2014BasicSkillsCourse
PresentedbytheIowaBarReviewSchool
andTheIowaStateBarAssociation.
Monday
September22,2014
CivilProcedure
2:00 p.m. - 3:00 p.m.
Materials by
Barry A. Lindahl
City of Dubuque
City Attorney's Office
300 Main St.,
Suite 330
Dubuque, IA 52001-6946
Phone: (563) 583-4113
CIVIL PRACTICE AND PROCEDURE
Barry A. Lindahl, Esq.
Dubuque
April 2014
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Contents
Page
I. OVERVIEW: IOWA JUDICIAL DEPARTMENT ........................................................ 5
A. Judicial Branch, In General ....................................................................................5
B. Iowa District Court .................................................................................................5
C. Supreme Court and Court of Appeals ..................................................................... 8
D. Arbitration Proceedings ..........................................................................................9
E. Judicial Review of Administrative Agency Action ................................................. 9
F. Declaratory Judgments ............................................................................................9
G. Time Standards for Case Processing ......................................................................10
II. PROPER COURT .............................................................................................................10
A. Jurisdiction of the Subject Matter...........................................................................11
B. Venue .....................................................................................................................13
C. Jurisdiction Over the Defendant .............................................................................17
III. COMMENCEMENT OF ACTIONS; SERVICE OF
PROCESS AND OTHER PAPERS ...............................................................................25
A. Commencement of Actions ....................................................................................25
B. Statutes of Limitations……………………………………………………………..30
C. Service of Process ...................................................................................................42
D. Service Provisions ..................................................................................................43
E. Time After Service for Motion or Answer .............................................................. 45
F. Immunity from Service ...........................................................................................46
G. Service and Filing of Papers After Commencement ............................................... 46
IV. APPEARANCES; MOTIONS ........................................................................................47
A. Appearances ...........................................................................................................47
B. Motions...................................................................................................................49
V. PLEADINGS .....................................................................................................................53
A. In General ...............................................................................................................53
B. The Petition ............................................................................................................56
C. The Answer ............................................................................................................58
D. The Reply ...............................................................................................................59
E. Amendments ...........................................................................................................59
F. Supplemental Pleadings ..........................................................................................62
G. Demand for Jury Trial ............................................................................................62
VI. COMPARATIVE FAULT ..............................................................................................63
A. Introduction ............................................................................................................63
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B. Goetzman v. Wichern..............................................................................................63
C. The Iowa Comparative Fault Act ............................................................................64
VII. PARTIES; CLAIMS ......................................................................................................73
A. Standing .................................................................................................................73
B. Real Parties in Interest; Who May be Sued ............................................................ 74
C. Indispensable Parties ..............................................................................................75
D. Joinder of Parties Plaintiff and Defendant .............................................................. 76
E. Joinder of Claims ....................................................................................................76
F. Cross-Claim Against Co-Party ................................................................................76
G. Impleading..............................................................................................................71
H. Interpleader.............................................................................................................77
I. Counterclaims ..........................................................................................................77
J. Intervention..............................................................................................................78
K. Class Actions ..........................................................................................................79
VIII. JUDGMENT ON THE PLEADINGS;
SUMMARY JUDGMENT.............................................................................................82
A. Judgment on the Pleadings .....................................................................................82
B. Summary Judgment ................................................................................................83
IX. DEFAULT JUDGMENT ................................................................................................84
X. PRETRIAL CONFERENCES .........................................................................................85
A. In General ...............................................................................................................85
B. Sanctions ................................................................................................................85
C. Pretrial Order ..........................................................................................................85
XI. DISCOVERY; PERPETUATION OF TESTIMONY .................................................. 87
A. General Principles ..................................................................................................87
B. Depositions on Oral Examination ...........................................................................100
C. Depositions on Written Interrogatories ...................................................................101
D. Interrogatories ........................................................................................................101
E. Physical or Mental Examination .............................................................................103
F. Production of Books and Documents ......................................................................104
G. Inspection of Land and Other Property...................................................................105
H. Requests for Admissions ........................................................................................105
I. Subpoenas……………………………………………………………………….....106
J. Sanctions ................................................................................................................110
K. Perpetuation of Testimony......................................................................................113
L. Duty to Preserve Evidence; Spoliation of Evidence.……………………………....114
XII. DISMISSAL; TRIAL MOTIONS; POST-TRIAL MOTIONS .................................. 114
A. Dismissal ................................................................................................................114
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B. Trial Motions ..........................................................................................................116
C. Posttrial Motions.....................................................................................................118
XIII. RES JUDICATA\PRECLUSION ................................................................................121
A. Res Judicata, In General .........................................................................................121
B. Bar and Merger; Claim Preclusion .........................................................................121
C. Collateral Estoppel; Issue Preclusion ......................................................................126
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I.
OVERVIEW: IOWA JUDICIAL BRANCH.
A. Judicial Branch, In General.
The Iowa Judicial Branch comprises the following: supreme court; court of appeals; district court; the
clerks of all of the courts of the state; juvenile court officers; court reporters; all other court personnel.
B. Iowa District Court.
1.
Iowa has a unified trial court known as the "Iowa district court." The district court
has all of the power "usually possessed and exercised by trial courts of general
jurisdiction." Iowa Code § 602.6101.
2.
In addition to its original jurisdiction, the Iowa district court is granted appellate
jurisdiction by Iowa Code § 602.6102 over special proceedings authorized to be
taken from all tribunals, boards or officers, such as appeals from administrative
agencies under the Iowa Administrative Procedure Act, Iowa Code Chapter 17A.
3.
The jurisdiction of the district court is exercised by district court judges, district
associate judges and magistrates. Iowa Code § 602.6104.
4.
•
District court judges possess the full jurisdiction of the district court. Iowa Code
§ 602.6202.
•
District associate judges possess the jurisdiction of magistrates and also have
jurisdiction in civil actions for money judgment where the amount in controversy
does not exceed $10,000. Iowa Code § 602.6306. See also State v. Erdman, 727
N.W.2d 123 (Iowa 2007)(district associate judge lacked subject matter
jurisdiction to enter judgment on forfeited bail bond in excess of $10,000
jurisdictional limit for district associate judges under Iowa Code § 602.6306(2)).
•
Magistrates possess jurisdiction over small claims.
Small claims are treated specially by Iowa Code Chapter 631.
a.
Small claims are heard by the Iowa district court sitting in small claims.
There is no "small claims court." Small claims are docketed separately,
however.
b.
The following actions or claims are small claims and are be commenced,
heard and determined as provided in Chapter 631:
1. A civil action for a money judgment where the amount in controversy is
four thousand dollars or less for actions commenced before July 1, 2002, and
five thousand dollars or less for actions commenced on or after July 1, 2002,
exclusive of interest and costs.
2. The district court sitting in small claims has concurrent jurisdiction of an
action for forcible entry and detainer which is based on those grounds set
forth in Iowa Code § 648.1(1), (2), (3) and (5)
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3. The district court sitting in small claims has concurrent jurisdiction of an
action of replevin if the value of the property claimed is four thousand
dollars or less for actions commenced before July 1, 2002, and five thousand
dollars or less for actions commenced on or after July 1, 2002.
4. The district court sitting in small claims has concurrent jurisdiction of
motions and orders relating to executions against personal property,
including garnishments, where the value of the property or garnisheed
money involved is four thousand dollars or less for actions commenced
before July 1, 2002, and five thousand dollars or less for actions commenced
on or after July 1, 2002.
5. The district court sitting in small claims has concurrent jurisdiction of an
action for abandonment of a manufactured or mobile home or personal
property pursuant to Iowa Code § 555B.3, if no money judgment in excess
of four thousand dollars is sought for actions commenced before July 1,
2002, and five thousand dollars or less for actions commenced on or after
July 1, 2002
6. The district court sitting in small claims has concurrent jurisdiction of an
action to challenge a mechanic's lien pursuant to Iowa Code § § 572.24 and
572.32.
7. The district court sitting in small claims has concurrent jurisdiction of an
action for the collection of taxes brought by a county treasurer pursuant to
Iowa Code § § 445.3 and 445.4 where the amount in controversy is five
thousand dollars or less for actions commenced on or after July 1, 2003,
exclusive of interest and costs.
c.
Statutes and rules relating to venue and jurisdiction apply to small claims
generally where not inconsistent with the small claims statute. Otherwise,
small claims are heard and determined according to the procedure prescribed
in Iowa Code Chapter 631. Iowa Code § 631.2(3).
d.
A small claim is commenced by filing an Original Notice with the clerk.
Service in actions for money judgments is handled by the clerk and is
typically by mail or personal service.
e.
There is no right to a jury trial; small claims are heard by the court. Iowa
Nat. Mut. Inc. Co. v. Mitchell, 305 N.W.2d 724 (Iowa 1981).
f.
Once the parties have appeared or defaulted, the clerk sets a date for hearing
and notifies the parties. Iowa Code § 631.5.
g.
No written pleadings or motions are permitted except as provided by the
statute unless the court in the interests of justice allows them. Motions are
heard at the time for hearing on the merits. Original notices, counterclaims,
cross-petitions or interventions must be on the forms prescribed by the
supreme court and provided by the clerk. The supreme court has adopted
standard forms of pleadings to be used in small claims actions. Standard
forms promulgated by the supreme court are the exclusive forms to be used.
Forms prescribed by the supreme court are published in the compilation
"Iowa Court Rules". Service is handled by the clerk. Iowa Code § 631.7.
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h.
The rules of civil procedure pertaining to actions, joinder of actions, parties
and intervention do apply to small claims; the compulsory counterclaim rule,
Iowa R. Civ. P. 1.241, does not apply. No responsive pleading is required to
a counterclaim, cross-petition or intervention. Iowa Code § 631.7.
i.
If a small claim is joined with a claim that is not a small claim, the court
may:
•
Dismiss the non-small claim without prejudice;
•
Order the small claim heard by regular procedure and the other claim
heard by the regular procedure; or
•
Order both claims heard by the regular procedure. Iowa Code § 631.8.
j.
A small claim commenced as a regular action must be transferred to the
small claims docket rather than dismissed. Iowa Code § 631.8.
k.
A counterclaim, cross-claim or intervention in excess of the small claims
amount must be in the form of a regular pleading. The court may either order
the counterclaim, cross-claim or intervention tried as a regular action and the
other claim tried as a small claim or order the entire action tried as a regular
action. Iowa Code § 631.8.
l.
At the hearing, the court first must determine whether proper notice has been
given and also whether the action is properly a small claim. Iowa Code §
631.9. The hearing is to be "simple and informal." The magistrate is to take
"detailed minutes of the testimony" and append the exhibits to the record.
Iowa Code § 631.11.
m.
Although the rules of evidence concerning hearsay generally apply in a small
claims proceeding, the rules are not strictly enforced. When dealing with
hearsay, the judge should scrutinize the evidence to determine its reliability
rather than using the technical requirements of the rules of evidence to
exclude evidence the judge finds reliable. In determining whether hearsay
evidence is reliable, the judge should determine whether the evidence is the
kind of evidence that reasonably prudent persons are accustomed to rely on
for the conduct of their serious affairs. Based on that approach, billing
statements offered by a bank in support of a verified account were held
properly admitted as business records even though the technical
requirements of the foundation for the business records exception had not
been established. GE Money Bank v. Morales, 773 N.W.2d 533 (Iowa
2009).
n.
Posttrial motions after judgment in small claims are not authorized. Thus,
motions to amend or enlarge the court’s findings and conclusions, motions to
new trial, motions to set aside a judgment, or motions to vacate or modify a
judgment are not available. Midwest Recovery Services v. Cooper, 465
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N.W.2d 855 (Iowa 1991); Jack Moritz Co. Management v. Walker, 429
N.W.2d 127 (Iowa 1988); Barnes Beauty College v. McCoy, 279 N.W.2d
258 (Iowa 1979); Schrock v. Iowa Dist. Court for Polk County, 541 N.W.2d
256 (Iowa 1995); Hyde v. Annia, 578 N.W.2d 647 (Iowa 1998).
o.
An appeal from a small claim judgment may be taken by giving oral notice
at the conclusion of the hearing or by filing a written notice of appeal with
the clerk within twenty days after the judgment is rendered. The appeal is
heard promptly on the record without further evidence unless the judge
orders that further evidence be allowed. Iowa Code § 631.13.
p.
Appeal of a small claim from the district court ruling to the Iowa supreme
court is discretionary. A petition for review must be filed with the clerk of
the supreme court within thirty days after entry of the judgment or order.
Iowa Code § 631.16; Iowa R. App. P. 201.
C. Supreme Court and Court of Appeals.
1.
The Iowa supreme court comprises seven justices. The Iowa court of appeals
comprises nine judges.
2.
Appeals from the district court are filed initially with the supreme court. The supreme
court may transfer an appeal to the court of appeals. If an appeal is transferred, after a
decision by the court of appeals, a party may file an application with the supreme
court for further review. If the application is not acted upon within thirty days, it is
deemed denied and the decision of the court of appeals becomes final. If the
application is granted, the appeal is heard by the supreme court. Iowa Code §
602.4102. A decision of the court of appeals is final and may not be reviewed by any
other court except upon the granting by the supreme court of an application for
further review as provided in Iowa Code § 602.4102. Upon the filing of an
application for further review, the judgment and mandate of the court of appeals is
stayed pending action of the supreme court.
3.
Appeals from final judgments are taken and perfected by filing a notice of appeal
with the clerk of the court where the order, judgment or decree appealed from was
entered. Iowa R. App. P. 6.101. Except for certain juvenile proceedings, the notice of
appeal must be filed within thirty days from the entry of the order, judgment or
decree, unless a motion for new trial or judgment notwithstanding the verdict as
provided in Iowa R. Civ. P. 1.1007, or a motion to amend and enlarge findings and
conclusions as provided in Iowa R. Civ. P. 1.904(2), is filed and then within thirty
days after the entry of the ruling on such motion. Iowa R. App. P. 6.101.
4.
Interlocutory appeals are taken by filing an application with the supreme court to
grant an appeal in advance of final judgment. The application must be filed within
thirty days from the date of the ruling or decision. The court determines whether or
not to allow the appeal.
5.
The supreme court website is www.judicial.state.ia.us.
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D. Arbitration Proceedings.
1.
Under Iowa Code Chapter 679A, a written agreement to submit to arbitration an
existing controversy is valid, enforceable and irrevocable unless grounds exist for the
revocation of the written agreement. A provision in a written contract to submit to
arbitration a future controversy arising between the parties is valid, enforceable and
irrevocable unless grounds exist for revocation of the contract.
2.
However, a provision to arbitrate a future controversy does not apply to a contract of
adhesion, a contract between employers and employees, and unless otherwise
provided in a separate writing executed by all parties to the contract, any claim
sounding in tort whether or not involving a breach of contract. Iowa Code § 679A.1
3.
The district court has the authority to order parties to proceed to arbitration in the
case of a valid and enforceable agreement or to stay arbitration where there is a
dispute as to the validity and enforceability of the arbitration agreement. Iowa Code §
679A.2.
4.
Upon application of a party the award must be confirmed by the district court, unless
an application has been made to vacate, modify or correct the award. Iowa Code §
679A.11. Once the award has been confirmed, modified or corrected, a judgment or
decree must be entered by the district court, which may then be enforced as any other
judgment or decree. Iowa Code § 679A.14
E. Judicial Review of Administrative Agency Action.
1.
Judicial review of administrative agency action is governed by Iowa Code § 17A.19.
Proceedings for judicial review are instituted by filing a petition naming the
administrative agency as respondent. After the petition is filed, the agency transmits
to the court a copy of the entire record made before the agency. The court may hear
such additional evidence as it deems appropriate.
2.
The rules of civil procedure apply to such proceedings except to the extent they are
inconsistent with the provisions of Chapter 17A. For example, the discovery rules do
not apply to a proceeding for judicial review. Studer v. Iowa Dept. of Transport., 378
N.W.2d 300 (Iowa 1985). The summary judgment rules do apply, however.
F. Declaratory Judgments.
1.
Iowa R. Civ. P. 1.1101 authorizes declaratory judgment proceedings, which typically
may involve the construction or validity of contracts, ordinances, rules, regulations or
statutes.
2.
The court is authorized to "declare rights, status and other legal relations whether or
not further relief is or could be claimed."
3.
A contract may be construed either before or after there has been a breach. Iowa R.
Civ. P. 1.1103.
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4.
Declaratory relief is discretionary and the court may refuse to render a judgment or
decree "when it would not, if rendered, terminate the uncertainty or controversy
giving rise to the proceeding." Iowa R. Civ. P. 1.1107.
5.
A similar procedure is available under the federal Declaratory Judgment Act, 28
U.S.C. § 2201 and F.R.Civ.P. 57.
6.
Where there is a statutory right of appeal from an administrative agency, such as
Iowa Code § 414.15 which allows a person claiming a decision by the board of
adjustment is illegal to seek relief by filing for a writ of certiorari, a declaratory
judgment will be permitted as a claim for relief from the action of the agency as a
companion or alternative claim to the certiorari action if: (1) the statutory remedy of
certiorari will not afford complete relief, and (2) the legislature did not intend
certiorari to be the exclusive remedy. Thus, if the declaratory judgment action tests
the constitutionality of a zoning ordinance, or some other issue outside the action of
the board of adjustment, both the petition for writ of certiorari and declaratory
judgment petition may be brought from a decision of the board of adjustment. City of
Johnston v. Christenson, 718 N.W.2d 290 (Iowa 2006)(exclusivity-of-remedies
doctrine did not bar declaratory judgment action because city was not pursuing
declaratory relief as remedy from action taken by board of adjustment but as means
of determining its separate obligation to exercise its site plan authority under
ordinance).
G. Time Standards for Case Processing.
1.
The Iowa supreme court has adopted time standards for case processing. Iowa Court
Rule 23.1.
2.
The time standards for civil cases require jury cases to be disposed of within certain
time limits. Iowa Court Rule 23.3.
3.
To implement these time standards, I. R. Civ. P. 1.906, provides that no later than 90
days after the action is commenced, the clerk must send a notice of civil trial-setting
conference to all parties not in default. The clerk is required to use Iowa Court Rule
23.5—Form 1, the Notice of Civil Trial Setting Conference, to send the notice. The
notice will schedule a trial-setting conference no later than 150 days after
commencement of the action. The parties are responsible for obtaining a trial-setting
conference within 150 days after commencement of the action regardless of whether
a party receives notice of the trial-setting conference. Failure to receive notice is not
grounds to avoid dismissal under I. R. Civ. P. 1.944. A party may move for an earlier
trial-setting conference upon giving notice to all parties. The court must use Iowa
Court Rule 23.5—Form 2, the Trial Scheduling Order, to set the trial date. If a trial is
continued, the court must set the trial to a date certain. Unless otherwise ordered, the
deadlines established in the trial scheduling order continue to apply to the case.
II. PROPER COURT.
A. Jurisdiction of the Subject Matter.
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1.
2.
An action can be brought only in a court which has jurisdiction of the subject matter,
which is the power to hear and determine cases of the general class of case to which
the proceedings belong.
The jurisdiction of the court depends on the state of things at the time of the action
brought, which includes application of the jurisdictional law at the time the suit was
filed. Ultimately, because subject matter jurisdiction goes to the core of the judicial
power, it must exist in light of the law pertaining to subject matter jurisdiction at the
time that judicial power is exercised. See generally Heartland Express v. Gardner,
675 N.W.2d 259 (Iowa 2003)(change in workers compensation law). See also Grupo
Dataflux v. Atles Global Group, L.P., 124 S.Ct. 1920 (2004)(“It has long been the
case that ‘the jurisdiction of the Court depends upon the state of things at the time of
the action brought.’”)(party's post-filing change in citizenship cannot cure lack of
subject-matter jurisdiction that existed at time of filing in action premised upon
diversity of citizenship).
3.
Lack of subject matter jurisdiction may be raised at any time, is not waived by
consent, and may be raised by appellate court during an appeal even if not raised by
the parties. See Pierce v. Pierce, 287 N.W.2d 879 (Iowa 1980).
4.
Related to the principle that jurisdiction of the subject matter may not be conferred
by consent is the principle that it may not be taken away by consent. Davenport
Machine & Foundry Co. v. Adolph Coors Co., 314 N.W.2d 432 (Iowa
1982)(contract document between the parties provided that any litigation had to be
brought in Colorado courts; held, clause which purported to deprive Iowa courts of
jurisdiction is not enforceable in Iowa).
5.
Subject matter jurisdiction is conferred solely by constitutional or statutory power.
The source of the Iowa district court's jurisdiction is Article V of the Iowa
Constitution, which provides that the district court shall have jurisdiction in civil
matters as shall be prescribed by statute. The directive is implemented by Iowa Code
§ 602.6101 which establishes the Iowa district court. The district court has exclusive,
general and original jurisdiction of all actions, proceedings, and remedies, civil,
criminal, probate and juvenile, except is cases where exclusive or concurrent
jurisdiction is conferred on some other court, tribunal or administrative body. The
district court has all the power usually possessed or exercised by trial courts of
general jurisdiction.
6.
Subject matter jurisdiction refers to the power of a court to deal with a class
of cases to which a particular case belongs. A constitution or a legislative
enactment confers subject matter jurisdiction on the courts. Although a court
may have subject matter jurisdiction, it may lack the authority to hear a
particular case for one reason or another. In some cases, such as a
landowner's claim of inverse condemnation, the court must determine if the
matter is ripe for adjudication. See generally Molo Oil Co. v. City of
Dubuque, 692 N.W.2d 696 (Iowa 2005) citing Iowa Coal Mining Co. v.
Monroe County, 555 N.W.2d 418 (Iowa 1996). If the inverse condemnation
claim is not ripe for adjudication, the court does not have the authority to
hear the case and must dismiss it. The Iowa supreme court has summarized
the ripeness rules as follows:
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(1) Exhaustion of one's administrative remedies is a condition precedent to
ripeness.
(2) In a state inverse condemnation proceeding, it is inaccurate to talk in
terms of exhaustion of state remedies because the proceeding itself is a state
remedy. The court’s only concern in such a proceeding is whether there has
been finality, the other condition precedent to ripeness. Finality equates to
exhaustion of administrative remedies under the challenged regulatory
ordinance so that a final, reviewable decision must be made regarding the
use of the property. A court can make no determination of the takings claim
until the regulatory authority under the ordinance makes that final decision.
7.
The Iowa district court lacks original jurisdiction of the subject matter when the
General Assembly has given exclusive subject matter jurisdiction to an administrative
agency, board or commission, such as in worker's compensation cases where original
jurisdiction is exclusive to the Workers’ Compensation Commissioner or rate charge
proceedings which are exclusive to the Commerce Commission.
8.
An action commenced in state court may be removed to federal court if the federal
court would have had original jurisdiction of the action. However, a diversity action
can be removed only if none of the parties properly joined and served as defendants
is a citizen of the state in which such action is brought. 28 U.S.C. § 1441(b).
9.
Unlike federal pleadings, the basis of the Iowa district court's jurisdiction need not be
specifically plead in the petition. The petition must only allege facts from which it is
sufficient to demonstrate a prima facie case of subject matter jurisdiction. Powell v.
Khodari-Intergreen Co., 303 N.W.2d 171 (Iowa 1981).
10.
Iowa R. Civ. P. 1.421 provides that lack of subject matter jurisdiction may be raised
by a pre-pleading motion or in the responsive pleading. However, the court must
dismiss the action under either the Iowa rules any time it is brought to the court's
attention that it lacks jurisdiction of the subject matter.
11.
Even though a judgment may be erroneous, if the court had jurisdiction over the
person and the subject matter, the judgment is conclusive on collateral attack. Where
the district court granted the adoptions of two children but in a subsequent action to
determine child custody, physical care, and support, the district court concluded that
the adoptions were invalid, on appeal the supreme court found that it was
inappropriate for the district court to collaterally attack the adoptions. Because the
adoptions were not appealed, the final order approving the adoptions was conclusive
on collateral attack, even if the order was erroneous, unless the court that entered the
order lacked jurisdiction over the person or the subject matter, or under limited
circumstances on due process grounds. See Schott v. Schott, 744 N.W.2d 85 (Iowa
2008).
12.
On December 21, 2012, the Iowa supreme court entered an order for the
establishment of the Iowa Business Specialty Court Pilot Project. The Iowa Supreme
Court, with assistance from the Iowa State Court Administrator, will initially select
three highly qualified Iowa jurists to serve as business court judges. The criteria for
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selection of business court judges include educational background, judicial and trial
practice experience in complex commercial cases, and personal interest. Business
court cases will be tried in the county in which they are filed or are otherwise
properly venued under current Iowa rules. Eligible cases must have an amount in
controversy, whether alleged or by agreement of parties, of $200,000 or more, and
involve the following types of cases:
i.
Arise from technology licensing agreements, including software and
biotechnology licensing agreements, or any agreement involving the licensing of any
intellectual property right, including patent rights.
ii.
Relate to the internal affairs of businesses (i.e., corporations, limited liability
companies, general partnerships, limited liability partnerships, sole proprietorships,
professional associations, real estate investment trusts, and joint ventures), including
the rights or obligations between or among business participants, or the liability or
indemnity of business participants, officers, directors, managers, trustees, or partners,
among themselves or to the business.
iii.
Involve claims of breach of contract, fraud, misrepresentation, or statutory
violations between businesses arising out of business transactions or relationships.
iv.
Be a shareholder derivative or commercial class action.
v.
Arise from commercial bank transactions.
vi.
Relate to trade secrets, non-compete, non-solicitation, or confidentiality
agreements.
vii.
Involve commercial real property disputes other than residential landlordtenant disputes and foreclosures.
viii.
Be a trade secrets, antitrust, or securities-related action.
ix.
Involve business tort claims between or among two or more business entities
or individuals as to their business or investment activities relating to contracts,
transactions, or relationships between or among them.
All parties to the dispute must agree to opt in to the business court pilot program.
Unless the parties otherwise agree upon approval of the presiding judge, existing
Iowa Rules of Civil Procedure, rules of evidence, and other Iowa Court Rules will
apply to business court disputes.
B. Venue.
1.
While jurisdiction refers to the power of the court to hear the case, venue refers to the
place where the case should be tried. Wederath v. Brant, 287 N.W.2d 591 (Iowa
1980).
2.
