IN THE COURT OF APPEALS OF IOWA
No. 17-1018
Filed October 24, 2018
ANDREW GERTH,
Plaintiff-Appellant,
vs.
IOWA BUSINESS GROWTH, INC. and DAN ROBESON,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,
Judge.
The plaintiff appeals from the district court’s dismissal of his lawsuit for
failing to serve the defendants within the ninety-day window required by Iowa Rule
of Civil Procedure 1.302(5). AFFIRMED.
Erik S. Fisk (until withdrawal) and John F. Fatino of Whitfield & Eddy, PLC,
Des Moines, for appellant.
Gary R. Fischer and Abigail L. Thiel of Simpson, Jensen, Abels, Fischer &
Bouslog, PC, Des Moines, for appellees.
Heard by Danilson, C.J., and Potterfield and Doyle, JJ.
2
POTTERFIELD, Judge.
Andrew Gerth appeals from the district court’s dismissal of his petition at
law alleging age discrimination, a hostile work environment, and retaliation against
his former employer, Iowa Business Growth, Inc., and former supervisor, Dan
Robeson.1 At the defendants’ request, the district court dismissed the action
without prejudice for Gerth’s failure to serve the defendants within ninety days of
filing the petition, as required by Iowa Rule of Civil Procedure 1.302(5).
Gerth challenges the dismissal, but he does not dispute that the defendants
were served outside of the ninety-day window. Gerth raises the following claims:
(1) He argues the district court had the discretion to grant an extension even
without a showing of good cause and should have done so. (2) Alternatively, he
claims he established good cause for the delay. As part of this argument, he claims
the ninety-day window for service did not begin until the clerk’s office issued the
original notice, which in this case occurred two days after Gerth initially filed the
petition—making service late by one day rather than three. He also claims the
district court should have, as part of its good-cause analysis, considered the extent
his rights would be prejudiced by the dismissal. (3) Finally, Gerth claims that even
if good cause is necessary for an extension and he did not establish it, dismissal
was inappropriate because service was only late by three days or less and the
defendants were not prejudiced by the delay.
1
We refer to Iowa Business Growth, Inc. and Robeson collectively as the defendants.
3
I. Background Facts and Proceedings.
Gerth worked for the defendants from August 2014 until May 2016. While
still employed by the defendants, Gerth filed a complaint with the Iowa Civil Rights
Commission, and the commission issued a right-to-sue letter after termination of
Gerth’s employment, on September 9, 2016. A copy of the letter was sent both to
Gerth and the defendants.
On September 20, before Gerth filed suit, the attorney for the defendants
sent an email to Gerth’s attorney informing him, “My client has authorized me to
accept service of the Gerth petition when you file it.”
Gerth filed the petition at law on November 15; the clerk’s office issued the
original notice on November 17.
According to an affidavit filed by Gerth’s attorney, on December 1, he sent
a letter to the defendants’ attorney referencing the defense attorney’s prior email
stating he would accept service on behalf of his clients. Enclosed with the letter
was a copy of the petition, original notice, and an “acknowledgement of service,”
which the defense attorney was asked to “execute . . . and return to [plaintiff
attorney’s] office for filing.”
According to an affidavit filed by the defendants’ attorney, neither the letter
nor any of the attachments were ever received by his office.
Accordingly, defense counsel never responded to the December 1 letter,
and no acknowledgement of service was filed.
No action was taken until February 15, 2017. On that date, “[b]ased upon
a reminder system in [his] calendar, which erroneously identified the 90-day
service deadline as February 17,” Gerth’s counsel called defense counsel and “left
4
a voicemail inquiring as to whether [he] had received the December 1, 2016 letter
and would still agree to accept service of the lawsuit on behalf of the [d]efendants.”
Plaintiff’s counsel maintains he spoke to defense counsel on February 15, while
defense counsel swears that Gerth’s counsel called at 4:57 p.m. and left a
message asking for a return call, which defense counsel believes he returned
“[p]romptly the next morning.”
Either on the afternoon of February 15 or the morning of February 16, when
the two counsel spoke, defense counsel reported he had not received the letter.
Gerth then served the defendants on the morning of February 16.
The defendants filed a motion to dismiss, arguing the petition should be
dismissed because Gerth failed to serve the defendants during the required ninety
days, had not requested an extension during the allotted time, and had not shown
good cause for the delay. Gerth resisted.
