Opinion
No. 3-843 / 02-2049.
Filed December 10, 2003.
Appeal from the Iowa District Court for Polk County, Gene L. Needles, Judge.
Summer Streed appeals from the district court's order dismissing her personal injury action for failure to make timely service of process. AFFIRMED.
Ronald Ricklefs, Cedar Rapids, for appellant.
John Clendenin of Nyemaster, Goode, Voigts, West, Hansell O'Brien, P.C., Des Moines, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
Summer Streed appeals from the district court's order which sustained the defendant's motion to dismiss her negligence claim for failure to comply with Iowa Rule of Civil Procedure 1.302(6). We affirm the district court.
I. Background Facts and Proceedings.
Streed filed a petition against the Flanagan Corporation, d/b/a Flanagan's Restaurant and Lounge (Flanagan) on March 14, 2002, based on injuries allegedly sustained on March 17, 2000, at Flanagan's Restaurant and Lounge. A district court judge reviewed the court file on June 20, 2002, and discovered that plaintiff had not filed a return of service. That same day, the court entered an "Order Re: Setting Deadline for Service of Process." In its order, the court ordered Streed to "promptly cause Original Notice to be served on Defendant as required by Iowa Rule of Civil Procedure 1.302." The court's order also provided that Streed's action would be dismissed on July 17, 2002, unless Streed either (a) served original notice on Flanagan and filed a return of service, or (b) filed a motion with supporting affidavit stating justification for Streed's failure to serve timely original notice upon the defendant. Streed made no attempt to serve Flanagan prior to the deadline established by the district court. In addition, she made no request for additional time within which to complete service of process.
On August 13, 2002, 152 days after Streed filed her petition, Flanagan filed a motion to dismiss requesting the district court to dismiss Streed's claims because she had failed to comply with rule 1.302(6), and had not complied with the district court's order of June 20, 2002. Streed filed a resistance to Flanagan's motion to dismiss on September 4, 2002. In her resistance, Streed claimed for the first time that she had not attempted to serve the defendant because of an oral agreement between her counsel and an insurance claims examiner that "plaintiff would defer service to allow the insurer to investigate the claim and would continue to do so as long as the investigation was continuing to the mutual satisfaction of the parties." Streed also claimed that the defendant had not suffered prejudice as a result of the delay in service of process. As part of her resistance, Streed requested an extension of time in which to accomplish service on the defendant. On November 7, 2002, Flanagan filed its reply to Streed's resistance. Among other things, the reply asserted that no agreement ever existed between defendant or defendant's insurer and plaintiff regarding plaintiff's service of process obligations under rule 1.302(6).
On November 12, 2002, the district court heard oral argument on Flanagan's motion, and granted the motion to dismiss. On appeal, Streed contends the district court improperly considered evidence outside the pleadings. She also argues the defendant was not prejudiced by any omission in service of process.
II. Standard of Review.
We review the district court's granting of a motion to dismiss for errors at law. Sandford v. Maternach, 601 N.W.2d 360, 363 (Iowa 1999).
III. The Merits.
Iowa Rule of Civil Procedure 1.302(6) provides that the court shall dismiss an action if service of the original notice is not made within ninety days after the petition is filed. However, the time for service of process may be extended beyond ninety days upon the showing of good cause for the delay in service Iowa R. App. P. 1.302(6). Good cause requires that:
[t]he Plaintiff must have taken some affirmative action to effectuate service of process upon the Defendant or have been prohibited, through no fault of his own, from taking such affirmative action. Inadvertence, neglect, misunderstanding, ignorance of the rule or its burden, or half-hearted attempts at service have generally been waived as insufficient to show good cause. Moreover, intentional non-service in order to delay the development of a civil action or to allow time for additional information to be gathered prior to `activating' the lawsuit has been held to fall short of . . . good cause. . . .
Carroll v. Martir, 610 N.W.2d 850, 858 (Iowa 2000) (quoting Henry v. Shober, 566 N.W.2d 190, 192-93 (Iowa 1997)).
A delay of service of original notice of more than ninety days after filing the petition is presumptively abusive. Meier v. Senecaut, 641 N.W.2d 532, 542 (Iowa 2002). In this case, the record is undisputed that Streed never attempted to effect valid service of process on Flanagan between the time plaintiff's petition was filed on March 14, 2002, and the district court's dismissal order was entered on November 12, 2002 — a span of 243 days.
Streed first contends that reversal is required because the district court considered controverted facts outside the pleadings in ruling on the defendant's motion. Her argument suggests the district court improperly considered facts asserted by defendant in replying to plaintiff's resistance to defendant's motion to dismiss. We find no merit in this argument. The district court's dismissal order placed no emphasis on the existence or nonexistence of the alleged agreement regarding service. Moreover, the district court gave Streed the benefit of the doubt regarding the alleged agreement. The court stated, "[e]ven if the plaintiff had an agreement with the other party to defer service that would not be good cause for ignoring the court order of June 20th." We reject this assignment of error.
Flanagan's reply included an affidavit from a claim's examiner which denied the existence of any agreement, express or implied, that plaintiff or her counsel could defer service while defendant's insurer investigated Streed's claim.
Streed next claims the district court should be reversed because Flanagan cannot demonstrate any prejudice resulting from the delay in Streed's service of original notice. We also reject this argument. There is no requirement that the defendant demonstrate prejudice. Meier, 641 N.W.2d at 542. The point is not whether Flanagan suffered prejudice from the delay in service, but rather whether Streed can show justification for the delay. Mokhtarian v. GTE Midwest, Inc., 578 N.W.2d 666, 669 (Iowa 1998). Settlement negotiations, even if done in good faith, do not constitute adequate justification or good cause for delaying service. Henry, 566 N.W.2d at 193.
The record reveals Streed failed to comply with the ninety-day service requirement of rule 1.302(6). She also failed to comply with the requirements for service established in the district court's order of June 20, 2002. Finally, Streed failed to demonstrate any good cause justifying her failure to serve Flanagan with original notice. We affirm the district court's order dismissing the plaintiff's lawsuit against the defendant.