There are a number of statutory venue provisions. Among the more significant are the
following:
•
An action for the recovery of real property must be brought in the county in
which the property is situated. Iowa Code § 616.1;
•
An action for injuries to real property may be brought in the county where the
property is or where the defendant resides. Iowa Code § 616.2;
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•
An action against a resident must be brought in the county where the person
resides. Iowa Code § 616.5;
•
An action for injury to the person or property can be brought where the
defendant, or one of the defendants, resides or where the injury or damage was
sustained. Iowa Code § 616.18;
In Addison v. Knight, Hoppe, Kurnik & Knight, L.L.C., 734 N.W.2d
(Iowa 2007), an Illinois law firmly regularly represented a Linn County
insurance company’s insureds in Illinois. The Iowa company sued the
law firm for legal malpractice in handling an appeal in the Illinois
appellate court. The law firm moved to dismiss for lack of personal
jurisdiction based on insufficient minimum contacts with Iowa. The
district court denied the motion and the Iowa supreme court affirmed,
finding that the parties had a long-term business arrangement that
caused the law firm to have substantial, ongoing communications with
the insurance company in Iowa. Venue was based on Iowa Code §
616.18:
Actions arising out of injuries to a person or damage to
property may be brought in the county in which the
defendant, or one of the defendants, is a resident or in the
county in which the injury or damage is sustained.
The law firm challenged venue in Linn County since the defendant was not a
Linn County resident and none of the injury or damage was sustained in Linn
County. The supreme court disagreed, finding that the damage took place “at
least in part, in Linn County.” The law firm’s forum non conveniens argument in
its motion to dismiss was not properly preserved for review.
3.
•
An action for simple breach of contract is a personal action governed by Iowa
Code § 616.17. Benton v. Slater, 605 N.W.2d 3 (Iowa 2000);
•
Under the nonresident motorist provision, venue is the plaintiff's residence or the
place where the accident occurred. Iowa Code § 321.507;
•
Under the single-act statute, Iowa Code § 617.3, proper venue is where the
plaintiff resides or where the tort was committed or the contract was to be
performed.
In Iowa, there is a preference for trying cases in the county of a defendant’s
residence. Iowa Code § 616.17, the general venue statute, provides:
Personal actions, except as otherwise provided, must be brought in a
county in which some of the defendants actually reside, but if
neither of them have a residence in the state, they may be used in
any county in which either of them may be found.
In Richards v. Anderson Erickson Dairy Co., 699 N.W.2d 676 (Iowa 2005), the
14
plaintiffs filed a personal injury action in Johnson County. The lawsuit arose out of a
chain-reaction collision on a highway in Grundy County. The plaintiffs sued the
dairy’s employee who was driving the dairy’s semi-truck and the owner and the
operator of another car involved in the accident. None of the parties resided in
Johnson County. The plaintiffs were residents of Grundy County, the semi-truck
driver was a resident of Story County, the operator and the owner of the other car
were Polk County residents, and the dairy was an Iowa corporation whose principal
place of business was in Polk County. The plaintiffs claimed venue was proper in
Johnson County because the dairy regularly drove its trucks through Johnson County.
The dairy and its employee moved for a change of venue which was granted by the
district court and the case was moved to Grundy County. The jury found in favor of
the defendants and the plaintiffs moved for a new trial claiming the case should not
have been transferred to Grundy County. The motion was denied and the plaintiffs
appealed. The question on appeal was whether or not venue was proper in Johnson
County, and, if not, whether it was proper in Grundy County. The court looked first
to the general venue statute, Iowa Code § 616.17, and concluded that venue was
proper in both Story and Polk Counties because at least one defendant resided in each
county. The court then looked to see whether Iowa Code § § 616.18 and 616.8 fit
within the “except as otherwise provided” proviso in § 616.17 and would also make
venue proper in other counties. Under § 616.18, venue would also have been proper
in Grundy County, the scene of the collision. However, contrary to plaintiffs’ claim,
the court concluded that venue was not proper in Johnson County under § 616.8, the
common carrier statute, because § 616.8 does not fall within the “except as otherwise
provided” provision of § 616.18 when the plaintiff also sues other Iowa residents.
Although the dairy was “suable” in Johnson County, it was not a resident of Johnson
County. The court concluded that venue was not proper in Johnson County and the
dairy employee was entitled to have the case moved to a proper venue. Venue was
proper in either Polk or Story counties where at least one defendant resided or in
Grundy County where the collision occurred. The district court correctly transferred
the case to Grundy County.
4.
A number of venue statutes refer to where a party “resides.” The supreme court
has observed:
‘[R]esident ... is an elastic word with varied statutory meanings, dependent
upon the context of the statute in which it is used and the purpose and object
to be attained.’ “ Kroblin Refrigerated Xpress, Inc. v. Iowa Ins. Guar. Ass'n,
461 N.W.2d 175, 177 (Iowa 1990) (quoting Pittsburgh–Des Moines Steel
Co. v. Incorporated Town of Clive, 249 Iowa 1346, 1348, 91 N.W.2d 602,
603–04 (1958)); see also Democko v. Iowa Dep't of Natural Res., –––
N.W.2d ––––, –––– (Iowa 2013) (“We recognize the concept of residency
can have different meanings depending upon context.”).
Root v. Toney, 2013 WL 6516393 (Iowa 2013).
5.
If the action is commenced in the wrong county, the defendant can move for a change
of venue in a separate pre-answer motion or in a combined pre-answer motion under
Iowa R. Civ. P. 1.421. The court must order the action moved to the proper county.
Iowa R. Civ. P. 1.808. If a challenge to venue is not raised, it is waived and the action
15
will proceed even in the improper venue. If a motion is made under Iowa R. Civ. P.
1.421 challenging subject matter or personal jurisdiction, or to recast or strike, for
more specific statement, or to dismiss for failure to state a claim, a motion for a
change of venue also may be included if grounds for the motion exist.
6.
Change of venue may also be granted even where venue is proper if the county is a
party, the judge is directly interested in the action or related to a party, if the movant
cannot get a fair trial because of prejudice or influence, or if the parties so agree.
Iowa R. Civ. P. 1.801.
7.
Dismissal of an action under the doctrine of forum non conveniens, which is a facet
of a venue, is available in Iowa in both state and federal court. Under the doctrine if
there is a more appropriate forum, the court may dismiss the case and require it to be
brought in the other forum, even when the court has subject matter and personal
jurisdiction and venue is proper. In Silversmith v. Kenosha Auto Transport., 301
N.W.2d 725 (Iowa 1981), the court held that the balance of considerations weighed
against assertion of Iowa's jurisdiction on the facts of the case, and that the district
court had abused its discretion in retaining jurisdiction.
a.
The doctrine is a "self-imposed limitation on jurisdictional power which has
been described as a necessary response to the expanding bases of personal
jurisdiction derived from long-arm statutes...which have increased the
likelihood that a court will be faced with an imported lawsuit having little or
no connection with the state in which the action was brought."
b.
Silversmith was an Iowa lawsuit which arose out of a Wyoming highway
accident involving a truck owned and operated by an Iowa plaintiff and a
truck owned by a Wisconsin defendant.
c.
Factors to be considered include:
•
•
•
•
•
•
The site of the accident;
Residence of the parties and witnesses;
Whether other necessary parties are subject to the jurisdiction of the
forum;
Whether witnesses are subject to the subpoena power of the forum
court;
Conflicts of law rules; and
The possibility of a view by the jury.
d.
In order for the doctrine to apply, there must be an alternate forum available.
In dismissing a case, the court may impose reasonable conditions to insure
that a party is not without a forum, such as ordering that the case be
dismissed unless within a specified period of time the plaintiff establishes
that the claim is barred in the more convenient forum.
e.
Hoth v. Sexton, 539 N.W.2d 137 (Iowa 1995), involved a challenge to an
order conditionally dismissing consolidated, bifurcated claims for wrongful
death based on automobile negligence and contractual underinsured motorist
16
benefits on forum non conveniens grounds. The order required the plaintiffs
to commence similar actions in Wisconsin within sixty days; if such
commencement was either successful or not attempted, the dismissal would
become final. The supreme court concluded that the district court employed
an improper standard in granting the defendants' motion and the case was
reversed and remanded for further proceedings. The supreme court observed:
Although the district court's decision makes a
reasonably convincing case as to why Wisconsin is
a more suitable forum for this litigation than is
Iowa, that is not the test for invoking forum non
conveniens.... [W]e do not view the forum non
conveniens doctrine as being designed to promote
efficiency of judicial administration on a multistate
basis. Rather, the doctrine is developed as a means
of protecting a defendant from having to defend in
a unreasonably inconvenient forum. We have
viewed the doctrine as a self-imposed limitation
used to avoid unfair, vexatious and oppressive
action in a forum away from the defendant's
domicile.... Its genesis was a response to the
expanding bases of personal jurisdiction derived
from long-arm statutes.... The convenience of
another forum does not become a consideration
until it has first been shown that the defendant
faces an unreasonable burden in defending in the
plaintiff's chosen forum.
The court concluded that the defendants had failed to demonstrate
that they were unduly burdened by having to defend in Iowa.
C. Jurisdiction Over the Defendant.
1.
There are two types of personal jurisdiction: specific jurisdiction and general
jurisdiction. Specific jurisdiction refers to jurisdiction over causes of action arising
from or related to a defendant's actions within the forum state and may not be
exercised where none of the actions complained of occurred within or had any
connection to the forum state. General jurisdiction refers to the power of a state to
adjudicate any cause of action involving a particular defendant, regardless of where
the cause of action arose. For general jurisdiction to exist, the non-resident defendant
must be engaged in continuous and systematic contacts within the forum. See
generally Waitt v. Speed Control, 212 F. Supp.2d 950 (N.D. Iowa 2002); Roquette
America, Inc. v. Gerber, 651 N.W.2d 896 (Iowa App. 2002)(district court lacked
personal jurisdiction over nonresident defendants).
In contrast to general, all-purpose jurisdiction, specific jurisdiction is confined to
adjudication of issues deriving from, or connected with, the very controversy that
establishes jurisdiction. See generally Goodyear Dunlop Tires Operations, S.A. v.
Brown, 131 S. Ct. 2846 (2011).
17
In McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), the Supreme Court,
in a divided opinion, reversed the decision of the New Jersey Supreme Court which
had held that a British manufacturer of scrap metal was subject to jurisdiction in New
Jersey “even though at no time had it advertised in, sent goods to, or in any relevant
sense targeted the State.” The New Jersey court had held that the state’s courts could
exercise jurisdiction over a foreign manufacturer of a product so long as the
manufacturer “knows or reasonably should know that its products are distributed
through a nationwide distribution system that might lead those products being sold in
any of the fifty states.” The plurality opinion observed that the “stream of commerce’
metaphor carried the decision far afield.” The opinion concluded that, “As a general
rule, the exercise of judicial power is not lawful unless the defendant ‘purposefully
avails itself of the privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws.’” The opinion found that, although
there are exceptions such as for intentional torts, the general rule applied in the
products liability case at hand. In such a case it is the defendant’s purposeful
availment that makes jurisdiction consistent with traditional notions of fair play and
substantial justice.
An opinion concurring in the judgment was based on the observation that none of the
Supreme Court’s precedents finds that a single isolated sale is sufficient for
jurisdiction.
2.
Under the United States Constitution, jurisdiction over a person can be exercised
only if there are sufficient minimum contacts between the state and the individual so
that it is reasonable for the state to exercise jurisdiction over the person. International
Shoe v. Washington, 326 U.S. 310 (1945).
3.
In International Shoe, the Supreme Court stated that due process requires that if the
defendant is not present in the forum, the defendant must have certain minimum
contacts with the forum "such that the maintenance of the suit does not offend
traditional notions to fair play and substantial justice."
4.
The minimum contacts analysis applies to any assertion of state court jurisdiction: inrem, quasi-in-rem, or personal. Shaffer v. Heiter, 433 U.S. 186 (1977).
5.
The all-inclusive language of the Shaffer case that the minimum contacts analysis
applies to all assertions of state court jurisdiction does not, however, include
dissolution of marriage actions - jurisdiction to grant a dissolution is not to be tested
by the minimum contacts standard of International Shoe. Domicile is the basis for
the court's jurisdiction to grant a dissolution, and thus Iowa courts have the power to
grant a dissolution if the petitioner is domiciled in Iowa, even where the respondent is
absent from the state, has never been in the state and was served constructively rather
than personally. In re Marriage of Kimura, 471 N.W.2d 869 (Iowa 1991).
6.
In determining whether or not the minimum contacts standard is met, the Iowa
supreme court applies a five-factor test to the facts of each case. The first three are
the most important:
18
•
The quantity of the contacts defendant, the forum and the cause of action;
•
The nature and quality of the contacts;
•
The source and connection of the cause of act with those contacts;
•
The interest of the forum state; and
•
Convenience to the parties, counsel and the witness.
In Addison v. Knight, Hoppe, Kurnik & Knight, L.L.C., 734 N.W.2d 473 (Iowa
2007), an Illinois law firmly regularly represented an Iowa insurance company’s
insureds in Illinois. The Iowa company sued the law firm for legal malpractice in
handling an appeal in the Illinois appellate court. The law firm moved to dismiss for
lack of personal jurisdiction based on insufficient minimum contacts with Iowa. The
district court denied the motion and the Iowa supreme court affirmed, finding that the
parties had a long-term business arrangement that caused the law firm to have
substantial, ongoing communications with the insurance company in Iowa. The law
firm argued that it did not maintain an office or own any property in Iowa, that none
of its attorneys was licensed to practice in Iowa or resided in Iowa, that the alleged
malpractice did not arise out of any Iowa contact, and thus its contacts with Iowa
were too attenuated to satisfy the due process requirement. The company argued that
the regular communications between the two parties concerning the law firm’s
representation of the company was sufficient for jurisdiction and that the malpractice
action arose out of those contacts.
The supreme court, finding that the district correctly held it had personal jurisdiction,
looked to the following factors:
•
•
•
•
The parties had a contract that lasted for 10 years;
The contract anticipated close supervision of the attorneys by the company and
constant communications between the parties;
There were numerous reporting requirements for settlement demands, research,
deposition scheduling, court filings and trials;
The law firm represented many of the company’s insureds over the years.
The supreme court found the small number personal visits by the firm to Iowa was
not significant in light of the fact that most business is conducted by electronic
means. The firm’s contact were “high quality communications” which assisted the
company is making critical litigation decisions, and because of the nature and quality
of such contacts, the firm should have anticipated being sued in Iowa. The supreme
court also found that the alleged malpractice arose out of or were related to those
contacts. The supreme court found that Iowa had a manifest interest in providing its
residents with a forum for such disputes at least equal to the interest to Illinois.
7.
The third factor—the source and connection of the cause of action with those
contacts—concerns the distinction between general and specific jurisdiction, specific
jurisdiction referring to jurisdiction over causes of action arising from or related to a
19
defendant’s actions within the forum state and general jurisdiction referring to the
power of a state to adjudicate any cause of action involving a particular defendant,
regardless of where the cause of action arose. Hammond v. Florida Financing Corp.,
695 N.W.2d 1 (Iowa 2005).
8.
The supreme court has indicated that trial courts should fashion a proper pretrial
procedure to ensure that jurisdictional questions are resolved before trial, including
giving the parties an opportunity to stipulate to material facts or submitting affidavits
or providing sworn testimony. The court should then make findings of fact upon the
disputed facts and enter rulings upon all of the grounds in the challenge to
jurisdiction. Lansky v. Lansky, 449 N.W.2d 367 (Iowa 1989).
9.
As a part of the minimum contacts analysis, a court must determine whether the outof-state defendant's conduct in connection with the forum is such that the defendant
should "reasonably anticipate being hauled into court" in the forum. World-Wide
Volkswagen v. Woodson, 444 U.S. 286 (1980).
10.
Where the case involves a product placed in the stream of commerce by a party that
can reasonably expect that the product will be used in another state, it seems clear
that the minimum contacts analysis will be met. See Svendsen v. Quester Corp., 304
N.W.2d 428 (Iowa 1981). A more difficult case is where there is no product. In
Norton v. Local Loan, 251 N.W.2d 520 (Iowa 1977), the sole contact with Iowa,
found to be sufficient under the minimum contacts analysis, was a telephone call
placed by the defendant from Nebraska to the Iowa plaintiff. In Larson v. Scholl, 296
N.W.2d 785 (Iowa 1980), the court found sufficient minimum contacts where the
Iowa plaintiff's claim was that the nonresident defendant putative father had sexual
intercourse with her on several occasions in Iowa resulting in a pregnancy. Compare
All Tech, Inc. v. Power Products Co., Inc., 581 N.W.2d 202 (Iowa App.
1998)(substantial evidence supported lack of minimum contacts with state of Iowa in
contract action against foreign corporation); Twaddle v. Twaddle, 582 N.W.2d 518
(Iowa App. 1998)(Minnesota resident defendant did not have sufficient minimum
contacts in Iowa to establish jurisdiction in breach of contract action for money
loaned where only contacts with state were phone conversations, correspondence and
occasional personal visits to his mother, the plaintiff).
11.
The Iowa supreme court has recognized a stronger interest in seeing jurisdiction
extended to nonresident sellers than to nonresident purchasers. Cascade Lumber Co.
v. Edward Rose Building Co., 596 N.W.2d 90 (Iowa 1999).
12.
In contracts cases, the district court should consider the following factors, in addition
to the five-factor test applied in all minimum contacts cases:
•
•
•
Whether the subject of the contract substantially impacts on Iowa;
Iowa’s interest in protecting citizens of the state;
That a seller is more often the “aggressor” and ”receives not only a profit but the
benefit and protection of the forum state’s laws.”
A contract alone does not automatically establish sufficient minimum contacts, nor
does the simplicity or complexity of the contract affect the five-factor test applied in
minimum contacts cases generally.
20
In Cascade Lumber Co., the plaintiff lumber company, an Iowa corporation located
in Dubuque County, was engaged by the defendant, a Michigan corporation, to
supply construction materials for delivery to a building project in Illinois. An action
to declare its rights under the agreement was dismissed for want of personal
jurisdiction. The defendant constructed and managed apartment complexes
throughout the country, though not in Iowa. On the basis of phone conversations, the
plaintiff agreed to supply trusses for the defendant’s building project in Peoria,
Illinois. Three sets of trusses were to be constructed at plaintiff’s place of business in
Iowa, to the defendant’s specifications, and delivered to the site in Peoria. A written
agreement, prepared in Michigan by the defendant, incorporated most of the terms
covered by the telephone conversations. The dispute stemmed from the plaintiff’s
refusal to deliver trusses in 1997 in accordance with the 1996 prices.
The court observed that whatever was to be done under the agreement, either as
contemplated or as the construction proceeded, was to take place at the plaintiff’s
place of business in Iowa. Even though negotiations took place both from the
defendant’s office in Michigan and the plaintiff’s office in Iowa, the construction of
the trusses was to take place only in Iowa. The defendant maintained contact during
construction to assure it was done to its satisfaction.
The court also noted that, except for possibly mishandling the trusses on the date of
delivery to Peoria, the only way the plaintiff could have breached the agreement
would be in connection with its manufacture in Iowa, while the most likely way the
defendant could have breached the agreement would be by failing to pay the plaintiff
in Iowa. Delivery in Illinois was a factor militating against Iowa jurisdiction, but the
agreed payment for the trusses in Iowa favored Iowa.
Finally, the court concluded that the quantity, nature, and quality of the contacts
contended for Iowa jurisdiction. The suit related mainly to construction activity in
Iowa, and Iowa's interest in the dispute was at least equal to that of Illinois or
Michigan and Iowa provided as convenient a forum as any of the three states. The
court held that Iowa had personal jurisdiction and the suit should not have been
dismissed by the district court.
In Ross v. First Savings Bank of Arlington, 675 N.W.2d 812 (Iowa 2004), the issue
was whether Iowa courts have personal jurisdiction over a nonresident participant
bank to a participation agreement with a nonresident lead bank involving a pool of
retail installment contracts, some of which were entered into by the vendor in Iowa
with Iowa residents, in an action by the vendees for breach of the installment
contracts. The court concluded that participation agreements of the type involved in
the case do not alone establish sufficient minimum contacts between the forum state
where the contracts in the pool were executed and a nonresident participant bank.
The nature of the participation agreement revealed the participant bank had no
purposeful contact with Iowa. The agreement merely involved the purchase from a
nonresident bank of a right to receive a portion of whatever contract payments were
collected by the nonresident lead bank. The participation agreement also showed the
participant bank had no real connection to the underlying cause of action between the
vendor and the vendee to the retail installment contract. It would offend the
21
traditional notions of fair play and substantial justice, the court concluded, to find
Iowa courts had personal jurisdiction over First Savings.
See also Nebraska Beef Limited v. KBK Financial, Inc., 288 F.3d 985 (8th Cir.
2003)(applying five-factor test, district court lacked personal jurisdiction because
defendant did not have sufficient contacts with state in action between Texas
company and Nebraska company)(final two factors in test weighed against exercise
of personal jurisdiction).
13.
In contract cases, there is an additional element to consider. If the nonresident
defendant is an "active purchaser" - one who aggressively solicits a business
transaction and participates in some way in the production of the goods - it is more
likely there will be found to be sufficient minimum contacts than if the defendant is a
"passive purchaser" whose business is solicited and "who simply places an order and
sits by until the goods are delivered." The passive purchaser is "less likely to have
availed itself purposely of the privilege of doing business in the forum state." Al-Jon,
Inc. v. Garden Street Iron & Metal, Inc., 301 N.W.2d 709 (Iowa 1981)(passive
purchaser who simply purchased standard product manufactured in Iowa, held,
insufficient contacts).
14.
Bic, Inc. v. Schleisman, 443 N.W.2d 78 (Iowa App. 1989) involved a contract
between the plaintiff corporation and the defendant retailer and service agent. Both
parties were Iowa residents at the time of the contract. The defendant later sold his
business and left the state. The plaintiff sued the defendant in Iowa alleging
jurisdiction under Iowa Code § 617.3 for a contract to be performed in whole or in
part in Iowa. The trial court dismissed for lack of sufficient minimum contacts and
the court of appeals affirmed.
15.
In Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985), the Supreme Court
suggested that an individual's contract with an out-of-state party alone will not
automatically establish sufficient minimum contacts in the plaintiff's home forum.
The prior negotiations and contemplated future consequences, along with the terms
of the contract and the parties' actual course of dealing must be examined to
determine whether the defendant "purposely established minimum contacts within
the forum."
16.
An important consideration in these kinds of cases seems to be whether the defendant
somehow invoked the protection of Iowa law.
17.
It is the defendant's residence that is significant for the minimum contacts analysis;
the plaintiff's residence in the forum is not a separate requirement and the lack of
plaintiff's residence will not defeat jurisdiction. Keeton v. Hustler Magazine, Inc. 465
U.S. 770 (1984). However, the Supreme Court has also said that although a plaintiff's
lack of contacts with the forum will not defeat otherwise proper jurisdiction, "they
may be so manifold as to permit jurisdiction when it would not exist in their
absence." Calder v. Jones, 465 U.S. 783 (1984). In Calder, the Supreme Court noted
that an assertion of jurisdiction might be especially proper when the out-of-state
conduct is intentional and calculated to cause injury in the forum. Also, First
22
Amendment concerns do not enter into the minimum contacts analysis and no special
procedural protection is granted to a defendant in defamation actions.
18.
In Shams v. Hassan, 822 N.W.2d 746 (Iowa 2013), the Iowa supreme court
discussed the current status of the minimum contacts analysis:
In the past, we have utilized an arguably different test from the
federal model. We have articulated a five-factor test to evaluate whether a
nonresident defendant had sufficient minimum contacts with Iowa. Id. at
833. The five factors are:
“(1) the quantity of the contacts;
(2) the nature and quality of the contacts;
(3) the source of and connection of the cause of action with those contacts;
(4) the interest of the forum state; and
(5) the convenience of the parties.”
Ross, 675 N.W.2d at 816 (quoting Cascade Lumber Co. v. Edward Rose
Bldg. Co., 596 N.W.2d 90, 92 (Iowa 1999)). We have generally considered
the first three to be the most important. Cascade Lumber Co., 596
N.W.2d at 92.
Without expressly disavowing our five-factor test, we have
followed the modern federal framework more closely in recent years,
relying on its two main criteria. Capitol Promotions, 756 N.W.2d at
834. The two criteria are (1) whether “ ‘the defendant has “purposefully
directed” his activities at residents of the forum,’ ” and (2) whether “
‘the litigation results from alleged injures that “arise out of or relate to”
those activities.’ ” Id. (quoting Burger King Corp., 471 U.S. at 472–
73, 105 S. Ct. at 2182, 85 L. Ed. 2d at 540–41). Nonetheless, our
older five- factor test remains a useful tool, even if it may have less primacy.
See id.
If sufficient minimum contacts exist, the court must then
“ ‘determine whether the assertion of personal jurisdiction would
comport with “fair play and substantial justice.” ’ ” Id. (quoting Burger
King Corp., 471 U.S. at 476, 105 S. Ct. at 2184, 85 L. Ed. 2d at 543). In
making this latter decision, we consider:
“the burden on the defendant,” “the forum State’s interest in adjudicating
the dispute,” “the plaintiff's interest in obtaining convenient and effective
relief,” “the interstate judicial system's interest in obtaining the most
efficient resolution of controversies,” and the “shared interest of the several
States in furthering fundamental substantive social policies.”
Burger King Corp., 471 U.S. at 477, 105 S. Ct. at 2184, 85 L. Ed. 2d at
543) (quoting World-Wide Volkswagen Corp., 444 U.S. at 292, 100 S. Ct.
at 564, 62 L. Ed. 2d at 498).
“ ‘These considerations sometimes serve to establish the
reasonableness of jurisdiction upon a lesser showing of minimum
contacts than would otherwise be required.’ ” Capitol Promotions,
23
756 N.W.2d at 837 (quoting Burger King Corp., 471 U.S. at 477, 105 S.
Ct. at 2184, 85 L. Ed. 2d at 543–44). “When minimum contacts
have been established, often the interests of the plaintiff and the
forum in the exercise of jurisdiction will justify even the serious
burdens placed on the alien defendant.” Asahi Metal Indus. Co. v.
Super. Ct. of Cal., 480 U.S.102, 114, 107 S. Ct. 1026, 1033, 94 L.
Ed. 2d 92, 105–06 (1987).
“[W]here a defendant who purposefully has directed his activities at forum
residents seeks to defeat jurisdiction, he must present a compelling
case that the presence of some other considerations would render
jurisdiction unreasonable.” Burger King Corp., 471 U.S. at 477, 105 S.
Ct. at 2184–85, 85 L. Ed. 2d at 544. We are careful, however, to ensure
that jurisdictional rules are not employed one way or another to make
litigation “ ‘so gravely difficult and inconvenient’ that a party unfairly is at
a ‘severe disadvantage’ in comparison to his opponent.” Id. at 478, 105 S.
