from the Iowa District Court for Polk County, Jeffrey D.
plaintiff appeals from the district court's dismissal of
his lawsuit for failing to serve the defendants within the
ninety-day window required by Iowa Rule of Civil Procedure
S. Fisk (until withdrawal) and John F. Fatino of Whitfield
& Eddy, PLC, Des Moines, for appellant.
R. Fischer and Abigail L. Thiel of Simpson, Jensen, Abels,
Fischer & Bouslog, PC, Des Moines, for appellees.
by Danilson, C.J., and Potterfield and Doyle, JJ.
Gerth appeals from the district court's dismissal of his
petition at law alleging age discrimination, a hostile work
environment, and retaliation against his former employer,
Iowa Business Growth, Inc., and former supervisor, Dan
Robeson. At the defendants' request, the
district court dismissed the action without prejudice for
Gerth's failure to serve the defendants within ninety
days of filing the petition, as required by Iowa Rule of
Civil Procedure 1.302(5).
challenges the dismissal, but he does not dispute that the
defendants were served outside of the ninety-day window.
Gerth raises the following claims: (1) He argues the district
court had the discretion to grant an extension even without a
showing of good cause and should have done so. (2)
Alternatively, he claims he established good cause for the
delay. As part of this argument, he claims the ninety-day
window for service did not begin until the clerk's office
issued the original notice, which in this case occurred two
days after Gerth initially filed the petition-making service
late by one day rather than three. He also claims the
district court should have, as part of its good-cause
analysis, considered the extent his rights would be
prejudiced by the dismissal. (3) Finally, Gerth claims that
even if good cause is necessary for an extension and he did
not establish it, dismissal was inappropriate because service
was only late by three days or less and the defendants were
not prejudiced by the delay.
Background Facts and Proceedings.
worked for the defendants from August 2014 until May 2016.
While still employed by the defendants, Gerth filed a
complaint with the Iowa Civil Rights Commission, and the
commission issued a right-to-sue letter after termination of
Gerth's employment, on September 9, 2016. A copy of the
letter was sent both to Gerth and the defendants.
September 20, before Gerth filed suit, the attorney for the
defendants sent an email to Gerth's attorney informing
him, "My client has authorized me to accept service of
the Gerth petition when you file it."
filed the petition at law on November 15; the clerk's
office issued the original notice on November 17.
to an affidavit filed by Gerth's attorney, on December 1,
he sent a letter to the defendants' attorney referencing
the defense attorney's prior email stating he would
accept service on behalf of his clients. Enclosed with the
letter was a copy of the petition, original notice, and an
"acknowledgement of service," which the defense
attorney was asked to "execute . . . and return to
[plaintiff attorney's] office for filing."
to an affidavit filed by the defendants' attorney,
neither the letter nor any of the attachments were ever
received by his office.
defense counsel never responded to the December 1 letter, and
no acknowledgement of service was filed.
action was taken until February 15, 2017. On that date,
"[b]ased upon a reminder system in [his] calendar, which
erroneously identified the 90-day service deadline as
February 17," Gerth's counsel called defense counsel
and "left a voicemail inquiring as to whether [he] had
received the December 1, 2016 letter and would still agree to
accept service of the lawsuit on behalf of the
[d]efendants." Plaintiff's counsel maintains he
spoke to defense counsel on February 15, while defense
counsel swears that Gerth's counsel called at 4:57 p.m.
and left a message asking for a return call, which defense
counsel believes he returned "[p]romptly the next
on the afternoon of February 15 or the morning of February
16, when the two counsel spoke, defense counsel reported he
had not received the letter. Gerth then served the defendants
on the morning of February 16.
defendants filed a motion to dismiss, arguing the petition
should be dismissed because Gerth failed to serve the
defendants during the required ninety days, had not requested
an extension during the allotted time, and had not shown good
cause for the delay. Gerth resisted.
a hearing on the motion,  the court issued a ruling dismissing
Gerth's petition. The court determined that because Gerth
had failed to timely serve the defendants, "he [could]
only avoid dismissal if he can show good cause." The
court found that Gerth's basis for late service did not
"meet the traditional standard for good cause." In
reaching this conclusion, the court noted that it
"believes that [defense counsel] did not receive the
letter" and "does not doubt that [Gerth's
counsel] believes it was sent." However, the court found
there was insufficient evidence to show the letter was sent,
as "there was no evidence of mailing procedures."
Still, the court ultimately found that the unresolved issue
with the December 1 letter was immaterial, as "even if
the letter was received, it is highly questionable whether it
constitutes good cause" to "not follow up between
December 1, 2016 and February 15, 2017 to determine if
service had been accepted."
Standard of Review.
review the district court's ruling regarding a motion to
dismiss for correction of errors at law. Crall v.
Davis, 714 N.W.2d 616, 619 (Iowa 2006). When the motion
to dismiss is based upon delay of service, the district court
may consider matters outside the pleadings, and we are bound
by the court's factual findings if supported by
substantial evidence. Id.
does not dispute that he served the defendants outside of the
ninety days required by Iowa Rule of Civil Procedure
1.302(5). However, he maintains the district court should not
have granted the defendant's motion to dismiss; ...