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Langfeldt v. Genesis Medical Center9/13/2000
earted attempts at service have generally been waived as insufficient to show good cause. Henry v. Shober, 566 N.W.2d 190, 192-93 (Iowa 1997).
A lengthy delay in service is also indicative of a plaintiff who has filed a petition "not to seriously institute litigation, but rather to 'ice' the statute of limitations for a later determination on whether to proceed with suit." Alvarez v. Meadow Lane Mall Ltd. Partnership, 560 N.W.2d 588, 591 (Iowa 1997).
Applying these principles to the undisputed facts in this case, we find the district court properly concluded the Langfeldts' failure to serve an original notice for 140 days was presumptively abusive. Cf. Turnbull v. Horan, 522 N.W.2d 860, 861 (Iowa App. 1994) (finding a 126-day delay in service presumptively abusive). We, like the district court, also conclude the Langfeldts failed to show adequate justification for the delay. Settlement negotiations, even if done in good faith, do not constitute adequate justification or good cause for delaying service. Henry, 566 N.W.2d at 193.
Finally, we reject Langfeldts' argument that the delay in service did not prejudice Genesis. The point is not whether Genesis suffered prejudice from the delay in service or whether the delay was intentional, but rather whether the Langfeldts can show justification for the delay. Mokhtarian v. GTE Midwest Inc., 578 N.W.2d 666, 669 (Iowa 1998). We additionally note that notice of the possibility of a lawsuit is not sufficient; the party being sued must be served with an original notice as required by our rules of civil procedure. Id.
The Langfeldts have failed to sustain their burden of showing "good cause" for their failure to comply with Iowa Rule of Civil Procedure 49(f). The district court's dismissal of Langfeldts' lawsuit against Genesis is affirmed.
AFFIRMED.
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