MARTIN THRASH, Individually, and as the Administrator of the Estate of Keli D. Duval, And on behalf of the Children of Keli D. Duval; Joshua E. Duval, Adult, and Victoria N. Thrash, Minor, and Mathew M. T h rash, minor, Plaintiffs - Appellees, vs. ABBE CENTER FOR COMMUNITY MENTAL HEALTH, INC., and RI C H ARD LARSEN, M .D., and SIN D A H. EGGERMAN, PH.D., Defendants - Appellants.
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IN THE COURT OF APPEALS OF IOWA
No. 8-767 / 07-1961
Filed October 29, 2008
MARTIN THRASH, Individually, and as the
Administrator of the Estate of Keli D. Duval,
And on behalf of the Children of Keli D. Duval;
Joshua E. Duval, Adult, and Victoria N. Thrash,
Minor, and Mathew M. Thrash, minor,
Plaintiffs-Appellees,
vs.
ABBE CENTER FOR COMMUNITY MENTAL HEALTH,
INC., and RICHARD LARSEN, M.D., and SINDA H.
EGGERMAN, PH.D.,
Defendants-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Thomas L. Koehler,
Judge.
Defendants appeal the district court‟s denial of their motions to dismiss
asserting plaintiffs failed to meet Iowa‟s ninety-day service requirement.
REVERSED AND REMANDED.
Richard A. Stefani and Raymond R. Stefani, II of Gray, Stefani &
Mitvalsky, P.L.C., Cedar Rapids, for appellant Richard Larsen, M.D.
James M. Peters and Jason M. Steffens of Simmons Perrine PLC, Cedar
Rapids, for appellants Abbe Center for Community Mental Health, Inc. and Sinda
H. Eggerman.
Martin Diaz, Iowa City, for appellee.
Considered by Huitink, P.J., and Vogel and Eisenhauer, JJ.
2
EISENHAUER, J.
The facts are undisputed.
On June 6, 2007, plaintiff Martin Thrash
individually, as executor, and on behalf of his minor children, filed a petition
against three defendants. He did not have an attorney. Under Iowa Rule of Civil
Procedure 1.302(5), plaintiffs had ninety days to serve the defendants with
original notice or the court “shall dismiss the action without prejudice” or direct
alternate service. Plaintiffs acknowledge the rule required service by September
4, 2007. The rule also allows the court to extend the time for service if the
plaintiffs show “good cause for the failure of service.”
See Iowa R. Civ. P.
1.302(5).
On September 6, 2007, plaintiffs filed a request for more time to effect
service. This request was never granted.1 On September 7, 2007, defendants
were served with the petition, but not with the required original notice. See Iowa
R. Civ. P. 1.302(3) (“[O]riginal notice shall be served with a copy of the petition.”).
Also in September 2007, defendants filed motions to dismiss due to plaintiffs‟
deficient service. In October 2007, all defendants were properly served.
Plaintiff Martin Thrash filed an affidavit resisting defendants‟ motions to
dismiss stating: (1) he misunderstood and thought he had three months to
investigate before service was required; (2) he did not want to serve the
1
On September 20, 2007, the court ruled plaintiffs‟ request for additional time for service
was moot because “all defendants appear to have been served”; however, at that time
the defendants‟ motions to dismiss had not been placed in the court file. On October 8,
2007, the court‟s September 20th order was vacated and the court ruled the motions to
dismiss “should be considered on their merits.”
3
defendants “if the case was not worth pursuing”; (3) his investigation was
delayed when his father‟s estate required out of state travel and when he had
trouble contacting the medical records personnel; and (4) he was unaware of the
original notice requirement.
On October 31, 2007, the court denied defendants‟ motions to dismiss and
ruled Thrash‟s affidavit “establishes good cause for the delay in effectuating
service.” In January 2008, defendants‟ application for interlocutory appeal was
granted by the Iowa Supreme Court.
“We review a motion to dismiss for failure to effect timely service of
process for the correction of errors at law.” Wilson v. Ribbens, 678 N.W.2d 417,
418 (Iowa 2004). When, as here, there is no service within ninety days and no
order extending time for service, the only issue is whether the plaintiffs have
“shown justification for the delay.” See Crall v. Davis, 714 N.W.2d 616, 620
(Iowa 2006). “The standard we employ in determining such justification is „good
cause.‟” Id. The Iowa Supreme Court has instructed good cause means:
The plaintiff must have taken some affirmative action to effectuate
service of process upon the defendant. . . . Inadvertence, neglect,
misunderstanding, ignorance of the rule or its burden . . . [are]
insufficient to show good cause. Moreover, intentional nonservice
in order to . . . allow time for additional information to be gathered
prior to “activating” the lawsuit . . . fall[s] short of . . . good cause.
Henry v. Shober, 566 N.W.2d 190, 192-93 (Iowa 1997). Additionally, good cause
is generally found when the plaintiff has acted diligently and service is delayed as
“a result of the conduct of a third person, typically the process server,” or the
defendant has evaded service or engaged in misleading conduct. Wilson, 678
4
N.W.2d at 421. However, we cannot “ignore a clear statutory requirement to
achieve what appears to be the best result in a particular case.” Id. at 420.
Because the reasons for delay of service detailed in Thrash‟s affidavit do
not constitute good cause under the statute, we reverse.
Thrash‟s affidavit
contains no allegations of evasion or misleading conduct by defendants. See id.
at 421.
Thrash took no affirmative action to serve the defendants within the
ninety-day requirement and did not request an extension of time until after the
deadline had passed. Therefore, Thrash has not acted diligently.
See id.
Thrash‟s misunderstanding and/or ignorance of the service requirements does
not constitute good cause.
See Henry, 566 N.W.2d at 192-93.
Thrash‟s
intentional delay of service while investigating whether to “activate” the lawsuit
does not constitute good cause. See id.
Plaintiffs argue they should have greater leniency in missing the service
deadline because Thrash was acting without counsel and because defendants
were not prejudiced. We disagree. Unrepresented litigants are held to the same
standards as other litigants. Johnson v. Nickerson, 542 N.W.2d 506, 513 (Iowa
1996). Iowa‟s good cause standard does not mention prejudice. See Wilson,
678 N.W.2d at 421.
Plaintiffs request we adopt a new standard for analyzing untimely service
cases. However, this issue was not raised and decided in the district court;
therefore, we will not address it for the first time on appeal. Meier v. Senecaut,
641 N.W.2d 532, 537 (Iowa 2002).
5
Finally, plaintiffs seek affirmative relief regarding Matthew Thrash‟s claim.
This issue was resolved on September 2, 2008, when the Iowa Supreme Court
overruled plaintiffs‟ motion to dismiss defendants‟ appeal.
We conclude the district court erred as a matter of law in failing to grant
defendants‟ motions to dismiss. Accordingly, we reverse the district court and
remand for an order dismissing the petition.
REVERSED AND REMANDED.
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