Sharece Rucker v. Mike Taylor and Sherie Taylor

IN THE SUPREME COURT OF IOWA No. 11–1394 Filed March 22, 2013

SHARECE RUCKER, Appellee,

vs.

MIKE TAYLOR and SHERIE TAYLOR, Appellants.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Black Hawk County,

David F. Staudt, Judge.

Interlocutory review from denial by the district court of motion to

dismiss. DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED; CASE REMANDED.

Sarah M. Kouri of the Law Office of Scott J. Idelman, Des Moines,

for appellants.

Hugh M. Field and Kate B. Mitchell of Beecher, Field, Walker,

Morris, Hoffman & Johnson, P.C., Waterloo, for appellee. 2

CADY, Chief Justice.

In this interlocutory review, we must decide if good cause existed

to excuse untimely service of process when the plaintiff, who failed to

negotiate an enforceable agreement with the defendant’s insurance

representative to delay service, took no action to institute service of

process of a lawsuit on the defendant within the time period required by

Iowa Rule of Civil Procedure 1.302(5). The district court held good cause

existed and denied defendant’s motion to dismiss. We transferred the

case to the court of appeals, and they affirmed. On further review, we affirm the decision of the court of appeals and the judgment of the

district court. We remand for further proceedings.

I. Background Facts and Proceedings.

Sharece Rucker was involved in an automobile accident with Mike

and Sherie Taylor on January 15, 2009. Rucker sought legal assistance

from attorney Hugh Field to pursue a claim against the Taylors to recover

compensation for injuries she suffered from the accident. Field

corresponded with a claims representative for the Taylors’ insurance

company for the purpose of settling the claim. The correspondence was

primarily directed at updating the claims representative on Rucker’s

injuries and treatment status and was exchanged between April 3, 2009,

and December 8, 2010.

On December 8, 2010, Field sent a formal settlement demand

letter to the insurance company. On December 20, claims representative

Brent Kneip responded to the letter with a counteroffer for settlement.

On December 22, Field mailed a letter to Kneip stating in part:

We are filing the enclosed Petition at Law for [Sharece Rucker], but will wait to serve it until our negotiations break down. I will give you 21 days thereafter to seek counsel and defend. 3 I don’t see any reason why we shouldn’t be able to work out a settlement.

Kneip did not respond to the December 22 letter.

On December 29, Rucker commenced an action against the Taylors

by filing a petition in district court as forecasted in the December 22

letter. See Iowa R. Civ. P. 1.301(1). Pursuant to court rules, she was

obligated to serve the Taylors with notice of the lawsuit within ninety

days. See id. r. 1.302(5). Rucker took no action to satisfy this

requirement, also as forecasted in the letter.

Instead, on January 13, 2011, Field sent another letter to Kneip,

enclosing some employment and medical records concerning Rucker.

Kneip responded to this letter on January 31. He thanked Field for the

January 13 letter and requested additional medical records. Nothing

was said about the December 22 proposal.

Nevertheless, Field and Kneip continued to negotiate during

February and March, periodically exchanging offers of settlement. Kneip

sent a settlement offer to Field on March 4, and Field made a

counteroffer in a letter dated March 16.

The next communication between the parties was a letter from

Field to Kneip on April 19. It requested an update on his March 16 settlement offer.

On March 29, the ninety-day period for service elapsed. On

April 4, a district court administrator notified Field that no proof of

service had been filed. The notice scheduled a conference to determine

the status of the action for April 26. Rucker then promptly served the

Taylors with original notice and a copy of the petition on April 13 and

April 15. 4

The Taylors subsequently filed a motion in district court to dismiss

the petition for failure to accomplish timely service of process. Following

a hearing on the motion, the district court denied the motion, stating:

The court finds that good cause exists for Plaintiff’s failure to serve Defendants with notice of the lawsuit. The court finds that good cause, in this case, as the claims representative took advantage of the Plaintiff’s straight forward offer to hold off serving the notice of the lawsuit in return for the exchange of additional information and continued settlement negotiations. From the affidavits and the argument of counsel, it appears to the court Plaintiff’s attorney clearly was operating under the assumption that by continuing to correspond, negotiate, and exchange documentation, Plaintiff’s counsel believed the allied claims representative had accepted and/or acquiesced in Plaintiff’s offer to hold off service pending negotiations.

