Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge.
The opinion of the court was delivered by: Danilson, J.
Tiffany Parish appeals the dismissal of her petition for failure to effect service of notice on the defendant in a personal injury action. REVERSED AND REMANDED WITH DIRECTIONS.
Considered by Eisenhauer, C.J., and Danilson and Bower, JJ.
Tiffany Parish appeals the dismissal of her petition for failure to effect service on the defendant in a personal injury action. Because the district court did not allow sufficient time for Parish to effect service after a finding of good cause for extension, we reverse the district court's dismissal of Parish's petition and remand to the district court for entry of an order authorizing service by publication and granting Parish sixty days to complete service.
I. Background Facts and Proceedings.
This personal injury action arose from an automobile accident that occurred on November 22, 2009. Tiffany Parish filed a petition on September 7, 2011. She attempted to personally serve Mule, via process server, by inquiry at the United States Postal Office, the Iowa Department of Motor Vehicles, and local utility companies; however, the process server was unable to locate Mule. Parish then attempted service by publication. An original notice was published on three separate occasions; however, Parish failed to file an affidavit asserting personal service could not be had and also failed to obtain an order permitting service by publication.
While Parish was attempting to serve Mule, there was an ongoing dialogue between Parish's counsel and Mule's insurance company, GEICO. Parish contends GEICO informed her counsel that it did not intend to hire an attorney, and it wished to reach a quick settlement.*fn1
On December 12, 2011, the district court filed an order requiring Parish to notify the court of her intentions regarding default judgment. The order mistakenly indicated that Mule had been properly served. In response to that order, nine days after the ninety-day period for service of original notice had expired, GEICO retained counsel for Mule and filed a pre-answer motion to dismiss. Parish resisted.
In a March 1, 2012 order, the district court denied the motion to dismiss, citing Parish's compliance with the substantive requirements of the rule, GEICO's awareness of the claim, and ongoing settlement discussions, noting: "[a]lthough there was no explicit agreement to delay service, there was correspondence and communication between Plaintiff and Defendant's insurance company requesting settlement communications and proposals." The court concluded there was good cause to grant Parish an extension. The court granted Parish an additional thirty days in which to effectuate service, but expressly stated that if Parish wished to utilize any method other than personal service she must make "the appropriate application and showing to the Court, all as required by the Iowa Rules of Civil Procedure." The court also stated, "[t]he court does not at this time, however, authorize service by publication."
On March 22, Parish's counsel visited with the apartment manager at Mule's last known residence in Cedar Rapids, and was told that Mule had likely left the country. Having determined that personal service could not be had, on March 30, Parish filed an application for equitable relief requesting permission to serve by publication, or by any means deemed just and equitable by the court.
Mule resisted, noting that Parish's application was filed one day before the expiration of her extension. Mule argued that Parish should have utilized the long-arm statute, citing Iowa Code sections 321.501 and 321.504 (2011); thereby making service by publication unnecessary. On April 3, 2012, Mule disclosed for the first time in an affidavit filed with the resistance that since the accident he had lived in Kansas, Nebraska, and Minnesota.
In a contested hearing, Parish's counsel argued that given Parish's continued efforts to locate Mule, there was good cause to allow more time to effect service upon Mule by publication.
In a May 21, 2012 order, the district court denied Parish's application for equitable relief and dismissed the underlying petition, finding that Parish could have utilized the long-arm statute because "it appeared that Defendant was no longer living in Iowa, a fact known to Plaintiff's counsel in early April of 2012 at the latest," Parish had not "sought leave for a further extension of time" and thus "failed to utilize the statutory procedures available to her."
Parish filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2) noting that she only learned Mule in fact lived out of state, thereby rendering the long-arm statute applicable after the thirty-day extension had expired. The court denied her motion. Parish appeals the denial of her ...