Ross Richard Larson v. Alexis B. Stech ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1377
Filed May 26, 2021
ROSS RICHARD LARSON,
Plaintiff-Appellant,
vs.
ALEXIS B. STECH,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, David Nelmark, Judge.
A plaintiff appeals the dismissal of his negligence action for failure to show
good cause for untimely service of the petition. AFFIRMED.
Steven C. Despotovich, West Des Moines, and Susan R. Stockdale,
Ankeny, for appellant.
Brenda K. Wallrichs of Lederer Weston Craig PLC, Cedar Rapids, and Kent
A. Gummert of Lederer Weston Craig PLC, Des Moines, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Ahlers, JJ.
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TABOR, Judge.
In this personal injury action, Ross Larson appeals the dismissal of his
petition for failure to comply with Iowa Rule of Civil Procedure 1.302(5). He claims
the judge who dismissed the case erred in “overruling” another judge who granted
his request for more time to serve his petition on defendant Alexis Stech. Because
Larson did not show good cause for his late service, we affirm the dismissal.
I. Facts and Prior Proceedings
Larson alleges that he suffered serious injuries in a two-car accident on
November 17, 2017. He filed a claim with Farm Bureau Financial Services, the
insurance company for Stech, the other driver.1 On November 6, 2019, Farm
Bureau extended Larson a settlement offer: payment of his medical bills through
July 2019, plus $5000. Larson retained an attorney, and on November 12, 2019,
he filed a civil petition seeking compensation from Stech.
On February 17, 2020, the district court issued an order notifying Larson
that it did not appear he had served Stech with original notice of the petition within
ninety days of its filing as required by rule 1.302(5).2 The order gave Larson
fourteen days to either (1) file a document with the clerk of court showing that he
had completed service on the defendant in compliance with rule 1.302(5) or (2) file
a motion with a supporting affidavit stating the good cause for his failure to timely
1Stech is a resident of Kansas.
2 This stock order was entitled “Order Setting Deadline of Service.” That title
wrongly hinted that the ninety-day deadline set in rule 1.302(5) was negotiable. In
actuality, the order was only looking for proof of past timely service, not inviting a
motion for extension of the time for service.
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serve the defendant. The order warned that if Larson did not comply with either of
those options by March 2, the court would dismiss his case without prejudice.
But Larson bypassed both options. Instead, he filed a motion for additional
time on February 27, 2020. He asked the court to extend the deadline to file a
return of service for thirty days. In support of his motion, Larson explained that
negotiations with Farm Bureau had “slowed” but were “ongoing.” He also pointed
to the fact that Stech lived in another state. The motion did not use the phrase
“good cause.”
In a March 6, 2020 order, the district court granted the request for more
time, giving Larson another thirty days to serve Stech. The order noted
“negotiations with Farm Bureau are ongoing but the parties are cooperating,” and
plaintiff’s counsel “is optimistic the case can be settled prior to serving the
Defendant and further burdening the Court system unnecessarily.” The order also
stated that “dismissal of the case at this point (after the statute [of limitations] has
run) would cause undue harm to Larson and his effort to arrive at a fair settlement.”
On April 6, 2020, Larson filed a second motion for additional time, as well
as a motion for alternative service. The motions revealed that Larson’s counsel
had not hired a process server until March 31, 2020. The motion stated that efforts
to serve Stech were “commenced” but not “completed.” The motion also asserted
“the current pandemic has made communication between the parties and activities
surrounding this case, including Service of Process, to be difficult and delayed.”
The district court granted the motions, allowing Larson to complete service
by ordinary mail to Stech, ordinary mail to Farm Bureau, or publication. The district
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court also extended the service deadline until June 15, 2020. Under those
alternative service options, Larson managed to serve Stech.
Then in August 2020, Stech filed a pre-answer motion to dismiss. She
claimed Larson did not have good cause for failing to serve her within ninety days
of filing the petition. Larson resisted, citing his compliance with the previous district
court orders and complications with service stemming from “the shutdown of many
business[es] due to COVID-19 concerns.” The district court granted Stech’s
motion to dismiss, holding that the initial motion to extend the service deadline was
“improvidently granted.”
Larson appeals the district court’s order granting Stech’s motion to dismiss
and asks to reinstate his petition.