The Taylors sought interlocutory review, and we transferred the

case to the court of appeals. The court of appeals affirmed the decision

of the district court. It rejected the Taylors’ argument that good cause

did not exist for failure to accomplish timely service of process because

no express agreement existed between the parties to suspend service.

The Taylors sought and were granted further review. They argued

that no agreement, either express or implied, was formed to justify the

failure to accomplish timely service. They asserted Rucker made no offer that could create a contract to delay service of process because the

December 22 letter from Field never explicitly mentioned the ninety-day

service deadline, and Kneip was not a lawyer trained in the particulars of

court rules to understand the legal requirements of service of process.

Additionally, they argued Kneip never accepted any offer, and to hold

otherwise would impose an unfair affirmative duty on claims

representatives of insurance companies to respond to claimants’ attorneys making proposals to delay timely service. They argued this 5

duty would bind insurance companies to agreements they did not want

and did not expressly accept.

In response, Rucker asserted the parties formed an implied

agreement by continuing to negotiate after the proposal was made. She

also argued good cause existed to extend time for service because the

conduct of the insurance claims representative in continuing to negotiate

after the December 22 letter misled her attorney into believing the

Taylors would not seek a dismissal for failing to accomplish timely

service. II. Scope of Review.

We review decisions by the district court to grant a motion to

dismiss for correction of errors at law. Crall v. Davis, 714 N.W.2d 616,

619 (Iowa 2006); see also Iowa R. App. P. 6.907. Ordinarily, the

pleadings in the case form the outer boundaries of the material subject

to evaluation in a motion to dismiss. Wilson v. Ribbens, 678 N.W.2d 417,

418 (Iowa 2004). As a consequence, district courts generally do not

consider facts outside the pleadings in evaluating a motion to dismiss.

Id. An exception to this rule exists when the grounds for the motion are

based on an alleged failure to provide timely service within the required

time frame. Carroll v. Martir, 610 N.W.2d 850, 856 (Iowa 2000). In such

a case, like this case, a court is permitted to consider facts outside the

pleadings. See id.

When the district court makes findings of fact, those findings “are

binding on appeal unless not supported by substantial evidence.”

McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa 1998). We are not

bound, however, by either the legal conclusions or application of legal principles reached by the district court. Dennis v. Christianson, 482

N.W.2d 448, 450 (Iowa 1992). 6

III. Discussion.

On many occasions in the past, we have interpreted the “good

cause” standard for justifying the failure to timely serve the original

notice and petition following the filing of a lawsuit. See, e.g., Crall, 714

N.W.2d at 620–21; Wilson, 678 N.W.2d at 620–22; Meier v. Senecaut, 641

N.W.2d 532 , 541–43 (Iowa 2002); Henry v. Shober, 566 N.W.2d 190 , 192–

93 (Iowa 1997); Alvarez v. Meadow Lane Mall Ltd. P’ship, 560 N.W.2d

588, 591 (Iowa 1997). Each occasion has given us the opportunity to

add greater clarity and meaning to the operative phrase “good cause” found in our rule governing service. This case presents another

opportunity to interpret the rule, which follows the nature of the larger

process of judicial interpretation. No rule or statute can be written to

clearly direct the outcome of all circumstances to come, and it is the task

of courts to interpret enactments on a case-by-case basis. Thus,

decisions of courts interpreting rules and statutes in the context of the

facts of individual cases contribute to the growing understanding of the

rule or statute.

We begin by putting our service rule in perspective. A civil action

is commenced upon the filing of a petition in district court. Iowa R. Civ.

