JUDITH K. BUCKNER and MARK A. BUCKNER, Plaintiffs-Appellees,
GREAT SOUTHERN BANCORP, INC., d/b/a GREAT SOUTHERN BANK, A Missouri Corporation, Defendant-Appellant.
from the Iowa District Court for Scott County, Henry W.
Latham II, Judge.
interlocutory appeal, the defendants challenge the district
court's denial of a pre-answer motion to dismiss the
plaintiffs' personal-injury action for failure to serve
Scott Bardole of Andersen & Associates, West Des Moines,
Roth Richardson of Roth Law Office, PC, Dubuque, for
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
Rule of Civil Procedure 1.302(5) requires a plaintiff to
serve a defendant with an original notice of the filing of a
petition "within 90 days after" the filing. If
service is not made within this time frame, the district
court "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." Iowa R.
Civ. P. 1.302(5). "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."
and Mark Buckner filed a personal injury action against Great
Southern Bancorp, Inc., d/b/a Great Southern Bank
("Great Southern") on September 18, 2017. The final
day for timely service on Great Southern was December 17,
2017. On January 19, 2018-over a month after the service
deadline expired-the Buckners moved for an extension of time
to serve Great Southern. They asserted, "Before and
after filing the Petition at Law, Plaintiffs engaged in
settlement discussions with Defendant's insurance
adjuster [but] the negotiations were terminated by the
insurance company on January 18, 2018." They claimed
there was good cause to grant additional time and requested
at least "an additional thirty (30) days to complete
service." The district court summarily granted the
motion and gave the Buckners thirty days to serve Great
Southern. Service was completed within that time frame.
Southern moved to dismiss the petition, citing the
Buckners' failure to complete service within ninety days,
as required by rule 1.302(5). Great Southern also disputed
the Buckners' assertion of ongoing settlement
negotiations. The Buckners resisted the motion. They relied
on the court order granting them an extension of time to
serve the original notice. In their view, "[t]here was
good cause for the court to grant their motion to extend the
time for service." The district court denied the motion
to dismiss. The court reasoned that the Buckners
"obtain[ed] an order from the court allowing an
extension of time to serve the defendant" and there was
"no prejudice to the defendant."
Iowa Supreme Court granted Great Southern's application
for interlocutory appeal and stayed further district court
proceedings. The appeal was transferred to this court for
Southern contends the Buckners lacked good cause for late
service of the petition. The Buckners reiterate that the
order extending the time for service afforded them good cause
for late service.
cause turns on "all the surrounding circumstances,
including circumstances that would make it inequitable for a
defendant to successfully move to dismiss." Rucker
v. Taylor, 828 N.W.2d 595, 601 (Iowa 2013).
Notwithstanding the reference to equity, our review of the
order denying the motion to dismiss is for errors of law.
Id. at 598. In evaluating the court's ruling,
the critical question is whether the prior order extending
time for service warranted denial of the motion to
extension motion precipitating the extension order was
unquestionably untimely. See Meier v. Senecaut, 641
N.W.2d 532, 543 (Iowa 2002) (stating rule "requires the
plaintiff to take affirmative action to obtain an extension
or directions from the court if service cannot be
accomplished"); Oetken v. Guerrero, No.
07-2091, 2008 WL 4308134, at *2 (Iowa Ct. App. Sept. 17,
2008) (presupposing "timely motion for extension of
[t]he service deadline"). And, as noted, Great Southern
disputed the reason asserted by the Buckners for seeking a
belated extension. Specifically, Great Southern attached an
affidavit and documents to its dismissal motion contesting
the Buckners' assertion that the parties were engaged in
settlement negotiations. See Rucker, 828 N.W.2d at
598-99 (stating while case pleadings ordinarily form the
outer boundaries of material to be evaluated in a motion to
dismiss, when the motion is based on failure to provide
timely service, a court may consider facts outside the
employee of Great Southern's insurer attested that the
Buckners were offered $5000 to settle the suit after it was
filed but before Great Southern was served. Days after the
offer was made, the Buckners requested and obtained video
footage of the accident. The insurer had "no further
contact with" the Buckners' attorney until January
18, 2018, when counsel informed the insurer the Buckners
rejected the $5000 offer. One day later, the Buckners filed
their motion to extend the time for service of process. In