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IN THE COURT OF APPEALS OF IOWA No. 9-907 / 08-2038 Filed December 30, 2009

DONNA JEAN DUWA, Plaintiff-Appellant, vs. LUCINDA BROOKS, Defendant-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Denver D. Dillard, Judge.

Plaintiff Donna Jean Duwa appeals the district courts grant of defendant Lucinda Brookss pre-answer motion to dismiss Duwas personal injury petition. REVERSED AND REMANDED.

Eric D. Tindal of Nidey, Peterson, Erdahl & Tindal, P.L.C., Williamsburg, for appellant. James Craig of Lederer, Weston, Craig, P.L.C., Cedar Rapids, for appellee.

Considered by Vogel, P.J., and Doyle and Mansfield, JJ.

2 DOYLE, J. Plaintiff Donna Jean Duwa appeals the district courts grant of defendant Lucinda Brookss pre-answer motion to dismiss Duwas personal injury petition. The district court found service of process was not completed within ninety days after the petition was filed. On our review for errors at law, see Iowa R. App. P. 6.4; Crall v. Davis, 714 N.W.2d 616, 619 (Iowa 2006), we reverse. The facts are undisputed. Following a motor vehicle collision on June 16, 2006, allegedly caused by Brooks, Duwa filed a petition on June 6, 2008, seeking damages for injuries. On August 11, Duwa sent the petition and original notice to the Johnson County Sheriff with a letter requesting the petition be served on Brooks. The record shows that service was accomplished on September 15. On October 1, Brooks filed a pre-answer motion to dismiss, asserting the untimely service of process. Duwa resisted; Brooks replied to the resistance. The matter was decided by the district court after a review of the file and considering the written arguments of counsel. The district court set forth the appropriate Iowa Rule of Civil Procedure governing service of original notice, rule 1.302(5). That rule provides: If service of the original notice is not made upon the defendant, respondent, or other party to be served within [ninety] 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. Iowa R. Civ. P. 1.302(5). The rule required service by September 4, 2008.

When, as here, there is no service within ninety days and no order extending

3 time for service, the only issue is whether the plaintiff has "shown justification for the delay." See Crall, 714 N.W.2d at 620. "The standard we employ in

determining such justification is ,,good cause." Id. The Iowa Supreme Court has instructed good cause means: [T]he plaintiff must have taken some affirmative action to effectuate service of process upon the defendant . . . . Inadvertence, neglect, misunderstanding, ignorance of the rule or its burden . . . [are] insufficient to show good cause. Moreover, intentional nonservice in order to . . . allow time for additional information to be gathered prior to "activating" the lawsuit . . . fall[s] short of . . . good cause . . . . Henry v. Shober, 566 N.W.2d 190, 192-93 (Iowa 1997) (citations omitted). Additionally, good cause is generally found when the plaintiff has acted diligently and service is delayed as "a result of the conduct of a third person, typically the process server," or the defendant has evaded service or engaged in misleading conduct. Wilson v. Ribbens, 678 N.W.2d 417, 421 (Iowa 2004) (citation omitted). A plaintiff is required to act diligently in trying to effect service. See Crall, 714 N.W.2d at 621 (discussing that a plaintiff must be diligent in attempting to serve the defendants and a court may consider a lapse of time between service attempts with no explanation for the delay within the ninety-day time period). We believe the plaintiff acted with the required diligence here. In her

resistance to defendants motion to dismiss, Duwa stated that after filing the petition her attorney "sought to obtain more information about the [d]efendant to avoid having her served at her place of employment." Additionally, she stated her attorney "made efforts to communicate with the [d]efendants insurance company about the petition being filed and requested whether they would communicate with their insured about accepting service." That effort apparently

4 failed, and twenty-five days before the service deadline, Duwas attorney sent the petition and original notice to the Johnson County Sheriff to be served upon the defendant. The defendants work address and her mobile, direct line, and office phone numbers were provided. Duwas resistance implies the Johnson County Sheriffs office did not notify her attorney that it could not locate the defendant. The record from the sheriffs office shows the defendant was served at an address other than her work address on September 15, 2008, eleven days after the ninety-day service deadline expired, or 101 days after filing the petition. Duwa did take affirmative action to serve defendant within the ninety-day requirement. Her request to the Johnson County Sheriffs office to serve the suit papers was made sufficiently in advance to allow the sheriff to effect timely service. Ordinarily, one would not expect the sheriffs office to take over a month from the time of receiving the paperwork and instructions to effectuate service of process.1 Duwa explained the delay between filing and attempting to serve. The delay in service was short, unlike the more than 90-day delay in Meier v. Senecaut, 641 N.W.2d 532, 542 (Iowa 2002), and the 184-day delay in Palmer v. Hofman, 745 N.W.2d 745, 747 (Iowa Ct. App. 2008) (plaintiffs sole attempt to complete service was the initial delivery of the petition and original notices to the sheriff right after filing and no other action was taken until eight months had passed).
1

Whether or not good cause for delay in service exists must be

Early in Iowas legal history, delivery to the sheriff of an original notice established a presumption that service was to be made immediately. Millers Code

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