P. 1.301(1). Our rules of procedure then require a plaintiff to serve the

defendant with process within ninety days of filing the petition or risk

dismissal either upon motion of the defendant or on the initiative of the

court. Id. r. 1.302(5). The rule specifies in pertinent part:

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 . . . . 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. 7

Id.

Although the wording of the rule does not expressly permit a

defendant who was served beyond the ninety-day period to move for

dismissal, we have held a defendant may move for dismissal. See Meier,

641 N.W.2d at 541–42. Our prior cases also suggest the rule impliedly

enables a plaintiff to assert good cause for delay in service in a resistance

to a motion to dismiss. See id. at 542–43 (examining plaintiff’s assertion

of good cause after court granted defendant’s motion to dismiss); Wilson,

678 N.W.2d at 419–23 (same). Regarding a showing of good cause, we have said:

“[T]he 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. Inadvertence, neglect, misunderstanding, ignorance of the rule or its burden, or half-hearted attempts at service have generally been waived as insufficient to show good cause. Moreover, intentional nonservice in order to delay the development of a civil action or to allow time for additional information to be gathered prior to ‘activating’ the lawsuit has been held to fall short of [good cause].”

Henry, 566 N.W.2d at 192–93 (quoting Vincent v. Reynolds Mem’l Hosp.,

Inc., 141 F.R.D. 436 , 437–38 (N.D.W.Va. 1992)).

We elaborated on this definition in Wilson, stating:

“[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, typically the process server, the defendant has evaded service of the process or engaged in misleading conduct, the plaintiff has acted diligently in trying to effect service or there are understandable mitigating circumstances. . . .”

Wilson, 678 N.W.2d at 421 (quoting 4B Charles A. Wright & Arthur R.

Miller, Federal Practice and Procedure § 1137, at 342 (3d ed. 2002)). 8

This elaboration in Wilson illustrates the influence of the facts of

each case in the interpretive process. In Henry, the plaintiffs’ out-of-

state attorney was engaged in settlement negotiations with the

defendant’s insurance claims representative over plaintiffs’ claim for

injuries. 566 N.W.2d at 191 . Eventually, faced with the expiration of the

statute of limitations, he contacted an Iowa attorney to file a lawsuit.

Henry, 566 N.W.2d at 191 . The lawsuit was filed, but no action was

taken to pursue service of process. Id. Instead, the out-of-state attorney

continued to negotiate with the claims representative. See id. After settlement negotiations broke down some time later and service was

accomplished, the defendant moved for dismissal for the failure by

plaintiffs to make timely service of process. Id.

We affirmed the decision of the district court to dismiss the case.

Id. at 193 . We held that the defendant’s insurance representative’s

knowledge that the petition had been filed and continued settlement

negotiations with plaintiff’s counsel did not establish good cause. Id. at

192–93. We found good cause based on these circumstances would

undermine the purpose of the rule to move cases along in the court

system once they had been filed. See id. at 193 .

On the other hand, in Wilson, the parties sought to form an

agreement to delay service for the purpose of continuing their settlement

negotiations, which they memorialized in a pair of letters exchanged

shortly after the plaintiff filed a petition in district court. 678 N.W.2d at

418–19. After a long period of negotiations and an exchange of medical

records, negotiations broke down and the defendant sought dismissal

based on untimely service, which the district court granted. Wilson, 678 N.W.2d at 419 . 9

Although the plaintiff in Wilson, as in Henry, purposely did not

timely serve the defendant because of the ongoing, good-faith settlement

negotiations between the parties, we found, unlike in Henry, good cause

could exist. Id. at 422 . We reached this conclusion, even though the

conduct of the parties—the agreement to delay service—undermined the

underlying purpose of the service rule to move cases along, as in Henry.

See id. at 423 (“[T]he court system has a keen interest, notwithstanding

the wishes of the parties, to keep the wheels of justice in motion.”). We

found the additional fact in Wilson of an agreement between the parties to delay service could support good cause. Id. at 422 . Thus, we

implicitly modified Henry’s conclusion, holding good-faith settlement

negotiations can satisfy the good-cause standard when accompanied by

an agreement between the parties to delay service. See id.

