Rhonda C. Lucas, Appellee, vs. Peter J. Warhol, Appellant.
No. 23–2035
In the Iowa Supreme Court
Submitted April 16, 2025—Filed June 13, 2025
A defendant appeals the denial of his motion to dismiss for lack of timely service and also challenges the method of alternative service permitted by the district court. Affirmed in Part, Reversed in Part, and Case Remanded.
May, J., delivered the opinion of the court, in which all justices joined.
Jordan R. Reed (argued) and Tyler S. Smith of Durick Tuttle Smith PLC, Des Moines, for appellant.
Zachary C. Priebe (argued) and Jeff Carter of Jeff Carter Law Offices, P.C., Des Moines, for appellee.
One of the first steps in a personal injury lawsuit is for the plaintiff to serve the defendant with an original notice and a copy of the petition. Ordinarily, this step needs to be completed within ninety days after the lawsuit is filed. In many cases, this step requires relatively little effort. But not in this case.
In this case, the defendant seems to have no fixed address. He may have experienced homelessness. Regardless, the plaintiff has struggled to serve him. Eleven months after the lawsuit was filed, the defendant still hadn’t been served. Ultimately, the district court permitted the plaintiff to serve the defendant vicariously, that is, by serving an attorney who had been hired by the defendant’s liability insurance carrier to represent the defendant. The attorney then applied for interlocutory review on behalf of the defendant. We granted the application. Soon after, the plaintiff moved to dismiss the appeal as moot because the plaintiff had personally served the defendant while the application for interlocutory review was pending. A single justice denied the motion.
Now we consider three questions. First: Should the district court have dismissed the case because the plaintiff failed to timely serve the defendant? Second: Did the district court err by permitting the plaintiff to serve the attorney rather than the defendant? Third: What effect, if any, should be given to the plaintiff’s personal service of the defendant while the application for interlocutory review was pending?
As to the first issue, we conclude that the district court was not required to dismiss the case. The plaintiff’s efforts to achieve service—plus the difficulty of serving a defendant with no known address—combine to provide good cause to extend the time for service.
As to the third issue, we conclude that the plaintiff’s personal service of the defendant while the interlocutory review application was pending should be treated as timely service. Within ten days after the issuance of procedendo, the plaintiff must file a certificate of this service in the district court. Defendant Warhol’s time to move or answer under
We affirm in part, reverse in part, and remand for further proceedings.
I. Background.
A. How Lawsuits Start. Because this appeal is about procedure in a civil lawsuit, we start with a brief overview of the rules governing that procedure. The first step in a civil lawsuit is for the plaintiff to file a petition. That starts the lawsuit.
Once the petition is filed, the next step is for the plaintiff to have the defendant served with a copy of the petition as well as another document called “the original notice.”
Formalities like these make sense because the original notice is not an ordinary document. Rather, the “original notice is the formal writing, issued by authority of law, for the purpose of bringing defendants into court to answer plaintiff’s demands in a civil action.” Wilson v. Ribbens, 678 N.W.2d 417, 420 (Iowa 2004) (quoting Jacobson v. Leap, 88 N.W.2d 919, 921 (Iowa 1958)).
That purpose is achieved—the defendant is officially brought into court and required to defend against the lawsuit—when the plaintiff personally serves the defendant with the original notice and a copy of the petition. Generally speaking, “[p]ersonal service” involves actually “delivering a copy” to the defendant.
In any event, “[t]he plaintiff is responsible for service of an original notice and petition within the time allowed under” our rules of civil procedure.
On January 11, 2023, Lucas started this lawsuit by filing her petition. Lucas named two defendants: Warhol and Progressive Direct Insurance Company (Progressive Direct), the carrier for Lucas’s underinsured-motorist (UIM) coverage.1
As mentioned, the rules allowed Lucas ninety days to serve the defendants. So, because Lucas filed her petition on January 11, she had until April 11 to serve Warhol and Progressive Direct.
Service was easily accomplished as to Progressive Direct. One of its agents signed an acceptance of service, which Lucas filed in February.