Following a hearing on the motion,2 the court issued a ruling dismissing
Gerth’s petition. The court determined that because Gerth had failed to timely
serve the defendants, “he [could] only avoid dismissal if he can show good cause.”
The court found that Gerth’s basis for late service did not “meet the traditional
standard for good cause.” In reaching this conclusion, the court noted that it
“believes that [defense counsel] did not receive the letter” and “does not doubt that
[Gerth’s counsel] believes it was sent.” However, the court found there was
insufficient evidence to show the letter was sent, as “there was no evidence of
mailing procedures.” Still, the court ultimately found that the unresolved issue with
2
It appears the hearing was unreported.
5
the December 1 letter was immaterial, as “even if the letter was received, it is highly
questionable whether it constitutes good cause” to “not follow up between
December 1, 2016 and February 15, 2017 to determine if service had been
accepted.”
Gerth appeals.
II. Standard of Review.
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.
III. Discussion.
Gerth does not dispute that he served the defendants outside of the ninety
days required by Iowa Rule of Civil Procedure 1.302(5). However, he maintains
the district court should not have granted the defendant’s motion to dismiss; he
raises a number of alternative arguments to support his position.
A. Extension without Establishing Good Cause.
Iowa Rule of Civil Procedure 1.302(5) provides:
If service of the original notice is not made upon the
defendant . . . 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 . . . 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.
Gerth advances an interpretation of the rule whereby the court has the discretion
to extend the time for service without first finding good cause. He argues the
6
district court was wrong not to apply his interpretation of the rule in this case. In
support of his argument, Gerth relies upon a case from the Third Circuit in which
the court, interpreting the federal rule,3 found:
Initially, we find that the plain language of the rule itself
explains that in all cases, the court has the option of dismissing the
action or extending time for service. The fact that the word “shall” is
used along with the disjunctive “or” in the first clause indicates that
the court has discretion to choose one of these options. As an
exception to this general provision, the second clause notes that if
good cause exists, the district court has no choice but to extend time
for service. Thus, the logical inference that can be drawn from these
two clauses is that the district court may, in its discretion, extend time
even absent a finding of good cause.
Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3rd Cir. 1995).
But here, the district court was asked to apply the applicable Iowa Rule of
Civil Procedure—not the federal rule. And our supreme court has foreclosed the
interpretation of the Iowa rule that Gerth advances. See Meier v. Senecaut, 641
N.W.2d 532, 541 (Iowa 2002) (“The type of action directed by the rule is to dismiss
the action without prejudice, impose alternative directions for service, or grant
extension of time to complete service for an appropriate period of time. Extension
of time requires a showing of good cause” (citation omitted)); see also Crall, 714
N.W.2d at 619–20 (citing the court’s previous decision in Meier and noting that
3
The federal rule in question provides:
Time Limit for Service. If service of the summons and complaint is not
made upon a defendant within 120 days after the filing of the complaint, the
court, upon motion or on its own initiative after notice to the plaintiff, shall
dismiss the action without prejudice as to that defendant or direct that
service be effected within a specified time; provided that if the plaintiff
shows good cause for the failure, the court shall extend the time for service
for an appropriate period.
Fed. R. Civ. P. 4(m).
7
Iowa Rule of Civil Procedure 49(f), which the court considered in Meier, was now
rule 1.302(5)).
As neither we nor the district court are at liberty to overturn Iowa Supreme
Court precedent, see State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App.
1990), the district court did nor err in its determination that a finding of good cause
was necessary in order to extend the deadline for service.
B. Establishing Good Cause.
Next, Gerth maintains that if a finding of good cause is necessary, the
district court erred in its determination that he did not establish good cause for the
delayed service.
His argument, as we understand it, contains several parts. First, he
maintains we should calculate the ninety days for service from the date the clerk’s
office issued the original notice—November 17—rather than the date he filed the
petition—November 15. Under his proposed calculation, Gerth’s phone call to
defense counsel about service on February 15 was then within the 90-day window
for service (though service of the defendants on February 16 was still outside the
window). Next, Gerth maintains that when it considered whether he had
established good cause, the court should have considered both his conduct in
trying to execute service and the prejudice he would suffer if the case was
dismissed. He claims the limited delay in service combined with the fact that
dismissing his petition may prevent him from having his claim ever decided on the
merits should have led the district court to reach the conclusion that good cause
has been established.
