(concurring in part and dissenting in part).
I concur in part and dissent in part.
I agree with the majority that the case was dismissed under 215.1 on January 2, 1999.
Because I believe that the district court considered improper factors in addressing the plaintiffs motion for reinstatement of the case I would reverse and remand to the district court to reconsider the motion applying proper factors.
Rule 215.1 enumerates two bases on which the court can reinstate a case dismissed under that rule. O’Brien v. Mullapudi, 405 N.W.2d 815, 815 (Iowa 1992). The first is a mandatory reinstatement determination, which we review at law. Id. at 817. The second is a discretionary reinstatement, which we review for an abuse of discretion. See id.
In December of 1998 the parties agreed to a uniform scheduling order and the setting of the trial date for August 9, 1999. Plaintiff on January 6, 1999, notified defendant of the expert witnesses she intended to call. This shows me that the failure to reinstate was an oversight or a mistake which can support a mandatory reinstatement. However, a plaintiff seeking a mandatory reinstatement, in addition to showing an oversight or mistake, must prove no less than reasonable diligence or, put another, way a plaintiff must show he or she would have been entitled to a continuance if one had been timely requested. See O’Brien at 819.
In denying the application for reinstatement and in finding “the record was void of any showing of diligence by plaintiff to get the ease ready for trial” the district court considered that “there was no discovery or formal action by plaintiff to determine if the proper party was named. All of the contacts to resolve the case have been initiated by defense counsel who has repeatedly, but unsuccessfully, solicited information in an attempt to determine if a settlement of the case was possible.”
I believe it was not proper for the district court to consider plaintiffs failure to use formal discovery procedure and plaintiffs failure to respond to defendant’s settlement requests in finding plaintiff was not ready for trial.
Neither plaintiff nor defendant made any formal discovery requests. There is no rule that requires a plaintiff to conduct formal discovery. In the perfect world a plaintiff would have so adequately investigated her case before filing that she would know all she needed to know to go to trial without further discovery. Consequently I do not believe a failure to conduct formal discovery is or should be considered in determining whether a plaintiff has used due diligence in preparing a case for trial. Nor do I believe that the unanswered settlement requests of defendant’s attorney *701should be considered. The requests were made in conversation and by letter. No formal discovery procedures were utilized by defendant in making the request. This is not a case where plaintiff failed to comply with defendant’s formal discovery requests. While a cooperative exchange of information is certainly favored, plaintiff was not required to make the materials available until a formal discovery request was made.
The majority, while inferring plaintiff has no duty to conduct formal discovery, has affirmed the district court’s consideration of this fact in making its ruling. With this I cannot agree. Additionally, I disagree that Ray has failed to demonstrate any indicia of readiness. Ray has a trial date and has advised defendant of her experts. Defendant has made no formal request for anything more. There is substantial evidence to support a finding of readiness. Consequently, I would remand to the district court to reconsider the request using proper factors and excluding from its consideration the failure to make formal discovery and the failure to respond to defendant’s informal request for settlement.