Bridgette Ferguson and Robert Rutledge v. David Jones and Veritiv Operating Company ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1321
Filed March 20, 2019
BRIDGETTE FERGUSON and ROBERT RUTLEDGE,
Plaintiffs-Appellants,
vs.
DAVID JONES and VERITIV OPERATING COMPANY,
Defendants-Appellees,
and
BROWN TRUCK LEASING CORPORATION, Defendant.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, Martha L. Mertz,
Judge.
Plaintiffs appeal from the district court’s dismissal of their lawsuit for failing
to serve the defendants within the ninety-day window required by Iowa Rule of Civil
Procedure 1.302(5). AFFIRMED.
Jeff Carter and Zachary C. Priebe of Jeff Carter Law Offices, P.C., Des
Moines, for appellant.
Michael L. Moran of Engles, Ketcham, Olson & Keith, P.C., Omaha,
Nebraska, for appellee.
Considered by Vogel, C.J., and Doyle and Mullins, JJ.
2
DOYLE, Judge.
The district court dismissed plaintiffs’ personal injury action for lack of timely
service of process. Plaintiffs appeal arguing the defendants’ motion to dismiss
was untimely and, in any event, the delay in service beyond the deadline date was
short and defendants suffered no prejudice thereby. We affirm the district court.
On August 2, 2017, Bridgette Ferguson and Robert Rutledge filed a lawsuit
against defendants David Jones, Brown Truck Leasing Corporation, and Veritiv
Operating Company1 seeking recovery for personal-injury damages. The petition
alleges that on August 6, 2015, Ferguson and Rutledge were injured in a motor
vehicle collision negligently caused by Jones.2 Suit papers were served on Jones
and Brown Truck Leasing on November 10, 2017, 100 days after suit was filed.
Veritiv was served three days later on November 13, 2017, 103 days after suit was
filed. Plaintiffs filed a motion for default judgment on February 7, 2018. Their
motion was denied on February 12 for failure to comply with default judgment
procedure pursuant to Iowa Rule of Civil Procedure 1.972. On February 21, 2018,
over 100 days after having been served, defendants Jones and Veritiv filed a
motion to dismiss plaintiffs’ action, pursuant to Iowa Rule of Civil Procedure
1.421(1)(c), for failure to timely serve pursuant to Iowa Rule of Civil Procedure
1.302(5) which requires that service be made within 90 days after filing the
1
Plaintiffs incorrectly named Veritiv as “Veritive” in their district court filings. We corrected
the caption to reflect the proper spelling of Veritiv and use the correct spelling throughout
this opinion.
2
Jones was operating a tractor trailer owned by Brown Truck Leasing and leased by
Veritiv Operating. Ferguson and Rutledge were passengers in a vehicle driven by
another.
3
petition.3 Plaintiffs resisted and an unreported hearing was held before the district
court. On July 23, 2018, the court granted the motion to dismiss finding service of
process was not made within 90 days after filing the petition as required by rule
1.302(5). Further, the court concluded:
Here, Plaintiffs do not fall within either exception to the rule.
Plaintiffs did not obtain an extension of time to accomplish service.
Plaintiffs also did not assert facts, either in their resistance or in
argument, that might support a finding of good cause.
Plaintiffs defend against the motion to dismiss by pointing out
Defendants did not file the motion until after Plaintiffs gave notice of
their intent to file for a default judgment. Plaintiffs assert Defendants’
motion is untimely and, therefore, the Court should deny the motion.
While Defendants did not file the motion to dismiss within
twenty days of the late service on them, the Court concludes filing a
motion to dismiss more than twenty days after service does not
excuse Plaintiffs’ noncompliance with the rule. Plaintiffs did not
explain the late service on Defendants and cited no cases on point
in support of their position that the Court should deny the motion
based on untimeliness.
In order to avoid dismissal, it was incumbent upon Plaintiffs to
establish good cause under the rule.
Plaintiffs failed to do, so the Court grants the motion to
dismiss.
The court dismissed the action without prejudice. Ferguson and Rutledge appeal.