We consider each of Gerth’s arguments in turn.
8
1. Ninety-Day Window.
Gerth maintains we should calculate the ninety-day window for service from
the date the clerk’s office issued the original notice—on November 17, 2016—
rather than from the date he filed the petition—November 15, 2016. As we already
stated, this is issue is not dispositive, as Gerth’s service of the defendants on
February 16 is undisputedly outside the ninety-day window of rule 1.302(5) even if
we use his calculation.
According to Gerth, the clock for service should not begin until the original
notice is issued. To begin, Gerth points out that rule 1.302(1) requires the original
notice to contain, among other things, the “date of the filing of the petition.” Here,
the only date on either of the original notices Gerth received is the “issued” date of
November 17.4 Moreover, as rule 1.302(5) requires the party to serve the original
notice, Gerth could not begin to comply with the rule until the original notice was
issued—two days after the petition was filed. If we use November 15 as the date
to the start the clock, Gerth had only eighty-eight days to complete service rather
than the ninety days provided for in rule 1.302(5).
The question before us is what rule 1.302(5) means when it requires the
other party “to be served within 90 days after filing the petition.”
Pursuant to Iowa Court Rule 16.306(2), “A document is considered filed or
presented at the time EDMS[5] has received it, unless the clerk of court returns it.”
At the time a document is electronically filed, “EDMS applies an electronic file
4
There is no evidence in the record regarding why the original notice was not issued until
two days after the petition was filed.
5
EDMS means “the electronic document management system, the Iowa Judicial Branch
electronic filing and case management system.” Iowa Ct. R. 16.201(5).
9
stamp to the document reflecting the date or the date and time that the document
was actually received by EDMS.” Iowa Ct. R. 16.309(1)(a). Here, according to
electronic file stamp on the petition, it was filed on November 15, 2016, at 3:05
p.m. We believe the clear meaning of the rules, which uses “filing” rather than
“issued”—which was found on the original notice—and says “petition” but is silent
as to the “original notice,” requires the ninety-day clock on service to begin running
on November 15. And while this effectively limited Gerth to eighty-eight days to
execute service, this reduction does not lead us to question our understanding of
the rules.
In Concerned Citizens of Se. Polk Sch. Dist. v. City Dev. Bd., 872 N.W.2d
399, 400–01 (Iowa 2015), our supreme court was asked to determine whether the
thirty days to file an appeal of a ruling began on the date the court filed its ruling or
the date the electronic filing system transmitted a notice of the filing. The court
recognized that the rule of appellate procedure requiring notice of appeal to be
filed within thirty days of the filing of the final order or judgment did not change with
the implementation of EDMS. See Concerned Citizens, 872 N.W.2d at 402 (citing
Iowa R. App. P. 6.101(1)(b)). However, the court had to determine whether the
filing of the court’s order was completed when the order itself was filed or whether
the transmission of the notice of filing was also a necessary part of the filing of the
order. Id. at 402–03. In an argument analogous to the one being raised by Gerth,
Concerned Citizens—the party who wanted the deadline to begin with the
transmission of the notice of filing—argued
the act of filing a court order under the new electronic filing system
only begins with the act of electronically transmitting the document
to the EDMS, [and] filing is not complete until the notice of filing is
10
transmitted. Thus, it asserts that the time period to file an appeal
from a court order does not commence until the notice of filing has
been transmitted. Concerned Citizens further claims that the
concept of fundamental fairness is better served when the thirty-day
time period to appeal a court order commences from the time the
parties are notified of that order. It points out that this starting point
assures all parties actually receive a full thirty days to pursue an
appeal.
Id. The court recognized that the implementation of EDMS had changed the
process, insofar as the filing of the order and the notification from the clerk of the
filing had, “[i]n the paper world,” been “events that went hand-in-hand.” Id. at 403.
