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Moyer v. Johnson8/15/2001
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. P'ship, 560 N.W.2d 588, 591 (Iowa 1997).
In finding that good cause existed for the delay, the district court noted:
First and foremost, Plaintiff took "some affirmative action to effectuate service of process" on Defendants. On February 2, 2000, Plaintiff's attorney [David Wiggins] sent the Dallas County Sheriff Directions of Service along with two Original Notices for service on Defendants. At some point between February 10, 2000 and March 1, 2000, Wiggins received a Bill for Civil Papers Served on Defendants. According to Wiggins, the normal practice is that if service is not made, the papers are returned to the Plaintiff's attorney. Thus, because the Dallas County Sheriff did not return the papers to him, or even note on the Bill that service was not made, he assumed service was properly effectuated. Thus, the facts clearly establish that Plaintiff took some action to serve Defendants.
Further, along this same line of analysis, the fact that Plaintiff took some affirmative action to effectuate service demonstrates that he was not attempting to "'ice' the statute of limitations for a later determination on whether to proceed with suit." Finally, once this Court brought the fact that Defendants had not been served to Plaintiff's attention, service was promptly effectuated. Once again, this Court believes this fact establishes that Plaintiff had every intention of complying with the service requirements.
This is not a case where Plaintiff affirmatively determined to forego service of process for purposes of settlement negotiations or other trial tactics. Rather, this is a case where miscommunication between the Dallas County Sheriff and Plaintiff's attorney caused the delay. This Court believes attorney Wiggins honestly believed service of process was effectuated. Therefore, this Court finds that there existed "good cause" for the delay of service and as a result, Defendants' Motion to Dismiss must be denied. (Citations omitted.)
The factual basis for the district court's good cause determination finds abundant support in the record. We, like the district court, believe counsel's efforts to timely initiate service and his genuine misunderstanding concerning completion of service distinguish this case from others involving abusive delays in effectuating service of process. The district court's decision is accordingly affirmed in its entirety.
AFFIRMED.
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