II. Scope and Standards of Review
“We review decisions by the district court to grant a motion to dismiss for
correction of errors at law.” Rucker v. Taylor, 828 N.W.2d 595, 598 (Iowa 2013);
see Iowa R. App. P. 6.907. Generally, courts do not consider facts outside the
pleadings in evaluating a motion to dismiss. Rucker, 828 N.W.2d at 598. But we
make an exception when a party bases its motion on an alleged failure to provide
timely service. Id. Thus, in cases like this, “a court is permitted to consider facts
outside the pleadings.” Id. at 599. When the district court makes findings of fact,
they are binding on appeal if supported by substantial evidence. Carroll v. Martir,
610 N.W.2d 850, 857 (Iowa 2000). But neither the district court’s application of
legal principles nor its legal conclusions bind our decision on appeal. Id.Larson lobbies for a different standard. He contends: “When an extension
of time for service of notice has been granted upon motion of a plaintiff, the review
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of the ruling on that motion should be for abuse of discretion.” He cites no authority
for that proposition and we find none. Even when considering a second, revised
ruling, we review to correct legal error. Id.III. Discussion
Larson focuses on his initial win in the district court—the March 6 order
giving him another month to complete service of process. He contends that order
was not a “mistake” and should not have been “corrected” by a different judge.
We reject his contention for two reasons.
First, we have long recognized that a district court has the power to correct
its own perceived errors, “so long as the court has jurisdiction of the case and the
parties involved.” McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa 1998) (“We
adhere to the general rule that a district court judge may review and change a prior
interlocutory ruling of another district judge in the same case.”). Until the court
enters a final order, it can correct any prior rulings. Carroll, 610 N.W.2d at 857.
“The authority to do so is particularly appropriate [when] the initial ruling is made
ex parte.” Id. “In short, a party has no vested interest in an erroneous ruling.” Id.Without question, the district court could revisit the March 6 extension of time for
service.
Second, the district court’s correction was correct. A plaintiff must serve the
defendant within ninety days after filing the petition. Iowa R. Civ. P. 1.302(5). A
court will extend the time for service if the party can show “good cause” for failing
to provide timely service. Id. If a plaintiff fails to provide timely service, and cannot
show good cause, then the court must dismiss the action without prejudice, either
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upon a defense motion or the court’s own initiative. Id.; see Meier v. Senecaut,
641 N.W.2d 532, 541–42 (Iowa 2002).
To show good cause, “the 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 an affirmative action.” Id. at 542(quoting Henry v. Shober, 566 N.W.2d 190, 192–93 (Iowa 1997) superseded by
rule as stated in Dickens v. Assocd. Anesthesiologists, P.C., 709 N.W.2d 122, 127
(Iowa 2006)). “[G]ood cause is likely (but not always) to be found when the
plaintiff’s failure to complete service in timely fashion is a result of the conduct of
a third person, typically the process server, the defendant has evaded service of
the process or engaged in misleading conduct and the plaintiff has acted diligently
in trying to effect service, or there are understandable mitigating circumstances.”
Wilson v. Ribbens, 678 N.W.2d 417, 421 (Iowa 2004). What is not good cause?
The case law lists “[i]nadvertence, neglect, misunderstanding, ignorance of the rule
or its burden, or half-hearted attempts at service.” Id. As the second district court
judge decided, Larson did not satisfy the good-cause standard to excuse the
untimely service of process.
But circling back to the March 6 order, Larson contends the issue of good
cause is “moot,” because the court granted him more time to serve Stech. He
relies on a passage from Meier explaining that the amended rule of civil procedure
enables a defendant “who has been served beyond the ninety-day period, in the
absence of an order for an extension, to move to dismiss the petition based on
unjustified delay in completing service of process.” 641 N.W.2d at 542 (discussing
rule 49(f), which is now rule 1.302(5)). Larson uses this language to conclude that,
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because he obtained an extension (albeit 115 days after he filed his petition), his
untimely service was not presumptively abusive.3
Stech disputes Larson’s mootness argument. She emphasizes that Larson
made no attempts at service within ninety days of petitioning. Nor did he seek to
extend the ninety-day deadline until seventeen days after it had expired. We agree
with Stech. Under the ninety-day deadline in the rule, Larson’s untimely service
was presumptively abusive. The court’s March 6 order extending the time for
service, issued twenty-five days after the ninety-day deadline expired, did not
render the good-cause question moot.