Service was not so easy as to Warhol. In late March, Lucas asked the district court to extend the time for service. Lucas explained that she had been unable to serve Warhol despite various efforts. For instance, Lucas paid a sheriff to attempt service at a Minnesota address that was listed for Warhol on the accident report. When that was unsuccessful, Lucas hired a Des Moines private investigator to find Warhol’s new address. Also, Lucas served the Iowa Department of Transportation (DOT) pursuant to
On March 24, the district court granted Lucas’s motion for additional time. The order allowed Lucas “up to and including June 12, 2023,” to complete service on Warhol.
About a month later, on April 21, Lucas’s counsel filed a certificate of service. In this certificate, Lucas’s counsel seemed to claim that Lucas had completed the full process for serving Warhol under
On June 12, the court’s deadline for service came and passed. A week later, on June 19, an attorney named Tyler Smith filed an appearance on behalf of Warhol. As will be discussed more, however, it is not clear whether Attorney Smith has ever had actual contact with Warhol. But it seems undisputed that Attorney Smith was retained by Warhol’s liability insurance carrier to appear on Warhol’s behalf.
Also on June 19, Attorney Smith filed a motion to dismiss on behalf of Warhol. The motion identified a number of deficiencies in Lucas’s attempted service under
About ten days later, on June 29, Lucas filed another certificate of service. This certificate claimed that Lucas had once again served the DOT, this time on May 30. And the DOT had provided a certificate of filing. And Lucas had again mailed this certificate of filing to the same two addresses. This time, however, Lucas had used restricted certified mail. But here, too, Lucas provided no evidence that Warhol actually received or rejected the mailed notices.
Also on June 29, Lucas resisted the motion to dismiss. Lucas claimed that she had complied with
A few days later, on July 3, Lucas filed a notice of intent to seek a default judgment against Warhol. Typically, a “default judgment” is a judgment that is entered against a defendant who has failed to timely respond to a lawsuit after being properly served. See
Two days later, on July 5, Attorney Smith moved to strike Lucas’s default notice and also replied in support of the motion to dismiss. Smith again emphasized that under our interpretative caselaw,
On July 14, Lucas resisted the motion to strike and also responded to Attorney Smith’s reply.2 Lucas again argued that
On September 23, the district court issued an order denying both of Attorney Smith’s pending motions. The court found that Warhol had been evading service and engaging in misleading conduct. And so the court granted Lucas’s request for additional time, “up to and including December 22, 2023,” to personally serve Warhol. The court declined to grant any of the other relief requested by Lucas.
On October 6, Attorney Smith filed a motion asking the court to reconsider its denial of the motion to dismiss. Lucas resisted. And Lucas asked the court to permit service on Attorney Smith or Warhol’s liability carrier in lieu of personal service on Warhol.
On November 12, the court entered an order denying the motion to reconsider. The court noted that its September 23 order—which gave Lucas “up to and including December 22, 2023,” to personally serve Warhol—“stands.”
On December 5, Lucas personally served Attorney Smith. On December 12, Attorney Smith applied for interlocutory review. We granted the application on January 5.
C. Recent Events. About two weeks later, Lucas filed a motion asking us to dismiss this interlocutory appeal as moot. As support, Lucas provided a certificate showing that Warhol had been personally served in Minnesota on January 3. Attorney Smith resisted. A single justice denied the motion. This appeal then proceeded to briefing, which is now complete.
II. Merits.
Attorney Smith’s brief raises two issues: (1) Did the district court err by declining to dismiss the case based on Lucas’s failure to timely serve Warhol? And (2) did the district court err by permitting Lucas to serve Warhol through service on Attorney Smith? We address each issue in turn. We also discuss Lucas’s attempts to serve Warhol through
A. Refusal to Dismiss. We start by considering whether the court should have dismissed this case instead of granting Lucas additional time to attempt service. Before answering, though, we think the question should be narrowed somewhat. As explained, the court allowed extra time for service on more than one occasion. And the parties seem to agree that it was appropriate for the court to make the first extension, which moved the service deadline from April 11 to
1. Overview. We start with some background principles. To justify an extension of time for service, the plaintiff must demonstrate “good cause.”
