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Streed v. Flanagan Corp.12/10/2003
Summer Streed appeals from the district court's order dismissing her personal injury action for failure to make timely service of process. AFFIRMED.
Summer Streed appeals from the district court's order which sustained the defendant's motion to dismiss her negligence claim for failure to comply with Iowa Rule of Civil Procedure 1.302(6). We affirm the district court.
I. Background Facts and Proceedings
Streed filed a petition against the Flanagan Corporation, d/b/a Flanagan's Restaurant and Lounge (Flanagan) on March 14, 2002, based on injuries allegedly sustained on March 17, 2000, at Flanagan's Restaurant and Lounge. A district court judge reviewed the court file on June 20, 2002, and discovered that plaintiff had not filed a return of service. That same day, the court entered an "Order Re: Setting Deadline for Service of Process." In its order, the court ordered Streed to "promptly cause Original Notice to be served on Defendant as required by Iowa Rule of Civil Procedure 1.302." The court's order also provided that Streed's action would be dismissed on July 17, 2002, unless Streed either (a) served original notice on Flanagan and filed a return of service, or (b) filed a motion with supporting affidavit stating justification for Streed's failure to serve timely original notice upon the defendant. Streed made no attempt to serve Flanagan prior to the deadline established by the district court. In addition, she made no request for additional time within which to complete service of process.
On August 13, 2002, 152 days after Streed filed her petition, Flanagan filed a motion to dismiss requesting the district court to dismiss Streed's claims because she had failed to comply with rule 1.302(6), and had not complied with the district court's order of June 20, 2002. Streed filed a resistance to Flanagan's motion to dismiss on September 4, 2002. In her resistance, Streed claimed for the first time that she had not attempted to serve the defendant because of an oral agreement between her counsel and an insurance claims examiner that "plaintiff would defer service to allow the insurer to investigate the claim and would continue to do so as long as the investigation was continuing to the mutual satisfaction of the parties." Streed also claimed that the defendant had not suffered prejudice as a result of the delay in service of process. As part of her resistance, Streed requested an extension of time in which to accomplish service on the defendant. On November 7, 2002, Flanagan filed its reply to Streed's resistance. Among other things, the reply asserted that no agreement ever existed between defendant or defendant's insurer and plaintiff regarding plaintiff's service of process obligations under rule 1.302(6).
On November 12, 2002, the district court heard oral argument on Flanagan's motion, and granted the motion to dismiss. On appeal, Streed contends the district court improperly considered evidence outside the pleadings. She also argues the defendant was not prejudiced by any omission in service of process.
Standard of Review
We review the district court's granting of a motion to dismiss for errors at law. Sandford v. Maternach, 601 N.W.2d 360, 363 (Iowa 1999).
The Merits
Iowa Rule of Civil Procedure 1.302(6) provides that the court shall dismiss an action if service of the original notice is not made within ninety days after the petition is filed. However, the time for service of process may be extended beyond ninety days upon the showing of good cause for the delay in service Iowa R. App. P. 1.302(6). Good cause requires that:
he Plaintiff must have taken some affirmative actio
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