With EDMS, they were two separate events undertaken by the document
management system. Id. However, the court ruled that the separation of the two
events “does not preclude the rules governing appeals from continuing to use only
the first step to begin the time to appeal.” Id. In determining that the filing of the
order was sufficient to start the clock, the court noted that ruling otherwise “would
create an unwanted moving target,” as “[t]he time to appeal a court order could
change from case to case depending on the date the clerk completed a review of
the filed order”; it could also “create confusion,” because “the filing date recorded
on the order and identified in the notice of filing would not necessarily be the filing
date to commence the time.” Id. at 404. The court acknowledged that its ruling
could result in parties receiving less than thirty days to file an appeal but noted,
“Our rule governing the time to appeal, however, does not exist to ensure a party
is given a full thirty days to contemplate the filing of an appeal. Instead, it has been
built upon the rationale that justice is better served by a clear and uniform starting
point in all cases.” Id. at 404–05.
11
Gerth is correct that the filing of the petition and the issuing of the original
notice is a two-step process that may occur a number of days apart, but, as written,
rule 1.302(5) requires only the first part of the process—the filing of the petition—
to occur in order for the clock to begin running. Therefore, Gerth’s ninety days to
serve the defendants began on November 15, 2016, and expired on February 13,
2017.
2. Conduct of Parties.
Considering Gerth’s actions as they fall within the established timeline for
service, we must determine whether the district court erred in its determination that
Gerth did not establish good cause for the delay in service.
To establish good cause, Gerth “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 step.” Meier,
641 N.W.2d at 542 (alteration in original) (citation omitted). “Inadvertance, neglect,
misunderstanding, ignorance of the rule or its burden, or half-hearted attempts at
service have generally been waived as insufficient to show good cause.” Id.
(citation omitted). Additionally,
[g]ood cause is likely (but not always) to be found when the plaintiff’s
failure to complete service in a 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,
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) (citation omitted).
Here, assuming Gerth took the affirmative step of sending the December
1 letter asking defense counsel to accept service, this action alone is not enough
12
to establish good cause for delay. The district court found that the defendants’
attorney never received the letter, so any “failure” to execute the
acknowledgement of service and return the same to Gerth’s attorney (after
sending the initial email stating he would be willing do so) was not an attempt at
evading service or misleading conduct. Moreover, even if the defense attorney
did receive the letter and then chose not to follow through, Gerth’s failure to take
any other action prevents a finding of good cause. Gerth’s call to the attorney to
ask about service did not take place until after the ninety-day window for timely
service had passed, and his “calendar glitch” does not provide a justification for
the lack of follow through between December 1 and February 15. Gerth has
offered no other explanation for the delay. Once Gerth did decide to serve the
defendants personally—outside the ninety-day window—he was able to complete
service within twenty-four hours without delay or difficulty. Cf. Falada v. Trinity
Indus., Inc., 642 N.W.2d 247, 249–50 (Iowa 2002) (affirming the district court’s
finding of good cause where the plaintiff did not attempt service until the eighty-
ninth day and then served the wrong party based on erroneous information from
the Iowa Secretary of State’s office before ultimately serving the correct party
outside of the ninety-day window). Additionally, Gerth did not seek an extension
of time to serve the petition within the ninety-day requirement. See Meier, 641
N.W.2d at 542–43 (finding plaintiff failed to present substantial evidence of good
cause when she did not seek an extension or directions from the court once
service could not be accomplished).
Gerth argues that his sending the December 1 letter is sufficient to
establish good cause, effectively shifting the burden to complete service onto the
13
defendants, as Gerth wants us to find defense counsel’s lack of follow through to
complete service prevents us from dismissing the plaintiff’s case. We cannot do
so. See Mokhtarian v. GTE Midwest Inc., 578 N.W.2d 666, 669 (“Once a plaintiff
files a petition, we believe it only appropriate that the plaintiff should bear the
burden of ensuring that service of the original notice and petition on defendant is
both proper and timely.”).
3. Principle of Estoppel.
Gerth maintains that we must consider whether the result of dismissal is
equitable in our determination of whether he established good cause for the delay.
He asserts that it is not equitable here as, even though the court dismissed the
action without prejudice, his substantive rights would be prejudiced due to the
statute of limitations requiring his suit to be filed within ninety days of receiving his
right-to-sue letter from the Iowa Civil Rights Commission. See Iowa Code
§ 216.16(4).
In Rucker v. Taylor, 828 N.W.2d 595, 601 (Iowa 2013), our supreme court
recognized that its recent case law had “expanded the scope of good cause in
two ways.” “First, the case directed an inquiry into the role of the corresponding
conduct of the parties in causing the plaintiffs to fail to timely serve the defendant.”