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 v. Shober, 566 N.W.2d 190, 192–93 (Iowa 1997) (alteration in original) (quoting Vincent v. Reynolds Mem’l Hosp., Inc., 141 F.R.D. 436, 437–38 (N.D. W. Va. 1992)), superseded by rule on other grounds,
We’ve also said that
[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 (alteration and omission in original) (quoting 4B Wright & Miller’s Federal Practice & Procedure § 1137, at 342 (3d ed. 2002) [hereinafter Wright & Miller’s Federal Practice & Procedure]); see also Rucker, 828 N.W.2d at 600; Crall, 714 N.W.2d at 621.
2. Application. With these principles in mind, we now consider whether the district court was correct in finding good cause to extend Lucas’s time for service past June 11. As noted, the district court found that there was good cause because Warhol “has engaged in misleading activity and is actively evading service.” We are bound by this factual determination if it is supported by substantial evidence in the record. Crall, 714 N.W.2d at 619. “Evidence is substantial if ‘a reasonable mind would accept it as adequate to reach a conclusion.’ ” Id. (quoting Bus. Consulting Servs., Inc. v. Wicks, 703 N.W.2d 427, 429 (Iowa 2005) (per curiam)).
Lucas points to several facts that purportedly show misleading activity and evasion by Warhol. But we see things differently. Here is a summary of our thinking:
- Lucas points to Warhol’s 2021 citation for leaving the scene of the accident. But this tells us nothing about whether Warhol was avoiding service in 2023 when Lucas was trying to serve Warhol.
- Lucas points to an April 6 email from Warhol’s liability carrier, in which the carrier disputed Lucas’s claim that Lucas had actually served Warhol. But we find nothing deceptive in the text of the email, which is reproduced as an appendix to this opinion. Now, it is apparently true that by April 4, the carrier had information “that Warhol was homeless and had nowhere to receive mail.” Lucas believes that the carrier should
have mentioned that information in the April 6 email. Indeed, according to Lucas, the omission of that information made the email misleading. Even if that’s true, though, we would see no reason to attribute any misconduct to Warhol. There is no record evidence that Warhol was directing—or even in contact with—the carrier. - Lucas suggests that Warhol retained Iowa counsel—Attorney Smith—to appear in the lawsuit. But there is no evidence that Warhol personally retained Smith. Indeed, there’s no evidence that Warhol and Smith have ever communicated. Rather, the parties seem to agree that Attorney Smith was retained by an insurance carrier, not Warhol personally.
- Lucas suggests that Warhol could have established a post office box or other known mailing address. But we don’t think Warhol was under any obligation to take those steps. In any event, we find nothing evasive or misleading about Warhol’s (apparent) failure to maintain a personal mailing address. Suppose Warhol were staying with his mother, as Lucas has sometimes suggested might be the case. In that scenario, Warhol might see no reason to establish a separate mailing address in his own name.
- Lucas suggests that it “seems unlikely” that Warhol’s liability carrier had “failed to communicate notice” of the lawsuit to Warhol.3 But, again, this record contains no evidence that Warhol’s carrier was ever
in actual contact with Warhol. And even if the carrier did inform Warhol of the lawsuit, there’s still no evidence that Warhol responded by evading service. - Finally, Lucas points out that she ultimately did locate Warhol and served him in January 2024 when Warhol attended an unrelated court proceeding. This doesn’t show that Warhol was evading Lucas. It shows that Warhol was living a sufficiently public life that Lucas was able to find him.
In short, we find no substantial evidence to support a theory of evasion or dishonesty by Warhol. So that theory cannot support the district court’s finding of good cause.
Even so, we agree with Lucas that there are alternative grounds on which to affirm the district court’s good-cause finding. As Lucas notes, good cause can be found when “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 Wright & Miller’s Federal Practice & Procedure § 1137, at 342). This record shows that although Lucas could have done more, she was diligent in trying to resolve the problem of service. Her diligence is shown by her work with the Minnesota sheriff, her work with a private investigator, and her efforts to achieve service through
Because there was good cause to permit additional time for service, we affirm the district court’s refusal to grant Warhol’s motion to dismiss.
