Bennett v. Mrstik

IN THE COURT OF APPEALS OF IOWA

No. 23-0643
Filed September 18, 2024

CHAD REESE BENNETT,
Plaintiff-Appellant,

vs.

JOSEPH MRSTIK, CITY OF PLEASANTVILLE, BRIAN BIGAOUETTE, and
MARION COUNTY SHERIFF’S DEPARTMENT,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Page County, Michael Hooper,

Judge.

Chad Bennett appeals the dismissal of this action for failing to timely serve

the defendants. AFFIRMED.

Chad R. Bennett, Clarinda, self-represented appellant.

Zachary D. Clausen and Douglas L. Phillips of Klass Law Firm, L.L.P., Sioux

City, for appellees Joseph Mrstik and City of Pleasantville.

Jason C. Palmer and Theodore T. Appel (until withdrawal) of Lamson

Dugan & Murray, LLP, West Des Moines, for appellees Marion County Sheriff’s

Department and Brian Bigaouette.

Considered by Schumacher, P.J., and Ahlers and Langholz, JJ.
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AHLERS, Judge.

While incarcerated in Iowa’s prison system, Chad Bennett sued two law

enforcement officers and their employers. He claimed the defendants violated his

statutory and constitutional rights and he was damaged as a result. The

defendants moved to dismiss Bennett’s petition for failing to meet the deadline for

service of original notice. The district court granted the defendants’ motion and

dismissed Bennett’s lawsuit. In doing so, the court denied Bennett’s request to

order an alternative method of service. Bennett appeals.

I. Timeline of Events

Bennett’s petition initiating this action was filed on July 18, 2022. Iowa Rule

of Civil Procedure 1.302(5) required Bennett to serve the defendants with original

notice of the suit within ninety days of filing the petition. On October 7—nine days

before the ninety-day time limit expired—Bennett filed a motion asking for a sixty-

day extension of the service deadline so he could find representation and amend

his petition before serving original notice. On October 11, the district court granted

an extension of thirty days from the date of its order.

On November 30—twenty days after the extended deadline for service

expired—Bennett filed a statement explaining that he could not find an attorney,

he sent original notice and directions for service to the clerk of court for signing

and sealing on November 10, and he received the signed and sealed documents

back on November 21. The statement further asserted that, on November 22 (the

same date Bennett mailed the statement), Bennett mailed papers for serving the

defendants to the Marion County Sheriff for the sheriff to serve but the prison had

stopped mail service until November 28. The district court treated Bennett’s
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statement as a request for another extension and gave Bennett thirty more days

from December 5 to serve the defendants.

None of the defendants had been served by January 6, 2023, so two

defendants filed a motion that day seeking to dismiss Bennett’s petition for failing

to properly serve them. The other two defendants did the same on January 27.

On January 9, Bennett filed another statement regarding service. In that

statement, Bennett represented that he had mailed the service documents to the

Marion County Sheriff on November 28, 2022, and, when he received no return of

service by December 19, he had someone contact the sheriff’s office on his behalf.

Bennett’s statement reported that a person in the sheriff’s office responsible for

process service informed Bennett’s contact person that the sheriff’s office had not

received the documents. Bennett’s statement explained that he was suspicious of

the claim that the sheriff’s office had not received the documents, so on

December 20, he once again sought to have original notices signed and sealed by

the clerk’s office, which he received back on December 30. He reported that on

January 3, 2023, he mailed the documents to the Mahaska County Sheriff (a

county contiguous to Marion County) to be served on the defendants in Marion

County.

A hearing was set on the pending motions to dismiss. Three days before

the hearing, Bennett filed a motion asking the court to direct the Mahaska County

Sheriff to serve the defendants, or alternatively, that he be permitted to serve the

defendants by mail or publication. In the motion, Bennett asserted that the

documents he sent to the Mahaska County Sheriff for service were returned with
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a letter stating that the Mahaska County Sheriff does not serve defendants outside

of Mahaska County.

Following a hearing, the district court granted the defendants’ motions,

denied Bennett’s motion, and dismissed Bennett’s petition without prejudice. The

court found that Bennett had not established good cause to justify another

extension of time and that no authority supported Bennett’s request that the court

order the Mahaska County Sheriff to serve the defendants. Bennett appeals.

II. Standard of Review

“We review the granting of a motion to dismiss for errors at law.” Askvig v.

