ARTHUR L. WATTERS, Plaintiff - Appellant, vs. SUSAN M. LIDTKE, Defendant - Appellee. _ JOHN W. WATTERS, Plaintiff - Appellant, vs. SUSAN M. LIDTKE, Defendant - Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 8-799 / 08-0648
Filed October 29, 2008
ARTHUR L. WATTERS,
Plaintiff-Appellant,
vs.
SUSAN M. LIDTKE,
Defendant-Appellee.
____________________________
JOHN W. WATTERS,
Plaintiff-Appellant,
vs.
SUSAN M. LIDTKE,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Charles L.
Smith III, Judge.
Arthur Watters and John Watters appeal from the district court order
dismissing their negligence claim against Susan Lidtke for delay of service.
AFFIRMED.
Richard D. Crotty, Council Bluffs, and Terry Anderson, Omaha, Nebraska,
for appellant.
Dennis M. Gray and Sarah J. Stilwill of Peters Law Firm, P.C., Council
Bluffs, for appellee.
Considered by Huitink, P.J., and Vogel and Eisenhauer, JJ.
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EISENHAUER, J.
Arthur Watters and John Watters appeal from the district court order
dismissing their negligence claims against Susan Lidtke for delay of service.
They contend the failure to serve Lidtke within the ninety days required in Iowa
Rule of Civil Procedure 1.302(5) should be excused for good cause. We review
the court’s ruling on a motion to dismiss for errors at law. Iowa R. App. P. 6.4.
When considering a motion to dismiss for delay of service, the district court's
factual findings are binding if they are supported by substantial evidence. Crall v.
Davis, 714 N.W.2d 616, 619 (Iowa 2006).
The plaintiffs were in an automobile accident on November 15, 2005. On
October 16, 2007, they filed separate suits against Lidtke for injuries sustained
from the accident. On October 22, 2007, the plaintiffs sent a request to the Mills
County Sherriff to serve Lidtke. An unsuccessful attempt to serve Lidtke was
made on December 4, 2007, and on December 20, 2007, the sheriff sent the
plaintiffs a “Return of Service” which stated he was unable to locate Lidtke. The
sheriff also provided a Springfield, Illinois post office box number for Lidtke.
The ninety-day time period for service expired on January 14, 2008. On
the same date, the plaintiffs mailed the petition and notice to the sheriff for
Springfield, Illinois. They later called the sheriff’s office and learned personal
service could not be accomplished upon a post office box.
The plaintiffs
attempted to learn Lidtke’s address through the telephone book and directory
assistance, but were unsuccessful.
The plaintiffs filed separate motions for
extension of time after the expiration of the ninety-day deadline.
Alternate
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service was obtained on John Watters’s petition on February 18, 2008, when the
Secretary of State was served.
Arthur Watters likewise obtained service on
March 5, 2008.
On February 20, 2008, Lidtke filed a motion to dismiss, stating the
plaintiffs failed to serve her within ninety days and no good cause exists for the
delay in service. In separate orders as to each plaintiff, the district court granted
the motion March 14, 2008.
Once a petition is filed with the district court, the plaintiff must serve the
defendant with notice of the pending action within ninety days. Iowa R. Civ. P.
1.302(5). Service of process made after ninety days is presumptively abusive
and a plaintiff must show good cause for the delay in service in order to avoid
dismissal. Iowa R. Civ. P. 1.302; Crall, 714 N.W.2d at 619-20 (citing Meier v.
Senecaut, 641 N.W.2d 532, 541 (Iowa 2002)).
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.”
Crall, 714
N.W.2d at 620 (“If there was no such good cause, the rule required the court to
dismiss the action without prejudice”). In order to show good cause,
[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 [or her] own, from taking such an affirmative
action. Inadvertence, neglect, misunderstanding, ignorance of the
rule or its burden, or half-hearted attempts at service have
generally been [deemed] insufficient to show good cause.
Id. (quoting Meier, 641 N.W.2d at 542). Additionally, good cause is generally
found when the plaintiff has acted diligently and service is delayed as “a result of
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the conduct of a third person, typically the process server,” or the defendant has
evaded service or engaged in misleading conduct.
Wilson v. Ribbens, 678
N.W.2d 417, 421 (Iowa 2004).
In ruling on Lidtke’s motion to dismiss, the district court stated:
Here, Plaintiff has failed to show good cause for the delay in
service. Plaintiff has not alleged that Defendant evaded service or
that the delay was the result of error on the part of the process
server. Plaintiff’s only explanation as to why he did not serve
Defendant is that Defendant moved to Illinois. When Defendant
moved to Illinois, Plaintiff had alternative methods for service
available to him, yet made no attempt to use any of these methods
within the ninety-day window. . . .
Plaintiff attempted none of these relatively inexpensive, easy
methods of service in order to serve Defendant. Plaintiff chose only
to send the petition and notice to the sheriff in Illinois, without
speaking with the Illinois sheriff first. While mailing the petition to
two sheriffs and calling directory assistance may be affirmative
steps on Plaintiff’s part, they do not constitute good cause. These
steps establish a pattern of half-hearted attempts at service.
Plaintiff’s efforts were not “meaningful attempt[s] to locate or serve
the defendant.” Therefore, this Court finds that Plaintiff’s attempts
do not constitute good cause and that the delay in service is
unjustified.
(Citation omitted.) The court also found the motion to extend time for service did
not prevent it from dismissing the case because the extension was requested
after the ninety-day deadline had expired, the court made no finding of good
cause for the extension, and the order was entered without notice to Lidtke.
The district court found the plaintiffs’ attempts at service, although
affirmative, to be half-hearted. It notes the plaintiffs had the opportunity to use
alternative means of serving Lidtke within the ninety days and failed to do so,
even though they resorted to alternative service after the expiration of the time
limit. Additionally, the plaintiffs’ action in mailing the petition and original notice to
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the Illinois sheriff without first attempting to find out if service was possible
indicates a disinterest in whether service would be effectuated. We conclude the
district court order did not err in dismissing the plaintiffs’ petition. Accordingly, we
affirm.
AFFIRMED.
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