from the Iowa District Court for Clay County, David A.
Dzian appeals from the dismissal of his tort claim.
Francis E. Younes of High & Younes, LLC, Omaha, Nebraska,
Stephen G. Kersten, Fort Dodge, for appellee.
Considered by Mullins, P.J., Bower, J., and Gamble, S.J.
GAMBLE, SENIOR JUDGE
Dzian appeals the district court's pre-answer dismissal
of his tort petition against Menard, Inc. We affirm.
January 2018,  Dzian filed a petition alleging he
suffered injuries outside a Menard, Inc. store when he
slipped and fell in 2016 while working for a trucking
company. On June 1, the district court entered an order
containing the following language:
A review of the file reflects that there is no return of
service or acceptance of service on file. Iowa Rule of Civil
Procedure 1.302(5) provides that if service is not made
within 90 days after filing the petition, the court, after
notice to the party filing the petition, shall dismiss the
action without prejudice. Accordingly, the court concludes
that if proof of service is not filed within 30 days from the
filing of this order, the action shall be deemed dismissed by
the clerk, without further action by the court.
29, Dzian filed a return of service indicating he served
Menard, Inc.'s registered agent on June 28. Menard, Inc.
then filed a pre-answer motion to dismiss citing Dzian's
failure to provide service within the ninety-day mandate of
rule 1.302(5). Following a hearing on the issue, the court
issued a written ruling dismissing the petition without
prejudice. Dzian now appeals.
review decisions by the district court to grant a motion to
dismiss for correction of errors at law." Rucker v.
Taylor, 828 N.W.2d 595, 598 (Iowa 2013). When the
grounds for a motion to dismiss "are based on an alleged
failure to provide timely service within the required time
frame . . ., [the] court is permitted to consider facts
outside the pleadings." See id. at 598-99. When
the district court makes findings of fact, those findings
"'are binding on appeal unless not supported by
substantial evidence.' We are not bound, however, by
either the legal conclusions or application of legal
principles reached by the district court." See
id. at 599 (citation omitted).
first note Dzian fundamentally misconstrues the court's
June 1 order. He misreads the order to grant him an
additional thirty days to accomplish service. Rather, the
order permitted him thirty days to provide the court proof he
accomplished service within ninety days of the petition's
filing. It in no way granted an extension of the service
deadline. Moreover, we note Dzian never requested any such
untimely service, a defendant has the right to move for
dismissal on this basis. Id. at 599; Meier v.
Senecaut, 641 N.W.2d 532, 542 (Iowa 2002). In response,
the plaintiff may "assert good cause for delay in
service in a resistance to a motion to dismiss."
Rucker, 828 N.W.2d at 599; accord Meier,
641 N.W.2d at 542. A plaintiff's failure to serve the
defendant within the ninety-day deadline is presumptively
abusive and shifts the burden to the plaintiff to demonstrate
good cause to avoid dismissal. See Meier, 641 N.W.2d
cites his ongoing efforts to resolve his worker's
compensation case arising from the same incident and
negotiations with his employer's workers'
compensation carrier regarding representation concerning its
lien filed in this proceeding as good cause for delayed
service. However, Dzian does not clarify how those
negotiations would prevent him from providing Menard, Inc.
with service. There is no ...