Snap-on Logistics Co., 967 N.W.2d 558, 560 (Iowa 2021) (citation omitted). In

ruling on a motion to dismiss, the district court is generally bound by the facts

alleged in the pleadings but may look outside the pleadings to address claims of

failure to serve the defendants. Rucker v. Taylor, 828 N.W.2d 595, 598‒99 (Iowa

2013). When the district court must make fact findings to rule on the motion to

dismiss, we are bound by those findings if they are supported by substantial

evidence. Woods v. Young, 732 N.W.2d 39, 41 (Iowa 2007). “Evidence is

substantial if ‘a reasonable mind would accept it as adequate to reach a

conclusion.’” Crall v. Davis, 714 N.W.2d 616, 619 (Iowa 2006) (quoting Bus.

Consulting Servs., Inc. v. Wicks, 703 N.W.2d 427, 429 (Iowa 2005)).

III. Error Preservation

Before addressing the merits of Bennett’s claims, we first address an issue

of error preservation. Two defendants contend Bennett did not preserve error on

his arguments that (1) his hearing impairment made obtaining service difficult such
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that he had good cause for the delay in service and (2) good cause for delay

existed because the defendants evaded service.

The hearing on the defendants’ motions to dismiss was not reported, and

Bennett made no effort to create a record of the hearing pursuant to Iowa Rule of

Appellate Procedure 6.806. Bennett does not assert that the arguments made at

the hearing preserve error, but even if he did, without a record of the hearing, we

do not consider any issues or arguments he may have raised in the unreported

hearing. See In re F.W.S., 698 N.W.2d 134, 135–36 (Iowa 2005). But we do look

to Bennett’s resistances to the motions to dismiss to determine what issues are

preserved for our review. Because those resistances cross-reference his motion

to direct service, we look to that motion as well.

Neither Bennett’s resistances nor his motion to direct service assert that

Bennett’s hearing impairment interfered with his efforts at service, and the district

court did not address this issue. To get around this problem, Bennett suggests

that the issue of his hearing impairment was before the court because he

requested an interpreter for the hearing, so the court was aware of his condition.

But the court’s awareness of Bennett’s hearing impairment is not the same as an

argument that his hearing impairment constituted good cause for the delay in

service. Bennett simply failed to raise the issue that his hearing impairment

constituted good cause for the delay in service. As Bennett neither raised this

issue nor secured a ruling on it, he has not preserved this claim for our review.

See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental

doctrine of appellate review that issues must ordinarily be both raised and decided

by the district court before we will decide them on appeal.”).
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As to Bennett’s claim on appeal that the defendants’ evasion of service

constituted good cause for the delay, we recognize that Bennett’s motion to direct

service states that “being a defendant may cause Marion County Sheriff’s

Department to ignore the request for service.” Although it may be a stretch, this

statement is arguably enough to cause us to conclude Bennett raised the issue of

whether defendants were evading service. But even if we assumed this statement

raised the issue, the district court did not rule on it. The district court’s failure to

rule on this issue makes the issue unpreserved for our review. See id.

To try to avoid this error-preservation problem, Bennett points to the fact

that he filed a motion to enlarge the district court’s ruling under Iowa Rule of Civil

Procedure 1.904(2).1 Filing such a motion is one method for preserving error on

an issue overlooked by the district court. Id. at 539. However, Bennett filed his

notice of appeal before a ruling could be made on his motion. Filing a notice of

appeal with the clerk of court divested the district court of its jurisdiction over the

posttrial motion and prevented the court from ruling on the motion. See Garrison

v. New Fashion Pork LLP, 977 N.W.2d 67, 81 (Iowa 2022). Without a ruling on the

rule 1.904(2) motion, Bennett has failed to preserve error on the issue.

To avoid the consequences of the loss of jurisdiction from filing his notice

of appeal prematurely, Bennett argues that the notice of appeal should not have

been filed because he conditioned his notice on the failure of the filing of his motion

to enlarge. Bennett cites no authority authorizing a conditional notice of appeal,

1 Bennett’s motion cites rule 1.904(3). Because subsection (3) discusses the
timeliness of motions filed under subsection (2) and his motion was titled “Motion
to Enlarge,” we consider his motion to be made under rule 1.904(2).
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and we are aware of none. Bennett argues he felt compelled to file his notice of

appeal before the court ruled on his motion to enlarge just in case the motion to

enlarge had not been filed and the clock for filing a notice of appeal was still

running. While we understand Bennett had trouble keeping track of the status of

his filings due to his incarceration, we do not apply the rules differently for

incarcerated individuals or self-represented litigants. Aside from the seemingly

normal delay in receiving confirmation of filing, he had no reason to believe his

motion would not be filed. Up to that point, all his mail to the clerk’s office had

been received and all his documents filed. As Bennett caused the district court to

lose jurisdiction to rule on his motion to enlarge by filing notice of appeal before

securing a ruling on his motion, the motion did not preserve error on the issue of

whether the claimed evasion of service by defendants constituted good cause for

the delay in service.