We review the district court’s ruling regarding a motion to dismiss for
correction of errors at law. Crall v. Davis, 714 N.W.2d 616, 619 (Iowa 2006). When
the motion to dismiss is based upon delay of service, the district court may consider
matters outside the pleadings, and we are bound by the court’s factual findings if
supported by substantial evidence. Id.3
Defendant Brown Truck Leasing did not file an appearance, motion, answer, or anything
else in the district court. It has not filed an appearance or any other papers with the
appellate courts.
4
Iowa Rule of Civil Procedure 1.302 governs the service of original notice. It
provides in relevant part:
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.
Iowa R. Civ. P. 1.302(5). Plaintiffs do not dispute that they served the defendants
outside of the ninety days required by Iowa Rule of Civil Procedure 1.302(5).
However, they maintain the district court should not have granted the defendants’4
motion to dismiss; they raise two alternative arguments to support their position.
Plaintiffs first argue that the motion to dismiss was not timely filed and
therefore should have been denied. Iowa Rule of Civil Procedure 1.303(1)
provides: “Unless otherwise provided, the defendant, respondent, or other party
shall serve, and within a reasonable time thereafter file, a motion or answer within
20 days after service of the original notice and petition upon such party.” Also
relevant here, Iowa Rule of Civil Procedure 1.421(1) provides: “The following
defenses or matters may be raised by pre-answer motion: (c) Insufficiency of the
original notice or its service.” Iowa R. Civ. P. 1.421(1)(c) (emphasis added). It is
undisputed that defendants did not file a pre-answer motion to dismiss or answer
within 20 days after they had been served with the original notice and petition.
Plaintiffs assert the rules require a pre-answer motion or answer within 20 days of
4
Because Brown Truck Leasing did not file anything in the district court or in the appellate
courts, we refer to Jones and Veritiv Operating collectively in this opinion as “defendants.”
5
service and argue failure to do so constitutes a waiver of defendants’ insufficiency
of service argument. Plaintiffs cite no case law for the proposition, nor were we
able to find any. Fatal to plaintiffs’ argument is that rule 1.303(1) provides no
waiver penalty for failure to timely file a pre-answer motion or answer. But, that is
not to say there was no remedy available to plaintiffs. A motion for default
judgment under Iowa Rule of Civil Procedure 1.971(1) provides the appropriate
remedy. The rule provides: “A party shall be in default whenever that party does
any of the following: (1) Fails to serve and, within a reasonable time thereafter, file
a motion or answer as required in rule 1.303 or 1.304.” Iowa R. Civ. P. 1.971(1).
Although plaintiffs filed a motion for default judgment, it was rejected by the district
court for plaintiffs’ noncompliance with the rule’s procedural requirements. We
reject plaintiff’s waiver argument.
Secondly, plaintiffs argue their “cause of action should not be dismissed due
to a procedural technicality, especially a technicality involving a failure to serve an
original notice only two weeks past the 90-day deadline under Iowa Rule of Civil
Procedure 1.302(5).” The rule’s predecessor, Iowa Rule of Civil Procedure 49(f),
was interpreted by the Iowa Supreme Court in Meier v. Senecaut, 641 N.W.2d 532,
541–42 (Iowa 2002). There, the court determined the rule permitted a district court
to take any one of three actions once service had not been accomplished within
ninety days from the filing of the petition: (1) dismiss the petition without prejudice,
(2) impose alternative directions for service, or (3) grant an extension of time to
complete service. Meier, 641 N.W.2d at 541.
6
The last option, granting an extension of time requires a showing of good
cause. See Iowa R. Civ. P. 1.302(5); Crall v. Davis, 714 N.W.2d 616, 619–20
(Iowa 2006). Good cause requires the plaintiff to show they 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. Inadvertence, neglect,
misunderstanding, ignorance of the rule or its burden, or halfhearted
attempts at service have generally been [viewed] as insufficient to
show good cause
Palmer v. Hofman, 745 N.W.2d 745, 747 (Iowa App. 2008) (quoting Crall, 714
N.W.2d at 619). Here, plaintiffs do not even suggest they had any good cause for
failure to serve within the ninety-day window. Under the circumstances, the court
had no discretion and was required to dismiss plaintiff’s lawsuit. Meier, 641
N.W.2d at 541–42 (“Once a determination of good cause has been accepted or
rejected, the district court has no discretion and is required to either extend the
time for service for an appropriate period or dismiss the action without prejudice.”).