The remaining question is whether substantial evidence supported the
district court’s finding in October 2020 that inadequate justification existed for
Larson’s delay in service. Larson argues the March 6 ruling was reasonable based
on the “totality of the circumstances,” even if that first judge did not make an
express finding of good cause. Despite not mentioning the pandemic in his
February 27 motion, Larson argues on appeal: “Given the fact that the COVID-19
virus was on everyone’s minds in February of 2020 and many people were self-
isolating, the first judge properly exercised her discretion to grant the motion either
with or without a showing a ‘good cause.’” Beyond the virus, Larson contends that
3 Under an earlier rule, courts employed a two-step analysis. Id. If service was
delayed, the court first decided if the delay was “presumptively abusive.” Id. If the
court found abusive delay, it then decided if the delay was justified. Id. Under the
revised rule, the first step went away. “By allowing the court to dismiss a petition
after ninety days, the rule now establishes the standard for presumptive abuse.”
Id. Courts need only decide whether plaintiff has shown good cause for the delay.
Id.8
ongoing settlement negotiations, his late hiring of an attorney, and Stech’s out-of-
state residence added to good cause for the belated service.
We are unpersuaded by Larson’s arguments. All the alleged mitigating
circumstances, taken together, do not show Larson had good cause for the delay
in service. We first consider his COVID-19 excuse. Larson cites a news website
for the proposition that the first case was reported in the United States in late
January 2020. Yet, one month later, he did not rely on the emerging public health
crisis when seeking more time to serve original notice on Stech. And the court did
not mention COVID-19 as a factor in granting the extension for return of service.4
The March 6 order did mention ongoing settlement negotiations as one of
the reasons why extending the time for service was proper.5 But even if the parties
had been communicating, “[t]he existence of ongoing settlement negotiations is
not a sufficient reason for delaying service.” See Henry, 566 N.W.2d at 193;
Berding v. Menards, Inc., No. 20-0078, 2020 WL 5230460, at *3 (Iowa Ct. App.
Sep. 2, 2020); but cf. Rucker, 828 N.W.2d at 603 (“[T]he action by the insurance
4 We recognize that on March 31, 2020, the Iowa Supreme Court issued a
supervisory order entitled “In the Matter of Ongoing Provisions for
Coronavirus/COVID–19 Impact on Court Services” that relaxed the deadlines for
service of original notices. It stated: “For all original notices to be served in
accordance with Iowa Rules of Civil Procedure 1.302, 1.305, or 1.306, and where
the deadline for the original notice falls between March 23, 2020, and April 16,
2020, the serving party is granted through May 18, 2020, to complete service (30
days after Iowa’s State of Public Health Disaster Emergency is set to expire). In
the Matter of Ongoing Provisions for Coronavirus/COVID-19 Impact on Court
Services (Mar. 31, 2020). But this supervisory order did not apply to Larson’s case
because the deadline for the original notice at issue was February 10, 2020 (ninety
days after he filed the petition on November 12, 2019).
5 Stech points out that Larson was never engaged in settlement negotiations with
Farm Bureau. What happened is that Farm Bureau extended a single settlement
offer on November 6, 2019. But Larson never responded.
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representative in this case in continuing to negotiate with Rucker’s attorney with
knowledge that Rucker did not plan to timely serve the petition made it inequitable
for the Taylors to subsequently seek dismissal of the case . . . .”).
In seeking the extension, Larson also pointed to his late hiring of an
attorney. But the fact that Larson waited until five days before the two-year statute
of limitations expired to retain counsel was not good cause for violating rule
1.302(5). That kind of “neglect” or “ignorance of the rule or its burden” does not
justify late service of the petition.
Finally, Larson contends his efforts at service were complicated by Stech
living in another state. But he offers no evidence that Stech tried to avoid service
or was absent from her Kansas home during normal hours or for unusually long
stretches. See Meier, 641 N.W.2d at 543. The truth is that Larson did not employ
a process server until March 31—fifty days after the ninety-day deadline expired.
So any failed attempts by the process server to deliver the petition to Stech were
not the source of the delay in service.
Because the district court could correct the March 6 order, and aptly decided
Larson did not have good cause for missing the service deadline in rule 1.302(5),
dismissal of the petition was proper.
AFFIRMED.