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Moyer v. Johnson8/15/2001
Appeal from the Iowa District Court for Polk County, Richard G. Blane, II, Judge.
Defendants appeal from the district court's interlocutory order overruling their motion to dismiss plaintiff's personal injury action.
AFFIRMED.
Stacy and Christopher Johnson appeal from a district court order denying their motion to dismiss. We affirm.
I. Background Facts and Proceedings.
The Johnsons and James Moyer were involved in an automobile accident on February 2, 1998. On February 1, 2000, Moyer filed a lawsuit alleging negligence on the part of the Johnsons. Although Moyer attempted timely service of process via the Dallas County Sheriff, the sheriff was unable to locate the Johnsons and service was not effectuated. Moyer's only notice of the sheriff's failure to serve the defendants was an invoice requiring payment of a mileage fee, but showing date of service to be 00/00/00 and a service fee of $0.00. On May 10, 2000, the court discovered that service had not been effectuated and ordered Moyer to properly serve the Johnsons by June 9, 2000. Moyer perfected service on May 23, 2000.
The Johnsons subsequently filed a motion to dismiss, alleging service was untimely pursuant to Iowa Rule of Civil Procedure 49(f). The district court denied this motion, finding good cause for the plaintiff's failure of service. The Johnsons thereafter filed an application for interlocutory appeal, which was granted by our supreme court.
On appeal, the Johnsons allege that the district court erred in denying their motion to dismiss. They argue that the district court erred in finding good cause for delay in service of the original notice.
II. Standard of Review.
Our review of a district court's ruling on a motion to dismiss is for correction of errors at law. Iowa R. App. P. 4; Henry v. Shober, 566 N.W.2d 190, 191 (Iowa 1997). The district court's findings of fact are binding on appeal unless not supported by substantial evidence. McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa 1998). We are not bound by the district court's application of legal principles or its conclusions of law. Id.
III. The Merits.
Iowa Rule of Civil Procedure 49(f), as recently amended, provides as follows:
(f) If service of the original notice is not made upon the defendant, respondent, or other party to be served 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, respondent, or other party to be served 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.
Our supreme court has provided the following guidelines for assessing good cause:
" he 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 action. 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. Moreover, intentional non-service in order to delay the development of a civil action or to allow time for additional information to be gathered prior to 'activating' the lawsuit has been held to fall short of . . . good cause . . . ." Carroll v. Martir, 610 N.W.2d 850, 858 (Iowa 2000) (quoting Henry, 566 N.W.2d at 192-93).
A lengthy delay in service is also indicative
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