Ct. at 2185, 85 L. Ed. 2d at 544 (quoting M/S Bremen v. Zapata OffShore Co., 407 U.S. 1, 18, 92 S. Ct. 1907, 1917, 32 L. Ed. 2d513, 525
(1972) (first quoted material); McGee, 355 U.S. at 223, 78 S. Ct. at 201, 2
L. Ed. 2d at 226 (second quoted material)).
See also Ostrem v. Prideco Secure Loan Fund, LP, 2014 WL 90574 (Iowa 2014).
19.
In Burnham v. Superior Court, 495 U.S. 604 (1990), the United States Supreme
Court concluded that the Due Process Clause of the Fourteenth Amendment allows
state court jurisdiction over a nonresident personally served with process while
temporarily in the state even when the suit is unrelated to the defendant's activities in
the state. The defendant, a New Jersey resident, was served in a California divorce
proceeding while visiting in that state on business. The California courts held that
presence and personal service in the forum were valid for jurisdictional purposes.
The United States Supreme Court affirmed the judgment, although no rationale was
accepted by the majority of the Court. There was a consensus among the majority of
the Court members that physical presence alone has historically been sufficient for
jurisdictional purposes, however.
20.
The Due Process Clause of the Fourteenth Amendment protects a person from being
deprived of property "without due process of law." The United States Supreme Court
has applied that requirement to the effect that individuals whose property interests are
at stake are entitled to "notice and opportunity to be heard." Dusenbery v. U.S., 122
S.Ct. 684 (2002) citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 70 S. Ct. 652, 94 L. Ed. 865 (1950). The Supreme Court has regularly turned to
the Mullane decision with respect to questions regarding the adequacy of the method
used to give notice. See Dusenbery v. U.S., 122 S.Ct. 684 (2002).
21.
One method of exercising jurisdiction over an individual is to attach property
belonging to that person. The court can then adjudicate a claim against the person at
least to the extent of the property attached. This is a form of quasi-in-rem jurisdiction
and is available in Iowa under Iowa Code § 639.1, et seq. Due process requires some
form of preliminary, summary proceeding before property can be attached to
determine whether the plaintiff's claim is at least valid on its face. North Georgia
Finishing v. Di-Chem, 419 U.S. 601 (1975).
24
22.
A person may consent to the exercise of jurisdiction by the court. The consent may be
given prior to or the commencement of the action or during the action itself.
23.
Under the Constitution, jurisdiction can be exercised over the defendant only if the
defendant is given notice reasonably calculated to apprise the party of the pendency
of the action. Mullane v. Central Hanover Bank & Trust, 339 U.S. 306 (1950).
Adequate notice may include:
•
•
•
•
24.
25.
III.
Personal notice;
Mailed notice;
Published notice if property is attached at the same time;
Published notice alone if a better technique is not available.
Unlike subject matter jurisdiction, lack of personal jurisdiction is waived if not raised
by a party in a timely manner.
a.
Lack of personal jurisdiction may be asserted in a pre-pleading motion, or in
the pleading itself under Iowa R. Civ. P. 1.421.
b.
A motion challenging personal jurisdiction may include the defense of lack
of jurisdiction over the person or insufficiency of the original notice or its
service.
c.
A challenge to personal jurisdiction may also be based on undue delay in
serving the defendant.
d.
If a pre-pleading motion is made under Iowa R. Civ. P. 412, any challenge to
personal jurisdiction must be included or it is waived.
e.
The proper relief where the court lacks personal jurisdiction is usually to
quash service, rather than to dismiss the action. The plaintiff can then reattempt service.
In the process of deciding jurisdictional issues, the district court may be asked to
decide the merits of the parties’ claims. Allegations involving the merits of a claim
may be controverted in attacking jurisdiction and the jurisdictional challenges may be
allowed to succeed if there is no genuine issue of material fact as to the absence of
jurisdiction. The supreme court has cautioned, however, that if genuine issues of
material fact do exist concerning controverted allegations going to the merits of a
claim, those issues should not be resolved by district court findings of fact made in
regard to a jurisdictional challenge, even if jurisdiction depends on those facts. Such
issues should be reserved for determination by the trier of fact at trial. Hammond v.
Florida Financing Corp., 695 N.W.2d 1 (Iowa 2005).
COMMENCEMENT OF ACTIONS; SERVICE OF PROCESS AND OTHER PAPERS.
A. Commencement of Actions.
25
1.
Iowa R. Civ. P. 1.301 provides that an action is commenced by filing a petition or
complaint. The filing of a petition or complaint will toll the applicable statute of
limitations.
Iowa R. Civ. P. 1.301(2) requires that a cover sheet available from the clerk of court
or from the judicial branch web site (www.judicial.state.ia.us) must be completed and
accompany every civil petition except in small claims, probate, and mental health
commitment actions. This requirement is solely for administrative purposes, and
matters appearing on the civil cover sheet have no legal effect in the action.
2.
Earlier decisions required that the plaintiff use due diligence in attempting to cause
service to be made on the defendant, to get the benefit of the tolling provision. The
decisions focused on whether the delay in service was “abusive.”
a.
The plaintiff cannot file a petition and get an order ex parte sealing the file;
it may be determined later that the statute of limitations was not tolled when
the plaintiff intentionally "buries it" in that fashion. Scieszinski v. City of
Wilton, 270 N.W.2d 450 (Iowa 1978). See also Estate of Steinberg v.
Pariseau, 443 N.W.2d 711, 714 (Iowa 1989)(dismissal for failure to serve
original notice and petition promptly after filing will be imposed if abusive
delay results). In Bean v. Midwest Battery & Metal, 449 N.W.2d 353 (Iowa
1989), a slip-and-fall action, the petition was filed on the very last day that
suit could be commenced. According to the opinion, the requirements of
Iowa R. Civ. P. 1.302 "were totally ignored" because there was an eightmonth delay in serving the defendant. No action was taken at all for six
months when the court gave notice of a trial-setting conference. The court
concluded that the eight-month delay was "presumptively abusive" and that
the burden was on the plaintiff to justify the delay. The trial court's
dismissal of the case was upheld.
b.
In Alvarez v. Meadow Lane Mall Limited Partnership, 560 NW2d 588 (Iowa
1997), the court held a 159-day delay between filing and service to be
presumptively abusive. The court said that such cases require the following
determinations:
•
•
•
•
First, the court must determine if the delay was presumptively
abusive;
If the delay was presumptively abusive, the court must then
determine if the plaintiff has carried the burden of proving the delay
was justified;
If the delay was not justified, the case must be dismissed;
If the delay was justified, dismissal by reason of abusive delay is
inappropriate, although an intentional delay can still require
dismissal.
Although there was no "bright line" test under the Iowa rules for when a
delay becomes presumptively abusive, the court did suggest that the federal
rule requiring service within 120 days of filing the complaint might be
appropriate for separating the serious institution of litigation from filing a
26
petition to "ice" the statute of limitations. The court also concluded that the
plaintiff had not met the burden of showing the delay was justified by
assuming that the insurer for the defendant would accept service but then
failing to cause service for 159 days after the insurer did not respond; the
plaintiff cannot "shift to defendant's insurer her own responsibility to provide
for service as required by Iowa rule of civil procedure 49(a)."
3.
c.
In another case where the original notice was not served until 169 days after
the filing of the petition, the court concluded that the delay was intentional
and presumptively abusive and that the existence of ongoing settlement
negotiations, even if done in good faith, does not constitute adequate
justification or good cause for delaying service. Henry v. Shober, 566 NW2d
190 (Iowa 1997).
d.
A seven-month delay in service was also held to be presumptively abusive.
The court said it is not relevant that the delay was not intentional or that the
defendant knew that a lawsuit had been filed, and that counsel’s lack of
knowledge, misunderstanding or ignorance of the rules of civil procedure
does not excuse delay in service. Mokhtarian v. GTE Midwest Inc., 578
N.W.2d 666 (Iowa 1998). A 483-day delay was also held to be
presumptively abusive and the delay was not justified where the record
showed “a pattern of half-hearted efforts punctuated by long periods of
inactivity, ignorance of the rules relating to service of notice, and neglect.”
McCormick v. Meyer, 582 N.W.2d 141 (Iowa 1998).
e.
A 171-day delay was also held presumptively abusive and because the order
dismissing the case did not state that it was without prejudice, it was deemed
an adjudication on the merits under Iowa R. Civ. P. 1.946, barring
reinstitution of the same litigation in a subsequent action. Becker v. Becker,
603 N.W.2d 627 (Iowa 1999). See also Carroll v. Martir, 610 N.W.2d 850
(Iowa 2000)(195-day delay in serving defendants together with totality of
circumstances suggested attempt to “ice” statute of limitations so that more
time could be given to settlement negotiations; substantial evidence
supported district court’s finding that there was inadequate justification for
delay in service on defendants.
Iowa R. Civ. P. 1.302(5) now provides that if service of the original notice is not
made upon the defendant, respondent, or other party to be served within 90 days after
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 as to that
defendant, respondent, or other party to be served or direct an alternate time or
manner of service. If the party filing the papers shows good cause for the failure of
service, the court must extend the time for service for an appropriate period. See
Brubaker v. Estate of DeLong, 700 N.W.2d 323 (Iowa 2005)(district court did not
error in dismissing case after granting five extensions to plaintiff to obtain service
where record supported inadvertence, neglect and half-hearted attempts to obtain
service over defendant).
Iowa R. Civ. P. 1.302(5) establishes the standard for presumptive abuse in the delay
27
in completing service. The district court now must only decide if the plaintiff has
shown justification for the delay. See generally Meier v. Senecaut III, 641 N.W.2d
532 (Iowa 2002).
Good cause to show justification for the delay requires that:
[t]he plaintiff must have taken some 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
...
Meier v. Senecaut III, 641 N.W.2d 532 (Iowa 2002)(plaintiff failed to show good
cause for delay).
a.
Clear good-faith settlement negotiations standing alone do not constitute
good cause for delays in service beyond the ninety-day limit. See Antolik v.
McMahon, 744 N.W.2d 82 (Iowa 2007). However, there may be good cause
for delay if the parties have entered into an agreement to extend the service
period. While recognizing such agreements may constitute good cause, the
court also warned that private agreements not to effect service should not be
permitted to delay such matters for an extended length of time; at some point
early in the process, the court should take hold of the case and move matters
along. To do otherwise permits cases to sit in the system “growing
whiskers,” an unnecessary and most undesirable result. Wilson v. Ribbens,
678 N.W.2d 417 (Iowa 2004).
b.
The agreement to extend the service period may be an implied agreement.
See Rucker v. Taylor, 2013 WL 1170590 (Iowa 2013)(no implied contract
where letter from defendant to plaintiff fell short of offer to modify the
ninety-day service requirement; letter contained only vague allusion
suggesting that service would occur at some point in the future once
negotiations fail, but it was too vague to constitute offer to alter the rule by
delaying service in exchange for promise not to seek dismissal)(good cause
existed to excuse untimely service of process when plaintiff, who failed to
negotiate enforceable agreement with defendant's insurance representative to
delay service, took no action to institute service of process of lawsuit on
defendant within time period required by Iowa R. Civ. P. 1.302(5)).
c.
The inaction of someone under the attorney’s supervision, such as a
paralegal, has also been held not to constitute good cause for a delay in
service. For example, in one case based on a vehicle accident which
occurred on May 26, 2004, the petition was filed on May 23, 2006, and the
original notice and petition were sent on that same date to the sheriff for
28
service. However, service was not completed until 274 days after the petition
was filed, or 184 days after the 90-day deadline in Iowa R. Civ. P. 1.302(5).
In response to the defendant’s motion to dismiss for the delay in service, the
plaintiff’s attorney argued that his paralegal’s failure to cause service to be
effected, including the paralegal’s willful withholding from the attorney that
service had not been completed, constituted good cause for the delay. The
district court concluded that the paralegal’s inaction constituted good cause
for the delay, but on appeal the court of appeals disagreed. Noting the
general rule that good cause requires that some affirmative action be taken to
effectuate service or that the failure to complete service was the result of the
conduct of a third person, the court of appeals observed that the sole attempt
to complete service was the initial delivery of the petition and original notice
to the sheriff and that the paralegal was “just left to her own devices on the
matter with little or no supervision by the attorney for approximately eight
months after the petition was filed until the dismissal hearing.” 24 “Not
monitoring the progression of a case in one’s own office until eight months
have passed is akin to the uncontrollable, rogue actions of a third party
beyond the attorney or party’s reach that prevents timely service,” the court
said. Even though the paralegal may have concealed her dilatoriness on the
case, where counsel failed to actively inquire of the case’s development with
her or with the district court, good cause for the delay was not established.
Palmer v. Hofmann, 745 N.W.2d 745 (Iowa App. 2008).
d.
A motion to dismiss for delay of service falls within the category of motions
to dismiss that do not address the pleadings. The district court may consider
matters outside the pleadings raised in the motion to dismiss, the resistance,
the reply to the resistance (including documents submitted in support of the
resistance), and any affidavit in support of the resistance to the motion to
dismiss. See Carroll v. Martir, 610 N.W.2d 850 (Iowa 2000).
e.
The appellate court reviews a district court's ruling on a motion to dismiss
for delay in service for errors at law. The appellate court is not bound by the
district court's legal conclusions but is bound by the court's findings of fact if
they are supported by substantial evidence. See also Falada v. Trinity
Industries, Inc., 642 N.W.2d 247 (Iowa 2002)(district court did not err in
finding that plaintiff showed adequate justification for delay in service when
plaintiff immediately served defendant after learning of error in serving
wrong party after 90-day period required by rule).
f.
A dismissal under Iowa R. Civ. P. 1.302(5) for failure to serve the original
notice in a timely manner is not a dismissal on the merits. In a medical
malpractice action against an anesthesiologist professional corporation and
its employees, the district court dismissed the action against the employees
“with prejudice” after the plaintiffs failed to serve them with an original
notice within ninety days after filing the petition. The district court then
granted the employer summary judgment on the grounds that the dismissal
precluded litigation on the claims against the employer. The court of appeals
affirmed. However, the supreme court vacated the court of appeals decision
and reversed the district court and remanded the case for further
29
proceedings. Although a judgment in favor of a defendant is a bar to another
action by the plaintiff on the same claim, there is an exception to the general
rule when the judgment is a dismissal for lack of jurisdiction. An action filed
and dismissed for failure to serve the original notice in a timely manner
under Iowa R. Civ. P. 1.302(5), which is a dismissal for lack of jurisdiction,
is not a dismissal on the merits and is not res judicata. Thus, the dismissal of
the employees did not preclude the litigation of the plaintiffs’ claims against
the employer. Dickens v. Associated Anesthesiologists P.C., 709 N.W.2d
122 (Iowa 2006).
B. Statutes of Limitations.
1.
Where the action is commenced after the statute of limitations has run, the claim is no
longer enforceable. However, courts do not favor the statute of limitations defense.
2.
In determining the appropriate statute of limitations for a specific cause of action, the
court must examine the foundation of the action, i.e., the appropriate statute of
limitations is to be ascertained by characterizing the actual nature of the action. For
example, in one legal malpractice action in which the client alleged that the attorney
breached their contract and engaged in negligent or fraudulent misrepresentation, the
client sought damages for emotional distress and discomfort. The breach of contract
claim was covered by the ten-year statute of limitations in Iowa Code § 614.1(5) and
the negligent or fraudulent misrepresentation claims were subject to the five-year
statute of limitations in Iowa Code § 614.1(4). However, the claims for emotional
distress and discomfort were injuries to the person under Iowa Code § 614.1(2). See
Tracy v. Soble, 2011 WL 944420 (Iowa 2011).
3.
In computing time under the rules, the first day is not counted but the last day is
counted, unless the last day falls on a Saturday, Sunday or holiday, in which case the
next day which is not a Saturday, Sunday holiday is the last day. For example, if the
defendant is served on Jan. 1 and the original notice states that the defendant has
twenty days to answer, the last day to answer is Jan. 21, unless Jan. 21 is a Saturday,
Sunday or holiday.
4.
There are a number of general and special statutes of limitation in the Iowa Code.
Iowa Code Chapter 614 contains a number of general limitations periods, including
the following:
a. Actions founded on injuries to the person or reputation, whether based on
contract or tort, 2 years. Iowa Code § 614.1(2);
b. Actions founded on unwritten contract or injuries to property, 5 years. Iowa
Code § 614.1(4);
c. Actions founded on written contracts or for the recovery of real property, 10
years. Iowa Code § 614.1(5);
d. Actions on a judgment of a court of record, 20 years. Iowa Code § 614.1(6);
30
e. Iowa Code § 614.1(2A) provides that, with respect to products, actions
founded on the death of a person or injuries to the person or property based on
strict liability in tort, negligence, or breach of an implied warranty cannot be
commenced more than fifteen years after the product was first purchased, leased,
bailed, or installed for use or consumption unless expressly warranted for a
longer period of time by the manufacturer, assembler, designer, supplier of
specifications, seller, lessor, or distributor of the product.
Iowa Code § 614.1(2A)(a) is a statute of repose which prevents a cause of action
from accruing. A cause of action for contribution ordinarily accrues when one
tortfeasor has discharged more than the tortfeasor’s proportionate share of a
common obligation. In applying a statute of repose to a contribution claim, the
first step is to determine when the statute of repose begins to run. Under §
614.1(2A)(a), the fifteen-year statute of repose begins to run after the product
was first purchased, leased, bailed, or installed for use or consumption unless
expressly warranted for a longer period of time by the manufacturer, assembler,
designer, supplier of specifications, seller, lessor, or distributor of the product. A
product liability action may be brought within fifteen years. After fifteen years,
the repose period begins: the repose period extinguishes claims that accrued
more than 15 years prior to the start of the repose period and also prevents claims
from accruing during the repose period. See Ryan v. Heritage Trails Associates,
Inc., 745 N.W.2d 724 (Iowa 2008)(common liability did not exist where statute
of repose in Iowa Code § 614.1(2A)(a) prevented claims of some parties from
whom contribution was sought from accruing)(Iowa Code § 614.1(2A)(a) did
not do away with common liability requirement of Iowa Code § 668.5(1) for
contribution claims in product liability actions).
Iowa Code § 614.1(2A)(a) creates an exception to the repose period for n claims
in product liability cases:
This subsection shall not affect the time during which a
person found liable may seek and obtain contribution or
indemnity from another person whose actual fault caused
a product to be defective.
The intent of the exception is to avoid the response period from having an
effect on a contribution claim. Thus, the repose period does not prevent a
contribution claim from accruing.
Iowa Code § 668.5(1) provides:
Right of contribution.
1. A right of contribution exists between or among two or
more persons who are liable upon the same indivisible
claim for the same injury, death, or harm, whether or not
judgment has been recovered against all or any of them.
Iowa Code § 668.5(1) requires the party seeking contribution to have
common liability with the party from whom contribution is sought.
31
Common liability is determined at the time of the injury out of which the
right to contribution arises and not at the time the contribution claim is
made. See Ryan v. Heritage Trails Associates, Inc., 745 N.W.2d 724
(Iowa 2008).
f.
Iowa Code § 613.18 provides:
Limitation on products liability of nonmanufacturers.
1. A person who is not the assembler, designer, or manufacturer,
and who wholesales, retails, distributes, or otherwise sells a product
is:
a. Immune from any suit based upon strict liability in tort or breach
of implied warranty of merchantability which arises solely from an
alleged defect in the original design or manufacture of the product.
b. Not liable for damages based upon strict liability in tort or breach
of implied warranty of merchantability for the product upon proof
that the manufacturer is subject to the jurisdiction of the courts of
this state and has not been judicially declared insolvent.
2. A person who is a retailer of a product and who assembles a
product, such assembly having no causal relationship to the injury
from which the claim arises, is not liable for damages based upon
strict liability in tort or breach of implied warranty of
merchantability which arises from an alleged defect in the original
design or manufacture of the product upon proof that the
manufacturer is subject to the jurisdiction of the courts of this state
and has not been judicially declared insolvent.
3. An action brought pursuant to this section, where the claimant
certifies that the manufacturer of the product is not yet identifiable,
tolls the statute of limitations against such manufacturer until such
time as discovery in the case has identified the manufacturer.
See generally Buechel v. Five Star Quality Care, Inc., 745 N.W.2d
732 (Iowa 2008)(two year statute of limitations for personal injuries
in Iowa Code § 614.1(2) was tolled upon certification that
manufacturer is unknown until manufacturer was identified in
discovery).
g. The statute governing medical malpractice actions, Iowa Code § 614.1(9),
provides that, except as to certain minors, actions founded on injuries to the
person or wrongful death arising out of patient care, must be brought within
two years after the date on which the claimant knew, or through the use of
reasonable diligence should have known, or received notice in writing of the
existence of, the injury or death for which damages are sought in the action,
whichever of the dates occurs first. However, in no event may any action be
brought more than six years after the date on which occurred the act or
omission or occurrence alleged in the action to have been the cause of the
injury or death unless a foreign object unintentionally left in the body caused
the injury or death. An action brought on behalf of a minor who was under
the age of eight years when the act, omission, or occurrence alleged in the
32
action occurred, must be commenced no later than the minor's tenth birthday
or as provided in the statute, whichever is later.
In Rathje v. Mercy Hospital, 745 N.W.2d 711 (Iowa 2008), the supreme
court clarified the application of the medical malpractice statute of
limitations. The supreme court held that the statute of limitations for medical
malpractice actions does not begin to run until discovery of the injury and its
factual cause. The plaintiffs, a sixteen-year old girl being treated for alcohol
abuse, and her parents, sued numerous heath care providers alleging that
they were negligent in prescribing Antabuse and in their treatment of her for
alcohol abuse, resulting in irreversible liver and ultimately a liver transplant.
The lawsuit was filed April 26, 2001. Several of the defendants were
dismissed out of the case. The remaining defendants, the medical director at
the alcohol treatment center of the hospital where she receive the treatment
and the hospital claimed that the statute of limitations began to run when the
patient began to experience symptoms of her injury prior to April 26, 1999.
The plaintiffs claimed the statute began to run when she learned after April
26, 1999, that her liver was irreversibly damages, or, at the earliest, when her
condition worsened on April 26, 1999, to include symptoms of jaundice. The
district court granted the defendants summary judgment motion based on the
two-year statute of limitations.
The supreme court reviewed the history of the statute of limitations for
medical malpractice. The early rule that developed was that a claim for
personal injury did not accrue until the injury occurred, rather than at the
time of the wrongful act, since in many instances the injury did not occur
until well after the wrongful act. This rule was applied even when the
plaintiff had not discovered the injury or its cause. Eventually, the supreme
court followed the national trend and applied the discovery rule to claims
based on negligence, including medical malpractice cases. The supreme
court held that a claim did not accrue until the plaintiff knew or should have
known of the existence of the cause of action, which meant discovery of the
injury and its cause, and that the physician was negligent.
In 1975, Iowa Code § 614.1(9)(a) was adopted, maintaining the two-year
statute of limitations for medical malpractice actions, including a discovery
rule, and with a six-year period of repose on the applicability of the
discovery rule. Unlike the common-law rule which provided that the cause
of action accrued upon discovery of the injury and its cause, as well as
discovery of the negligent conduct, under § 614.1(9)(a), the statute of
limitations begins to run when the patient knew, or through the use of
reasonable diligence should have known of the injury or death for which
damages are sought.
Cases interpreting the statute have held that the statute of limitations begins
to run when the plaintiff knows or through the use of reasonable diligence
should have known of the physical harm, but the court observed that it had
“severely restricted the discovery rule, essentially using it to require only
inquiry notice of physical harm.” i.e. the statute of limitations begins to run
33
“once symptoms of the physical harm are experience by a patient during or
after medical treatment, even though there is no indication of a cause or
negligent conduct by a doctor.”
Applying these rules to the plaintiff, she would have been on inquiry notice
prior to April 26, 1999, even though she had no idea of the cause of the
harm prior to the filing of the lawsuit.
The supreme court concluded that the legislature, in adopting the statute,
intended to reject the common-law requirement of discovery of the
physician’s negligence as a triggering event for the discovery rule. However,
the supreme court also said that there was no indicating in adopting the
statute that the legislature intended to reject causation as a component of the
discovery of the injury. The legislature intended, the supreme court
concluded, that the medical malpractice statute of limitations commences
“upon actual or imputed knowledge of both the injury and its cause in fact,”
and the triggering event “must at least be identified by sufficient facts to put
a reasonably diligent plaintiff on notice to investigate.” The plaintiff need
not know the full extent of the injury; but the statute begins to run “only
when the injured party’s actual or imputed knowledge of the injury and its
cause reasonably suggest an investigation is warranted.”
The supreme court emphasized that “the knowledge standard under the
statute is predicated on actual or imputed knowledge of the facts to support
the injury and of the facts to support a cause,” but the plaintiff “does not
need to discover that the doctor was negligent.”
Applying its interpretation of the statute to the facts of the case, the supreme
court concluded that the plaintiff knew of her injury but not necessarily the
cause of the harm until after April 26, 1999, when she was diagnosed with
“drug-induced hepatitis secondary to Antabuse.” And until then, there was q
question whether she had sufficient facts which would have alerted a
reasonably diligent person that the cause of the injury may have been her
medical treatment so as to have put her on notice of a need to investigate.
The district court should not have granted the defendants’ summary
judgment motion.
Murtha v. Cahalan, 745 N.W.2d 711 (Iowa 2008), decided the same day as
Rathje, involved the application of Rathje to a medical malpractice negligent
diagnosis case for failing to properly diagnose the patient’s breast cancer.
The supreme court emphasized that Rathje held the statute of limitations is
triggered upon actual or imputed knowledge of both the injury and its cause
in fact, but knowledge of the wrongfulness of the defendant’s conduct is not
required. Determining when the statute of limitations is triggered is a twostep process:
• The plaintiff must have knowledge, or imputed knowledge, of an injury,
i.e., physical or mental harm; and
• The plaintiff must have knowledge, or imputed knowledge, of the cause
in fact of such injury.
34
A complication in some cases, such as negligent diagnosis, the supreme
court noted, is determining what the “injury” is. In such cases, the injury is
not the existence of a continuing undiagnosed condition, but rather the injury
occurs “when the problem grows into a more serious condition which poses
greater danger to the patient or which requires more extensive treatment.”