Yet, our holding in Wilson was not predicated on the enforceability

of the agreement. See id. (“[W]e remain highly skeptical of the utility of

agreements delaying service . . . .”). In fact, we referred to the agreement

as an “alleged agreement.” Id. Instead, Wilson expanded the scope of

good cause in two ways. First, the case directed an inquiry into the role

of the corresponding conduct of the parties in causing the plaintiff to fail

to timely serve the defendant. See id. Second, the case injected

consideration of the principles of estoppel that seek to prevent unjust

results. See id. at 423 .

For sure, courts can always enforce the service rule on their own

initiative to achieve its purposes, independent of the course of conduct of

the parties. See Iowa R. Civ. P. 1.302(5). Additionally, a defendant may

also uphold the purpose of the service rule by moving to dismiss for untimely service. See Meier, 641 N.W.2d at 541–42. But, in both

instances, good cause must be considered in deciding to dismiss a 10

petition for untimely service, and Wilson informs us that this standard

considers all the surrounding circumstances, including circumstances

that would make it inequitable for a defendant to successfully move to

dismiss. See 678 N.W.2d at 422–23. In Henry, it was not inequitable for

the defendant to move to dismiss when his insurance representative only

continued to negotiate a settlement and did nothing to make the plaintiff

think service was unnecessary. See 566 N.W.2d at 191 , 192–93. In

Wilson, it was inequitable for the defendant to move to dismiss after

allegedly agreeing to delay service. See 678 N.W.2d at 422 . In the end, the results of both cases are consistent with our long-standing approach

that 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.’ ” See id. at 421 (quoting Henry, 566 N.W.2d at 192–

93).

Of course, this case would be quickly resolved on the basis of stare

decisis if Rucker’s attorney and the Taylors’ insurance claims

representative had entered into an express agreement, as was done in

Wilson. Rucker, nevertheless, argues the same result is achieved with an

implied agreement. We agree with Rucker that the holding in Wilson

applies equally to implied agreements.

We have said of implied contracts:

A contract may be express or implied. When the parties manifest their agreement by words the contract is said to be express. When it is manifested by conduct it is said to be implied in fact. Both are true contracts formed by a mutual manifestation of assent by the parties to the same terms of the contract. The differentiation arises from the method of proving the existence thereof. 11

Ringland-Johnson-Crowley Co. v. First Cent. Serv. Corp., 255 N.W.2d 149,

152 (Iowa 1977); accord Cassaday v. De Jarnette, 251 Iowa 391, 397 , 101 N.W.2d 21, 25 (1960); see also Newman v. City of Indianola, 232

N.W.2d 568, 574 (Iowa 1975) (holding that a request to the city that it

service 500 feet of land manifested assent to pay reasonable costs for

service); Restatement (Second) of Contracts § 4 (1981) (“A promise may

be stated in words either oral or written, or may be inferred wholly or

partly from conduct.”).

Or, as the Restatement (Second) of Contracts states:

Contracts are often spoken of as express or implied. The distinction involves, however, no difference in legal effect, but lies merely in the mode of manifesting assent. Just as assent may be manifested by words or other conduct, sometimes including silence, so intention to make a promise may be manifested in language or by implication from other circumstances, including course of dealing or usage of trade or course of performance.

Restatement (Second) of Contracts § 4 cmt. a at 14; see also 1 Joseph M.

Perillo, Corbin on Contracts § 1.19, at 55, 57–58 (rev. ed. 1993).

Yet, “[a]n implied-in-fact contract requires mutual manifestation of

assent.” Nichols v. City of Evansdale, 687 N.W.2d 562, 574 (Iowa 2004).

Mutual assent is ordinarily manifested through offer and acceptance,

within our contract principles. See Anderson v. Douglas & Lomason Co., 540 N.W.2d 277, 285 (Iowa 1995); see also Restatement (Second) of

Contracts § 22(1) (“The manifestation of mutual assent to an exchange

ordinarily takes the form of an offer or proposal by one party followed by

an acceptance by the other party or parties.”).