B. Was Service on Attorney Smith Appropriate Alternative Service on Warhol? We next turn to the question of whether Warhol was properly served through service on Attorney Smith. We conclude that he was not.
Here, we think the first condition was probably met. By the time the court ordered alternative service in November 2023, Lucas had expended substantial resources attempting to serve Warhol. These efforts had not been successful. Moreover, based on all of the circumstances before the court at that time, it appeared there was very little chance that further efforts would result in success. Under those circumstances, it was appropriate for the court to consider whether some alternative method of service would be appropriate.
This brings us to the second condition: to qualify as a proper method of service, the method chosen must be “consistent with due process of law.”
For instance, in Ackelson v. Manley Toys, Inc., the court of appeals found that due process permitted service on the defendants’ local counsel because, “undoubtedly,” such service would provide the defendants with notice and an opportunity to defend “under the limited circumstances presented” in that case. No. 14–0469, 2015 WL 4935560, at *5 (Iowa Ct. App. Aug. 19, 2015). In Ackelson, the plaintiffs wanted to serve two Chinese companies located in Hong Kong. Id.. But the companies did not have an agent for service of process in Iowa or the United States. Id. So the plaintiffs first attempted service pursuant to a foreign-service provision of the Hague Convention. Id. An officer of the High Court of Hong Kong served the companies and then submitted return affidavits stating that a staff member for the companies was served at the companies’ registered office. Id. But the companies successfully quashed that service by denying any relation to the staff member. Id. at *2. So the plaintiffs filed a motion for alternative service. Id. They asked to serve the companies through their local attorneys in Iowa. Id. In support of their motion, the plaintiffs presented evidence of deliberate tactics by the companies to evade service. Id. The district court granted the motion and permitted alternative service. Id. The court of appeals affirmed. Id. at *6. The alternative service “afforded the defendants due process,”
Conversely, in In re Marriage of Meyer, our court determined that due process was not satisfied by service on the respondent’s attorney. 285 N.W.2d 10, 11–12 (Iowa 1979). There, the district court set a hearing for a child support modification and then directed that notice of the hearing be mailed by regular mail to the respondent or the respondent’s attorney. Id. at 11. As it turned out, notice was mailed to the respondent’s attorney only, not to the respondent. Id. But the respondent’s attorney had only represented the respondent in the prior divorce proceedings—and those proceedings had ended eight months earlier, as had the attorney’s representation. Id. at 11–12. And in the meantime, the respondent had moved to Minnesota. Id. at 10. Under those circumstances, we held it was “clear” that mailing notice to the attorney was not the kind of notice that is “calculated to afford [the respondent] an opportunity to appear and resist” as due process requires. Id. at 12.
As in Meyer, we cannot find that Warhol’s due process rights would be satisfied through service on Attorney Smith. See id. at 11–12. As explained, Attorney Smith was hired by a liability insurer to appear in this case.4 But the record contains no evidence that Warhol has had contact with the liability insurer since the case began. Nor does the record contain evidence that Warhol has ever had contact with Attorney Smith. Nor is there evidence that Attorney Smith even knew how to contact Warhol, or vice versa. The closest thing we have is Attorney Smith’s statement that he had “learned” that Warhol “was/is
C. Counterarguments. We have considered all of Lucas’s counterarguments. For instance, we have considered Lucas’s argument that because she is (allegedly) a third-party beneficiary of Warhol’s liability insurance contract, she is entitled to serve Warhol through attorneys who were hired by the liability carrier. Because we do not think this argument was raised below, we are reluctant to address it. In any event, we do not think Lucas has shown entitlement to relief. The record provides no basis to conclude that Lucas should be considered a third-party beneficiary of Warhol’s contract with his liability carrier. See Long v. McAllister, 319 N.W.2d 256, 262 (Iowa 1982) (rejecting the injured plaintiff’s third-party beneficiary claim because the insurance contract was not part of the record and, therefore, the court had “no basis for determining that it contains an express or implied intention to make the [plaintiff] a policy beneficiary“). Moreover, even if we assumed that Lucas has some rights as a third-party beneficiary, we still couldn’t say that Lucas has the specific right to serve Warhol through the insurance company or the attorneys it hires, such as Attorney Smith.
