Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ferguson v. Jones

Court of Appeals of Iowa

March 20, 2019

BRIDGETTE FERGUSON and ROBERT RUTLEDGE, Plaintiffs-Appellants,
v.
DAVID JONES and VERITIV OPERATING COMPANY, Defendants-Appellees, and BROWN TRUCK LEASING CORPORATION, Defendant.

          Appeal from the Iowa District Court for Warren County, Martha L. Mertz, Judge.

         Plaintiffs appeal from the district court's dismissal of their lawsuit for failing to serve the defendants within the ninety-day window required by Iowa Rule of Civil Procedure 1.302(5).

          Jeff Carter and Zachary C. Priebe of Jeff Carter Law Offices, P.C., Des Moines, for appellant.

          Michael L. Moran of Engles, Ketcham, Olson & Keith, P.C., Omaha, Nebraska, for appellee.

          Considered by Vogel, C.J., and Doyle and Mullins, JJ.

          DOYLE, JUDGE.

         The district court dismissed plaintiffs' personal injury action for lack of timely service of process. Plaintiffs appeal arguing the defendants' motion to dismiss was untimely and, in any event, the delay in service beyond the deadline date was short and defendants suffered no prejudice thereby. We affirm the district court.

         On August 2, 2017, Bridgette Ferguson and Robert Rutledge filed a lawsuit against defendants David Jones, Brown Truck Leasing Corporation, and Veritiv Operating Company[1] seeking recovery for personal-injury damages. The petition alleges that on August 6, 2015, Ferguson and Rutledge were injured in a motor vehicle collision negligently caused by Jones.[2] Suit papers were served on Jones and Brown Truck Leasing on November 10, 2017, 100 days after suit was filed. Veritiv was served three days later on November 13, 2017, 103 days after suit was filed. Plaintiffs filed a motion for default judgment on February 7, 2018. Their motion was denied on February 12 for failure to comply with default judgment procedure pursuant to Iowa Rule of Civil Procedure 1.972. On February 21, 2018, over 100 days after having been served, defendants Jones and Veritiv filed a motion to dismiss plaintiffs' action, pursuant to Iowa Rule of Civil Procedure 1.421(1)(c), for failure to timely serve pursuant to Iowa Rule of Civil Procedure 1.302(5) which requires that service be made within 90 days after filing the petition.[3] Plaintiffs resisted and an unreported hearing was held before the district court. On July 23, 2018, the court granted the motion to dismiss finding service of process was not made within 90 days after filing the petition as required by rule 1.302(5). Further, the court concluded:

Here, Plaintiffs do not fall within either exception to the rule. Plaintiffs did not obtain an extension of time to accomplish service. Plaintiffs also did not assert facts, either in their resistance or in argument, that might support a finding of good cause.
Plaintiffs defend against the motion to dismiss by pointing out Defendants did not file the motion until after Plaintiffs gave notice of their intent to file for a default judgment. Plaintiffs assert Defendants' motion is untimely and, therefore, the Court should deny the motion.
While Defendants did not file the motion to dismiss within twenty days of the late service on them, the Court concludes filing a motion to dismiss more than twenty days after service does not excuse Plaintiffs' noncompliance with the rule. Plaintiffs did not explain the late service on Defendants and cited no cases on point in support of their position that the Court should deny the motion based on untimeliness.
In order to avoid dismissal, it was incumbent upon Plaintiffs to establish good cause under the rule.
Plaintiffs failed to do, so the Court grants the motion to dismiss.

         The court dismissed the action without prejudice. Ferguson ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.