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Case No. 17-1018

Andrew Gerth
Iowa Business Growth, Inc. and Dan Robeson


Andrew Gerth


Iowa Business Growth, Inc. and Dan Robeson

Attorney for the Appellant

Erik S. Fisk (until withdrawal) and John F. Fatino

Attorney for the Appellee

Gary R. Fischer and Abigail L. Thiel

Court of Appeals

Court of Appeals Opinion

Opinion Number:
Date Published:
Oct 24, 2018

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED.  Heard by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  Special Concurrence by Doyle, J.  (20 pages)

            Andrew Gerth appeals from the district court’s dismissal of his petition alleging age discrimination against his former employer, Iowa Business Growth, Inc., and former supervisor, Dan Robeson.  Gerth challenges the dismissal, but he does not dispute that the defendants were served outside of the ninety-day window.  Gerth raises the following claims: (1) He argues the district court had the discretion to grant an extension even without a showing of good cause and should have done so.  (2) Alternatively, he claims he established good cause for the delay.  As part of this argument, he claims the ninety-day window for service did not begin until the clerk’s office issued the original notice, which in this case occurred two days after Gerth initially filed the petition—making service late by one day rather than three.  He also claims the district court should have, as part of its good-cause analysis, considered the extent his rights would be prejudiced by the dismissal.  (3) Finally, Gerth claims that even if good cause is necessary for an extension and he did not establish it, dismissal was inappropriate because service was only late by three days or less and the defendants were not prejudiced by the delay.  OPINION HOLDS: Because a finding of good cause is required before the court extends the period to timely serve the defendants, and because Gerth has failed to establish good cause for the delay, we affirm the district court’s dismissal of Gerth’s petition.  SPECIAL CONCURRENCE ASSERTS: I concur based on the current precedent cited by the majority but write specially to advocate for an amendment to Iowa Rule of Civil Procedure 1.302(5) that would require the defendant show prejudice even in the absence of “good cause” on the part of the plaintiff in failing to timely serve.

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