Rucker, 828 N.W.2d at 601. “Second, the case injected consideration of the
principles of estoppel that seek to prevent unjust results.” Id. In other words,
“good cause must be considered in deciding to dismiss a petition for untimely
service, and . . . this standard considers all the surrounding circumstances,
including circumstances that would make it inequitable for a defendant to
successfully move to dismiss.” Id.
14
In Wilson, our supreme court considered whether an agreement not to
effect timely service constituted good cause for delay in timely service. 678
N.W.2d at 421–42. The court ruled, “While we remain highly skeptical of the utility
of agreements delaying service or extending the statute of limitations in pending
litigation in the hope of settlement, . . . we hold such agreements may constitute
‘good cause’ under Iowa Rule of Civil Procedure 1.302.” Id. at 422. In reaching
this decision, the court considered its practice—before rule 1.302 was amended
to require an extension upon a showing of good cause—of applying the doctrine
of estoppel regarding the limitation of actions when the parties had entered into
agreements regarding the delay of service. Id. at 423. While the court concluded
such an agreement could constitute good cause, the court ultimately remanded
to the district court to conclude whether it did, “[g]iven the dearth of factual findings
in the record, including the lack of a finding of an agreement.” Id.
Similarly, in Rucker, the court considered whether an implied agreement
between the parties to delay service, based upon the parties’ conduct of
continuing to negotiate after the petition at law had been filed, could constitute
good cause for delay. 828 N.W.2d at 601. The court determined that an implied
contract did not exist, see id. at 602, and then “return[ed] to consider whether the
circumstances of this case can nevertheless satisfy the good-cause standard of
rule 1.302(5),” id. at 603. The court cautioned that “the substantive rights of a
plaintiff can be at stake through the application of a statute of limitations” before
advising, “it is important that the good-cause standard under rule 1.302(5) not be
applied too narrowly.” Id. The court ultimately affirmed the district court’s
determination that good cause existed for the delay, placing some blame on the
15
defendant’s conduct of continuing to negotiate when they were aware the plaintiff
was going to delay service, as their actions “reinforce[d] expectations by
[plaintiff’s] attorney that he did not need to take action to comply with the service
rule.” Id. In reaching this conclusion, the court noted, “Federal courts thus
consider as a factor in their determination whether a dismissal would ultimately
be prejudicial to the plaintiff, particularly when delay of service is a result of
misleading conduct by the defendant.” Id.
We recognize that Rucker requires us to examine “all of the surrounding
facts to determine if they reveal ‘understandable mitigating circumstances.’” 828
N.W.2d at 603 (citation omitted). But here, there is no question that Gerth and
the defendants did not have an agreement—implied or otherwise—that service
could be delayed, as Gerth’s counsel and defense counsel had no contact during
the ninety-day window. Contra Feldhacker v. West, No. 12-2003, 2013 WL
3855694, at *5–6 (Iowa Ct. App. July 24, 2013) (applying Rucker and concluding
the district court was correct in its finding of good cause for delayed service
because of plaintiffs’ repeated attempts to serve process within ninety days and
plaintiff counsel’s frequent contact with the insurance adjuster trying to resolve
the dispute within the service window). And we can ascribe no actions to the
defendants that either misled Gerth or played a part in the ultimate delay of service
to outside the 90-day window. In reaching this conclusion, we credit the district
court’s finding that the defendants’ attorney never received the December 1 letter
requesting that he acknowledge service. But even if the defense attorney had
received the letter, while we believe it would be a closer call as to whether
equitable principles would require a finding of good cause, Gerth’s own failure to
16
take action for seventy-four more days cannot be ignored. See Mokhtarian, 578
N.W.2d at 669 (“Once a plaintiff files a petition, . . . [t]he plaintiff cannot rely on
the opposing party to inform him or her that service was not sufficient under our
rules of civil procedure and then argue the delay in service was justified by
previously unsuccessful or legally insufficient attempts at service.”).
We acknowledge that the dismissal of Gerth’s action will likely prejudice
Gerth’s ability to have his 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 Gerth did not establish good cause for the delay
of service.