Wrongful death claims and loss of spousal consortium claims based on
medical malpractice are governed by Iowa Code § 614.1(9)(a). The
limitations period commences on the date that the plaintiff has knowledge of
the death giving rise to the claim and not when the plaintiff learns of the
wrongful act that caused the death. A claim brought by an executor or
administrator on behalf of a minor for loss of parental consortium damages
under Iowa Code § 614.1(9)(b) does not require that the minor was the
patient who received the allegedly negligent care. In Christy v. Miulli,
N.W.2d 694 (Iowa 2005), the plaintiff filed a wrongful death action against
the physician who had performed a biopsy procedure in her husband a week
before he died three years earlier. The plaintiff also sued the physician’s
employer and the hospital where the procedure was performed. The supreme
court affirmed the district court grant of the defendants’ summary judgment
motion against the hospital dismissing the plaintiff’s wrongful death and loss
of consortium claims as barred by the statute of limitations but reversed the
dismissal of the claims against the physician and his employer. The supreme
court reversed the dismissal of the loss of consortium claim brought on
behalf of the decedent’s minor children.
With respect to the plaintiff’s claims, the district court had rejected the
plaintiff’s argument that the statute of limitations was tolled by the
fraudulent concealment doctrine. Reviewing the doctrine, the court said that
the proper analytical basis for fraudulent concealment is as a form of
equitable estoppel, rather than a form of the discovery rule. Under that
rationale, equitable estoppel “has nothing to do with the running of the
limitations period or the discovery rule: it simply precludes a defendant from
asserting the statute as a defense when it would be inequitable to do so.” The
elements of equitable estoppel are as follows:
•
•
•
•
The defendant has made a false representation or has concealed
material facts;
The plaintiff lacks knowledge of the true facts;
The defendant intended the plaintiff to act upon such
representations; and
The plaintiff did in fact rely upon such representations.
With respect to the first element, the plaintiff must prove that the defendant
did some affirmative act to conceal the plaintiff’s cause of action
independent of and subsequent to the liability-producing conduct. The
plaintiff’s reliance must be reasonable. The circumstances justifying an
estoppel end when the plaintiff becomes aware of the fraud, or by the use of
ordinary care and diligence should have discovered it. The plaintiff must
35
prove equitable estoppel by a clear and convincing preponderance of the
evidence. The court concluded that there was an issue of fact as to whether
the physician was estopped by his acts of concealment from raising the
statute of limitations defense and thus the district court erred in granting
summary judgment to the physician.
With respect to the minor children’s’ loss of consortium claims, the
defendants argued that Iowa Code § 614.1(9)(b) applied only when the
minor suffered personal injuries from the alleged malpractice, and that §
614.1(9)(a) applied when the claim as one for loss of consortium brought by
the executor of the decedent’s estate. The supreme court found no support in
the language of the statute for the defendants’ argument to the contrary,
concluding that § 614.1(9)(b) applied to a claim by an executor or
administrator for the loss of consortium claims of minor children. The court
also noted that such claims should be joined with a deceased parent’s claim
under the feasible joinder rule where feasible. Christy v. Miulli, 692 N.W.2d
694 (Iowa 2005).
Section 614.1(9)(b) only tolls the statute of limitations as to living minors. In
a wrongful death medical malpractice action, the child's representative can
bring an action to recover damages for injuries to the child, but, if the child
is not living, the representative cannot take advantage of § 614.1(9)(b) to
extend the time for filing the lawsuit because the disability of minority is
terminated by the child's death. The two-year statute of limitations applies in
such cases. In one such wrongful death medical malpractice case, in 2008,
the parents of a one-year-old child took him to a hospital's emergency room,
where he was examined by the defendant physician. The physician had the
child sent home. The next day, the parents returned to the hospital with their
child, who was unresponsive. Despite resuscitation efforts, the child died
that day. The child's estate filed a medical malpractice action against the
physician in 2011, more than three years after the child's death. The estate
sought damages for the child's “funeral and burial and for his physical and
mental pain and suffering sustained prior to death and for the drugs, medical
and other hospital expenses incurred prior to his death.” The physician raised
a statute of limitations defense, arguing the action was barred by the general
two-year statute of limitations for medical malpractice claims set forth in §
614.1(9)(a). The estate responded with several arguments, the primary one
being that the action was timely under the specific limitations period for
minors set forth in § 614.1(9)(b), referred to as the minor tolling provision.
The district court concluded the general two-year limitations period was
applicable. The court rejected the estate's remaining arguments. The estate
appealed and the court of appeals affirmed, concluding that because the
“estate” of a minor is not a living child, the estate cannot avail itself of the
“minor” tolling provision. Estate of Ayala-Gomez v. Sohn, 2012 WL
4900919 (Iowa App. 2012).
Iowa Code § 614.1(9)(b) extends the limitations period for actions brought
on behalf of a minor.” The statute tolls the statute of limitations only so long
as the minor is alive. Hammen v. Iles, 834 N.W.2d 872 (Iowa App. 2013).
36
Iowa has not adopted the continuous treatment rule under which the statute
of limitations does not commence running until treatment by the physician
for the particular disease or condition involved has terminated if the
treatment by the physician is a continuing course and the patient’s disease or
condition is of such a nature as to impose a duty of continuing treatment and
care. In Ratcliff v. Graether, 697 N.W.2d 119 (Iowa 2005), the patient
brought a medical malpractice against an eye surgeon and eye clinic
following surgery which the patient claimed resulted in the patient’s blurry
vision. The district court granted the defendants’ motion for summary
judgment on statute of limitations grounds under Iowa Code § 614.1(9). The
district court rejected the plaintiff’s argument that the continuous treatment
doctrine applied. Because of the “single act exception,” the district court
concluded, the plaintiff was on immediate notice of his injury when his
vision was impaired following the surgery. The court noted that the
continuous treatment doctrine, if the treatment by the doctor is a continuing
course and the patient’s disease or condition is of such a nature as to impose
on the doctor a duty of continuing treatment and care, the statute of
limitations does not commence running until treatment by the doctor for the
particular disease or condition involved as terminated “unless during the
course of treatment the patient learns or should reasonably have learned of
the harm, in which case the statute runs from the time of knowledge, actual
or constructive.” The court concluded that the doctrine did not apply because
the plaintiff was “on inquiry notice” following the surgery. The court
therefore had no need to decide whether to reject the doctrine in all
circumstances.
The continuous treatment rule must be distinguished from the continuum-ofnegligent-treatment doctrine, under which a plaintiff must establish that
there was a continuous and unbroken course of negligent treatment, and that
the treatment was so related as to constitute one continuing wrong. See
Estate of Anderson ex rel. Herren v. Iowa Dermatology Clinic, PLC, 2012
WL 2865893 (Iowa 2012).
h.
Iowa Code § 670.5 governing municipal tort claims required notice of the
claim to the municipality and commencement of the action within 2 years
after notice. In Perkins v. Dallas Center-Grimes Community School District,
727 N.W.2d 377 (Iowa 2007), the Iowa supreme court said that the two-year
limitation to bring suit begins with “timely” notice of the claim. “Timely”
notice means notice within a reasonable time after the injury. On February
27, 2001, Laura Perkins was participating in a school event when she injured
her hand and wrist by putting them through a glass door at the school. On
April 19, 2002, an attorney representing Perkins sent a letter to the school’s
insurance adjuster notifying him that the attorney had been retained by
Perkins to pursue her claim for injuries sustained on the school’s premises
and requesting that the adjuster contact the attorney to discuss the claim.
Perkins filed suit on August 12, 2004, against the school district, alleging
negligence for failure to install safety glass in the door and failure to inspect
it. The school moved for summary judgment on the ground that Iowa Code
37
§ 670.5 barred the claim as untimely. The district court granted summary
judgment, concluding that Perkins did not comply with the requirements of §
670.5 regarding timely notice of the injury and bringing the lawsuit within
the time provided. Further, the district court ruled that the tolling provision
for minors in Iowa Code § 614.8 did not apply to claims brought under
chapter 670. The court of appeals affirmed. The Iowa supreme court
affirmed the decision of the court of appeals and the judgment of the district
court. The plaintiff gave notice of the injury on April 19, 2002, and filed suit
on August 12, 2004. The supreme court agreed that this was beyond the twoyear limitation of § 670.5 and therefore is barred. The defendant argued that
the plaintiff’s notice of injury (a little over a year after the injury) was not
timely. However, the supreme court found it unnecessary to resolve that
issue because more than two years had elapsed between the notice and the
filing of the suit. The suit was therefore not timely under § 670.5.
The supreme court also held that the tolling provision for claims by minors
in § 614.8(2) does not apply to actions under Iowa Code § 670. 5. The
supreme court reached the same conclusion in Rucker v. Humboldt
Community School District, 737 N.W.2d 292 (Iowa 2007).
Iowa Code § 670.5 has been amended, however, for complaints, claims, and
actions arising out of an alleged death, loss, or injury occurring on or after
July 1, 2007. The statute provides:
§ 670.5. Limitation of actions
Except as provided in section 614.8, a person who claims damages
from any municipality or any officer, employee or agent of a
municipality for or on account of any wrongful death, loss, or injury
within the scope of section 670.2 or section 670.8 or under common
law shall commence an action therefor within two years after the
alleged wrongful death, loss, or injury.
Iowa Code § 614.8 was also amended to read as follows:
§ 614.8. Minors and persons with mental illness
1. The times limited for actions in this chapter, or chapter 216, 669,
or 670, except those brought for penalties and forfeitures, are
extended in favor of persons with mental illness, so that they shall
have one year from and after the termination of the disability within
which to file a complaint pursuant to chapter 216, to make a claim
pursuant to chapter 669, or to otherwise commence an action.
2. Except as provided in section 614.1, subsection 9, the times
limited for actions in this chapter, or chapter 216, 669, or 670,
except those brought for penalties and forfeitures, are extended in
favor of minors, so that they shall have one year from and after
attainment of majority within which to file a complaint pursuant to
38
chapter 216, to make a claim pursuant to chapter 669, or to
otherwise commence an action.
5.
Contractual limitations on the time for bringing suit against an insurer must be
reasonable. In Faeth v. State Farm Mut. Auto. Ins. Co.,707 N.W.2d 328, (Iowa
2005), the supreme court held that a contractual limitations period in an insurance
policy that would have extinguished an uninsured-motorist claim before it accrued,
contrary to the mandatory protection against uninsured motorists contained in Iowa
Code § 516A.1, was unreasonable and could not be enforced. By default, Iowa Code
§ 614.1(5) became the applicable period of limitation.
6.
The five-year statute of limitations applies to legal malpractice actions. Venard v.
Winter, 524 N.W.2d 163 (Iowa 1994). The statutes does not start to run until the date
of discovery, of the date when, by the exercise of reasonable care, plaintiff should
have discovered the wrongful act. Millwright v. Romer, 322 N.W.2d 30 (Iowa 1982).
In a legal malpractice case where the underlying proceeding was criminal, the
malpractice claim accrues only after the plaintiff has achieved relief from the
conviction allegedly resulting from the negligent representation. Trobaugh v.
Sondag, 668 N.W.2d 577 (Iowa 2003). The five-year statute of limitations for
unwritten contracts may also apply to legal malpractice actions. See Tracy v. Soble,
2011 WL 944420 (Iowa 2011).
7.
Application of the statute of limitations depends on when the claim accrued.
a.
The general rule is that the cause of action accrues when the wrongful act
produces injury or damage.
b.
Under the discovery rule, the cause of action does not accrue until the
plaintiff has in fact discovered the injury or by the exercise of reasonable
case should have discovered it. The discovery rule has been applied to
negligence cases, products liability, sexual abuse cases and express and
implied warranty cases. Similarly, where the defendant fraudulently conceals
the information the plaintiff needs to realize a cause of action exists, the
statute will not begin to run until the cause of action was discovered or
reasonably should have been. See also Nixon v. State, 704 N.W.2d 643
(Iowa 2005)(claims accrued and two-year limitation period began to run
under state tort claims act when subjects of experiment conducted by state
university seventy-five years earlier discovered in 2001 that they had been
subjects of experiment).
c.
The statute of limitations for personal injuries accrues at the time the
plaintiff discovers or in the exercise of reasonable care should have
discovered—inquiry notice— all the elements of the action. A party is on
inquiry notice when the person gains sufficient knowledge of facts that
would put that person “on notice of the existence of a problem or potential
problem.” On that date, the person is charged with knowledge of facts that
would have been disclosed by a reasonably diligent investigation. Once a
person is aware that a problem exists, the person has a duty to investigate
even though the person may not have knowledge of the nature of the
39
problem that caused the injury. See Buechel v. Five Star Quality Care, Inc.,
745 N.W.2d 732 (Iowa 2008)(in wrongful death action against nursing
home, representatives of estate were on inquiry notice when told by nursing
home staff that decedent had died by asphyxiation and that her head was
caught in rails of bed, because they knew unusual event had occurred and
therefore “knew there was a problem;” facts put plaintiffs on sufficient
notice that problem existed and that reasonably diligent investigation would
have revealed design defects in bed).
In a case where the plaintiff commenced an action for alleged sexual abuse
in 2008 based upon incidents of sexual abuse that allegedly occurred in 1982
and 1983, the court held that the discovery rule did not toll the two-year
statute of limitations under Iowa Code § 614.1(1) because the plaintiff knew
the acts of the defendants were abusive and caused him harm at the time they
were committed. At a minimum, the plaintiff was on inquiry notice
concerning his injury and its cause. The plaintiff claimed that he did not
discover the causal connection between the defendants’ conduct and his
injury until a therapeutic breakthrough in 2006. The court also rejected the
plaintiff’s claim that Iowa Code § 614.8(1) extended the time for him to file
the lawsuit because the statute requires the plaintiff to show that his mental
disability rendered him unable to pursue the cause of action and the plaintiff
was unable to make that showing. Kestel v. Kurzak, 2011 WL 2694832
(Iowa App. 2011).
d.
Under the discovery rule, the statute of limitations does not begin to
run until the injured person has actual or imputed knowledge of all
the elements of the cause of action. With respect to imputed
knowledge, the person is charged with knowing on the date of the
accident what a reasonable investigation would have disclosed. The
statute begins to run when the claimant gains knowledge sufficient
to put the claimant on inquiry. The beginning of the limitations
period is not postponed until the end of an additional period deemed
reasonable for making the investigation. An injured party who
knows of an injury and its cause must conduct a reasonable
investigation of the nature and extent of the party’s legal rights that
includes inquiry into the identity of any vicariously liable parties.
Thus, where the plaintiff was injured in a two-car collision in which
the other driver was a person performing voluntary services for a
state agency and therefore immune from liability under the Tort
Claims Act, because the plaintiff knew she had been injured and
knew who caused her injury, she was on inquiry notice and had a
duty to make a reasonable investigation to ascertain the exact
parameters of her claim, including a duty to investigate the identity
of any party that might be vicariously liable for the other driver’s
negligence. Because a reasonably diligent inquiry would have led to
the discovery of the state’s liability, under the doctrine of inquiry
notice, the plaintiff was charged with knowledge of her claim
against the state on the date of the accident and her claim against the
state accrued on that date. The statutes of limitations also
40
commenced running on that date. See Hook v. Lippolt, 755 N.W.2d
514 (Iowa 2008).
8.
e.
Iowa Code § 614.1(4) provides a five-year statute of limitations for fraud.
The five-year period begins to run on accrual of the claim, which is generally
when the wrongful act produces injury to the claimant. However, the
discovery rule will toll the statute until the plaintiff has discovered the fact of
the injury and its cause or by the exercise of reasonable diligence should
have discovered such facts. Once a claimant learns information that would
inform a reasonable person of the need to investigate, the claimant is on
inquiry notice of all facts that would have been disclosed by a reasonably
diligent investigation. See Hallett Const. Co. v. Meister, 713 N.W.2d 225
(Iowa 2006)(actual nature of claim was one of fraud and not breach of
written contract).
f.
In Lobberecht v. Chendrasekhar, 744 N.W.2d 104 (Iowa 2008), the
plaintiffs, husband and wife, brought a medical malpractice claim against a
clinic arising out of a physician’s allegedly negligent surgical treatment of
the wife. The district court granted the defendants’ motion for summary
judgment on the grounds that the plaintiffs were not the real parties in
interest. Prior to the time the lawsuit was filed, the plaintiffs filed for and
received their discharge in chapter 7 bankruptcy. The defendants claimed the
trustee in bankruptcy was the real party in interest. The supreme court agreed
with the defendants. The issue was when the plaintiffs’ cause of action
accrued for purposes of the bankruptcy. The court rejected the plaintiffs’
claim that their cause of action for medical malpractice did not accrue until
they knew, or should have known, they were injured under the medical
malpractice statute. Instead, the court said, the question was when the cause
of action was acquired, and not when it was lost. In other words, accrual for
bankruptcy purposes is different from accrual for statue of limitations
purposes. A medical malpractice claim accrues when all necessary elements
have occurred: violation of the standard or care and a causal relationship
between the violation and the harm allegedly experienced by the plaintiff.
Because all of those acts occurred on the date of plaintiff’s surgery, as of that
date, the medical malpractice cause of action had accrued for bankruptcy
purposes and because the property of the bankruptcy estate. The plaintiffs
were not the real parties in interest. However, the court also held that the
proper remedy in such cases is not to dismiss but to allow a reasonable time,
as determined by the district court, for substitution of the real party in
interest under Iowa R. Civ. P. 1.201.
Once the statute of limitations begins to run, nothing will toll it unless provided by
statute. Tolling is provided by the following statutory provisions:
•
Minors (subject to the special medical malpractice rule) and mentally ill persons
have one year from and after the termination of the disability to commence the
action. Iowa Code § 614.8;
41
•
The limitations period is tolled while the defendant is a nonresident of the state.
Iowa Code § 614.6;
•
The commencement of the lawsuit tolls the limitations period. Iowa R. Civ. P.
1.301.
9.
The statute of limitations defense may be raised by a motion to dismiss or in the
answer. The burden of pleading and proof is on the party relying on the defense.
10.
Iowa Code § 614.10 provides:
Failure of action. If, after the commencement of an action, the plaintiff, for any cause
except negligence in its prosecution, fails therein, and a new one is brought within
six months thereafter, the second shall, for the purposes herein contemplated, be held
a continuation of the first. See Furnauld v. Hughes, 2011 WL 4501962 (Iowa 2011).
The supreme court noted that the purpose of a savings statute is to prevent minor or
technical mistakes from precluding a plaintiff from obtaining his day in court and
having his claim decided on the merits.” The statute is expressly limited to situations
where a case “fails” without “negligence in its prosecution.”
C. Service of Process.
1.
When the petition is filed in the district court, there must also be delivered to the
clerk with it an original notice to be served on the defendant and written directions
for service. Iowa R. Civ. P. 1.302(2). Service is made, as directed, by the sheriff, a
person specially appointed to serve it, or any other appropriate person other than a
party.
2.
Iowa R. Civ. P. 1.302 provides that once an action is commenced by filing the
petition, a notice, called the original notice, informing the defendant, respondent, or
other party must be served in the form and manner provided by the rule.
Iowa R. Civ. P. 1.302(1) requires that the original notice be directed to the defendant,
respondent, or other party and contain:
•
•
•
•
•
•
The name of the court;
The names of the parties;
The name, address, telephone number, and if available, the facsimile
transmission number and e-mail address of the plaintiff's or petitioner's
attorney, if any, otherwise the plaintiff's or petitioner's address;
The date of the filing of the petition;
The time within which the rules or statutes require the defendant,
respondent, or other party to serve, and within a reasonable time thereafter
file, a motion or answer;
A notification to the defendant, respondent, or other party to be served that
in case of the failure to do so by defendant, respondent, or other party to be
served, judgment by default may be rendered for the relief demanded in the
petition;
42
•
A compliance notice required by the Americans with Disabilities Act.
Where service is by publication, only the original notice is published but it must
include a general statement of the claim or claims and the relief demanded.
3.
A defect in the original notice or summons may be raised in a pre-answer motion or
in the answer under Iowa R. Civ. P. 1.421. The Iowa rules provide for amendment or
reissuance of the original notice or summons in the event service is not successful or
service is quashed. Defects in the original notice should not be challenged unless they
are "substantial" and have resulted in prejudice to the defendant. Jontz v. Mahedy,
293 N.W.2d 1 (Iowa 1980); Holmes v. Polk City Sav. Bank, 278 N.W.2d 32 (Iowa
1979).
4.
Under Iowa R. Civ. P. 1.302, the petition and original notice are served together.
However, if service is by publication, only the original notice is published with a
general statement of the claim and the relief demanded. The plaintiff must furnish the
person effecting service with the necessary copies of the original notice and petition.
5.
Iowa R. Civ. P. 1.302(6) provides that if service of the original notice is not made
upon the defendant, respondent, or other party 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 or direct an alternate time and manner of
service. However, the court may extend the ninety-day period upon a showing of
good cause.
Dismissal of the case under Iowa R. Civ. P. 1.944 for failure to prosecute is also
possible but the rule provides that the case shall not be dismissed if there is a timely
showing that the original notice and petition have not been served and that the party
resisting dismissal has used due diligence in attempting to cause process to be served.
D. Service Provisions.
1.
Most often personal service is used. Service can be made on an individual by
delivering a copy of the original notice to the person who has attained majority and
who has not been adjudged incompetent by taking his or her signed, dated
acknowledgement of service endorsed on the notice, by leaving the notice at the
person's dwelling house or usual place of abode with anyone residing therein who is
at least eighteen years of age, or by delivering it to the person's spouse at a place
other than the person's dwelling house or usual place of abode if probable cause
exists to believe that the spouse lives at the person's dwelling house or usual place of
abode. Iowa R. Civ. P. 1.305(1).
In making substituted service against two or more defendants having the same place
of residence or abode, a copy of the original notice must be left for each defendant. In
a case where a single copy of a forfeiture notice of a contract was personally served
on one of two contract vendees was held insufficient service to sustain a forfeiture of
the interests of both vendees even where the vendees were husband and wife who
resided together. The process server served one copy of the notice addressed to both
vendees by delivering the copy to the husband. The process server completed a return
43
of service indicating personal service on the husband and substituted service on the
wife. The Iowa supreme court agreed with the dissenting court of appeals opinion
which said that where there was only one notice and the process server indicated both
parties were served, it was unclear which party was actually served. The supreme
court disagreed with the vendors’ argument that they should have been able to rely on
the good-faith of the party who was served that he would apprise the other party of
the notice. The court noted that the probability that the notice would be passed on to
the party for whom it was intended is substantially reduced if there is no separate
notice left for each of the parties. Fairfax v. Oaks Development Co., 705 N.W.2d 340
(Iowa 2006)(service of one copy of notice addressed to both vendees by delivering
copy to one vendee even where vendees were husband and wife who resided together
was not sufficient service
2.
Iowa R. Civ. P. 1.310 provides for service by publication under certain
circumstances, such as where quasi-in-rem jurisdiction is used, for actions involving
interests in real estate and where the defendant has left the state with the intent to
delay or defraud creditors or avoid service. The plaintiff must file an affidavit that
notice has also been mailed to the defendant's last known address or that no address
has been discovered after diligent inquiry. Where published notice is authorized,
personal service may be used in lieu thereof. Iowa R. Civ. P. 1.315.
3.
In an action against a nonresident involved in an automobile accident in Iowa, service
may be made by filing a copy of the original notice with the Director of
Transportation and mailing a notification of filing to the defendant at the defendant's
last known residence within ten days thereafter. Iowa Code § 321.501. In the
alternative, the defendant may be served personally in the foreign state or in Iowa.
4.
The Iowa single-act statute, Iowa Code § 617.3, may be used to serve a nonresident
person or corporation who commits a tort in whole or in part in Iowa or who enters
into a contract to be performed in whole or in part in Iowa. Service is made by filing
the original notice with the Secretary of State and mailing a notification of filing to
the defendant at an address in the state of residence within ten days thereafter.
As for what constitutes “an address in the state of residence” under § 617.3, the Iowa
supreme court had held that an address means a place where the person being served
with registered or certified mail can be found. When mail is returned “Attempted—
Not Known” and “Unable to Forward,” § 617.3 requires the party to take additional
steps to achieve service, namely, resend the notice to a valid address where the
defendant may effectively be served by registered or certified mail or achieve
personal service pursuant to the Iowa Rules of Civil Procedure. L.F. Noll Inc. v.
Eviglo, 2012 WL 2498818 (Iowa 2012).
5.
Statutory service procedures require substantial compliance. A failure to comply may
be challenged by a motion to dismiss or quash service for lack of personal
jurisdiction.
6.
Under Iowa R. Civ. P. 1.306, service may be made within or without the state by any
of the methods of service authorized by rule or statute for service in the state, and if
service cannot be so made then in any manner the court authorizes as long as it is
44
consistent with due process. Iowa R. Civ. P. 1.305(14) similarly allows service by
any means authorized by the court. Under these provisions, as long as due process is
satisfied, any method of service may be utilized.
7.
Service by mail is provided by a number of statutes, such as service of a notice of a
tax delinquency sale. In Jones v. Flowers, the United States Supreme Court held that
when mailed notice of a tax sale is returned unclaimed, the state must take additional
reasonable steps to attempt to provide notice to the property owner before selling the
property. Additional steps include notice by regular mail, posting notice on the
owner’s door, and addressing the mail to “occupant.” The property owner failed to
pay his property taxes for several years. The Arkansas Commission of State Lands
sent a letter by certified mailed to the property owner using the record address that
the property owner had provided to the state advising the property owner that the
property would be subject to public sale if the delinquent taxes and penalties were
not paid. The letter was returned and marked “unclaimed.” The state also published
a notice of the public sale in an Arkansas newspaper and sent a second delinquency
letter to the property owner which was also returned “unclaimed.” The property was
sold and the property owner brought an action against the state and the purchaser
alleging that the state had taken his property without due process. The Court
acknowledged that while due process does not require that a property owner receive
actual notice before the government may take his property, due process entails further
responsibility when the government becomes aware prior to the taking that its attempt
at notice has failed. Such notice is a circumstance and condition that will vary the
notice required. In that situation, the state must take additional steps to notify the
property owner “if practicable to do so.” Because there were several reasonable steps
the state could have taken, the notice was insufficient to satisfy due process given the
circumstances of the case.
E. Time After Service for Motion or Answer.
1.
Under Iowa R. Civ. P. 1.303, the times for serving and filing a motion or answer
depend on the method used to serve the defendant with the original notice and
petition:
Unless otherwise provided............Within twenty days after service of the
original notice and petition
Pursuant to any statute of Iowa which specifically requires response by a
particular party, or in a particular action, within a specified
time.............................As provided in the statute
Pursuant to court order..................On or before the date fixed in the order
By publication or by publication and mailing..................On or before the
date fixed in the notice as published, which date may not be less than
twenty days after the date of last publication
45
Under Iowa R. Civ. P. 1.306.........................On or before the date fixed in
the notice as mailed, which shall not be less than sixty days following the
date of mailing
2.
