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Wang v. Baumgartner

Court of Appeals of Iowa

March 6, 2019

JIANNING WANG, Plaintiff-Appellant,
v.
AMANDA SUE BAUMGARTNER, Defendant-Appellee.

          Appeal from the Iowa District Court for Linn County, Sean McPartland and Denver D. Dillard, Judges.

         Jianning Wang appeals the dismissal of his civil petition.

          Jianning (Roy) Wang, Marion, pro se appellant.

          Karla J. Shea of Swisher & Cohrt, P.L.C., Waterloo, for appellee.

          Considered by Doyle, P.J., and Mullins and McDonald, JJ.

          Mullins, Judge.

         Jianning Wang appeals the dismissal of his civil action against Amanda Baumgartner.[1] Wang filed his petition on January 12, 2018. Three days later, Wang filed a "certificate of service" stating a copy of the petition and original notice had been "mailed to" Baumgartner "using USPS." The materials attached to the certificate show one of the mailings was sent to Baumgartner at an address in Cedar Rapids, while the three remaining mailings were sent to Baumgartner's liability-insurance carrier.

         On April 16, the district court entered an order noting Wang's certificate of service was insufficient to show Wang complied with the personal-service requirements of the Iowa Rules of Civil Procedure and directing Wang to file proof of appropriate service by May 8 or face dismissal of his petition. On April 29, Wang filed a "proof of service" reiterating he, on January 15, mailed the original notice and petition to Baumgartner and adding, on April 28, the "USPS office" confirmed the mailings "had been properly and timely delivered." Wang provided copies of "USPS tracking" printouts, which merely indicated the mailings had been "Delivered" to the listed addresses. On May 9, the district court dismissed Wang's petition without prejudice, again stating mere mailing of the original notice and petition was not in compliance with personal-service requirements. Wang filed an "objection and request for clarification and justification." The court clarified Wang failed to comply with the service requirements of rule 1.305 and no alternative forms of service were permitted by court order. Wang appeals.

         In his appellate brief, Wang first appears to question this court whether Baumgartner's alleged actions in evading service of process is legal and whether the court can dismiss a civil action when a defendant evades service. Any answer on our part would amount to an advisory opinion, which we have neither a duty nor authority to render. See Hartford-Carlisle Sav. Bank v. Shivers, 566 N.W.2d 877, 884 (Iowa 1997).

         Next, Wang challenges the district court's reasoning for dismissing his petition-failure to comply with the service requirements of the Iowa Rules of Civil Procedure. Iowa Rule of Civil Procedure 1.302(3), in relevant part, provides:

An original notice shall be served with a copy of the petition. The plaintiff is responsible for service of an original notice and petition within the time allowed under rule 1.302(5) and shall furnish the person effecting service with the necessary copies of the original notice and petition.

Rule 1.302(5) provides:

If service of the original notice is not made upon the defendant, respondent, or other party to be served within 90 days after filing the petition, the court, upon motion or its own initiative after notice to the party filing the petition, 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. 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.

Personal service is made "by delivering a copy to the proper person" and may be effectuated upon a competent individual who has attained the ...


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