Jianning Roy Wang v. Amanda Sue Baumgartner ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0926
Filed March 6, 2019
JIANNING WANG,
Plaintiff-Appellant,
vs.
AMANDA SUE BAUMGARTNER,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Sean McPartland and
Denver D. Dillard, Judges.
Jianning Wang appeals the dismissal of his civil petition. AFFIRMED.
Jianning (Roy) Wang, Marion, pro se appellant.
Karla J. Shea of Swisher & Cohrt, P.L.C., Waterloo, for appellee.
Considered by Doyle, P.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.
Jianning Wang appeals the dismissal of his civil action against Amanda
Baumgartner.1 Wang filed his petition on January 12, 2018. Three days later,
Wang filed a “certificate of service” stating a copy of the petition and original notice
had been “mailed to” Baumgartner “using USPS.” The materials attached to the
certificate show one of the mailings was sent to Baumgartner at an address in
Cedar Rapids, while the three remaining mailings were sent to Baumgartner’s
liability-insurance carrier.
On April 16, the district court entered an order noting Wang’s certificate of
service was insufficient to show Wang complied with the personal-service
requirements of the Iowa Rules of Civil Procedure and directing Wang to file proof
of appropriate service by May 8 or face dismissal of his petition. On April 29, Wang
filed a “proof of service” reiterating he, on January 15, mailed the original notice
and petition to Baumgartner and adding, on April 28, the “USPS office” confirmed
the mailings “had been properly and timely delivered.” Wang provided copies of
“USPS tracking” printouts, which merely indicated the mailings had been
“Delivered” to the listed addresses. On May 9, the district court dismissed Wang’s
petition without prejudice, again stating mere mailing of the original notice and
petition was not in compliance with personal-service requirements. Wang filed an
“objection and request for clarification and justification.” The court clarified Wang
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Wang’s petition also listed Baumgartner’s liability-insurance carrier as a defendant. The
district court granted the insurance company’s motion to dismiss for failure to state a claim
upon which any relief may be granted. Wang did not appeal the dismissal of his claims
as to the insurance company.
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failed to comply with the service requirements of rule 1.305 and no alternative
forms of service were permitted by court order. Wang appeals.
In his appellate brief, Wang first appears to question this court whether
Baumgartner’s alleged actions in evading service of process is legal and whether
the court can dismiss a civil action when a defendant evades service. Any answer
on our part would amount to an advisory opinion, which we have neither a duty nor
authority to render. See Hartford-Carlisle Sav. Bank v. Shivers, 566 N.W.2d 877,
884 (Iowa 1997).
Next, Wang challenges the district court’s reasoning for dismissing his
petition—failure to comply with the service requirements of the Iowa Rules of Civil
Procedure. Iowa Rule of Civil Procedure 1.302(3), in relevant part, provides:
An original notice shall be served with a copy of the petition. The
plaintiff is responsible for service of an original notice and petition
within the time allowed under rule 1.302(5) and shall furnish the
person effecting service with the necessary copies of the original
notice and petition.
Rule 1.302(5) provides:
If service of the original notice is not made upon the defendant,
respondent, or other party to be served within 90 days after filing the
petition, the court, upon motion or its own initiative after notice to the
party filing the petition, shall dismiss the action without prejudice as
to that defendant, respondent, or other party to be served or direct
an alternate time or manner of service. If the party filing the papers
shows good cause for the failure of service, the court shall extend
the time for service for an appropriate period.
Personal service is made “by delivering a copy to the proper person” and may be
effectuated upon a competent individual who has attained the age of majority as
follows:
[E]ither by taking the individual’s signed, dated acknowledgment of
service endorsed on the notice, or by serving the individual
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personally; or by serving, at the individual’s dwelling house or usual
place of abode, any person residing therein who is at least 18 years
old, but if such place is a rooming house, hotel, club or apartment
building, a copy may be delivered to such person who resides with
the individual or is either a member of the individual’s family or the
manager or proprietor of such place; or upon the individual’s spouse
at a place other than the individual’s dwelling house or usual place
of abode if probable cause exists to believe that the spouse lives at
the individual’s dwelling house or usual place of abode.
Iowa R. Civ. P. 1.305(1). If such service cannot be made, a “defendant may be
served as provided by court order, consistent with due process of law.” Iowa R.
Civ. P. 1.305(14); accord Iowa R. Civ. P. 1.306. Absent a court order, mailing a
copy of an original notice is only adequate notice if required or permitted by a rule
or statute. Iowa R. Civ. P. 1.302(4) (“[A] party or party’s agent or attorney . . .
may mail a copy of the original notice when mailing is required or permitted under
any rule or statute.”).
In Wang’s January 15 “certificate of service,” he merely stated the petition
and original notice had been “mailed” to Baumgartner. There was no indication in
the certificate or the attached materials that the mailings were personally served
upon Baumgartner or otherwise delivered under the terms of Rule 1.305(1).
Consequently, on April 16, the court advised Wang his certificate of service was
inadequate and directed him to file an appropriate proof of service or face
dismissal. See Iowa R. Civ. P. 1.302(5). In Wang’s subsequent “proof of service”
filing, he reasserted he had mailed the materials and stated the “USPS office”
confirmed the mailings “had been properly and timely delivered.” The attached
materials show one of the mailings was sent to Baumgartner at an address in
Cedar Rapids, while the three remaining mailings were sent to Baumgartner’s
liability-insurance carrier. The three mailings sent to the insurance company
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clearly do not comply with 1.305(1) as to personal service on Baumgartner. The
USPS tracking receipt as to the mailing sent to Baumgartner in Cedar Rapids
simply confirmed the mailing was “Delivered.” There was no assurance the
address was Baumgartner’s “dwelling house or usual place of abode,” or that it
was actually received by Baumgartner or another suitable person, depending on
the circumstances. See Iowa R. Civ. P. 1.305(1).
The record only shows the petition and original notice were delivered to an
address potentially associated with Baumgartner. The record does not show that
Baumgartner or another suitable person under rule 1.305(1) actually received the
mailing, as there was no return of service from the deliverer. See generally Iowa
R. Civ. P. 1.308. Mail delivery does not equate with the personal-service
requirement, absent specific authorization by a rule or statute. See Iowa R. Civ.
P. 1.302(4). Additionally, the court did not authorize an alternative method of
service. See Iowa Rs. Civ. P. 1.305(14), .306; see also Iowa R. Civ. P. 1.310.
Finally, Wang did not attempt to establish good cause for his failure or request an
extension of the time for service. See Iowa R. Civ. P. 1.302(5).
Upon our review of the record we agree with the district court that Wang
failed to show compliance with the personal-service requirements of the Iowa
Rules of Civil Procedure. Contrary to Wang’s other arguments, because he did
not complete personal service, Baumgartner was not required to file an answer.
See Iowa R. Civ. P. 1.303(1). We affirm the district court’s dismissal of Wang’s
petition, without prejudice.
AFFIRMED.