The court may permit a defendant to file a late answer if good cause exists. The good
cause standard includes excusable neglect. Excusable neglect is that neglect which
might have been an act of a reasonably prudent person under the circumstances. If the
defendant can assert reasonable grounds for failing to comply with the applicable
time requirements, excusable neglect is satisfied. In determining whether neglect in a
certain case is excusable, the court must consider all of the surrounding facts and
circumstances of the late filing. McElroy v. State, 637 N.W.2d 488 (Iowa 2001).
"Good cause" also considers the impact of the late answer under all of the
circumstances. Thus, another factor to consider in determining "good cause" is
whether the plaintiff would suffer prejudice by the filing of the untimely answer. If
the proposed answer would substantially change the issues in the case so as to cause
unfair surprise to the plaintiff, the court will likely find prejudice. However, if the
proposed answer simply reiterated the theory the defendant had been advancing
throughout the litigation, no prejudice will likely be found. Furthermore, the court
should consider whether the filing of the answer would further the interests of justice.
Another consideration is whether the defendants presented a meritorious defense.
McElroy v. State, 637 N.W.2d 488 (Iowa 2001).
The determination of whether to allow the filing of a late answer rests in the sound
discretion of the district court. Review is for abuse of discretion. McElroy v. State,
637 N.W.2d 488 (Iowa 2001).
F. Immunity from Service.
It is generally recognized that a nonresident is immune from service of process while in the
forum attending judicial proceedings. See e.g. LaRosa v. Curoe, 343 N.W.2d 153 (Iowa
1983)(Illinois resident attending pretrial conference in Iowa federal court was immune from
service in state court proceeding).
G. Service and Filing of Papers After Commencement.
1.
Once the petition and original notice have been filed and served, all documents in the
case required to be filed must be served on the parties. However, service need not be
made upon a party against whom a default has been entered. Iowa R. Civ. P. 1.442.
2.
Iowa R. Civ. P. 1. 442(4) requires that, with two exceptions, all papers after the
petition required to be served upon a party must be filed with the court either before
service or within a reasonable time thereafter. The exceptions are:
•
Discovery documents under Iowa R. Civ. P. 1.502, which are served but not
filed;
46
•
Briefs and memoranda, except in support of or resistance to a summary
judgment motion, which are served and an original delivered to the presiding
judge. A certificate of compliance is filed, however.
3.
When the rules require a filing with the court within a certain time, the filing will be
timely if service is made with the required time and the actual filing is done within a
reasonable time thereafter. Iowa R. Civ. P. 1.442(4).
4.
When the rules require action to be taken within a certain time after service of a
notice upon a party and service upon the party is by mail, three additional days are
added to the time within which to take the action. Iowa R. Civ. P. 1.443. However,
the additional time does not apply where the court prescribes the method of service
and the number of days to be given or where the deadline runs from entry or filing of
a judgment, order or decree.
Three days are also added to the time within which to take action is service is by
email or facsimile transmission.
5.
Service upon a party is usually made on the attorney for the party by delivering it to
the attorney or mailing it by regular mail. Iowa R. Civ. P. 1.442; F.R.Civ.P. 5(b).
6.
Iowa R. Civ. P. 1.442(2) allows service by email:
Service may also be made upon a party or attorney by electronic mail (e-mail) if the
person consents in writing in that case to be served in that manner. The written
consent shall specify the e-mail address for such service. The written consent may be
withdrawn by written notice served on all other parties or attorneys. Service by
electronic means is complete upon transmission, unless the party making service
learns that the attempted service did not reach the person to be served.
7.
IV.
Electronic Document Management System. EDMS requires electronic service and
filing of documents. EDMS is only in effect in Plymouth, Story, Sioux and
Woodbury counties as of the date of this outline.
APPEARANCES; MOTIONS.
A. Appearances.
1.
An appearance is simply a document filed with the court indicating the attorney representing a
party. The filing of an appearance alone without a motion or pleading will not prevent or
delay entry of a default. Iowa R. Civ. P. 1.404. It does, however, entitle the party to service of
anything that is filed, including notice of a demand for entry of a default.
2.
Iowa R. Civ. P. 1.404(3) provides that pursuant to Iowa R. Prof'l Resp. 32:1.2(c), an
attorney's role may be limited to one or more individual proceedings in the action, if
specifically stated in a notice of limited appearance filed and served prior to or simultaneously
with the proceeding. If the attorney appears at a hearing on behalf of a client pursuant to a
limited representation agreement, the attorney must notify the court of that limitation at the
beginning of that hearing.
47
Iowa R. Prof'l Resp 32:1.2(c)(1) provides that a lawyer may limit the scope of the
representation if the limitation is reasonable under the circumstances and the client gives
informed consent. The client's informed consent must be confirmed in writing unless (i) the
representation of the client consists solely of telephone consultation; (ii) the representation is
provided by a lawyer employed by a nonprofit legal services program or participating in a
nonprofit or court-annexed legal services program and the lawyer's representation consists
solely of providing information and advice or the preparation of court-approved legal forms;
or (iii) the court appoints the attorney for a limited purpose that is set forth in the appointment
order. If the client gives informed consent in a writing signed by the client, there shall be a
presumption that (i) the representation is limited to the attorney and the services described in
the writing; and (ii) the attorney does not represent the client generally or in any matters other
than those identified in the writing. Iowa Court Rule 32:1.2(c)(2).
At the conclusion of a proceeding in which an attorney has appeared pursuant to a limited
representation agreement, the attorney's role terminates without the necessity of leave of court
upon the attorney's filing a notice of completion of limited appearance.
The notice of completion of limited appearance must:
•
•
•
•
State that the attorney was retained to perform a limited service;
Must describe the limited service;
Must state that the service has been completed; and
must include the personal identification number, address, telephone number and, if
available, facsimile transmission number of the client.
The attorney must serve a copy of the notice on the client and all other parties to the action or
their attorneys. Iowa R. Civ. P. 1.404(4).
Every pleading or paper filed by a pro se party that was prepared with the drafting assistance
of an attorney who contracted with the client to limit the scope of representation pursuant to
Iowa R. Prof’l Resp. 32:1.2(c) must state that fact before the signature line at the end of the
pleading or paper that was prepared with the attorney’s assistance. The attorney must advise
the client that such pleading or other paper must contain this statement. The pleading or paper
must include the attorney’s name, personal identification number, address, telephone number
and, if available, facsimile transmission number, but may not be signed by the attorney. If the
drafting assistance was provided as part of services offered by a nonprofit legal services
organization or a volunteer component of a nonprofit or court-annexed legal services program,
the name, address, telephone number and, if available, facsimile transmission number of the
program may be included in lieu of the business address, telephone number, and facsimile
transmission number of the drafting attorney. Iowa R. Civ. P. 1.423(1).
In providing drafting assistance to the pro se party, the attorney must determine, to the best of
the attorney’s knowledge, information, and belief, that the pleading or paper is well grounded
in fact and is warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law, and that it is not filed for any improper purpose,
such as to harass or to cause an unnecessary delay or needless increase in the cost of litigation.
The attorney providing drafting assistance may rely on the pro se party’s representation of
facts, unless the attorney has reason to believe that such representation is false or materially
insufficient, in which instance the attorney shall make an independent, reasonable inquiry into
48
the facts. Iowa R. Civ. P. 1.423(2).
The identification of an attorney who has provided drafting assistance in the preparation of a
pleading or paper does not constitute an entry of appearance by the attorney for purposes of
Iowa R. Civ. P. 1.404(1) and does not authorize service on the attorney or entitle the attorney
to service as provided in Iowa R. Civ. P. 1.442. Iowa R. Civ. P. 1.423(3).
B. Motions.
1.
A motion is an application for an order; it is not a pleading. Iowa R. Civ. P. 1.431.
2.
A motion to dismiss may be used under Iowa R. Civ. P. 1.421 when the movant
wishes to assert that the pleader has not stated a claim upon which relief can be
granted.
a.
The movant must specify how the pleading attacked is insufficient. Iowa R.
Civ. P. 1.421.
b.
The standard applied under the Iowa rule is that dismissal is proper only if it
appears to a certainty that the pleading party is entitled to no relief under any
state of facts which could be proved in support of the claim. The motion
admits the allegations of the pleadings which are construed in the light most
favorable to the pleading party. The motion is limited to factual matters
alleged in the pleadings and matter of which the court may take judicial
notice. Where matters outside of the pleadings are relied upon, the motion
may be treated as one for summary judgment. See Rees v. City of
Shenandoah, 682 N.W.2d 77 (Iowa 2004)(motion to dismiss is properly
granted only if plaintiff’s petition on its face shows no right of recovery
under any state of facts; “Under notice pleading nearly every case will
survive motion to dismiss”). See generally Hawkeye Foodservice
Distribution, Inc. v. Iowa Educators Corp., 784 N.W.2d 203 (Iowa
2012)(Iowa does not follow federal “plausibility” standard of Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007),
and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009):
A “petition need not allege ultimate facts
that support each element of the cause of action[;]”
however, a petition “must contain factual
allegations that give the defendant ‘fair notice’ of
the claim asserted so the defendant can adequately
respond to the petition.” The “fair notice”
requirement is met if a petition informs the
defendant of the incident giving rise to the claim
and of the claim's general nature. U.S. Bank, 770
N.W.2d at 353-54 (citations omitted). The only
issue when considering a motion to dismiss is the
“petitioner's right of access to the district court, not
the merits of his allegations.” Reiff, 630 N.W.2d at
49
284 (citations and internal quotation marks
omitted). The court cannot rely on evidence to
support a motion to dismiss, nor can it rely on facts
not alleged in the petition. Id.
c.
The supreme court has said that the bar of the statute of limitations is
properly raised by a motion to dismiss when the necessary facts appear on
the face of the pleadings, and if not, then by affirmative defense and a
motion for summary judgment. Harden v. State, 4343 N.W.2d 881, 883
(Iowa 1989).
3.
A motion to quash service under Iowa R. Civ. P. 1.421 may be used when
jurisdiction over the person of the defendant is being challenged.
4.
A motion to strike is used to test the sufficiency of a defense under Iowa R. Civ. P.
1.421 or to eliminate improper or unnecessary matter in a pleading under Iowa R.
Civ. P. 1.434.
5.
A motion for more specific statement may be used when the moving party is required
to plead and cannot because the pleading to which a response is required is not
pleaded with sufficient definiteness to allow a response. Iowa R. Civ. P. 1.433.
6.
A motion to recast can be used to attack any "prolix, confused or multiple pleading"
and require that it be recast. Iowa R. Civ. P. 1.421.
7.
A motion in limine is a device used to limit the inquiry during trial into matters
which may not be relevant or will be prejudicial. The court may order counsel and
the parties and witnesses from disclosing the matter.
In Quad City Bank & Trust v. Jim Kircher & Associates, P.C., 2011 WL 4407226
(Iowa 2011), the Iowa supreme court emphasized:
A ruling sustaining a motion in limine is generally not an evidentiary ruling.
Twyford v. Weber, 220 N,W.2d 919, 923 (Iowa 1974). Rather, a ruling
sustaining a motion in limine simply adds a procedural step to the
introduction of allegedly objectionable evidence. Id.; accord Johnson v.
Interstate Power Co., 481 N.W.2d 310, 317 (Iowa 1992) (recognizing a
ruling sustaining a motion in limine “merely adds a procedural step to the
offer of evidence [and that i]f the evidence is not offered, there is nothing
preserved to review on appeal”). Thus, a motion in limine “serves the useful
purpose of raising and pointing out before trial certain evidentiary rulings the
court may be called upon to make during the course of the trial” and, if
sustained, excludes reference or introduction of this evidence until its
admissibility is determined by the trial court, outside the presence of a jury,
in an offer of proof. Twyford, 220 N,W.2d at 922-23 (recognizing further
that the offer of proof allows the aggrieved party to present a proper record
for review on appeal and, in the absence of such an offer, error may not be
preserved).
50
8.
Iowa R. Civ. P. 1.421 provides:
(1) Every defense to a claim for relief in any pleading must be asserted in the
pleading responsive thereto, or in an amendment to the answer made within
20 days after service of the answer, or if no responsive pleading is required,
then at trial. The following defenses or matters may be raised by pre-answer
motion:
a. Lack of jurisdiction of the subject matter.
b. Lack of jurisdiction over the person.
c. Insufficiency of the original notice or its service.
d. To recast or strike.
e. For more specific statement.
f. Failure to state a claim upon which any relief may be granted.
(2) Improper venue under Iowa R. Civ. P. 1.808 must be raised by preanswer motion filed prior to or in a single motion under Iowa R. Civ. P.
1.421(3).
(3) If the grounds therefor exist at the time a pre-answer motion is made,
motions under Iowa R. Civ. P. 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.
(4) 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.
(5) Sufficiency of any defense may be raised by a motion to strike it, filed
before pleading to it.
(6) Motions under this rule must specify how the pleading they attack is
claimed to be insufficient.
The rule requires that a party making any of the following motions combine them in a
single motion and only one such motion attacking the same pleading is permitted,
unless the pleading is amended:
•
•
•
•
•
•
Motion challenging personal jurisdiction;
Motion challenging the sufficiency of the original notice or its service;
Motion to recast;
Motion to strike;
Motion for more specific statement;
Motion to dismiss for failure to state a claim upon which relief can be granted.
If a pre-answer motion is made, any other motions required to be combined and not
included are waived. This does not apply, however, to challenges to lack of subject
matter jurisdiction or failure to state a claim upon which relief may be granted. Iowa
R. Civ. P. 1.421(4).
If any such motion is made, the party also may under Iowa R. Civ. P. 1.421 move for
a change of venue under Iowa R. Civ. P. 1.808 if grounds for such motion exist.
Failure to do so is a waiver of the defense improper venue unless a prior motion for
change of venue was made.
51
A pre-answer motion is not the sole method of raising such issues, however. The rule
only requires that if one challenge is raised in a pre-answer motion, all challenges
listed in Iowa R.Civ.P. 1.421(1), for which grounds exist at the time the petition is
filed, must be raised in that motion or be deemed waived. See Antolik v. McMahon,
744 N.W.2d 82 (Iowa 2007).
10.
A motion asserting facts as the basis of the order must be supported by the affidavit
of the person with knowledge of such facts. Iowa R. Civ. P. 1.413(2).
11.
Motions must be served upon each of the other parties.
12.
Motions attacking a pleading must be served before responding to the pleading or if
no responsive pleading is required, within twenty days after service of the pleading.
Iowa R. Civ. P. 1.441. Service of a motion attacking a pleading alters the time for
the responsive pleading to ten days after notice of the court's action on the motion.
Iowa R. Civ. P. 1.441. A motion attacking a pleading should not be raised in the
same document as the responsive pleading. Poole v. Putensen, 274 N.W.2d 277
(Iowa 1979)(motion to dismiss improperly included in answer).
13.
Motions be made in writing unless made during a hearing or trial. See Doland v.
Boone County, 376 N.W.2d 870 (Iowa 1985).
14.
Iowa R.Civ.P 1.455 requires that most motions be heard prior to trial unless the court
orders that hearing and determination of the motion be deferred until trial.
15.
The supreme court has said that the district court should look to the substance of a
motion, not its label, in determining the real intent of the motion. Neylan v. Moser,
400 N.W.2d 538 (Iowa 1987).
16.
Under Iowa R. Civ. P. 1.910, motions for continuance must be filed without delay
after the grounds therefor become known to the party or the party’s counsel. Such
motion may be amended only to correct a clerical error. No case assigned for trial
may be continued ex parte. All motions for continuance in a case set for trial must be
signed by counsel, if any, and approved in writing by the party represented, unless
such approval is waived by court order.
A continuance may be allowed for any cause not growing out of the fault or
negligence of the movant, which satisfies the court that substantial justice will be
more nearly obtained. It must be allowed if all parties so agree and the court
approves. All such motions based on absence of evidence must be supported by
affidavit of the party, the party’s agent or attorney, and must show the following:
•
•
The name and residence of the absent witness, or, if unknown, that affiant has
used diligence to ascertain them.
What efforts, constituting due diligence, have been made to obtain the witness or
the witness’ testimony, and facts showing reasonable grounds to believe the
testimony will be procured by a certain, specified date.
52
•
What particular facts, distinct from legal conclusions, affiant believes the witness
will prove, affiant believes the facts to be true, and affiant knows of no other
witness by whom the facts can be fully proved.
If the court finds such motion sufficient, the adverse party may avoid the continuance
by admitting that the witness if present, would testify to the facts therein stated, as the
evidence of such witness. Iowa R. Civ. P. 1.911
The adverse party may at once, or within such reasonable time as the court allows,
file specific written objections to the motion for continuance, which shall be part of
the record. Where the defenses are distinct, the cause may be continued as to any one
or more defendants. Every continuance shall be at the cost of the movant unless
otherwise ordered by the court. Iowa R. Civ. P. 1.912.
V.
PLEADINGS.
A. In General.
1.
The pleadings are the parties' written statements of their claims and defenses.
Pleadings do not include motions. Iowa R. Civ. P. 1.402(2).
2.
Allowable pleadings under the Iowa rules are:
•
•
•
•
•
•
3.
4.
Petition,
Answer,
Reply to a counterclaim denominated as such in the answer or if the court
orders a reply to an answer or to an answer to a cross-petition,
Answer to a cross-claim if the answer contains a cross-claim,
Cross-petition, and
Answer to cross-petition.
Iowa R. Civ. P. 1.403(1) provides the general rules for all pleadings asserting claims.
a.
A pleading which sets forth a claim for relief must contain (1) a short and
plain statement of the claim showing the pleader is entitled to relief and (2) a
demand for judgment for the type of relief the pleader claims to be entitled
to.
b.
Relief may be in the alternative or of several different types.
c.
Under Iowa R. Civ. P. 1.403(1), except in small claims and cases involving
only liquidated damages, a pleading may not state the specific amount of
money damages sought, but must state whether the amount of damages is
more or less than the jurisdictional amount. The amount and elements of
damages may be sought through discovery.
Iowa R. Civ. P. 1.402(2) requires that:
53
5.
6.
a.
Each averment of a pleading be simple, concise and direct. No technical
forms of pleadings or motions are required.
b.
A party may set forth two or more statements of a claim or defense
alternately or hypothetically, either in one count or defense or in separate
counts or defenses.
c.
A party may state as many separate claims or defenses as the party has
regardless of consistency and whether based on legal or equitable grounds.
Iowa R. Civ. P. 1.412 requires that:
a.
All averments of a claim or defense be made in numbered paragraphs, the
contents of which shall be limited as far as practicable to a statement of a
single set of circumstances; and a paragraph may be referred to by number in
all succeeding pleadings.
b.
Each claim founded upon a separate transaction shall be stated in a separate
count or defense whenever a separation facilitates the clear presentation of
the matters set forth.
Except where required by statute, pleadings need not be verified. Iowa R. Civ. P.
1.413(1). A petition for dissolution of marriage is an example of one of the few
pleadings required to be verified. Iowa Code § 598.7. Any document required to be
verified may alternately be certified using the following form:
“I certify under penalty or perjury and pursuant to the laws of the state of Iowa that
the preceding is true and correct.”
_________________ ______________________________
Date
Signature
7.
Counsel's signature to a motion, pleading or other papers is a certification under Iowa
R. Civ. P. 1.413(1) that:
•
•
a.
A reasonable inquiry has been conducted into the facts supporting the
document and into the law; and
The document is not interposed for improper purposes.
Iowa R. Civ. P. 1.413(1) requires that an attorney must conduct a
"reasonable inquiry" as to the facts and law. Compliance is to be measured
by an objective rather than a subjective standard of reasonableness, and the
court must consider all relevant circumstances, which include:
•
•
•
•
Time available to counsel to investigate the facts;
Complexity of the issues;
Extent to which investigation is feasible;
Extent to which facts are in possession of opponent or third person
and not available to counsel;
54
•
•
•
•
•
•
•
Knowledge of counsel;
Extent to which counsel relied on the client for the facts;
Extent to which counsel had to rely on the client for the facts;
If the case was referred by another attorney, the state of the
proceedings;
Extent to which counsel relied on other counsel for the facts;
Resources readily available to counsel to devote to the investigation;
Extent to which counsel was on notice that further inquiry might be
appropriate.
b.
Similar considerations apply to whether a reasonable inquiry has been made
into the law. Mathias v. Glandon, 448 N.W.2d 443 (Iowa 1989).
c.
Improper purposes include diverting attention from the relevant issues,
wasting time and trivializing the adjudicatory process. Hearity v. Iowa
district court, 440 N.W.2d 860, 864 (Iowa 1989).
d.
The trial court may impose sanctions on its own. See Estate of Lau, 442
N.W.2d 109, 112 (Iowa 1989)(upholding $100 sanction imposed by the
court sua sponte on administrator's attorney).
e.
The primary purpose of sanctions under Rule 1.413(1) is deterrence, not
compensation. See Rowedder v. Anderson, 2012 WL 2161489 (Iowa
2012)(court will review district court's order imposing sanctions for abuse of
discretion)(district court did not abuse its discretion in awarding $1000
sanction).
9.
The time for serving and filing an answer or an answer to a cross-petition is
determined by Iowa R. Civ. P. 1.303. The time for serving and filing an answer to a
cross-claim or a reply to a counterclaim is twenty days after service of the pleading to
which it is responding.
10.
A motion attacking a pleading alters the time for the pleading to ten days after notice
of the court's action on the motion, if a further pleading is required, under the Iowa
rules.
11.
Every pleading or paper filed by a pro se party that was prepared with the drafting
assistance of an attorney who contracted with the client to limit the scope of
representation pursuant to Iowa R. Prof’l Resp. 32:1.2(c) must state that fact before
the signature line at the end of the pleading or paper that was prepared with the
attorney’s assistance. The attorney must advise the client that such pleading or other
paper must contain this statement. The pleading or paper must include the attorney’s
name, personal identification number, address, telephone number and, if available,
facsimile transmission number, but may not be signed by the attorney. If the drafting
assistance was provided as part of services offered by a nonprofit legal services
organization or a volunteer component of a nonprofit or court-annexed legal services
program, the name, address, telephone number and, if available, facsimile
transmission number of the program may be included in lieu of the business address,
telephone number, and facsimile transmission number of the drafting attorney. Iowa
55
R. Civ. P. 1.423(1).
In providing drafting assistance to the pro se party, the attorney must determine, to
the best of the attorney’s knowledge, information, and belief, that the pleading or
paper is well grounded in fact and is warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing law, and that it is not
filed for any improper purpose, such as to harass or to cause an unnecessary delay or
needless increase in the cost of litigation. The attorney providing drafting assistance
may rely on the pro se party’s representation of facts, unless the attorney has reason
to believe that such representation is false or materially insufficient, in which instance
the attorney shall make an independent, reasonable inquiry into the facts. Iowa R.
Civ. P. 1.423(2).
The identification of an attorney who has provided drafting assistance in the
preparation of a pleading or paper does not constitute an entry of appearance by the
attorney for purposes of Iowa R. Civ. P. 1.404(1) and does not authorize service on
the attorney or entitle the attorney to service as provided in Iowa R. Civ. P. 1.442.
Iowa R. Civ. P. 1.423(3).
B. The Petition.
1.
The petition or complaint must contain a short and plain statement of the claim
showing that the pleader is entitled to relief and a demand for the judgment to which
the pleader claims to be entitled. Iowa R. Civ. P. 1.403.
The supreme court has said, “Very little is required in a petition to survive a motion
to dismiss.” The pleader is not required to plead ultimate facts that support the
elements of a cause of action; however, facts sufficient to apprise the defendant of the
incident must be included in the petition to provide fair notice of the claim asserted.
Reiff v. Evans, 630 N.W.2d 278 (Iowa 2001).
2.
The adoption by the Iowa supreme court of the negligence analysis of the
Restatement (Third) of Torts: Liability for Physical Harm in Thompson v. Kaczinski,
has resulted in a significant departure from the traditional negligence analysis. Since
Thompson, the following sections of the Restatement (Third) have been adopted or
cited with approval by the Iowa appellate courts
Prior to Thompson, the negligence analysis was as follows:
Duty
Determined by the court; “reasonable foreseeability of harm”
is key
Breach
Determined by fact-finder
Causation
Factual cause: “Substantial factor” determined by fact-finder
Legal cause:
Determined by the court
56
The post-Thompson negligence analysis is as follows:
Duty
Determined by the court; foreseeability no longer part of the analysis
“No-duty” rule based on “articulated countervailing principles”
Breach
Determined by fact-finder; foreseeability of harm is significant factor
Causation
Factual cause: “Conduct is a factual cause of harm when the harm would not have
occurred absent the conduct"
Legal cause:
“Scope of risk” determined by factfinder
3.
Under Iowa R. Civ. P. 1.403 the petition cannot state the amount of money damages
claimed and must state whether it is at law or in equity.
4.
The petition or complaint may incorporate a contract or other document by reference;
it need not be set out in full in the pleading.
5.
Iowa state courts must take judicial notice of the statutes of Iowa. The state courts
also take judicial notice of the statutes of other jurisdictions of the United States
when referred to in the pleading. Iowa R. Civ. P. 1.415.
6.
Attorney fees are not awarded as part of the costs unless clearly authorized by statute,
see Keeney v. Iowa Power & Light Co., 96 N.W.2d 918 (Iowa 1959), or where there
is an agreement by the party to be charged. See O’Malia v. Regency Builders, Inc.,
662 N.W.2d 373 (Iowa 2003). There is also a rare exception to the general rules
against the recovery of attorney fees when the defendant has acted in bad faith,
vexatiously, wantonly, or for oppressive reasons. See Miller v. Rohling, 720 N.W.2d
562 (Iowa 2006).
a.
When judgment is recovered upon a written contract containing an
agreement to pay an attorney's fee, the court must allow and tax as a part of
the costs a reasonable attorney's fee to be determined by the court. Iowa
Code § 625.22.
b.
A promissory note, for example, is a “contract” for purposes of this section.
See Farmers Bank of Northern Missouri v. Erpelding, 555 N.W.2d 222
(Iowa 1996).
c.
Such an award may include appellate attorneys fees if the agreement, see
Eskenazi v. Essential Healthcare Resources, Inc., 680 N.W.2d 379 (Iowa
2004), O’Malia v. Regency Builders, Inc., 662 N.W.2d 373 (Iowa 2003), or
statute, see Schaffer v. Frank Moyer Const. Co., Inc., 628 N.W.2d 11 (Iowa
2001)(Iowa Code § 572.32 relating to mechanic’s liens allows award of
57
appellate attorneys fees), so provides. The award of appellate attorneys fees
is, under current practice, made by the district court. See Schaffer v. Frank
Moyer Const. Co., Inc., 628 N.W.2d 11 (Iowa 2001); Lehigh Clay Products,
Ltd. v. Iowa Department of Transportation, 545 N.W.2d 526 (Iowa 1996).
d.