We have also considered Lucas’s argument that because the liability carrier has appointed Attorney Smith to defend Warhol in these early stages of this case, it is “nonsensical” to think that Warhol will “lack . . . the ability to defend himself” throughout this case. While this idea has some surface appeal, it fails under scrutiny. For one thing, we have no way to know whether there are
And even assuming no conflicts arise, Attorney Smith can only do so much if Warhol isn’t available to help in the defense. For instance, if Lucas propounds interrogatories, Attorney Smith will need Warhol’s help to respond. See
We have also considered the possibility that even though service on Attorney Smith was inadequate, perhaps Lucas properly completed service through her attempted uses of Iowa’s nonresident motor vehicle statute. See
As explained, the statute provides a special procedure for serving nonresident motorists in lawsuits arising from automobile collisions. For our
The plaintiff in any action against a nonresident shall cause the original notice of suit to be served by doing all of the following:
1. By filing a copy of the original notice of suit with the director [of the DOT], together with a fee of two dollars.
2. By mailing to the defendant, and to each of the defendants if there are more than one, within ten days after said filing with the director, by restricted certified mail addressed to the defendant at the defendant’s last known residence or place of abode, a notification of the filing with the director.
We have said that these requirements must be “strictly” followed. Johnson v. Brooks, 117 N.W.2d 457, 459–460 (Iowa 1962). Moreover, although
Lucas’s second attempt was in May. On this occasion, Lucas properly mailed the notice to Warhol via restricted certified mail. It is undisputed, however, that Warhol neither received nor refused this mailing. So this mailing failed to satisfy the statute as we interpreted it in Emery. See 119 N.W.2d at 277.
At oral argument, Lucas suggested that we might revisit Emery. But because that suggestion was not briefed, we decline to reconsider Emery, which has guided our courts for six decades now and which seems to perform useful work by avoiding friction between
III. Disposition.
For the reasons explained, we affirm the district court’s refusal to dismiss but reverse the district court’s order permitting service on Attorney Smith. We remand for further proceedings consistent with this opinion.
As mentioned, Lucas has filed with our court a certificate showing that Warhol was personally served on January 3, 2024. We believe this January 3 service should be considered timely. Within ten days after the issuance of
Affirmed in Part, Reversed in Part, and Case Remanded.
Full text of April 6, 2023 email discussed in part II.A.2.
______________________________________________________________________________
From: Tracy Ann Dunphy
To: Jeff Carter; Sydney Armstrong
Subject: RE: Progressive Claim #21-7903878 Your client Rhonda Lucas
Date: Thursday, April 6, 2023 9:39:06 AM
Attachments: 05771__LACL154718_RSON_11813803.PDF
Jeff:
Thanks for the email! I did try and call you this morning to discuss but noted you were out of the office.
I reviewed the attached filing with the IDOT. I am of the understanding that for service to be perfected the below must be done:
In order to perfect service by way of filing with IDOT, the Plaintiff must do two things: (1) file a copy of the Original Notice with Director of IDOT; and (2) within 10 days after filing with the Director, mail by restricted certified mail, a notification of filing with the director to the Defendant. The attached Return of Service suggests that step one has been done, but step two has not – and Plaintiff had until March 26 to send the copy of the notification of filing with director via certified mail to Defendant. In addition, Iowa law requires that there be delivery of the notification to the Defendant – and proof that the Defendant personally accepted the certified mailing and/or refused to accept it.
Thus, at this time, I do not think service has been perfected on Defendant per
Of course, Plaintiff has until June 12, 2023 to accomplish service per the recent Order extending time for Plaintiff to serve Defendant Warhol.
When you are available please feel free to call me and we can review! I will be in meetings most of today but available tomorrow and all next week! Thanks so much!!
Tracy
Tracy Dunphy
Claim Specialist Lead
[Additional contact information omitted]