We note that we recently affirmed dismissals of actions when the defendant was
personally served, but the personal service was only a matter of days after the
ninety-day limit and there was no showing of good cause for the delay. Gerth v.
Iowa Business Growth, Inc., No. 17-1018, 2018 WL 5292086, at *7 (Iowa Ct. App.
Oct. 24, 2018) (further review petition pending) (three days late); Richardson v.
Lundberg, No. 17-0095, 2018 WL 1098890, at *1 (Iowa Ct. App. Feb. 21, 2018)
(eleven days late).
Plaintiffs argue dismissal is too strict a sanction. Rule 1.302(5) provides
that the court “shall dismiss without prejudice.” See Iowa Code § 4.1(3)(1) (2015)
(providing the word “shall,” in statutes enacted after July 1971, “imposes a duty”);
7
In re Det. of Fowler, 784 N.W.2d 184, 187 (Iowa 2010) (“[T]he word ‘shall’ generally
connotes a mandatory duty.”); Berent v. City of Iowa City, 738 N.W.2d 193, 209
(Iowa 2007) (“The term ‘shall’ is mandatory.”); State v. Klawonn, 609 N.W.2d 515,
521–22 (Iowa 2000) (“The word ‘may’ can mean ‘shall,’ but the word ‘shall’ does
not mean ‘may.’”). And plaintiffs have not provided, and we have not found, any
authority to support their claim that the district court can choose a “sanction” other
than dismissal without prejudice. We do not consider this argument further.
Plaintiffs also argue defendants cannot claim lack of notice or prejudice by
the short delay in service and they should therefore be given a bye. Under our
current jurisprudence, neither is a factor in analyzing application of the rule.
Plaintiffs further argue the failure to timely serve should be excused
because Iowa courts liberally construe the rules of civil procedure to allow for
resolution on the merits. This argument has been rejected by this court. Dewit v.
Madison Co. Zoning Bd., No. 16-1746, 2017 WL 4049508, at *3-4 (Iowa Ct. App.
Sep. 13, 2017); Rittgers v. West Bank, No. 13-0816, 2013 WL 6686432, at *5 (Iowa
Ct. App. Dec. 18, 2013). That is not to say there is no merit in amending the rule
to allow a district court discretion to grant an extension even in the absence of
good cause or prejudice to the defendant. Justice Waterman suggested the rule
be amended:
I prefer to see cases resolved on their merits, and I think there is
something to be said for amending our rule to conform to Federal
Rule of Civil Procedure 4(m). Under that rule, even if the plaintiff fails
to show “good cause” for not serving the defendant by the deadline,
the district court has discretion to extend the time for service. See
Fed. R. Civ. P. 4(m) (providing that, if a defendant is not timely
served, the court “must dismiss the action without prejudice against
that defendant or order that service be made within a specified time”
(emphasis added)).
8
Rucker v. Taylor, 828 N.W.2d 595, 606–07 (Iowa 2013). Until the rule is amended,
plaintiffs must make a showing of good cause before the court may grant an
extension of time to serve.
Furthermore, the harshness of the application of the rule can be further
tempered by adding a prejudice component to the rule’s analysis. In other words,
in the absence of “good cause” on the part of the plaintiff in failing to timely serve,
the defendant would have to show prejudice before dismissal would be warranted.
Gerth, 2018 WL 5292086, at *8 (Doyle, J., dissenting). Again, while there may be
merit in adding a prejudice component to the rule, it is not yet a part of the rule
1.302(5) analysis, and we are not at liberty to overturn supreme court precedent.
See State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014) (“We are not at liberty
to overrule controlling supreme court precedent.”).
The district court did not err in dismissing plaintiffs’ lawsuit for their failure
to serve within the rule 1.302(5) ninety-day limit. We acknowledge that the
dismissal of plaintiffs’ action will likely prejudice their ability to have their case
decided on the merits, but this result does not require us to find good cause where
there is, in fact, none. We agree with the district court’s determination that plaintiffs
did not establish good cause for the delay of service.
AFFIRMED.