from the Iowa District Court for Warren County, Martha L.
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
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.
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.
August 2, 2017, Bridgette Ferguson and Robert Rutledge filed
a lawsuit against defendants David Jones, Brown Truck Leasing
Corporation, and Veritiv Operating Company 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. 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. 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
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
court dismissed the action without prejudice. Ferguson ...