               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.
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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.
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      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:
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            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
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and that the plaintiff failed to show good cause for the delay in service.

Judgment of the district court is therefore affirmed.

      AFFIRMED.
