from the Iowa District Court for Johnson County, Paul D.
appeals the district court decision dismissing her action for
failure to timely serve notice on defendant.
Siobhan Briley of Pugh Hagan Prahm, P.L.C., Coralville, for
Allison R. Abbott of Elverson, Vasey & Abbott, L.L.P.,
Des Moines, for appellee.
Considered by Potterfield, P.J., Tabor, J., and Scott, S.J.
Prier appeals the district court decision dismissing her
action for failure to timely serve notice on Mary Billhymer.
Prier did not serve Billhymer with notice of the lawsuit
within ninety days after the petition was filed and did not
file a motion for an extension of time to serve notice. We
conclude Prier has not shown good cause for the delay in
serving Billhymer. We affirm the district court's
decision dismissing the action.
Background Facts & Proceedings
and Billhymer were involved in a motor vehicle accident on
May 20, 2015, in Iowa City. Prier filed a tort action against
Billhymer on May 19, 2017. Prier did not serve Billhymer with
notice of the lawsuit within ninety days, which was August
17, 2017, and did not file a motion requesting additional
time to serve notice.
August 21, 2017, at 12:57 p.m., Billhymer filed a motion to
dismiss, claiming she was not served notice within ninety
days, as required by Iowa Rule of Civil Procedure 1.302(5).
Prier resisted the motion, claiming there was good cause for
the delay. She stated she had been informed Jon Vasey was
Billhymer's attorney and attempted to serve him on August
14, 2017, but he stated "I have no authority to accept
service on behalf of Mary Billhymer." On August 15,
Prier arranged for the Davis County Sheriff's Department
to serve Billhymer but it was unable to locate her. Prier
contacted a private process server on August 21, who
completed service that day at 8:10 p.m.
hearing, the district court granted the motion to dismiss.
The court stated:
Service was not made on Defendant until ninety-four days
after the Petition was filed. As Plaintiff's counsel
acknowledged at the time of hearing, when she became aware
that timely service was potentially going to be a problem,
she should have filed a request for additional time to serve
Defendant. Plaintiff never took the affirmative action of
filing a request for additional time to serve Defendant.
Additionally, Plaintiff simply has failed to establish any
good cause for her failure to effect service on Defendant
within ninety days of the filing of the Petition.
court also stated, "the failure in timely service was
due to Plaintiff's counsel inadvertence, neglect, and/or
misunderstanding and ignorance of Rule 1.302(5) and its
burden." Prier appeals the district court's