LARRY J. HOOVER, Plaintiff-Appellant,
ANDREW B. REED, Defendant-Appellee.
from the Iowa District Court for Webster County, Thomas J.
Hoover appeals the dismissal of his civil petition on
L. Schnurr III of Schnurr Law Firm, P.C., Fort Dodge, for
E. Grasso of Hopkins & Huebner, P.C., Des Moines, for
Considered by Tabor, P.J., and Mullins and May, JJ.
Hoover filed his civil petition against Andrew Reed on June
4, 2018. Pursuant to Iowa Rule of Civil Procedure 1.302(5),
the deadline for service on Reed was September
Hoover mailed the original notice, petition, and directions
for service to the sheriff's office on Friday, August 31
via United States mail. The sheriff's office received the
same on September 6, and Reed was personally served the same
day. Reed filed a pre-answer motion to dismiss on
untimely-service grounds. See Iowa Rs. Civ. P.
1.302(5), .421(1). Hoover resisted, arguing "good cause
exists for an extension" of the service deadline.
Following an unreported hearing, the district court granted
Reed's motion to dismiss, concluding Hoover failed to
establish good cause. Hoover filed a motion to reconsider.
Attached to the motion to reconsider was an affidavit by a
postmaster stating the materials should have been delivered
to the sheriff on September 3 or 4, and they "should not
have been delivered as late as September 6 unless there was a
technical error by United States Post Office redirecting the
letter to the wrong place which would require manual handling
of the letter and thus the delay." The court denied the
motion to reconsider and this appeal followed.
review of a district court ruling on a motion to dismiss is
for legal error. Venckus v. City of Iowa City__,
N.W.2d__, __, 2019 WL 2710807, at *1 (Iowa 2019); UE
Local 893/IUP v. State, 928 N.W.2d 51, 59 (Iowa 2019).
as here, the grounds for the motion are based on an alleged
failure to provide timely service, we are permitted to
consider facts outside the pleadings. Rucker v.
Taylor, 828 N.W.2d 595, 598-99 (Iowa 2013).
appeal, Hoover argues the court erred in granting Reed's
motion to dismiss because good cause existed to excuse the
delay in service. Rule 1.302(5) provides:
If service of the original notice is not made upon the
defendant . . . 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 . . . 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.
general rule is a "plaintiff must have taken some
affirmative action to effectuate service of process upon the
defendant or have been prohibited, through no fault of his
[or her] own, from taking such an affirmative action"
and "dismissal for failing to timely accomplish service
of process is appropriate when the failure results from
"[i]nadvertence, neglect, misunderstanding, ignorance of
the rule or its burden, or half-baked attempts at
service." Id. at 599, 601 (alterations in
original) (citations and internal quotation marks omitted).
"[G]ood cause is likely (but not always) to be found
when the plaintiff's failure to complete service in
timely fashion is a result of the conduct of a third person .
. . ." Id. at 600 (alteration in original)
(quoting Wilson v. Ribbens, 678 N.W.2d 417, 421
appeal, Hoover generally argues that good cause exists to
excuse the delinquency because "the delay in service was
caused by an error with the U.S. Postal Service." First,
service was not timely made and there was no order extending
the time for service; as such, the delay was presumptively
abusive. SeeCrall v. Davis, 714 N.W.2d
616, 620 (Iowa 2006). While we agree that Hoover took an
affirmative step to effectuate service, he did so on the eve
of a three-day, nationally-celebrated holiday weekend. In
order for timely service to be had, the path from the mail
receptacle to Alexander would have had to have been seamless.
We share Reed's curiosity as to the reasoning underlying
Hoover's inaction during the prior eighty-eight days.
Under the circumstances, we conclude it was the result of
inadvertence or neglect. See Rucker, 828 N.W.2d at
601. In the end, "rule 1.302(5) 'requires service
within ninety days and requires the plaintiff to take
affirmative action to obtain an extension or directions from
the court if service cannot be accomplished.'"
Crall, 714 N.W.2d at 621 (quoting Meier v.
Senecaut, 641 N.W.2d 532, 543 (Iowa 2002)). Hoover did
neither. Further, while Hoover places all fault on the postal
service, we are unable to say the evidence in the record that
the postal service erred is substantial. See id.
(concluding good-cause finding was unsupported by substantial
evidence). The postmaster's affidavit simply stated the
service materials "should not have been delivered"
late unless there was some sort of "technical