IN THE SUPREME COURT OF IOWA No. 112/ 06–0918
Filed December 28, 2007
MARK D. ANTOLIK,
Appellant,
vs.
TARA J. McMAHON,
Appellee.
Appeal from the Iowa District Court for Delaware County, Alan L.
Pearson, Judge.
Plaintiff in personal injury case appeals from district court’s
dismissal based on the plaintiff’s failure to effect timely service of original
notice. AFFIRMED.
Chad A. Swanson of Dutton, Braun, Staack & Hellman, P.L.C.,
Waterloo, for appellant.
E. David Wright of Gilloon, Wright & Hamel, P.C., Dubuque, for
appellee. 2
LARSON, Justice.
Mark Antolik sued Tara McMahon for damages sustained in a
motor vehicle accident. Antolik’s suit was filed on July 29, 2005, but he
did not serve an original notice on the defendant until December 29,
2005, well beyond the ninety-day period provided for service of notice
under Iowa Rule of Civil Procedure 1.302(5). The district court granted
the defendant’s motion for summary judgment and dismissed the case,
concluding that the issue of timeliness of service was properly raised in
the defendant’s amended answer, and an ex parte order extending the
ninety-day period was insufficient as a matter of law. We affirm.
I. Facts and Prior Proceedings.
When the plaintiff failed to serve an original notice by October 5,
2005, the court administrator’s office in the first judicial district set a
hearing for October 31, 2005, to review the plaintiff’s efforts toward
service of notice. On October 11, 2005, the plaintiff applied for, and
obtained, an ex parte order extending the time for service to January 3,
2006. The application for extension was based on the plaintiff’s
assertion that the parties were involved in ongoing settlement
negotiations. The defendant filed her original answer on January 11,
2006, and, on January 26, filed an amended answer asserting a claim
that the plaintiff failed to make timely service of notice. She also filed a
motion for summary judgment seeking dismissal on that basis.
II. Discussion.
Iowa Rule of Civil Procedure 1.302 governs service of process for
commencement of civil actions. Rule 1.302(5) provides that, if service is
not made within ninety days of the filing of the petition,
the court, upon motion or its own initiative after notice to the party filing the petition, shall dismiss the action without prejudice . . . or direct an alternate time or manner of 3 service. If the [plaintiff] shows good cause for the failure of service, the court shall extend the time for service for an appropriate period.
In this case, the plaintiff applied for and obtained an ex parte extension
of time to serve the notice. However, the defendant argues, and the
district court ruled, that as a matter of law the basis for the extension
was insufficient.
The plaintiff argues that the district court erred in dismissing his
case for two reasons. First, the defendant waived any objection to the
sufficiency and timeliness of service by failing to raise the issue in a pre-
answer motion to dismiss under Iowa Rule of Civil Procedure 1.421(1).
Second, the plaintiff argues that his time to serve the defendant was
validly extended by the ex parte order, and the district court, in its
summary judgment ruling, erred in concluding otherwise.
A. The Waiver Argument. Under our rules, “a civil action is
commenced by filing a petition with the court.” Iowa R. Civ. P. 1.301(1).
Notice must then be served on the defendant within ninety days of the
date the petition was filed, unless an extension is granted by the court
for good cause. Iowa R. Civ. P. 1.302(5). A defendant may challenge the
sufficiency of service as provided by Iowa Rule of Civil Procedure 1.421(1). Under that rule, “[e]very defense to a claim for relief in any
pleading must be asserted in the pleading responsive thereto.” The
responsive pleading is generally the defendant’s answer to the petition or
an amendment to the answer. See Iowa R. Civ. P 1.421(1). Rule 1.421
sets forth six specific challenges, including insufficiency of service, that
may be raised by pre-answer motion. The issue in the present case is
whether these six challenges, specifically insufficiency of service, are
waived if raised in a defendant’s answer rather than by pre-answer
motion. 4
Historically, challenges such as those specified in rule 1.421(1) had
to be made by special appearance. See In re Estate of Dull, 303 N.W.2d
402, 407 (Iowa 1981) (“It is well settled that the sole purpose of a special
appearance proceeding is to challenge the court’s jurisdiction.”);
Jeffrey J. Kanne, Note, The Special Appearance Rule in Iowa: Last
Century’s Innovation Becomes a Present Day Anomaly, 70 Iowa L. Rev.
