Iowa Court of Appeals Affirms Dismissal for Failing to Serve Petition Within the 90 Day Window

Posted on: October 31st, 2018

On November 15, 2016, plaintiff filed a petition at law. Prior to doing so, the attorney for the named defendant informed plaintiff’s counsel that he would accept service on behalf of his client. According to plaintiff’s counsel, on December 1, 2016, he sent defendant’s counsel a copy of the petition, original notice, and an acknowledgment of service which the defendant was asked to “execute . . . and return to [plaintiff’s attorney’s] office for filing”. On February 15, 2017, 92 days after plaintiff filed his petition, plaintiff’s counsel called defendant’s counsel to verify he received the aforementioned letter. At this time, defendant’s counsel informed plaintiff he never received the aforementioned documents. On February 16, 2017, 93 days after plaintiff filed his petition, he served defendant.

Subsequent to receiving service, defendant filed a motion to dismiss, arguing the petition should be dismissed because plaintiff failed to serve the defendant within 90 days of filing his petition pursuant to Iowa R. Civ. P. 1.392(5). Plaintiff argued that his affirmative steps to effectuate service on defendant established a good cause for delay. The trial court disagreed and dismissed plaintiff’s petition. Plaintiff appealed.

On October 24, 2018, the Court of Appeals affirmed the trial court’s findings. In its analysis, the Court stated that, in order to establish good cause, 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 step.” (citation omitted). The Court further stated that “Inadvertence, 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.” (citation omitted). The Court ultimately found that plaintiff’s lone attempt to send service to defendant on December 1, 2016 was not enough to establish good cause for delay.

Andrew Gerth v. Iowa Business Growth, Inc. et al., No. 17-1018 (Iowa App. October 24, 2018).

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