We objectively analyze whether a contract has been formed.

Anderson, 540 N.W.2d at 285 . “ ‘The standard is what a normally constituted person would have understood [the words] to mean, when

used in their actual setting.’ ” Id. at 286 (quoting N.Y. Trust Co. v. Island 12

Oil & Transp. Corp., 34 F.2d 655, 656 (2d Cir. 1929)) (alteration in

original). In other words, “[t]he test for an offer is whether it induces a

reasonable belief in the recipient that he can, by accepting, bind the

sender.’ ” Id. (quoting Architectural Metal Sys., Inc. v. Consol. Sys., Inc., 58 F.3d 1227, 1229 (7th Cir. 1995)).

Additionally, it is important to recognize for the purposes of this

case that “[e]ven though a manifestation of intention is intended to be

understood as an offer, it cannot be accepted so as to form a contract

unless the terms of the contract are reasonably certain.” Restatement (Second) of Contracts § 33(1) at 92. “The fact that one or more terms of a

proposed bargain are left open or uncertain may show that a

manifestation of intention is not intended to be understood as an offer or

as an acceptance.” Id. § 33(3) at 92; see also Anderson, 540 N.W.2d at

286 ; Architectural Metal Sys., 58 F.3d at 1229 (“A lack of essential detail

would negate . . . a belief [that an acceptance could bind the offeror],

since the sender could not reasonably be expected to empower the

recipient to bind him to a contract of unknown terms.”).

Applying these principles, we conclude there was no implied

contract in this case to apply the Wilson holding. The December 22 letter

fell short of an offer to modify the ninety-day service requirement. The

letter contained only a vague allusion suggesting that service would

occur at some point in the future once negotiations fail. But, it was too

vague to constitute an offer to alter the rule by delaying service in

exchange for a promise not to seek a dismissal.

Furthermore, we recognize that silence does not normally

constitute an acceptance of an offer. See Prestype Inc. v. Carr, 248 N.W.2d 111, 120 (Iowa 1976). Here, the insurance claims representative

took no action to accept any offer. We recognize that exceptions to the 13

general rule exist, but none are applicable to this case. See Restatement

(Second) of Contracts § 69 at 164.

With no express or implied contract to serve as the basis for good

cause, we return to consider whether the circumstances of this case can

nevertheless satisfy the good-cause standard of rule 1.302(5). We begin

by reiterating that Wilson does not require proof of an enforceable

contract before good-faith settlement negotiations can support a finding

of good cause. See 678 N.W.2d at 422 . Instead, good cause requires an

examination of all of the surrounding facts to determine if they reveal “understandable mitigating circumstances.” See id. at 421, 422 (citation

and internal quotation marks omitted).

With respect to the conduct of Rucker in this case, we observe that

her attorney, Field, communicated his plan to purposely delay service of

process to the Taylors’ insurance representative, unlike the plaintiff in

Henry, but like the plaintiff in Wilson. Compare Henry, 566 N.W.2d at

191 , with Wilson, 678 N.W.2d at 419 . With respect to the conduct of the

Taylors in this case, their insurance representative had actual knowledge

that Rucker’s attorney did not intend to timely serve process, unlike the

defendant in Henry, but like the defendant in Wilson. Compare Henry, 566 N.W.2d at 191 , with Wilson, 678 N.W.2d at 419 . In Henry, the

defendant was only aware that the petition had been filed, not that the

plaintiff would not be pursuing timely service of process. 566 N.W.2d at

192 . Thus, this case is much closer to Wilson than Henry, both on the

facts and the underlying critical rationale to avoid an unjust result.