501, 503 (1985) [hereinafter The Special Appearance Rule]. If a special
appearance was not filed or the parties addressed issues beyond the
jurisdictional issues, the defendant was considered to have submitted to
the jurisdiction of the court, and any jurisdictional challenges were
deemed waived. Dull, 303 N.W.2d at 407 (“As such, it constituted a
general appearance, and any defects in the original notice served . . .
were waived.”); The Special Appearance Rule, at 503. Iowa specifically
abolished the special appearance requirement in 1987 and enacted rule
88, which is substantially similar to today’s rule 1.421. In doing so, Iowa
conformed to the modern trend. See The Special Appearance Rule, at
502–03.
Rule 1.421(1) provides: “The following defenses or matters may be
raised by pre-answer motion . . . (c) Insufficiency of the original notice or
its service.” (Emphasis added.) The use of the word “may” indicates that
raising such defenses in a pre-answer motion is permissive, and as such,
the pleader may choose to raise the defense in a pre-answer motion, a
responsive pleading, or in some other manner such as a motion for
summary judgment. However, the plaintiff relies on subsections 1.421(3)
and (4) to support his argument that the defendant waived his objection
to service of notice by not raising it in a pre-answer motion under rule
1.421(1)(c). Rule 1.421(3) states: 5 If the grounds therefor exist at the time a pre-answer motion is made, motions under rule 1.421(1)(b) through 1.421(1)(f) shall be contained in a single motion and only one such motion assailing the same pleading shall be permitted, unless the pleading is amended thereafter.
Rule 1.421(4) states:
If a pre-answer motion does not contain any matter specified in rule 1.421(1) or 1.421(2) that matter shall be deemed waived, except lack of jurisdiction of the subject matter or failure to state a claim upon which relief may be granted.
Antolik contends subsections 1.421(3) and (4) mandate that the six
challenges enumerated in subsection 1.421(1), including insufficiency of
the service of notice, be raised in a pre-answer motion or be deemed
waived. We reject that view. Subsections 1.421(3) and (4) do not make a
pre-answer motion the sole avenue in which to raise the six challenges
set forth in rule 1.421(1). Rather, these subsections mean simply that, if
one challenge is raised in a pre-answer motion, all challenges
enumerated in subsections 1.421(1)(b)–(f), for which grounds exist at the
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IN THE SUPREME COURT OF IOWA No. 112/ 06–0918
Filed December 28, 2007
MARK D. ANTOLIK,
Appellant,
vs.
TARA J. McMAHON,
Appellee.
Appeal from the Iowa District Court for Delaware County, Alan L.
Pearson, Judge.
Plaintiff in personal injury case appeals from district court’s
dismissal based on the plaintiff’s failure to effect timely service of original
notice. AFFIRMED.
Chad A. Swanson of Dutton, Braun, Staack & Hellman, P.L.C.,
Waterloo, for appellant.
E. David Wright of Gilloon, Wright & Hamel, P.C., Dubuque, for
appellee. 2
LARSON, Justice.
Mark Antolik sued Tara McMahon for damages sustained in a
motor vehicle accident. Antolik’s suit was filed on July 29, 2005, but he
did not serve an original notice on the defendant until December 29,
2005, well beyond the ninety-day period provided for service of notice
under Iowa Rule of Civil Procedure 1.302(5). The district court granted
the defendant’s motion for summary judgment and dismissed the case,
concluding that the issue of timeliness of service was properly raised in
the defendant’s amended answer, and an ex parte order extending the
ninety-day period was insufficient as a matter of law. We affirm.