C. Other Sanction.
Finally, Gerth argues that even if he has not established good cause for the
delay, dismissal of his action is too harsh of a sanction here. He argues the district
court had the discretion to avoid the harsh result. However, Gerth does not
suggest any alternative sanction.
Rule 1.302(5) provides that the court “shall dismiss without prejudice.” See
Iowa Code § 4.1(3)(1) (providing the word “shall,” in statutes enacted after July
1971, “imposes a duty”); 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 Gerth has not provided, and we
have not found, any authority to support his claim that the district court can choose
17
a “sanction” other than dismissal without prejudice. We do not consider this
argument further.
IV. Conclusion.
Because a finding of good cause is required before the court extends the
period to timely serve the defendants, and because Gerth has failed to establish
good cause for the delay, we affirm the district court’s dismissal of Gerth’s petition.
AFFIRMED.
Danilson, C.J., concurs; Doyle, J., concurs specially.
18
DOYLE, Judge. (concurring specially)
Constrained by current precedent cited by the majority, I reluctantly concur.
In my view, our jurisprudence is a bit antipodean. On the one hand, we tout our
preference to decide cases on their merits. See e.g., MC Holdings, L.L.C. v. Davis
Cty. Bd. of Review, 830 N.W.2d 325, 328 (Iowa 2013) (“Our legal process normally
strives to resolve disputes on their merits.”); Peterson v. Eitzen, 173 N.W.2d 848,
853 (Iowa 1970) (“We have often stated our strong preference for determination of
cases on their merits.”). On the other hand, our appellate courts routinely uphold
dismissals of cases for failure to follow technical rules. I acknowledge that the
“good cause” standard for justifying the failure to timely serve under Iowa Rule of
Civil Procedure 1.302(5) has been relaxed a bit in recent years. See Rucker v
Taylor, 828 N.W.2d 595, 603 (Iowa 2013) (“Because the substantive rights of a
plaintiff can be at stake through the application of a statute of limitations, it is
important that the good-cause standard under rule 1.302(5) not be applied too
narrowly.”). But we can do even more to temper the harshness of application of
the rule.
I agree with Justice Waterman when he 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)).
Rucker, 828 N.W.2d at 606-07 (Waterman, J., dissenting). Additionally, I would
go one step further by adding a prejudice component to the rule 1.302(5) analysis.
19
In other words, in the absence of “good cause” on the part of the plaintiff in failing
to timely serve, I would require a showing of prejudice on the part of the defendant
before dismissal would be warranted.
Here, the defendants were aware of Gerth’s complaint filed with the Iowa
Civil Rights Commission. A copy of the commission’s case file is not a part of our
record, but it can be assumed the defendants responded to Gerth’s complaint as
a copy of the right-to-sue letter was sent to the defendants and their attorney.
Shortly after the right-to-sue letter was issued, the defendants’ attorney,
anticipating Gerth would file suit, emailed Gerth’s attorney stating that he would
accept service on behalf of his clients. Undoubtedly, the defendants were
prepared to mount a vigorous defense to Gerth’s suit. Gerth’s suit was filed well
within the ninety-day deadline to do so. It is highly unlikely that the defendants
were caught off guard when served with the original notice and petition. Under the
circumstances, can the defendants legitimately claim they were prejudiced by the
fact the suit papers were served three days late? I think not. But, prejudice is not
yet a part of the rule 1.302(5) analysis, and overturning supreme court precedent
is beyond my pay grade. 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.”).
As an aside, I note there is a discrepancy between rule 1.302(1) and the
official original notice form. The date of the filing of the petition must appear on
the original notice. See Iowa R. Civ. P. 1.302(1)(c) (“The original notice shall
contain the following information: . . . The date of the filing of the petition.”). Rule
1.1901 states: “The forms contained in the Appendix of Forms following this rule
are for use and are sufficient under the Iowa Rules of Civil Procedure.” Iowa R.
20
Civ. P. 1.1901. The rule 1.901 Form 1, Form of Original Notice for Personal
Service, either in print or electronic form, contains no provision for inclusion of the
date of the filing of the petition. As a practical matter, this should cause no real
concern. The rules require the petition to be attached to the original notice, except
if service is by publication. Iowa R. Civ. P. 1.302(1). Customarily, a filed-stamped
copy of the petition is attached to the original notice. So, despite the form’s
infirmity, defendants are ordinarily aware of the date of the filing of the petition.