Importantly, the action by the insurance representative in this case

in continuing to negotiate with Rucker’s attorney with knowledge that Rucker did not plan to timely serve the petition made it inequitable for

the Taylors to subsequently seek dismissal of the case after an inquiry by 14

the court administrator into the absence of service prompted Rucker to

serve the Taylors. While mere knowledge by the insurance representative

of the existence of a lawsuit is not relevant to the good-cause

determination, see Henry, 566 N.W.2d at 192 , knowledge by the

insurance representative in this case that Rucker’s attorney did not plan

to pursue timely service is relevant under the circumstances. This

knowledge would have informed the insurance representative that his

continued negotiations would help to reinforce expectations by Rucker’s

attorney that he did not need to take action to comply with the service rule.

The Taylors were not obligated to respond to the plan by Rucker to

delay service. Yet, their actions in not responding to his plan and

continuing to negotiate with knowledge that Rucker was going to delay

service made it “understandable” for Rucker not to timely serve, and

these actions brought the doctrine of estoppel into play to make it

inequitable for the Taylors to seek a dismissal under the circumstances.

By engaging in the precise conduct attorney Field requested under his

plan, the Taylors insurance representative gave Field an impression the

plan was acceptable.

Because the substantive rights of a plaintiff can be at stake

through the application of a statute of limitations, it is important that the

good-cause standard under rule 1.302(5) not be applied too narrowly. As

observed under the analogous federal rule, [a] dismissal without prejudice under Rule 4(m) for failure to serve process is intended to leave the plaintiff in the same position as if the action never had been filed. This raises a difficult question when the statute of limitations has expired between the filing of the complaint and the dismissal of the action for noncompliance with Rule 4(m). Although technically the dismissal is without prejudice, realistically if the plaintiff's action is now barred by the running of the 15 limitations period his or her rights have effectively been terminated.

4B Wright & Miller § 1137, at 399. Indeed, the 1993 advisory committee’s note to Federal Rule 4(m) states that “[r]elief may be justified . . . if the applicable statute of limitations would bar the refiled action.” Fed. R. Civ. P. 4(m) advisory committee’s note. Federal courts thus consider as a factor in their determination whether a dismissal would ultimately be prejudicial to the plaintiff, particularly when the delay in service is a result of misleading conduct by the defendant. See Ditkof v. Owens-Illinois, Inc., 114 F.R.D. 104, 105 (E.D. Mich. 1987). Because our rule is exceedingly similar to Rule 4(m), we find federal court interpretations persuasive. Wilson, 678 N.W.2d at 420–21. Moreover, one federal court has noted that the time limit for service was not meant to be “enforced harshly and inflexibly.” See United States v. Ayer, 857 F.2d 881 , 885–86 (1st Cir. 1988). Indeed, it was intended “to be a useful tool for docket management, not an instrument of oppression.” Id.; accord Floyd v. United States, 900 F.2d 1045, 1049

(7th Cir. 1990). Therefore, federal courts limit the “harsh sanction” of dismissal (even a nonprejudicial one) to cases “in which non-service was the result of mere inadvertence.” D’Amario v. Russo, 750 F. Supp. 560, 563 (D.R.I. 1990) (citation and internal quotation marks omitted). IV. Conclusion. We conclude the district court did not commit legal error by concluding good cause existed for the failure to accomplish timely service of process. We affirm the decision of the court of appeals and the judgment of the district court. DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED; CASE REMANDED. All justices concur except Waterman and Mansfield, JJ., who dissent. 16 #11–1394, Rucker v. Taylor

WATERMAN, Justice. (dissenting).

I respectfully dissent. Today’s majority effectively overrules our

precedent requiring the defendant’s agreement or misleading conduct

amounting to an estoppel to extend Iowa Rule of Civil Procedure

1.302(5)’s ninety-day deadline to serve suit papers and replaces that

clear, bright-line rule with an amorphous standard. A party may now

evade the ninety-day service requirement without an agreed extension

simply by negotiating and sending a letter the majority acknowledges contained only a vague allusion suggesting that service would occur at some point in the future once negotiations fail. But, it was too vague to constitute an offer to alter the rule by delaying service in exchange for a promise not to seek a dismissal.