I. Facts and Prior Proceedings.
When the plaintiff failed to serve an original notice by October 5,
2005, the court administrator’s office in the first judicial district set a
hearing for October 31, 2005, to review the plaintiff’s efforts toward
service of notice. On October 11, 2005, the plaintiff applied for, and
obtained, an ex parte order extending the time for service to January 3,
2006. The application for extension was based on the plaintiff’s
assertion that the parties were involved in ongoing settlement
negotiations. The defendant filed her original answer on January 11,
2006, and, on January 26, filed an amended answer asserting a claim
that the plaintiff failed to make timely service of notice. She also filed a
motion for summary judgment seeking dismissal on that basis.
II. Discussion.
Iowa Rule of Civil Procedure 1.302 governs service of process for
commencement of civil actions. Rule 1.302(5) provides that, if service is
not made within ninety days of the filing of the petition,
the court, upon motion or its own initiative after notice to the party filing the petition, shall dismiss the action without prejudice . . . or direct an alternate time or manner of 3 service. If the [plaintiff] shows good cause for the failure of service, the court shall extend the time for service for an appropriate period.
In this case, the plaintiff applied for and obtained an ex parte extension
of time to serve the notice. However, the defendant argues, and the
district court ruled, that as a matter of law the basis for the extension
was insufficient.
The plaintiff argues that the district court erred in dismissing his
case for two reasons. First, the defendant waived any objection to the
sufficiency and timeliness of service by failing to raise the issue in a pre-
answer motion to dismiss under Iowa Rule of Civil Procedure 1.421(1).
Second, the plaintiff argues that his time to serve the defendant was
validly extended by the ex parte order, and the district court, in its
summary judgment ruling, erred in concluding otherwise.
A. The Waiver Argument. Under our rules, “a civil action is
commenced by filing a petition with the court.” Iowa R. Civ. P. 1.301(1).
Notice must then be served on the defendant within ninety days of the
date the petition was filed, unless an extension is granted by the court
for good cause. Iowa R. Civ. P. 1.302(5). A defendant may challenge the
sufficiency of service as provided by Iowa Rule of Civil Procedure 1.421(1). Under that rule, “[e]very defense to a claim for relief in any
pleading must be asserted in the pleading responsive thereto.” The
responsive pleading is generally the defendant’s answer to the petition or
an amendment to the answer. See Iowa R. Civ. P 1.421(1). Rule 1.421
sets forth six specific challenges, including insufficiency of service, that
may be raised by pre-answer motion. The issue in the present case is
whether these six challenges, specifically insufficiency of service, are
waived if raised in a defendant’s answer rather than by pre-answer
motion. 4
Historically, challenges such as those specified in rule 1.421(1) had
to be made by special appearance. See In re Estate of Dull, 303 N.W.2d
402, 407 (Iowa 1981) (“It is well settled that the sole purpose of a special
appearance proceeding is to challenge the court’s jurisdiction.”);
Jeffrey J. Kanne, Note, The Special Appearance Rule in Iowa: Last
Century’s Innovation Becomes a Present Day Anomaly, 70 Iowa L. Rev.
501, 503 (1985) [hereinafter The Special Appearance Rule]. If a special
appearance was not filed or the parties addressed issues beyond the
jurisdictional issues, the defendant was considered to have submitted to
the jurisdiction of the court, and any jurisdictional challenges were
deemed waived. Dull, 303 N.W.2d at 407 (“As such, it constituted a
general appearance, and any defects in the original notice served . . .
were waived.”); The Special Appearance Rule, at 503. Iowa specifically
abolished the special appearance requirement in 1987 and enacted rule
88, which is substantially similar to today’s rule 1.421. In doing so, Iowa
conformed to the modern trend. See The Special Appearance Rule, at
502–03.
