigates against a finding of good cause." The court continued,
We will not address the appropriateness of such an order, as it is unnecessary to do so in order to reach a decision in this case.
It is important to note the court's contribution to the present dispute, for it can be argued that the court, sua sponte, extended the ninety-day deadline by its order of August 25, 2005 — an order with which plaintiff's counsel complied. Indeed, it was apparently that order which alerted counsel to the need to expedite service.
The court concludes, in retrospect, that it erred by entering that order. As the ninety-day period had expired when the order was entered, it was prejudicial to grant plaintiff relief (additional time to effectuate service) that had not been timely sought. Had the August 25, 2005 order not been improvidentlyId. The district court corrected its August 25 ruling in the ruling on Allpress's motion to dismiss.
Finding no error in the district court's ruling dismissing Rottinghaus's petition, we affirm.