Under our existing precedent, exceeding the ninety-day deadline

was deemed to be presumptively abusive and shifted the burden to the

plaintiff to show justification. See Meier v. Senecaut, 641 N.W.2d 532,

542 (Iowa 2002). We had also made it clear that settlement

negotiations—even if done in good faith—were not an adequate

justification. See Henry v. Shober, 566 N.W.2d 190, 193 (Iowa 1997). However, an agreement to extend service could be an adequate

justification. See Wilson v. Ribbens, 678 N.W.2d 417 , 422–23 (Iowa

2004). We have also indicated that conduct by the defendant amounting

to a waiver or estoppel could be an adequate justification. See id. at 423 .

This framework, I believe, provided clear guidance to the bar and

to district courts. The majority now casts aside that framework and

substitutes a new, circular approach under which “good cause” can be

shown by “an examination of all of the surrounding facts to determine if they reveal ‘understandable mitigating circumstances,’ ” quoting Wilson 17

without acknowledging the court was referring to an agreement to delay

service. See id. at 421 . With respect, it is not a workable standard to

allow unspecified “understandable mitigating circumstances” to excuse

untimely service in the absence of an agreed extension.

We squarely held in Henry that “settlement negotiations, even if

done in good faith, do not constitute adequate justification or good cause

for delaying service.” 566 N.W.2d at 193 . We aptly observed:

If we were to allow delays in service for ongoing settlement negotiations, plaintiffs would have no incentive to serve the defendant within a reasonable time. Further, we do not see how service of the original notice and petition is a hindrance to the settlement process. Prompt service allows a defendant to investigate the claims and prepare its defense, thus contributing to its evaluation of a case. If the parties wish to continue settlement discussions beyond the limitations period, the plaintiff should secure a statute of limitations extension, in writing, from the defendant and the defendant’s insurer.

Henry, 566 N.W.2d at 193 . What has changed?

In Wilson, we reiterated that “good-faith settlement negotiations

standing alone do not constitute good cause for delays in service beyond

the ninety-day limit.” 678 N.W.2d at 422 . We noted the Henry rule “is

consistent with the decisions of a number of other courts, federal and

state, applying Federal Rule of Civil Procedure 4(m) or similar state rules.” Wilson, 678 N.W.2d at 422 (surveying authorities). Indeed, a

federal district court recently echoed our observations in Henry:

Moreover, this Court rejects the basic premise that negotiations to resolve an action can constitute good cause for failing to serve. The Federal Rules of Civil Procedure provide clear, fixed dates by which action must be taken for many salutary purposes. Opposing parties have the benefit of being able to know (or at least predict) when action will be taken against them; clients have the assurance that their counsel will be required to afford timely attention to their case; and the court system is assured that parties will not “reserve a table” by filing a complaint, and then negotiate 18 endlessly at their leisure while the court’s docket becomes crowded with aging, dormant cases.

Rees v. Bd. of Cnty. Comm’rs, Civ. Action No. 07-CV-00230-MSK-KLM, 2008 WL 3285256 , at *2 (D. Colo. Aug. 7, 2008).

In Wilson, we held that an agreement to delay service may

constitute “good cause” under rule 1.302. 678 N.W.2d at 422 . That

unanimous opinion began by acknowledging “[t]he judicial system has a

keen interest in the prompt and effective administration of justice.”

Wilson, 678 N.W.2d at 418 . We expressed skepticism “of the utility of

agreements delaying service or extending the statute of limitations in

pending litigation in the hope of settlement.” Id. at 422 . But, we

acknowledged that some federal courts found good cause for delay “if the

parties had entered into an agreement to extend the service period.” Id.

We noted it would be “highly misleading” for an insurer to agree to an

extension and then file a motion to dismiss for untimely service. Id.

That is not what happened with Rucker. Our decision in Wilson made

clear that settlement negotiations alone, in the absence of defendant’s

agreement to extend the deadline, fell short of establishing good cause

for delayed service. Id.