In awarding attorneys fees, the court has broad but not unlimited discretion.
The applicant has the burden of proving that the services were reasonably
necessary and that the charges are reasonable in amount. The appropriate
factors to consider include:
•
•
•
•
•
•
The time necessarily spent;
The nature and extent of the service
The amount involved
The difficulty of handling and importance of the issues;
The standing and experience of the attorney in the profession; and
The customary charges for similar services.
e.
The district court must look at “the whole picture” and, using independent
judgment, decide on a total fee appropriate for handling the complete case.
Greatamerica Leasing Corp. v. Cool Comfort Air Conditioning and
Refrigeration, Inc., 691 N.W.2d 730 (Iowa 2005); Schaffer v. Frank Moyer
Const. Co., Inc., 628 N.W.2d 11 (Iowa 2001). The district court is
considered an expert on the issue of reasonable attorneys fees. See Landals
v. George A. Rolfes Co., 454 N.W.2d 891 (Iowa 1990).
f.
Attorneys fees includes legal assistant or paralegal fees. Schaffer v. Frank
Moyer Const. Co., Inc., 628 N.W.2d 11 (Iowa 2001).
g.
Review of an award of attorneys fees is for errors at law. See O’Malia v.
Regency Builders, Inc., 662 N.W.2d 373 (Iowa 2003).
h.
The attorney's fee allowed in Iowa Code § 625.22 may not be taxed in any
case unless it appears by affidavit of the attorney that there is not and has not
been an agreement between the attorney and the attorney's client or any other
person, express or implied, for any division or sharing of the fee to be taxed.
This limitation does not apply to a practicing attorney engaged with the
attorney as an attorney in the cause. The affidavit must be filed prior to any
attorney's fees being taxed. When fees are taxed, they must be only in favor
of a regular attorney and as compensation for services actually rendered in
the action. Iowa Code § 625.24.
C. The Answer.
1.
Iowa R. Civ. P. 1.405 requires that the answer:
a.
Show on whose behalf it is filed and specifically admit or deny each
allegation or paragraph of the petition, which denial may be for lack of
information;
58
b.
State any additional facts deemed to show a defense.
2.
The answer also may raise points of law appearing on the face of the petition, may
contain as many defenses, legal or equitable, as the pleader may claim, which may be
inconsistent, and may contain a counterclaim which must be in a separate division.
3.
Anything in the petition not denied is deemed admitted except for allegations of
value or damage. Iowa R. Civ. P. 1.405.
4.
Affirmative defenses must be included in the answer. Iowa R. Civ. P. 1.419. An
affirmative defense is one which rests on facts not necessary to support the plaintiff's
case. People's Trust & Savings Bank v. Baird, 346 N.W.2d 1 (Iowa 1984).
D. The Reply.
1.
A reply is authorized to a counterclaim denominated as such in the answer or if the
court orders a reply to an answer or an answer to a cross-petition. Iowa R. Civ. P.
1.315, 1.406.
2.
The reply may contain a counterclaim to a counterclaim in the answer.
E. Amendments.
1.
Iowa R. Civ. P. 1.402(4) provides that a party may amend a pleading once as a matter
of course at any time before a responsive pleading is served or if the pleading is one
to which no responsive pleading is required and the action has not been placed on the
trial calendar, the party may so amend it at any time within twenty days after it is
served. Thereafter, leave of court or the written consent of the adverse party is
required. Leave of court is to be freely given if justice so requires.
2.
A party must plead in response to the amended pleading within the time remaining
for response to the original pleading or within ten days after service of the amended
pleading, whichever period is longer, unless the court orders otherwise. Iowa R. Civ.
P. 1.441(4).
The opportunity to respond to the amended pleading is fundamental. Nelson v.
Adams USA, Inc., 120 S.Ct. 1579 (2000)(amendment after judgment adding new
defendant and making defendant immediately liable for judgment was error; due
process required that new defendant be given opportunity to respond and contest his
personal liability after he was made party and before entry of judgment against him).
3.
Iowa R. Civ. P. 1.457 provides for amendments to conform to the evidence when
issues not raised by the pleadings are tried by express or implied consent of the
parties.
4.
Under Iowa R. Civ. P. 1.402(5), if a claim or defense asserted in an amended
pleading arises out of the conduct, transaction or occurrence set forth in the original
pleading, the amendment relates back to the time of the original pleading. An
amendment changing the party against whom a claim is asserted relates back if, in
59
addition, the party to be brought in by the amendment, within the period provided by
law for commencing the action against the party had received such notice of the
institution of the action that the party will not be prejudiced in maintaining a defense
on the merits and knew or should have known that but for a mistake concerning the
identity of the proper party, the action would have been brought against the new
party.
a.
The relation-back effect applies to amendments changing parties and
amendments correcting names. Grant v. Cedar Falls Oil Co., 480 N.W.2d
863, 866 (Iowa 1992).
b.
In a relation-back case, a petition alleging unlawful detention but incorrectly
naming a corporate defendant was filed on the last permissible date for
commencement of an action with the applicable two-year statute of
limitations. Plaintiffs then filed an amendment correcting the name of the
defendant, but the district court sustained a motion to dismiss, concluding
that the amendment did not relate back to the time the original petition was
filed. The court of appeals reversed. However, the supreme court agreed
with the district court. The Court noted that relation-back occurs if the new
party has received notice of the institution of the action "within the period
provided by law for commencing the action against him." The question is
how this time period is measured. Adopting the defendant's approach, the
Court held that the notice must be "received" by the party within the
applicable limitations period; there is no extension of that period of time, as
the plaintiffs had urged, for a "reasonable" period of time thereafter to allow
for service. The Court found support for the defendant's position in the
decision of the United States Supreme Court in Schiavone v. Fortune, 477
U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986) which interpreted identical
language in F.R.Civ.P. 15(c). Grand v. Cedar Falls Oil Co., 480 N.W.2d
863 (Iowa 1992).
c.
In Estate of Kuhns v. Marco, 620 N.W.2d 488 (Iowa 2000), the Iowa
supreme court considered the issue of whether Iowa R. Civ. P. 1.402(5)
requires a defendant to receive notice of the action prior to the expiration of
the statute of limitations before an amendment to the petition adding a
plaintiff may be deemed to relate back to the original petition when the
action was filed prior to the expiration of the statute of limitations. Kuhns
was injured in a car accident with Marco. Following the accident, Kuhns
died of an unrelated cause. Shortly before the statute of limitations would
have run, an action for person injuries was brought by Kuhns’ estate. Marco
was not served until after the statute of limitations would have run, however.
Marco moved to the dismiss alleging that the action should have been
brought by Kuhns’ personal representative. Kuhns’ estate filed a motion to
amend adding the personal representatives as plaintiffs. The trial court
denied the motion to dismiss and granted the motion to amend. Marco then
moved for summary judgment on the ground that he had not received notice
of the institution of the suit until two weeks after the statute of limitations
had run. The trial court granted the motion, holding that Iowa R. Civ. P.
1.402(5) required that Marco receive notice of the institution of the suit prior
60
to the expiration of the statute of limitations. The court of appeals affirmed
but the supreme court reversed.
The supreme court emphasized that the relation back effect of amendments
must be considered together with the policies underlying statutes of
limitations. Although the general rule is to freely allow amendments, if the
amendment offends the policies underlying statutes of limitations, it will not
relate back to the time of the original pleading. However, if the amendment
does not conflict with the statute of limitations policies, it should relate back.
Iowa R. Civ. P. 1.402(5) has two tests for relation-back:
•
If a pleading is amended to add a claim, it will relate back if the claim
arose out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading;
•
If a pleading adds parties:
- The same relation-back for adding claims is considered;
- The party against whom a claim is asserted must received such
notice of the institution of the action that the party will not be
prejudiced in maintaining a defense on the merits;
- The party against whom the claim is asserted must known or should
have known that but for a mistake concerning identity, the action
would have been brought against the party; and
- The second and third factors must occur within the period provided
by law for maintaining the action against the party.
The court reviewed decisions that had previously held that the notice
requirement of Iowa R. Civ. P. 1.402(5) applied to amendments
changing the plaintiff, even though the rule expressly applies only to
amendment changing the party against whom a claim is asserted. The
court held that an amendment that substitutes a new plaintiff for the
original plaintiff or adds a new plaintiff under the real party in interest
rule, relates back to the original petition under Iowa R. Civ. P. 1.402(5)
when there is no accompanying change in the claims asserted against the
defendant and the defendant is unable to show prejudice of the type
sought to be avoided by the governing statute of limitations. The
defendant should be given an opportunity to show prejudice in the event
that notice of the misnamed party adversely impacts the policy
considerations of the statute of limitations.
F. Supplemental Pleadings.
1.
While amendments are for matters which should have been in the original pleadings,
supplemental pleadings under Iowa R. Civ. P. 1.414 is for settings forth transactions
or occurrences or events that have happened since the original pleadings.
2.
No responsive pleading is required unless the court so orders.
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G. Demand for Jury Trial.
1.
Although the Iowa Constitution provides for the right to trial by jury, the Iowa Rules
of Civil Procedure require a litigant to affirmatively demand a jury trial. Iowa R. Civ.
P. 1.903 states that, "All issues shall be tried to the court except those for which a
jury is demanded." If no timely demand for a trial to a jury is made, the right is
waived under Iowa R. Civ. P. 1.902(1). Even when a demand has been made, there
will be no jury trial if "all parties appearing at the trial waive a jury in writing or
orally in open court." Iowa R. Civ. P. 1.903.
2.
In Weltzin v. Nail, 618 N.W.2d 293 (Iowa 2000), a shareholders’ derivative action,
an equitable action, the trial court struck the jury demand and the shareholders
appealed, arguing that they had a right to a jury trial in equity because several of their
claims and remedies were legal. The ruling was affirmed by the supreme court. The
court reviewed the general principles relating to the issue. Where a case is properly
docketed is not the deciding factor in such cases, nor is the relief sought or the nature
of any defense asserted. There is a right to a jury trial in an equity action where a
legal counterclaim is asserted, however. The court noted that the United States
Supreme Court has held that there is a right to a jury trial in shareholders’ derivative
actions under the Seventh Amendment. However, the Seventh Amendment does not
apply to the states. The court also observed that many states have elected not to
follow the Ross opinion but rather have agreed with the dissent in the case that a right
to jury trial does not exist in derivative actions. Finally, the court recognized that
because of the complexity of a derivative suit, a judge is better equipped to hear the
claims. The court concluded that the shareholders did not have the right to a jury trial
in the case because their right to bring a derivative suit existed only in equity where
there is no general preference for a jury trial.
3.
The Iowa supreme court has rejected a request for recognition of a "complex
litigation" exception to the constitutional right to a trial by jury. Reiff v. Evans, 672
N.W.2d 728 (Iowa 2003).
4.
Iowa R. Civ. P. 1.902(2) requires that a written demand be filed by a party who
desires a jury trial "not later than ten days after the last pleading" directed to the issue
or issues which the party seeks to have tried to a jury. A demand is deemed to be on
all issues triable to a jury unless it is limited to a specific issue. Iowa R. Civ. P.
1.902(2). If a limited demand is filed, another party may file a demand to have some
or all of the other issues tried to a jury. The subsequent demand must be filed within
ten days after the filing of the limited demand, unless the court orders otherwise.
Iowa R. Civ. P. 1.902(2).
5.
Iowa R. Civ. P. 1.902(2) provides that the demand may be made in the pleading of a
party, and, if so, must be noted in the caption. If it is filed separately it must be
served and filed in accordance with Iowa R. Civ. P. 1.442. If it is filed with the
petition, it must be served with the petition and original notice.
6.
A party who fails to make a timely demand for a jury trial can move under Iowa R.
Civ. P. 1.902(4) that the court in its discretion grant a jury trial. The rule requires a
62
showing of good cause and cannot be ex parte. The grant may be conditional and
may be for specific issues or for all issues.
VI. COMPARATIVE FAULT.
A. Introduction.
1.
Common law contributory negligence was originally adopted by the Iowa supreme
court in Rusch v. City of Davenport, 6 Iowa 443 (1858).
2.
In Goetzman v. Wichern, 327 N.W.2d 742 (Iowa 1982), the supreme court
abandoned the doctrine that contributory negligence is a complete bar to recovery and
in its place adopted the pure form of comparative negligence. The new doctrine was
to be applied to the Goetzman case itself, all cases tried or retried after the date of the
opinion, December 22, 1982, and all pending cases, including appeals, in which the
issue had been preserved.
3.
The Comparative Fault Act, Iowa Code Chapter 668, adopted in 1984, established a
modified form of comparative negligence patterned largely after the Uniform
Comparative Fault Act.
4.
Iowa Code § 619.17 requires a defendant who relies on the contributory fault of a
plaintiff to diminish the amount to be awarded as compensatory damages to plead
and prove the fault of the plaintiff, if any, and that it was a proximate cause of the
injury or damage.
B. Goetzman v. Wichern.
1.
In Goetzman v. Wichern, 327 N.W.2d 742 (Iowa 1982), the supreme court,
concluding that arguments for deference to the legislature were substantially
outweighed by various considerations, abandoned the doctrine that contributory
negligence is a complete bar to recovery and in its place adopted "the doctrine of
comparative negligence under which an injured party's recovery is diminished in
proportion to that party's contributory negligence, and recovery is not barred unless
the injured party's negligence is the sole proximate cause of the damages." The court
concluded that the pure form of comparative negligence was the "fairest, most logical
and simplest to administer of all available systems."
2.
Goetzman was a medical malpractice case in which the plaintiff alleged that her
physician was negligent in the diagnosis and treatment of breast cancer over a period
from 1974 to 1978. The defendant doctor alleged that the plaintiff had been
contributorily negligent in failing to follow his advice and cooperate with his
diagnostic and treatment recommendations. The plaintiff required but did not receive
a comparative negligence instruction. The jury returned a defense verdict.
3.
Cases decided under Goetzman continue to be significant, not only for what they may
suggest about issues decided under the Iowa comparative fault statute, but also
because of their applicability to negligence cases not governed by the Iowa
comparative fault statute, including the following:
63
•
•
Actions by an employee against an employer under Iowa R. Civ. P. 1.416;
see Wernimont v. Wernimont, 686 N.W.2d 186 (Iowa 2004)(employer
liability is governed by "pure" comparative negligence principles of Iowa R.
Civ. P. 1.416, not Iowa Code Chapter 668 (comparative fault).
Actions by a passenger against a common carrier.
C. The Iowa Comparative Fault Act.
1.
The Iowa Comparative Fault Act, Iowa Code Chapter 668, is patterned largely after
the Uniform Comparative Fault Act. In two respects, chapter 668 and the Uniform
Act differ substantially. The first difference relates to the effect of contributory fault
on recovery. Under Iowa Code § 668.3(1), recovery is diminished in proportion to
the amount of fault attributable to the claimant. Recovery, however, is barred if the
claimant bears a greater percentage of fault than that attributed to defendants,
third-party defendants, and released persons. In contrast, under the Uniform Act any
contributory fault attributable to the claimant simply diminishes, but does not bar,
recovery. The second difference relates to the common-law rule of joint and several
liability. Under the Uniform Act the common-law rule continues, meaning that
regardless of contributory fault, the claimant may recover the total judgment against
any defendant who is liable. Under Iowa Code § 668.4, however, the rule is
substantially modified. According to this provision, the rule does not apply to
defendants who are found to bear less than fifty percent of the total fault assigned to
all parties.
2.
Although the statute would appear to apply only to cases where there is some fault to
compare, i.e., where the fault of more than one party is in issue, in Waterloo Savings
Bank v. Austin, 494 N.W.2d 715 (Iowa 1993), a wrongful death action, the court
indicated that the critical question is whether the "fault" alleged is within the scope of
the statute. The plaintiff bank, as administrator of the estates of two car passengers,
sued the driver of the vehicle. The passengers were killed when the car collided with
another vehicle on Interstate 380 north of Cedar Rapids. The bank also sued the
owner of the vehicle under Iowa's owner consent statute, Iowa Code § 321.493
(1989).
Just prior to trial the defendants admitted liability, and the case was submitted to the
jury on the question of damages only. The jury returned verdicts of just over $40,000
for each estate; $35,000 of each verdict represented the present value of lost income
accumulation. The future damages were the source of controversy on appeal. The
fighting issue was whether Iowa Code Chapter 668, and its interest provisions, had
any application to the case at all. The bank claimed that because only the defendant
driver's fault was ever placed in issue, and the defendants ultimately conceded
liability, the case fell outside the scope of Chapter 668. The defendants argued that
plaintiff's petition alleged negligent acts resulting in personal injury and, therefore,
the comparative fault act applied. The court said:
[W]e do not believe the legislature intended to restrict chapter 668's
scope to only those controversies in which multi-party fault is
alleged or proven....
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By its terms, the purpose of the comparative fault act is to
establish "comparative fault as the basis for liability in relation to
claims for damages arising from injury to or death of a person or
harm to property....” 1984 Iowa Acts ch. 1293. This broad
prescription applies where the fault which is placed in issue, or may
be placed in issue, is that defined by § 668.1. "Fault" is therein
defined as "one or more acts ... in any measure negligent or reckless
toward the person or property of the actor or others...." Iowa Code
§ 668.1 (emphasis added). See Cowan v. Flannery, 461 N.W.2d
155, 157 (Iowa 1990) (negligence claim for damages resulting from
injury to person "now brought under the provisions of chapter 668
of the Iowa Code; liability in tort - comparative fault").
See also Graber v. City of Ankeny, 616 N.W.2d 633 (Iowa 2000) (Iowa Code
Chapter 668 applies even where blameless plaintiff sues only one defendant).
3.
Iowa Code § 668.1 provides that "fault" means one or more acts or omissions that are
in any measure negligent or reckless toward the person or property of the actor or
others, or that subject a person to strict tort liability. The term also includes breach of
warranty, unreasonable assumption of risk not constituting an enforceable express
consent, misuse of a product for which the defendant otherwise would be liable, and
unreasonable failure to avoid an injury or to mitigate damages.
4.
Sole proximate cause is not a comparative fault defense because proof of sole
proximate cause insulates a defendant from liability. Johnson v. Interstate Power
Co., 481 N.W.2d 310 (Iowa 1992). In Summy v. City of Des Moines, 708 N.W.2d
333 (Iowa 2006), during a golf outing, the plaintiff was struck in the eye by an errant
golf shot by another player. The plaintiff brought an action against the city that
owned the golf course alleging that the city negligently designed, operated and
maintained the golf course in an unreasonably dangerous condition. On appeal from a
verdict against the city, the city argued that the district court improperly refused to
allow the city to argue that the golfer who hit the ball that struck the plaintiff was the
sole proximate cause of the plaintiff’s injury or to instruct on the defense of sole
proximate cause. The supreme court held that the district court did not abuse its
discretion in refusing to instruct the jury on the defense. The court emphasized that
sole proximate cause means the only cause and that the defense rests on the notion
that a third party or other independent event was the sole cause of the plaintiff’s
injuries, and thus, it is used “as an alternative label for superceding cause.” On the
facts of the case, the alleged negligence of the other golfer was also an intervening
cause because it occurred after the defendant’s negligence. Whether the intervening
cause could be a superceding or sole proximate cause of the plaintiff’s injuries is
governed by Restatement (2d), Torts § 449, which provides:
If the likelihood that a third person may act in a particular manner is
the hazard or one of the hazards which makes the actor negligent,
such an act whether innocent, negligent, intentionally tortuous, or
criminal does not prevent the actor from being liable for harm
caused thereby.
65
In other words, a foreseeable intervening force is within the scope of the defendant’s
negligence and will not relieve the defendant of liability. The city’s liability in the
case was based on Restatement (2d), Torts § 344 which provides:
A possessor of land who holds it open to the public for entry for his
business purposes is subject to liability to members of the public
while they are upon the land for such a purpose, for physical harm
caused by the accidental, negligent, or intentionally harmful acts of
third persons or animals, and by the failure of the possessor to
exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm,
or otherwise to protect them against it.
Sole proximate cause, the court said, is incompatible with a theory of liability under
Restatement (2d), Torts § 344 when the third party who inflicted the harm is alleged
to be the sole proximate cause of the plaintiff’s injury because § 344 liability is based
on the defendant’s failure to protect the plaintiff from the harm caused by the third
party, whether the third party was negligent or not. The other golfer’s negligence was
one of the hazards against which the city had a duty to use reasonable care to protect
the plaintiff, and thus the other golfer’s act did not prevent the city from being liable
for the resulting harm. Thus, the other golfer’s negligence could not, as a matter of
law, be the sole proximate cause of the plaintiff’s injury.
5.
The Iowa comparative fault act defines fault to include “unreasonable failure to . . . to
mitigate damages.” There must be substantial evidence that the plaintiff could do
something to mitigate plaintiff’s loss and that requiring the plaintiff to do so was
reasonable under the circumstances. It also must be shown that the plaintiff acted
unreasonably in failing to undertake the mitigating activity. There also must be proof
of a causal connection between the plaintiff’s failure to mitigate and plaintiff’s
damages. The defendant’s burden of proof on causation is the same as a plaintiff’s
burden of proving that the defendant caused plaintiff’s damages. Because the failure
to mitigate defense is based on conduct occurring after the plaintiff has sustained an
injury caused by the plaintiff’s fault, cases in which the defense arise usually present
the situation where some portion of the plaintiff’s damages will not be subject to the
defense. Thus, separate verdicts forms should be used for the period prior to the
plaintiff’s alleged failure to mitigate and for the period that includes the plaintiff’s
failure to mitigate. See generally Greenwood v. Mitchell, 621 N.W.2d 200(Iowa
2001).
6.
Iowa Code § 668.2 provides "party" means any of the following:
• A claimant;
• A person named as defendant;
• A person who has been released pursuant to §
668.7; and
• A third-party defendant.
66
7.
8.
a.
A person named as a defendant in the petition, but never served and never
brought within the jurisdiction of the court is not a "named defendant" under
§ 668.2. Collier v. General Inns Corp., 431 N.W.2d 189 (Iowa App. 1988).
b.
Unidentified or absent defendants are not "parties." Baldwin v. City of
Waterloo, 372 N.W.2d 486 (Iowa 1985).
c.
Neither God nor acts of God can be considered a "party" for purposes of
fault allocation. Renze Hybrids, Inc. v. Shell Oil Co., 418 N.W.2d 634 (Iowa
1988).
Iowa Code § 668.3 provides that contributory fault shall not bar recovery in an action
by a claimant to recover damages for fault resulting in death or in injury to person or
property unless the claimant bears a greater percentage of fault that the combined
percentage of fault attributed to the defendants, third-party defendants and persons
who have been released pursuant to § 668.7, but any damages allowed shall be
diminished in proportion to the amount of fault attributable to the claimant.
a.
The contributory fault of an injured person, such as an injured spouse, does
not bar recovery in an action by a claimant, such as the deprived spouse, to
recover damages for loss of services, companionship, society, or consortium,
unless the fault attributable to the injured person is greater in percentage than
the combined percentage of fault attributable to the defendants, third-party
defendants, and persons who have been released pursuant to § 668.7. In that
case, any damages for the deprived spouse are diminished in proportion to
the amount of fault attributable to the injured spouse.
b.
Fox v. Interstate Power Company, 521 N.W.2d 762 (Iowa App. 1994)
illustrates the effect of the statute where the claimant is more than 50% at
fault. The plaintiff was found 80% at fault and the defendant 20%. In that
case, the plaintiff's recovery is barred.
c.
The Iowa supreme court has said that in order for comparative negligence to
be applicable in a medical malpractice action, a patient's negligence must
have been an active and efficient contributing cause of the injury, must have
cooperated with the negligence of the malpractitioner, must have entered
into proximate causation of the injury, and must have been an element in the
transaction on which the malpractice is based. Accordingly, in a medical
malpractice action, the defense of contributory negligence is inapplicable
when a patient's conduct provides the occasion for medical attention, care, or
treatment which later is the subject of a medical malpractice claim or when
the patient's conduct contributes to an illness or condition for which the
patient seeks the medical attention, care or treatment on which a subsequent
medical malpractice claim is based. Wolbers v. The Finley Hospital, 673
N.W.2d 728 (Iowa 2003), citing cases.
Only parties whose fault toward the claimant is an issue can be included in the total
aggregate of causal fault. The fault of parties toward the claimant which has not been
placed in issue cannot be considered. If a defendant or a third-party defendant has a
67
defense to the plaintiff's claim, that party's fault is not to be considered in the
allocation of aggregate causal fault by the trier of fact. Pepper v. Star Equipment,
LTD., 484 N.W.2d 156 (Iowa 1992); Schwennen v. Abell, 430 N.W.2d 98 (Iowa
1988); Reese v. Werts Corp., 379 N.W.2d 1 (Iowa 1985).
An employer's negligence cannot be considered by a jury to reduce a third-party
tortfeasor's liability to an injured employee. Sorenson v. Morbark Industries, Inc.,
153 FRD 144 (N.D. Iowa 1993); Speck v. Unit Handling Division, 366 N.W.2d 543
(Iowa 1985); Thompson v. Stearns Chemical Corp., 345 N.W.2d 131 (Iowa 1984).
9.
Thomas v. Solberg, 442 N.W.2d 73 (Iowa 1989), involved a partial settlement of a
comparative fault case with two of three defendants. The court held that in partial
settlements of comparative fault cases the proportionate, rather than the pro tanto,
credit rule applies. This is so regardless of whether the plaintiff negotiates a partial
settlement that ultimately results in the plaintiff receiving more than a jury or court
award. In applying the proportionate credit rule, the district court simply credits the
award against the nonsettling defendant with the settling defendant's equitable share
of the total damages found by the trier of fact. This equitable share is determined by
multiplying the total damages by the percentage of fault allocated to the settling
defendant.
The pro tanto rule remains viable, however, in cases not governed by Chapter 668,
such as fraud actions or breach of contract actions. See State v. Paxton, 674 N.W.2d
106 (Iowa 2004).
10.
Section 668.3(2) requires the court, unless otherwise agreed by the parties, to use
special interrogatories to obtain findings on the claimant's damages, without regard to
contributory fault, and the percentage of total causal fault allocated to each party. It
also requires the court to instruct the jury not only on the effect of the claimant's
contributory fault but also on the effect of the fault of other parties.