Rule 1.421(1) provides: “The following defenses or matters may be
raised by pre-answer motion . . . (c) Insufficiency of the original notice or
its service.” (Emphasis added.) The use of the word “may” indicates that
raising such defenses in a pre-answer motion is permissive, and as such,
the pleader may choose to raise the defense in a pre-answer motion, a
responsive pleading, or in some other manner such as a motion for
summary judgment. However, the plaintiff relies on subsections 1.421(3)
and (4) to support his argument that the defendant waived his objection
to service of notice by not raising it in a pre-answer motion under rule
1.421(1)(c). Rule 1.421(3) states: 5 If the grounds therefor exist at the time a pre-answer motion is made, motions under rule 1.421(1)(b) through 1.421(1)(f) shall be contained in a single motion and only one such motion assailing the same pleading shall be permitted, unless the pleading is amended thereafter.
Rule 1.421(4) states:
If a pre-answer motion does not contain any matter specified in rule 1.421(1) or 1.421(2) that matter shall be deemed waived, except lack of jurisdiction of the subject matter or failure to state a claim upon which relief may be granted.
Antolik contends subsections 1.421(3) and (4) mandate that the six
challenges enumerated in subsection 1.421(1), including insufficiency of
the service of notice, be raised in a pre-answer motion or be deemed
waived. We reject that view. Subsections 1.421(3) and (4) do not make a
pre-answer motion the sole avenue in which to raise the six challenges
set forth in rule 1.421(1). Rather, these subsections mean simply that, if
one challenge is raised in a pre-answer motion, all challenges
enumerated in subsections 1.421(1)(b)–(f), for which grounds exist at the
time the petition is filed, must be raised in that motion or be deemed
waived, thus prohibiting a party from filing multiple pre-answer motions.
That is not the case here; only one challenge was raised—insufficiency of
the service—and that was not raised in a pre-answer motion. Further,
the discretionary language of rule 1.421(1) must be contrasted to the
language in the next rule, rule 1.421(2), which illustrates how such
waiver may be mandated. Rule 1.421(2) provides: “Improper venue . . .
must be raised by pre-answer motion filed prior to or in a single motion
under rule 1.421(3).” (Emphasis added.)
In addition, rule 1.455 indicates our intent to allow a challenge to
the sufficiency of the service of notice to be raised in either a pre-answer
motion or at a later stage. Under that rule, “the defenses of . . . (5) 6
insufficiency of service of process . . ., whether made in a pleading or by
motion, shall be determined before trial, unless the court orders that
determination thereof be deferred until the trial.” Iowa R. Civ. P. 1.455
(emphasis added). Rule 1.455 anticipates that a defendant may choose
to raise such a challenge in the answer, as the defendant did here, and
that the court should rule on it prior to trial. Such ruling could occur, as
it did here, in a summary judgment proceeding.
We conclude the defendant properly raised the service-of-notice
issue in her amended answer. The issue remains whether the plaintiff
showed good cause for the delay in service of notice.
B. The Good Cause Argument. As noted, rule 1.302(5) requires
service of notice within ninety days after the filing of the petition unless
good cause is shown for the delay. In this case, service was made 153
days after filing. Plaintiff’s attorney, during the ninety days provided in
rule 1.302(5), obtained an order from a district court judge extending the
time for service, citing as the reason therefor that he “has been in
settlement negotiations and it may be unnecessary to proceed with
litigation if settlement can be obtained.” This order was entered without
notice to the defendant, and even more important, the grounds urged
were insufficient as a matter of law.
[S]ettlement negotiations, even if done in good faith, do not constitute adequate justification or good cause for delaying service. Rule 49 contemplates that when a petition is filed, a defendant should be served promptly. The existence of ongoing settlement negotiations is not a sufficient reason for delaying service.
Henry v. Shober, 566 N.W.2d 190, 193 (Iowa 1997) (citation omitted).
We conclude the district court was correct in ruling that the
timeliness issue was properly raised in the defendant’s amended answer 7
and that the plaintiff failed to show good cause for the delay in service.
Judgment of the district court is therefore affirmed.
AFFIRMED.