The majority cites no intervening change in the law or trend in the decisions of federal courts or other states applying equivalent rules. Nor

does the majority contend that requiring an agreed extension in lieu of

timely service has proven with experience to be unfair or impractical. To

the contrary, I believe the common practice is to either accomplish

service within ninety days or secure an agreed extension. Indeed,

Rucker’s counsel candidly stated he expected to be “chewed out” at oral

argument before our court for his failure to get an “explicit” agreement to 19

delay service. There is no good reason to undermine the clarity of rule

1.302(5) or abandon our precedent here.

It nearly goes without saying that the doctrine of stare decisis is one of the bedrock principles on which this court is built. It is an important restraint on judicial authority and provides needed stability in and respect for the law.

Kiesau v. Bantz, 686 N.W.2d 164, 180 (Iowa 2004) (Cady, J., dissenting).

Stare decisis should carry special weight, I believe, when we are

interpreting our own rule. “If that rule is now found to be too harsh and

inelastic, we have reserved the power to ourselves . . . to amend it.”

Stolar v. Turner, 236 Iowa 628, 651 , 19 N.W.2d 585, 595 (1945) (Smith,

J., dissenting). I recognize there is a tension between expediting

litigation and accommodating the desire of parties to engage in continued

settlement negotiations. However, if we are going to shift the balance in

this area, it makes far more sense to do so by promulgating a proposed

rule change and inviting public comment.1 The majority acknowledges there was no agreement, either

expressed or implied, to extend the time for service. Rucker never

contended that the defendant engaged in conduct that would amount to

an estoppel to excuse the untimely service. Nevertheless, the majority says that dismissal is inequitable because of “the action by the insurance

representative in this case in continuing to negotiate with Rucker’s

attorney with knowledge that Rucker did not plan to timely serve the

petition”—essentially the argument we rejected in Henry. The majority

tries to distinguish Henry on grounds that the adjuster in that case was

unaware plaintiff’s counsel planned to delay service. Nothing in Henry 1Until now, we seemingly had landed in favor of moving cases along. “To do otherwise permits cases to sit in the system growing whiskers, an unnecessary and most undesirable result.” Wilson, 678 N.W.2d at 424 . 20

indicates that distinction made a difference. To the contrary, the Henry

court stated, “It is irrelevant whether or not State Farm knew the Henrys

intended to file a lawsuit.” 566 N.W.2d at 192 . So, why would

knowledge regarding a plan to delay service of process matter? In any

event, we reiterated in Wilson—a case in which the insurer knew plaintiff

planned to delay service—that good-faith negotiations were insufficient to

excuse untimely service. Wilson, 678 N.W.2d at 422 .

The majority also states, “The Taylors were not obligated to

respond to the plan by Rucker to delay service. Yet, their actions in not responding to his plan and continuing to negotiate” make dismissal

“inequitable.” This strikes me as doubly incorrect. In the first place, we

are holding in this case that the insurer did have a duty to respond if it

wanted to be able to assert the ninety-day deadline for service. Second,

we are, in effect, shifting the burden that was previously on the plaintiff

to show “justification.” Meier, 641 N.W.2d at 542 .

I prefer to see cases resolved on their merits, and I think there is

something to be said for amending our rule to conform to Federal Rule of

Civil Procedure 4(m). Under that rule, even if the plaintiff fails to show

“good cause” for not serving the defendant by the deadline, the district

court has discretion to extend the time for service. See Fed. R. Civ. P.

4(m) (providing that, if a defendant is not timely served, the court “must

dismiss the action without prejudice against that defendant or order that

service be made within a specified time” (emphasis added)). This would

have given the district court the flexibility to do what it did in this case.

A significant advantage of this approach is that it allows for some

play in the joints. District courts would have the ability either to afford or to deny relief to the plaintiff in a case like this without being subject to

an appellate reversal. Unfortunately, under the majority’s approach, the 21

legal rule is ill-defined and the district court has no discretion in

applying it. This seems to me likely to lead to increased appellate

litigation in this area.

For the foregoing reasons, I respectfully dissent.

Mansfield, J., joins this dissent.