Having determined that Bennett did not preserve error on his arguments

that his hearing impairment or the defendants’ alleged evasion of service

constituted good cause for his delay in service, we do not address those issues.

See Meier, 641 N.W.2d at 537. Instead, we turn to the two issues Bennett has

preserved.

IV. Preserved Issues

Iowa Rule of Civil Procedure 1.302(5) provides the court with three options

when the time for service has exceeded ninety days—dismiss the case without

prejudice, direct an alternate time or manner of service, or extend the time for

service. In this case, the district court dismissed the petition. Bennett argues the
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district court should have chosen either of the other two options. We start with his

claim the court should have extended the deadline for service.

A. Extending Time Based on Good Cause for Delay in Service

If more than ninety days have passed without service on the defendants,

the plaintiff must justify the delay to receive an extension of time for service. Iowa

R. Civ. P. 1.302(5); Crall, 714 N.W.2d at 620. The failure to timely serve is justified

if the plaintiff can show good cause. Iowa R. Civ. P. 1.302(5). In Wilson v.

Ribbens, the Iowa Supreme Court explained that good cause for delayed service

cannot be found unless the plaintiff has

taken some affirmative action to effectuate service of process upon
the defendant or ha[s] 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.

678 N.W.2d 417, 421 (Iowa 2004) (cleaned up) (citation omitted).

The district court found that, while Bennett’s incarceration made effecting

service difficult, he could not demonstrate good cause for failing to obtain service

within the deadline that had twice been extended. This finding is supported by

substantial evidence, so we are bound by it. See Iowa R. App. P. 6.904(3)(a);

Crall, 714 N.W.2d at 619.

Bennett waited until the original ninety-day time limit had almost expired

before even asking for an extension, let alone attempting to serve the defendants.

After obtaining an extension, he did not begin the process to serve the defendants

until the day before the extension expired. This required another request for an

extension, which the court granted. After receiving the second extension, Bennett
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waited twenty-one days to check on the status of his mailing to the Marion County

Sheriff. It was only when he was informed that his mailing had not been received

that he finally started acting with diligence, but even then, he did not request

another extension of time despite knowing his mailing to the Mahaska County

Sheriff occurred only three days before the extended deadline.

Bennett’s early neglect gave him little wiggle room when he ran into

obstacles later. Despite the court’s granting of two extensions, Bennett still did not

manage to serve the parties by the February 2 hearing—199 days after filing his

petition. Although his incarceration presented a challenge, the course of events

shows a series of neglect and half-hearted attempts at service by Bennett. As a

result, the district court’s finding that Bennett failed to show good cause justifying

his delay in service is supported by substantial evidence. Because Bennett failed

to show good cause, the court was required to dismiss the action without prejudice,

see Crall, 714 N.W.2d at 620, unless the court chose to direct an alternate time or

manner of service. See Iowa R. Civ. P. 1.302(5).

B. Alternative Manner of Service

As his final preserved argument, Bennett contends the district court should

have directed an alternate manner of service. Unlike allowing a plaintiff more time

to serve the defendants, a court may direct an alternative method of service without

first finding good cause. Iowa R. Civ. P. 1.302(5) (requiring a finding of good cause

only if the court chooses to extend the time for service instead of dismissing the

case without prejudice or directing an alternate manner of service). But the court

must still find that the plaintiff could not have effected service under any method of

service set out in rule 1.305. Iowa R. Civ. P. 1.305(14) (“If service cannot be made
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by any of the methods provided by this rule, any defendant may be served as

provided by court order, consistent with due process of law.”).

The district court found that Bennett made no attempt to utilize other

methods of service besides the sheriffs in Marion and Mahaska counties. This

finding is supported by substantial evidence and is binding on us. See Iowa R.

App. P. 6.904(3)(a); Crall, 714 N.W.2d at 619. Bennett does not contend that he

tried any other method of service, such as having any person not a party to the

action serve original notice. See Iowa R. Civ. P. 1.302(4). Bennett has failed to

establish that service could not be attained by the methods provided in rule 1.305,

so Bennett was not entitled to a court order directing an alternative method of

service. The court did not commit error by denying Bennett’s request to permit an

alternative method of service.

V. Conclusion

We find no error in the district court’s decision to dismiss Bennett’s lawsuit

instead of granting him an additional extension of time to serve the defendants

because Bennett failed to establish good cause for his failure to serve the

defendants within the extended period granted to him. Likewise, we find no error

in the court’s decision to deny Bennett’s request for an alternative method of

service, as Bennett failed to establish that service could not be attained using

methods of service provided for in rule 1.305. As a result, we affirm the district

court’s ruling.

AFFIRMED.