The court must instruct the jury to answer special interrogatories or, if there is no
jury, make findings on each specific item of requested or awarded damages
indicating that portion of the judgment or decree awarded for past damages and that
portion of the judgment or decree awarded for future damages. All awards of future
damages are calculated according to the method set forth in Iowa Code § 624.18.
Section 624.18 provides that in a personal injury action where the plaintiff recovers a
sum of money that, according to special verdict, is intended, in whole or in part, to
address the future damages of the plaintiff, that portion of the judgment that reflects
the future damages must be adjusted by the court or the finder of fact to reflect the
present value of the sum. There may not be more than one reduction to present value
by either the trier of fact or the court.
11.
Iowa Code § 668.4 provides in actions brought under chapter 668, the rule of joint
and several liability shall not apply to defendants who are found to bear less than fifty
percent of the total fault assigned to all parties. And a defendant found to bear fifty
percent or more of fault is only jointly and severally liable for economic damages and
not for any noneconomic damage awards.
68
An illustration of § 668.4 is Burke v. Roberson, 417 N.W.2d 209 (Iowa 1987), where
the plaintiffs sued a lawyer and a real estate agent for the faulty drafting of a real
estate contract. The jury awarded substantial damages and assessed 67% of the
negligence to the lawyer, 20% to the real estate agent and 13% to the plaintiff. The
lawyer was jointly and severally liable for the entire judgment.
12.
Iowa Code § 668.5 provides that a right of contribution exists between or among two
or more persons who are liable upon the same indivisible claim for the same injury,
death, or harm, whether or not judgment has been recovered against all or any of
them. It may be enforced either in the original action or by a separate action brought
in for that purpose. The basis for contribution is each person's equitable share of the
obligations, including the share of fault of a claimant, as determined in accordance
with § 668.3.
a.
The comparative fault statute provides guidelines for contribution between
tortfeasors. See generally AID Ins. Co. v. Davis County, 426 N.W.2d 631
(Iowa 1988). Contribution is permitted under § 668.5(1) between two
persons who are liable upon the same indivisible claim for the same harm.
The right of contribution is available to a person who settles with a claimant
under § 668.5(2) "only if the liability of the person against whom
contribution is sought has been extinguished and only to the extent that the
amount paid in settlement was reasonable." Percentages of fault may be
established in a separate action according to § 668.6(2). If contribution is
sought in a case where judgment has not been rendered, it is enforceable
upon the condition that the person bringing the action for contribution must
have discharged the liability of the person from whom contribution is sought
by payment made within the period of the statute of limitations applicable to
the claimant's right of action, according to § 668.6(3).
b.
The plaintiff seeking contribution must establish that the defendant's liability
to the injured parties has been discharged. One means of doing so is a
release. In AID Ins. Co. v. Davis County, 426 N.W.2d 631 (Iowa 1988), the
supreme court considered the effect of such a release. The release preprinted
boilerplate language purported to discharge "all other persons, firms, or
corporations, known or unknown, who are, or might be claimed to be
liable...." The plaintiff claimed the release discharged the defendant, an
"other...corporation", but the defendant relied on the "unless it so provides"
language of the statute to require the release to name or otherwise
specifically identify the parties released. The court concluded that the
legislature, in enacting § 668.7, "intended to eliminate the ambiguity factor
and require the identification of any tortfeasor that is to be released."
Because the defendant county was not released, plaintiff could not seek
contribution.
c.
Contribution may only be recovered for the amount paid in excess of the
party's proportionate share of the damages under § 668.6(1). American Trust
& Savings Bank v. United States Fidelity and Guaranty Co., 439 N.W.2d
188 (Iowa 1989).
69
13.
14.
d.
Section 668.6(3)(a) requires that the contribution action be brought within
one year after the date of payment. Failure to do so bars the claim. See
Insurance Company of North America v. Coast Catamaran Corp., 753 F.
Supp 804 (S.D. Iowa 1991).
e.
Section 668.6(3)(b) provides for a one-year limitation period for contribution
actions after the "date of the agreement". See Iowa National Mutual
Insurance Co. v. Granneman, 438 N.W.2d 840 (Iowa 1989)("date of
agreement" was date recited in agreement that it was made, which was also
date signed by plaintiffs and date initial payment made).
Iowa Code § 668.7 provides that a release, covenant not to sue, or similar agreement
entered into by a claimant and a person liable discharges that person from all liability
for contribution, but it does not discharge any other persons liable upon the same
claim unless it so provides. However, the claim of the releasing person against other
persons is reduced by the amount of the released person's equitable share of the
obligation, as determined in § 668.3(4).
a.
In AID Ins. Co. v. Davis County, 426 N.W.2d 631 (Iowa 1988), the supreme
court considered the effect of a release. The release’s preprinted boilerplate
language purported to discharge "all other persons, firms, or corporations,
known or unknown, who are, or might be claimed to be liable...." The
plaintiff claimed the release discharged the defendant as an
"other...corporation" but the defendant relied on the "unless it so provides"
language of the statute to require the release to name or otherwise
specifically identify the parties released. The court concluded that the
legislature, in enacting § 668.7, "intended to eliminate the ambiguity factor
and require the identification of any tortfeasor that is to be released."
b.
A release that "does hereby demise, release and forever discharge Britt-Tech
Corporation, its successors and assigns, and all other persons, forms or
corporations, known or unknown. . ." was also held insufficient under §
668.7 in Britt-Tech Corp. v. American Magnetics Corp., 463 N.W.2d 26
(Iowa 1990).
c.
Although Iowa Code § 668.3(2) requires the factfinder to determine the
percentage of fault allocated to each claimant, defendant, third-party
defendant, and person released from liability under § 668.7, it does not
specify who has the burden of proof on the issue of the fault of the released
party. The burden of proof generally is upon the party who would suffer loss
if the issue were not established. For example, where the defendant alleges
the fault of a released person as a defense in order to lessen his possible
percentage of fault, it is the defendant’s burden to prove the fault of the
released person. Beyer v. Todd, 601 N.W.2d 35 (Iowa 1999).
Iowa Code § 668.10 provides in any action brought pursuant to Chapter 668, the
state or a municipality shall not be assigned a percentage of fault for any of the
following reasons:
70
•
The failure to place, erect, or install a stop sign, traffic control device, or
other regulatory signs as defined in the uniform manual for traffic control
devices adopted pursuant to § 321.252. However, once a regulatory device
has been placed, created or installed, the state or municipality may be
assigned a percentage of fault for its failure to maintain the device.
•
The failure to remove natural or unnatural accumulations of snow or ice, or
to place sand, salt, or other abrasive material on a highway, road, or street if
the state or municipality establishes that it has complied with its policy or
level of service for snow and ice removal or placing sand, salt or other
abrasive materials on its highways, roads, or streets.
•
For contribution unless the party claiming contribution has given the state or
municipality notice of the claim pursuant to § § 25A.13 and 613A.5.
a.
The adoption of the Iowa Tort Claims Act and the Municipal Tort Claims
Act replaced the doctrine of sovereign immunity by providing a citizen the
right to sue state and local governments for certain negligent acts committed
by a government or its employees. Hansen v. State, 298 N.W.2d 263, 265
(Iowa 1980). The adoption of Chapter 668, however, created new
exceptions to this right to sue.
b.
The Iowa supreme court's first decision applying § 668.10 stated that the
section "can only be viewed as a continuation of a discernible current trend
to make individual citizens bear the sole burden of the negligence of State
employees." Metier v. Cooper Transport Co. Inc., 378 N.W.2d 907, 913
(Iowa 1985).
c.
Despite the broad nature of the legislative policy, plaintiffs are not without
recourse. Iowa courts recognize three exceptions under which the state or a
municipality may be held liable:
•
•
•
15.
A claim for failure to maintain a device;
A claim for installation of a misleading sign; and
A claim under the state of facts in which the exigencies are such that
ordinary care would require the state or municipality to warn of
dangerous conditions by other than inanimate devices.
Iowa Code § 668.11 provides that a party in a professional liability case brought
against a licensed professional pursuant to Chapter 668 who intends to call an expert
witness of the party’s own selection, shall certify to the court and all others parties
the expert's name, qualifications and the purpose for calling the expert within the
following time period:
•
The plaintiff within one hundred eighty days of the defendant's answer
unless the court for good cause not ex parte extends the time of disclosure.
•
The defendant within ninety days of plaintiff's certification.
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If a party fails to disclose an expert or does not make the expert available for
discovery, the expert shall be prohibited from testifying in the action unless leave for
the expert's testimony is given by the court for good cause shown. See also Hill v.
McCartney, 590 N.W.2d 52 (Iowa App. 1999)(trial court did not abuse its discretion
in denying plaintiff’s application to extend deadline to designate her expert where
deviation from time limits were serious where she knew for four months that she did
not have expert to assist her and did nothing).
16.
Iowa Code § 668.12 provides in any action brought pursuant to chapter 668 against
an assembler, designer, supplier of specifications, distributor, manufacturer or seller
for damages arising from an alleged defect in the design, testing, manufacturing,
formulation, packaging, warning, or labeling of a product, a percentage of fault shall
not be assigned to such persons if they plead and prove that the product conformed to
the state of the art in existence at the time the product was designed, tested,
manufactured, formulated, packaged, provided with a warning, or labeled. Nothing
contained in this section diminishes the duty of an assembler, designer, supplier of
specifications, distributor, manufacturer or seller to warn concerning subsequently
acquired knowledge of a defect or dangerous condition that would render the product
unreasonably dangerous for its foreseeable use or diminish the liability for failure to
so warn.
The statutory language of § 668.12 does not define "state of the art" - an issue the
court addressed in both the majority and concurring opinions in Hughes v. MasseyFerguson, Inc., 522 N.W.2d 294 (Iowa 1994). Industry custom is one factor the court
may apply in determining state of the art. The court has concluded, however, that the
jury may consider industry custom as evidence of state of the art, but such evidence
does not establish conclusively the state of the art defense. Chown v. USM
Corporation, 297 N.W.2d 218 (Iowa 1980) and Hillrichs v. Avco Corp., 514 N.W.2d
94 (Iowa 1994). In Chown, the court defined state of the art as what feasibly could
have been done. The court went on to define feasibly as a "product design that is
practically, as well as technologically, sound." The defendant in Hughes cited
industry custom, feasibility, approved scientific standards, and government
regulations to support the state of the art defense. The court found that this evidence
was ample to support a state of the art instruction to the jury.
17.
Iowa Code § 668.13 provides for interest on all money due on judgments
and decrees.
a.
Interest is calculated as of the date of judgment at a rate equal to the
coupon issue yield equivalent, as determined by the United States
Secretary of the Treasury, of the average accepted auction price for
the last auction of fifty-two week United States Treasury bills settled
immediately prior to the date of the judgment plus two percent. The
state court administrator will distribute notice monthly of that rate
and any changes to that rate to all district courts.
b.
Interest accrues from the date of the commencement of the action,
except for interest on future damages which accrues from the date of
entry of the judgment.
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18.
Iowa Code § 668.14 provides in an action brought pursuant to chapter 668 seeking
damages for personal injury, the court shall permit evidence and argument as to the
previous payment or future right of payment of actual economic losses incurred or to
be incurred as a result of the personal injury for necessary medical care, rehabilitation
services, and custodial care except to the extent that the previous payment or future
right of payment is pursuant to a state or federal program or from assets of the
claimant or the members of the claimant's immediate family.
Iowa Code § 668.14 replaced the common law collateral source rule as it applied to
comparative fault cases. At common law, the collateral source rule applied when a
plaintiff received both benefits from a third party source (i.e., an insurance company)
and a judgment against a tortfeasor defendant. Receipt of the damage award meant
the plaintiff collected twice for the same injuries.
VII. PARTIES; CLAIMS.
A. Standing.
1.
Standing is a self-imposed rule of judicial restraint. The specific personal or legal interest
requirement is based on the general notion that a party must have a special interest in the
challenged action as distinguished from a general interest. The injury-in-fact element requires
the party to show some specific and perceptible harm from the challenged action,
distinguished from those citizens who are outside the subject of the action but claim to be
affected. However, a party is not required to allege a violation of a private right or traditional
damages, but rather must only allege some type of injury different from the population in
general. However, litigants with intangible interests in common with all other citizens must
also identify some individual connection with the affected subject matter to meet the injuryin-fact element. See generally Godfrey v. State, 752 N.W.2d 413 (Iowa 2008).
The two-distinct prongs of the standing inquiry which the plaintiff must satisfy are (1) a
specific personal or legal interest in the litigation and (2) be injuriously affected. See
Horsfield Materials, Inc. v. City of Dyersville, 2013 WL 3378316 (Iowa 2013)(supplier
lacked standing to challenge preapproval process under Iowa's public bidding statute);
Citizens for Responsible Choices v. City of Shenandoah, 686 N.W.2d 470 (Iowa 2004); Alons
v. Iowa Dist. Ct., 698 N.W.2d 858 (Iowa 2005).
2.
When the asserted injury arises from governmental regulation of another, as opposed to the
situation where the plaintiff is the object of the action, the plaintiff also must establish a
causal connection between the injury and the conduct complained of and that the injury is
likely as opposed to merely speculative.
3.
Third-party standing requires a litigant to establish that the parties not before the court have a
direct stake in the litigation and are either unlikely or unable to assert their rights. However,
standing to bring actions on behalf of third parties still requires the litigant to show a personal
injury or stake in the litigation.
4.
Under the public policy exception to the injury requirement, citizens who seek to resolve
certain questions of “great public importance and interest” in the system of government may
have standing.
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5.
Standing to sue is distinct from the issue whether the party is the real party in interest. Real
party in interest relates to whether the plaintiff has a significant interest in the particular action
the plaintiff has instituted, i.e. whether the plaintiff is the true owner of the right sought to be
enforced, while standing requires that the plaintiff demonstrate an injury to a legally protected
right. See The Pillsbury Co., Inc. v. Wells Dairy, Inc., 752 N.W.2d 430 (Iowa 2008)(where
there is an effective assignment, assignment transfers entire rights under contract from
assignor to assignee so that assignee assumes not only benefits of contract, but also rights and
remedies; fact issue as to whether assignee become real party in interest in action for breach of
contract when contract was assigned to assignee).
6.
Standing is defined as the right of the person to seek judicial relief from an alleged injury.
Upon an objection of standing, the burden is on the plaintiff to show a specific, personal and
legal interest in the litigation and injury. See Bushby v. Washington County Conservation
Board, 654 N.W.2d 494 (Iowa 2003); Clark v. Iowa State Commerce Commission, 286
N.W.2d 208 (Iowa 1979)(party asserting standing must allege potential injury and must be
within scope of interests which statute is designed to protect) citing Sierra Club v. Morton,
405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).
The plaintiff must have suffered an injury in fact—an invasion of a legally protected interest
which is concrete and particularized and actual or imminent, not conjectural or hypothetical.
There must be a causal connection between the injury and the conduct complained of—the
injury has to be fairly traceable to the challenged action of the defendant and not the result of
the independent action of some third party. And it must be likely and not merely speculative
that the injury will be redressed by a favorable decision. Sanchez v. State, 692 N.W.2d 812
(Iowa 2005). See also Citizens for Responsible Choices v. City of Shenandoah, 686 N.W.2d
470 (Iowa 2004).
7.
In an environmental case, standing requires that the plaintiffs claim that they use the affected
area and are persons for whom the aesthetic and recreational values of the area will be
lessened by the challenged activity. Bushby v. Washington County Conservation Board, 654
N.W.2d 494 (Iowa 2003) citing Friends of the Earth, Inc. v. Laidlaw Environmental Services,
528 U.S. 167, 120 S. Ct. 693, 145 L. Ed.2d 610 (2002).
B. Real Parties in Interest; Who May be Sued.
1.
Iowa R. Civ. P. 1.201 provides: Every action must be prosecuted in the name of the real party
in interest. But an executor, administrator, conservator, guardian, trustee of an express trust;
or a party with whom or in whose name a contract is made for another's benefit, or a party
specifically authorized by statute, may sue in that person’s own name without joining the
party for whose benefit the action is prosecuted. The Iowa rule provides that an action shall
not be dismissed on the ground that it is not prosecuted in the name of the real party in
interest until a reasonable time after objection to allow the pleading party to ratify, join or
substitute the proper party.
The real party in interest provision was adopted primarily to allow an assignee to sue in his or
her own name; the party is no longer required to sue in the name of the assignor. Since both
tort and contract claims can be assigned in Iowa, the provision is of great significance.
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The real party in interest is the person who has the legal right to bring the action; a beneficial
interest test is not applied. The person bringing the action must have some legally recognized
claim which is being asserted.
2.
A parent or the parents may bring the action for the expense and actual loss of service,
companionship and society resulting from injury to or death of a minor child. Iowa R. Civ. P.
1.206.
The Iowa supreme court had held that such an action could not be brought for injury
to or death of an adult child and the difference in treatment between a minor and an
adult child was upheld against equal protection challenges. Kuta v. Newberg, 600
N.W.2d 280 (Iowa 1999); Ruden v. Parker, 462 N.W.2d 674 (Iowa 1990). Since
there is a difference in the degree and nature of the relationship, with that of the
parent/adult child being somewhat less than that of the parent/minor child, the court
held the legislature could rationally treat these relationships in a different manner,
and limit the recoverability of consortium damages to the situation where the child
dies before reaching the age of majority or emancipation.
Iowa Code §613.13A, adopted in 2007, however, now allows a parent or the parents
to recover for the expense and actual loss of services, companionship, and society,
resulting from the death of an adult child.
3.
A married person may sue or be sued without joining the person’s spouse. If both are sued,
each may defend; and if one fails to defend, the other may defend for both. Iowa R. Civ. P.
1.208.
4.
An action can be brought by or against a partnership or against any or all partners with or
without joining the firm. Iowa R. Civ. P. 1.203.
C. Indispensable Parties.
Iowa R. Civ. P. 1.234(2) states a party is indispensable if the party's interest is not severable,
and the party's absence will prevent the court from rendering any judgment between the
parties before it; or if notwithstanding the party's absence the party's interest would
necessarily be inequitably affected by a judgment rendered between those before the court.
a.
A party can be indispensable either because of:
•
•
the effect on the parties before the court, or
the effect on the absent individual.
b.
"If an indispensable party is not before the court, it shall order the party
brought in." Iowa R. Civ. P. 1.234(3).
c.
It may be that there are individuals who are not indispensable but who really
should be brought into the action if complete relief is to be accorded between
those already parties. If jurisdiction can be obtained, "The court shall order
their names added as parties and original notice served upon them." Iowa R.
Civ. P. 1.234(3). If such jurisdiction cannot be had except by their consent
75
or voluntary appearance, the court may proceed with the hearing and
determination of the cause, but the judgment rendered therein shall not affect
their rights or liabilities." Iowa R. Civ. P. 1.234(3). With these parties it is
desirable that they be joined, but there is no requirement that they come in.
D. Joinder of Parties Plaintiff and Defendant.
1.
Any number of persons who claim any relief, jointly, severally or alternatively,
arising out of or respecting the same transaction, occurrence or series of transactions
or occurrences, may join as plaintiffs in a single action, when it presents or involves
any question of law or fact common to all of them. Iowa R. Civ. P. 1.232.
2.
Any number of defendants may be joined in one action which asserts against them,
jointly, severally or in the alternative, any right to relief in respect to or arising out of
the occurrences, when any question of law or fact common to all of them is presented
or involved. Iowa R. Civ. P. 1.233.
4.
Misjoinder of parties is no ground for dismissal of the action. Parties may be
dropped from the action, or any claim against a party improperly joined may be
severed and proceeded with separately. Iowa R. Civ. P. 1.236(1)
5.
When one action can only be brought after another has been prosecuted to
conclusion, Iowa R. Civ. P. 1.237 allows the two actions to be brought together.
"But there shall be no joinder of an action against an indemnitor or insurer with one
against the indemnified party, unless a statute so provides." Iowa R. Civ. P. 1.237.
E. Joinder of Claims.
1.
When there is a single plaintiff suing a single defendant, the general rule is that there
is unlimited joinder of claims. Iowa R. Civ. P. 1.231. There can be a joinder of
equitable and legal claims and there can be independent or alternative claims.
2.
When there are multiple plaintiffs properly joined, they can join any claims "legal or
equitable, independent or alternative, held by any one or more of them which arise
out of [the transaction or occurrence which justified the joinder of the plaintiffs and
which present or involve any common question of law or fact." Iowa R. Civ. P.
1.232.
3.
When there are multiple defendants the applicable rule does not speak specifically to
the problem, but it is logical to conclude that joinder of claims is restricted to those
claims which arise out of the transaction or occurrence which justified the joinder of
the defendants. Iowa R. Civ. P. 1.233.
5.
The remedy for improper joinder of claims is docketing the claims separately, or
striking those which should be stricken, always "retaining at least one cause docketed
in the original case." Iowa R. Civ. P. 1.236(2).
F. Cross-Claim Against Co-Party.
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Iowa R. Civ. P. 1.245 provides that a pleading may state as a cross-claim any claim by one
party against a co-party arising out of the transaction or occurrence that is the subject matter
either of the original action or a counterclaim therein or relating to any property that is the
subject matter of the original action. Such cross-claim may include a claim that the party
against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim
asserted in the action against the cross-claimant.
G. Impleading.
1.
Iowa R. Civ. P. 1.246(1) sets forth the conditions under which impleader may occur.
2.
A third-party defendant can be brought into the action--impleaded--whenever the
party is or may be liable to the defendant for all or part of the plaintiff's claim against
the defendant.
3.
The impleaded party has the right to implead any person not a party to the action who
is or may be liable to the impleaded party for all or part of the claim made against
him which means that it is possible to have fourth-party defendants.
4.
Iowa R. Civ. P. 1.246 expressly provides for claims by the plaintiff against the thirdparty defendant, and defenses, counterclaims and cross-claims by the third-party
defendant.
H. Interpleader.
1.
Interpleader is the procedural device available under Iowa R. Civ. P. 1.251-1.256,
used when a person is fearful of being "exposed to multiple liability or vexatious
litigation because of several claims against the person for the same thing." The
interpleading party can bring in all of the claimants and force them to litigate the
liability of the initiating party. The initiating party may dispute liability wholly or in
part.
2.
A defendant when sued may interplead by counterclaim and cross-petition against
one not a party to the action. In this way the defendant can interplead the original
plaintiff-claimant and the impleaded party. "Any claimant not already before the
court may be brought in to maintain or relinquish that claim to the subject of the
action." Iowa R. Civ. P. 1.252
3.
A party initiating interpleader may elect to admit liability or nonownership of the
property involved. If the subject of the action is deposited with the court, the court
"on hearing all parties, may absolve the depositor from obligation to such parties as
to the property or amount deposited. Iowa R. Civ. P. 1.253.
4.
After an interpleader action is commenced and service made, "The court may enjoin
all parties before it from beginning or prosecuting any other suit as to the subject of
the interpleader until its further order." Iowa R. Civ. P. 1.255.
I. Counterclaims.
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1.
Compulsory Counterclaims.
a.
Iowa R. Civ. P. 1.241 states that a pleading must contain a counterclaim for
every cause of action then matured, and not the subject of a pending action,
held by the pleader against any opposing party and rising out of the
transaction or occurrence that is the basis of such opposing party's claim, its
adjudication would require the presence of indispensable parties of whom
jurisdiction cannot be acquired. To be "matured" the right must be presently
enforceable and not merely determinable. Telegraph Herald, Inc. v.
McDowell, 397 N.W.2d 518 (Iowa 1986)(claim for contribution not matured
until disproportionate payment has been made by one joint tortfeasor).
a. The rule also provides, "A final judgment on the merits shall bar such a
counterclaim, although not pleaded." This is the sanction involved; a
judgment on the merits will bar an independent action on the counterclaim.
2.
Permissive Counterclaims.
When an action is commenced by A against B, B has the right to assert any claim
which B has against A as a counterclaim in the action. There need be no relationship
at all between the two claims. The only requirement is that the claim must have been
held by B when the action was originally commenced and it must be matured when
pleaded. Iowa R. Civ. P. 1.242.
3.
A counterclaim may be pleaded as a defense even though the statute of limitations
has run on it if (1) it was the property of the pleader at the time it became barred, and
(2) it was not barred at the time the claim sued or originated. No judgment in favor
of the counterclaimant may be rendered on such counterclaim except for costs. Iowa
Code § 614.12.
J. Interventions.
1.
Iowa R. Civ. P. 1.407 governing interventions is substantially similar to F.R.Civ.P.
24 and allows the trial court considerable discretion in determining whether to allow
intervention.
2.
Iowa R. Civ. P. 1.407(1) provides that upon timely application, anyone shall be
permitted to intervene in an action:
•
•
When a statute confers an unconditional right to intervene; or
When the applicant claims an interest relating to the property or transaction
which is the subject of the actions and the applicant is so situated that the
disposition of the action and the applicant are so situated that the disposition
of the action may as a practical matter impair or impede the applicant's
ability to protect that interest, unless the applicant's interest is adequately
represented by existing parties.
Under Iowa R. Civ. P. 1.407(4) the court must grant interventions of right unless the
applicant's interest is adequately represented by existing parties.
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3.
Iowa R. Civ. P. 1.407(2) governs permissive intervention upon timely application:
•
•
When a statute confers a conditional right to intervene; or
When an applicant's claim or defense and the main action have common a
question of law or fact.
When a party relies for ground of claim or defense upon any statute or executive
order administered by a federal or state governmental officer of agency or upon any
regulation, order, requirement, or agreement issued or made pursuant to the statute or
executive order, the officer or agency upon timely application may be permitted to
intervene under Iowa R. Civ. P. 1.407(2).
In determining whether to allow permissive intervention, the court is required to
consider whether intervention would unduly delay or prejudice the adjudication of
the rights of the original parties. The intervenor has no right to delay and must pay
the costs of the intervention unless the intervenor prevails under Iowa R. Civ. P.
1.407(4).
4.
Proper intervention might occur where the person ultimately liable to indemnify the
defendant has not been impleaded by the defendant. The person potentially liable
might elect to intervene claiming that he or she was interested in the success of the
defendant to the action.
5.
The intervenor becomes a party to the action and may obtain a judgment, or a
judgment may be handed down against the intervenor.
6.
The interest of the intervenor may be something less than a pecuniary one; it must be
a significant interest in the litigation then pending.
K. Class Actions.
1.
A class may sue or be sued if joinder of all members would be "impracticable and
there is a common question of law or fact." Iowa R. Civ. P. 1.261.
With respect to the question of impracticability of joinder of all members of the class,
if the class is "large," numbers alone may be dispositive. Forty or more seems to be
the magic number; at that point numbers alone will show impracticability of joinder.
See Martin v. Amana Refrigeration, Inc., 435 N.W.2d 364, 367 (Iowa 1989). Once
the impracticability and common questions of law or fact requirements are met, the
trial court must review the criteria set out in the rule and then determine whether the
plaintiff fairly and adequately represents the class.
2.
The court must determine as soon as practicable after commencement if the action
can be maintained as a class action. The class will be certified if:
•
•
•
Iowa R. Civ. P. 1.261 is met;
Class action will result in fair and efficient adjudication of controversy; and
Representative parties will fairly and adequately protect interests of class.
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3.
Iowa R. Civ. P. 1.263 lists the factors to be considered by the court in determining
whether the class action should be permitted, including whether a joint or common
interest exists among members of the class; whether the prosecution of separate
actions by or against individual members of the class would create a risk of
inconsistent or varying adjudications with respect to individual members of the class
that would establish incompatible standards of conduct for a party opposing the class;
whether common questions of law or fact predominate over any question affecting
only individual members. As a general matter, in determining whether or not to
certify a class action, the trial court should not inquire into the merits of the case,
except to require certain information with which to form a reasonable judgment on
the certification issues. Iowa Annual Conference of the United Methodist Church v.
Bringle, 409 N.W.2d 471 (Iowa 1987).
The appropriate inquiry for the trial court, in determining whether to certify a class is
"not the strength of each member's personal claim, but rather, whether they, as a
class, have common complaints." See Martin v. Amana Refrigeration, Inc., 435
N.W.2d 364, 367 (Iowa 1989).
Vos v. Farm Bureau Life Ins. Co., 667 N.W.2d 36 (Iowa 2003)(certification of
class action does not depend on determination of whether plaintiffs will ultimately
prevail on merits).
With respect to the “common questions” element, the individual claims need not
be “carbon copies of each other” of a “common nucleus of operative facts” is
present. See Vos v. Farm Bureau Life Ins. Co., 667 N.W.2d 36 (Iowa 2003).
4.
If the court certifies the class, an order to that effect must be entered. If not, the court
also must state the reasons for not certifying the class. Refusal to certify does not
terminate the action; it only precludes it being maintained as a class action.
Because the duty of the trial court to ensure compliance with the class actions
rules continues after the certification of the class, the court may decertify the class
after the initial certification if appropriate. See Vos v. Farm Bureau Life Ins. Co.,
667 N,W.2d 36 (Iowa 2003)(district court did not abuse its discretion in
decertifying class action when it concluded that individual questions of law and
fact would predominate common questions).
5.
Where the class has been certified and a motion to dismiss is successfully made
challenging personal jurisdiction over the named plaintiffs, opportunity should be
given for other members of the class to “step forward and take their place.” However,
if the class has not been certified and the court determines that it lacks jurisdiction
over the named plaintiffs, it also lacks jurisdiction for purposes of considering the
plaintiffs’ request to certify the litigation and the action should be dismissed. See
Hammond v. Florida Asset Financing Corp., 695 N.W.2d 1 (Iowa 2005). In
Hammond, several plaintiffs, residents of Iowa, Arkansas and Nebraska, brought a
class action against the defendant, a Florida corporation with its principle place of
business in that state, and other financial institutions, arising out of the purchase of
campground memberships from another company. The plaintiffs alleged the
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memberships entitled them to use campground facilities in Iowa. The memberships
were purchased by installment financing agreements assigned to the defendants.
Defendant Florida Financing Corp. held the installment contracts for collateral for its
loans to the company that sold the memberships to the plaintiffs. The plaintiffs
claimed that the company that sold the memberships breached its contract with the
plaintiffs and demanded a disgorgement of the funds paid for the memberships from
the company that sold the memberships as well as the Florida financing corporation.
The Florida financing corporation filed a motion to dismiss for lack of personal
jurisdiction, which the district court granted, and the supreme court affirmed. The
plaintiffs argued that even if the district court lacked jurisdiction over the defendant
with respect to the claims of the named plaintiffs, the allegations of the petition were
sufficient to assert jurisdiction on the claims of some of the members of the class but
the supreme court rejected the argument because there had been no determination in
the case that a class existed or that the action could proceed as a class action and thus
the only persons who could assert that it should proceed as a class action were the
named plaintiffs. The court did modify the judgment to provide that the dismissal of
the plaintiffs’ claim was not an adjudication on the merits of their claims and should
have been without prejudice under Iowa R. Civ. P. 1.943, contrary to the judgment.
6.
7.
With respect to the burden of proof required at the class-certification stage, as long as
the court has before it sufficient information to form a reasonable judgment on the
certification issue, the court is not required to inquire further into the facts supporting
the petition. See Comes v. Microsoft Corp., 696 N.W.2d 318 (Iowa 2005). As a
general matter, because the class action determination is made before there has been
substantial discovery, and because the court can decertify the class at a later date if it
was improperly certified, unless the facts underlying the class are merely speculative,
the burden on the proponent of the class action is “light.” Expert testimony has been
allowed on the question of certification, although the court has cautioned that it is
inappropriate at the certification stage to resolve “battles between experts” in such
cases.
After certification the court directs the manner of notice upon the class members.
Each member of the class whose possible recovery or liability exceeds $100 must be
given personal or mailed notice. The plaintiff must bear the costs of notice unless
there is a counterclaim, in which case the costs are allocated by the court.
Due process requires that the notice must reach the parties affected and convey the
required information. See Barkema v. Williams Pipeline Co., 666 N.W.2d 612 (Iowa
2003)(notice held sufficient).
8.
A member of a defendant class cannot be excluded from an action, but a member of a
plaintiff class may be excluded by filing an election to be excluded.
9.
Iowa R. Civ. P. 1.268 gives the court discretion to control the course of the
proceedings of the class action generally.
10.
Discovery against nonrepresentative parties is subject to the usual rules in non-class
actions.
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11.
Generally, counterclaims by either plaintiffs or defendants must be certified as class
action claims and are subject to the same rules as would apply to an original class
action claim.
12.
Once certified, a class action cannot be dismissed or settled without court approval.
Generally, all of the class members have to be notified of the proposed dismissal or
settlement before it can be dismissed or settled.
To meet the requirements of due process, notice of settlement in a class action
lawsuit merely must provide enough information to allow class members rationally to
decide whether they should intervene in the settlement proceedings or otherwise
make their views known, and if they choose to become actively involved, to have
sufficient opportunity to prepare their position. See Barkema v. Williams Pipeline
Co., 666 N.W.2d 612 (Iowa 2003)(notice of settlement held sufficient).
13.
If the action has been certified, any judgment is binding on all members of the class
who have not been excluded.
14.
The court apportions costs among a defendant class. Only those plaintiffs who have
appeared or are representative parties can be taxed for costs.
15.
Iowa R. Civ. P. 1.274 covers the relief that may be allowed in a class action and
distribution of any recovery among the parties.
16.
Once a class action is commenced, the statute of limitations is tolled against all
members of the class unless and until a member is excluded or eliminated or the court
refuses to certify the action or upon a dismissal without an adjudication on the merits.
VIII. JUDGMENT ON THE PLEADINGS; SUMMARY JUDGMENT.
A. Judgment on the Pleadings.
1.
Iowa R. Civ. P. 1.954 provides that “After the pleadings a party may move
for judgment on the pleadings.”
2.
Under the rules, a plaintiff might get a judgment on an issue of negligence if the
defendant denied in the answer only the amount of damages sustained by the
plaintiff. The court would look at the pleadings, determine the uncontroverted facts
and award a judgment appropriate under the circumstances. A judgment on a portion
of a claim may be awarded.
3.
Judgment on the pleadings is appropriate only where the facts are uncontroverted as
shown by all the pleadings. The motion is based strictly upon the pleadings, and
facts of which the court may take judicial notice. If the motion relies upon matters
outside of the pleadings the court may treat the motion as one for summary judgment.
B. Summary Judgment.
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1.
A summary judgment may be rendered when the pleadings, affidavits, depositions,
answers to interrogatories, and admissions on file "show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law." Iowa R. Civ. P. 1.981(3). A "material" fact is one which might affect
the outcome, given the applicable governing law, and a "genuine" issue of material
fact means that a reasonable jury could return a verdict for the nonmoving party.
Hall v. Barrett, 412 N.W.2d 648, 650 (Iowa App. 1987) citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed.2d 202 (1986).
a.
Under the Iowa rules, the motion cannot be filed less than 60 days before
trial, unless otherwise ordered by the court. Iowa R. Civ. P. 1.981(8). A
motion for summary judgment be accompanied by a statement of material
facts as to which the movant claims there is no genuine dispute, with specific
references to the file.
b.
A party resisting a motion must, under Iowa R. Civ. P. 1.981(3), within 15
days after service of the motion, file a resistance, statement of disputed facts,
if any, memorandum of authorities supporting resistance, and any affidavits
supporting the resistance.
2.
The court must determine on its own if there is a fact dispute. See Brubaker v.
Barlow, 326 N.W.2d 314 (Iowa 1982).
3.
Either the claimant or the defending party may move for a summary judgment.
4.
A summary judgment may be rendered on the issue of liability alone if the only
genuine issue is on the amount of damages. A case can be partially adjudicated on a
motion for a summary judgment. The court can make an order specifying "the facts
that appear without substantial controversy. . . . and directing such further
proceedings in the action as are just."
5.
Affidavits to be considered on the motion for a summary judgment must be made on
personal knowledge and shall state facts as would be admissible in evidence and shall
show that the affiant is competent to testify to the matters stated in the affidavit.
6.
When a motion for a summary judgment is made and supported, the resisting party
cannot rely on the pleadings. The response must set forth specific facts showing that
there is a genuine issue for trial. If he does not so respond, summary judgment, if
appropriate, shall be entered against him."
7.
If affidavits are not available to a party opposing a motion for a summary judgment,
he or she can make an affidavit to this effect, and the court may then refuse to grant
the motion or it may order a continuance or make any other order it deems just.
8.
If affidavits are presented in bad faith the court can order the party employing them to
pay to the other party the amount of the reasonable expenses which the filing of the
affidavits caused the party to incur...and any offending party or attorney may be
adjudged guilty of contempt.
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9.
Evidence to sustain or resist a motion may be by affidavit or in any other form to
which the parties agree or the court directs. The court may require any affiant to
appear for cross-examination.
10.
Summary judgment may be granted when, after adequate time for discovery, a party
is unable to make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party bears the burden of proof at
trial. For example, if a party needs expert testimony to establish part of the case, and
the party is precluded from presenting that testimony at trial, the party may be unable
to generate a jury question on the issue. To obtain summary judgment by this means
it is essential that the moving party demonstrate that the proof available to the
claimant at trial will be limited by evidence that will not be sufficient to sustain a
right to relief. The mere filing of a motion for summary judgment will not limit the
extent of the resisting party's potential proof at trial; such limits must be established
through procedural devices separate and apart from the summary judgment motion,
such as statutory limitations on designating expert witnesses under Iowa Code §
688.11. See Griglione v. Martin, 525 N.W.2d 810, 811 (Iowa 1994).
11.
An order overruling a motion for summary judgment is a nonreviewable order when
the district court finds a genuine issue of material fact exists and the case proceeds to
final trial. The appellate courts have consistently applied this rule when presented
with an appeal from the denial of a motion for summary judgment once the case has
proceeded to trial. When the district court denies a party's motion for summary
judgment and the party appeals the final verdict, the appellate court will review the
issues raised in the unsuccessful motion for summary judgment based on the record
made during trial and on the motion for directed verdict to determine if the district
court committed error. See Estes v. Progressive Classic Ins. Co., 2012 WL 246086
(Iowa 2012), citing cases.
IX. DEFAULT JUDGMENT.
1.
Iowa R. Civ. P. 1.971 provides that a party is in default whenever the party:
•
•
•
•
•
Fails to serve and within a reasonable time thereafter file a motion or answer
within the required times;
Withdraws a pleading without permission to replead;
Fails to be present for trial;
Fails to comply with any order of court; or
Does any act which permits entry of default under any rule or statute.
2.
If a party is not under legal disability or not a prisoner in a reformatory or
penitentiary, and the party is in default for failing to serve, and within a reasonable
time thereafter file, a motion or withdrawing a pleading without permission to
replead, Iowa R. Civ. P. 1.972(1) requires that the clerk enter the party's default upon
application without any order of court. All other defaults are entered by the court.
3.
The application for entry of default to the clerk must contain a certificate that written
notice of intention to file for entry of default was given after the default occurred and
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at least ten days prior to the filing of the application. A copy of the notice must be
attached to the application.
4.
The notice of intent to file an application for entry of default must be sent by ordinary
mail to the last known address of the party in default; no other notice is required.
However, if the party is "known by the party requesting entry of default" to be
represented by an attorney, whether or not the attorney has formally appeared, a copy
of the notice must be sent by ordinary mail to the attorney. The rule does not,
however, create an obligation to undertake any affirmative effort to determine the
existence or identity of counsel representing the party in default.
5.
The ten-day notice period runs from the date of mailing the notice, not its receipt.
6.
The notice requirement does not apply to the following cases:
•
•
•
•
Small claims;
Forcible entry and detainer;
Juvenile proceedings;
Where the party in default was served by publication.
7.
Once the default is entered, the party on motion may request judgment on the default
under Iowa R. Civ. P. 1.973. Where the claim is for a sum certain, the clerk may
enter a judgment for that amount. In all other cases, the court on motion to the
prevailing party orders the judgment to which the prevailing party is entitled,
provided notice and opportunity to respond has been given to any party who has
appeared.
8.
The Iowa rules provide for setting aside a default for good cause.
9.
The supreme court is more reluctant to interfere with a trial court’s grant of a motion
to set aside a default and a default judgment than with its denial. The court looks with
disfavor on a denial of such a motion and all doubt should be resolved in favor of
setting aside the default and default judgment. Prejudice to the plaintiff should also
be given some consideration on the issue of whether or not to set aside a default and
default judgment. Prejudice may be preventing or making it more difficult for the
plaintiff in proving the case. However, delay of the trial on the merits caused by
setting aside a default and default judgment will not constitute such prejudice. See
Brandenburg v. Feterl Mfg. Co., 603 N.W.2d 580 (Iowa 1999). The opinion states
that “…we doubt whether a delay of trial on the merits resulting from actually setting
aside a default judgment should ever constitute any real basis for denying relief from
a default and default judgment,” given the brief time period in which a motion to set
aside may be filed under Iowa R. Civ. P. 1.977.
10.
In Jack v. P and A Farms, Ltd. 2012 WL 5373439 (Iowa 2012), a trial court's entry
of a default judgment under Rule 1.971(3) was held not justified when the party
failed to appear personally for trial but the party's attorney was present and able to
proceed in the client's absence. The plaintiff failed to appear personally for trial.
After the jury was impaneled, a hearing was held outside the presence of the jury.
The plaintiff’s counsel informed the court that it was his understanding the plaintiff,
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who had since moved to Idaho, was absent because he was “stranded.” He also
indicated he had notified the plaintiff of the trial date by letter on the same day the
trial date was scheduled. The district court granted the defendant’s motion to dismiss
and entered a ruling stating:
This case was scheduled for a jury trial commencing at 9:00 a.m. on
May 3, 2011. Counsel for the Plaintiff and the Defendant appeared;
however, the Plaintiff failed to personally appear. Plaintiff's counsel
made an oral motion to continue the trial to a later date. Defendant's
counsel resisted the motion to continue and moved that the case be
dismissed. The Court notes that this case has been on file since
2007, that this trial date has been set for almost a year, and that the
Plaintiff received notice of the trial date. After considering the
arguments of counsel, the Court finds that the Plaintiff's motion to
continue the trial should be and is here by denied and that the
Defendant[']s motion for dismissal should be and is hereby granted.
On appeal, the supreme court observed:
The preceding precedents demonstrate that when a party
and the party's representative fail to appear for trial, the
decision to grant or deny a motion for default judgment
under rule 1.971(3) rests within the sound discretion of the
trial court. See Wilson, 666 N.W.2d at 165; Krugman, 422
N.W.2d at 473–74. However, we do not interpret rule
1.971(3) to permit the entry of a default judgment against a
party who fails to appear personally for trial when the
party's attorney is present and able to proceed in the party's
absence. Unless subject to a subpoena or court order, a
plaintiff in a civil trial is not obligated to take the stand.
Thus, there is no reason why a plaintiff in a civil trial
should be required to appear personally when his or her
presence is not “reasonably necessary.” See Myers, 476
N.W.2d at 85 (allowing civil trial to proceed through
counsel where presence of incarcerated plaintiff was not
“reasonably necessary”); see also Rollins v. Coggshall, 29
Iowa 510, 511 (1870) (“A default can only be taken against
one who has failed to comply with some rule or order of the
court.”).
The court held that the district court did not abuse its discretion
when it denied the plaintiff’s motion to continue the trial. However,
the district court's decision to enter a default judgment against the
plaintiff rested on an erroneous interpretation of Rule 1.971(3)
because the rule does not require a party to appear personally for
trial. It was an abuse of discretion to enter a default judgment
against the plaintiff when his counsel was present and able to
proceed to trial on his behalf.
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X. PRETRIAL CONFERENCES.
A. In General.
1.
The purposes of pretrial conferences are set out in Iowa R. Civ. P. 1.602(1), and
include expediting disposition of the action, discouraging wasteful pretrial activities,
improving the quality of the trial and facilitating settlement. See generally Fry v.
Blauvelt, 2012 WL 2865882 (Iowa 2012).
2.
The court may enter a scheduling order setting time limits for such matters as
pleadings, joinder of parties, designating experts and discovery, as well as setting
pretrial conferences and a final pretrial conference.
3.
At pretrial conferences, matters to be considered include formulation of the issues,
amendments to pleadings, simplification of fact issues and evidence, identification of
witnesses, briefing schedules, settlement, motions, exhibits, and "such other matters
as may aid in the disposition of the action."
4.
A final pretrial conference must be held "as close to the time of trial as reasonable
under the circumstances." The conference participants must formulate "a plan for
trial," including a program for facilitating the admission of evidence. The conference
must be attended by at least one of the attorneys who will represent each of the
parties and by any unrepresented parties.
5.
Under Iowa R. Civ. P. 1.602(2), one of the purposes of a pretrial conference is
provisions for discovery of electronically stored information and any agreements the
parties reach for asserting claims of privilege or of protection as trial-preparation
materials after production. This is an opportunity to consider the issue of claims of
privilege or work product protection and whether to enter into an agreement or
stipulation as to how such claims will be handled. Such agreements can be
incorporated into a pretrial order.
B. Sanctions.
The court may impose sanctions for failure to obey pretrial rules. See generally Fry v.
Blauvelt, 2012 WL 2865882 (Iowa 2012).
C. Pretrial Order.
The court enters an order reciting the action taken at any pretrial conference which controls
the subsequent course of the action.
XI. DISCOVERY; PERPETUATION OF TESTIMONY.
A. General Principles.
1.
Iowa R. Civ. P. 1.503 through 1.507 set forth general principles which apply to all
discovery procedures which may be used. Iowa R. Civ. P. 1.503 establishes the scope
of discovery.
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a.
Under the Iowa rules, matters may be inquired into which are not privileged
and relevant to the subject matter involved in the pending action. This
includes the location of things, books or documents and the location of
persons having knowledge of any discoverable matter. Relevancy to the
subject matter of the lawsuit is broader than relevancy to the precise issues in
the pleadings because Iowa R. Civ. P. 1.503 allows discovery of
inadmissible information as long as it leads to the discovery of admissible
evidence. See Mediacom Iowa v. Incorporated City of Spender, 682 N.W.2d
62 (Iowa 2004).
Under Iowa R. Civ. P. 1.503(1), otherwise provided in a request for
discovery, a request for the production of a “document” or “documents”
encompasses electronically stored information. Any references in the
discovery rules to a “document” or “documents” encompasses electronically
stored information.
The rule makes it clear that computer data is subject to discovery. The
general rules of discovery apply to computer data and may be the subject of
discovery through interrogatories, requests for production and subpoenas.
The rules do not define “electronically stored information” but the intent is
that it includes any information “stored in any medium from which
information can be obtained.”
b.
Iowa R. Civ. P. 1.502 provides that unless otherwise ordered by the court,
discovery materials are not to be filed with the clerk. If a motion to compel
discovery is made, however, attacking the sufficiency of a response to a
discovery request, the request and the response must be attached to the
motion.
2.
Iowa R. Civ. P. 1.503 provides that it is no ground for objection that the information
sought will be inadmissible at the trial if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.
3.
Under Iowa R. Civ. P. 1.403(1), a pleading may not state the amount of money
damages sought; however, the specific amount and elements of monetary damages
may be sought by the use of interrogatories.
4.
The party or person resisting discovery because of privilege has the burden of
showing that the privilege exists and applies. Privileges are narrowly construed in
the discovery context. Agrivest Partnership v. Central Iowa Production Credit
Association, 373 N.W.2d 479 (Iowa 1985).
Claims of privilege or protection of trial-preparation materials. Under Iowa R. Civ.
P. 1.503(5)(a), when a party withholds information otherwise discoverable under the
rules by claiming that it is privileged or subject to protection as trial-preparation
material, the party must make the claim (1) expressly and (2) describe the nature of
the documents, communications, or things not produced or disclosed in a manner
that, without revealing information itself privileged or protected, will enable other
88
parties to assess the applicability of the privilege or protection.
Complying with the rule may require the preparation of a privilege log which
contains information about the documents including the date when the documents
were prepared, the person who prepared the documents, the person to whom the
documents were provided, a summary of the contents of the documents, the privilege
being asserted, and how the privilege applies to the documents.
Because of the amount of computer data that may be the subject of a discovery
request and the difficulty of ensuring that all information to be produced has been
reviewed, the risk of inadvertent disclosure—and waiver of privileges—increases.
Parties often enter into agreements that inadvertent disclosure will not be considered
a waiver of privileges. The rules do not address whether production of privileged or
work product materials constitute a waiver. An agreement entered into by the parties
may be considered when a court determines whether a waiver has occurred. Such
agreements ordinarily control if they adopt procedures different from Iowa R. Civ. P.
1.503(5).
5.
Iowa Rule of Evidence 5.502, adopted in 2009, provides limitations on the waiver of
the attorney-client privilege or work-product:
Rule 5.502. Attorney-Client Privilege and Work Product; Limitations on Waiver. The
following provisions apply, in the circumstances set out, to disclosure of a communication or
information covered by the attorney-client privilege or work-product protection.
a.
Disclosure made in a court or agency proceeding; scope of a waiver. When the
disclosure is made in a court or agency proceeding and waives the attorney-client privilege or
work-product protection, the waiver extends to an undisclosed communication or information
only if:
(1)
the waiver is intentional;
(2)
the disclosed and undisclosed communications or information concern the same
subject matter; and
(3)
they ought in fairness to be considered together.
b.
Inadvertent disclosure. When made in a court or agency proceeding, the disclosure
does not operate as a waiver if:
(1)
the disclosure is inadvertent;
(2)
and
the holder of the privilege or protection took reasonable steps to prevent disclosure;
(3)
the holder promptly took reasonable steps to rectify the error, including (if applicable)
following Rule of Civil Procedure 1.503(5)(b).
c.
Controlling effect of a court order. A court may order that the privilege or protection
89
is not waived by disclosure connected with the litigation pending before the court in which
event the disclosure is also not a waiver in any other proceeding.
d.
Controlling effect of a party agreement. An agreement on the effect of disclosure in a
state proceeding is binding only on the parties to the agreement, unless it is incorporated into
a court order.
e.
Controlling effect of this rule. Notwithstanding rules 5.101 and 5.1101, this rule
applies to all proceedings, in the circumstances set out in the rule.
f.
Definitions. In this rule:
(1)
"attorney-client privilege" means the protection that applicable law provides for
confidential attorney-client communications; and
(2)
"work-product protection" means the protection that applicable law provides for
tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.
6..
Iowa R. Civ. P. 1.503(5)(a) provides a procedure for a party that has withheld
information to make the claim so that the requesting party can decide whether to
contest the claim and the court can resolve the dispute.
7.
Iowa R. Civ. P. 1.503(5)(b) provides a procedure for a party to assert a claim of
privilege or trial-preparation material protection after information is produced and, if
the claim is contested, permit any party that received the information to present the
matter to the court for resolution. If information is produced in discovery that is
subject to a claim of privilege or of protection as trial-preparation material, the party
making the claim may notify any party that received that information of the claim and
the basis for it. The notice should be as specific as possible in identifying the
information and stating the basis of the claim. After being notified, a party must
promptly return, sequester, or destroy the specified information and any copies is has
and may not use or disclose the information until the claim is resolved. The option to
sequester or destroy the information is given because the receiving party may have
incorporated the information into trial-preparation materials. A receiving party may
promptly present the information to the court under seal for a determination of the
claim. If the receiving party disclosed the information to nonparties before being
notified, it must take reasonable steps to retrieve it. The producing party must
preserve the information until the claim is resolved. Iowa R. Civ. P. 1.503(5)(b).
11.
"Confidential communications" to certain professional persons are, under Iowa Code
§ 622.10, privileged.
a.
Under the statute, a practicing attorney, counselor, physician,
surgeon, physician assistant, advanced registered nurse practitioner,
mental health professional, or the stenographer or confidential clerk
of any such person, who obtains information by reason of the
person's employment, or a member of the clergy is prohibited, in
giving testimony, from disclosing any confidential communication
properly entrusted to the person in the person's professional
90
capacity, and necessary and proper to enable the person to discharge
the functions of the person's office according to the usual course of
practice or discipline.
b.
The prohibition does not apply to cases where the person in whose
favor the prohibition is made waives the rights conferred nor in a
civil action in which the condition of the person in whose favor the
prohibition is made is an element or factor of the claim or defense of
the person or of any party claiming through or under the person.
The evidence is admissible upon trial of the action only as it relates
to the condition alleged.
c.
In a civil action in which the condition of the plaintiff in whose
favor the prohibition is made is an element or factor of the claim or
defense of the adverse party or of any party claiming through or
under the adverse party, the adverse party must make a written
request for records relating to the condition alleged upon the
plaintiff’s counsel for a legally sufficient patient's waiver under
federal and state law. Upon receipt of a written request, the plaintiff
must execute the patient's waiver and release it to the adverse party
making the request within sixty days of receipt of the written
request. The patient's waiver may require a physician or surgeon,
physician assistant, advanced registered nurse practitioner, or mental
health professional to do all of the following:
(1) Provide a complete copy of the patient's records including, but
not limited to, any
reports or diagnostic imaging relating to the condition alleged.
(2) Consult with the attorney for the adverse party prior to
providing testimony regarding the plaintiff's medical history and the
condition alleged and opinions regarding health etiology and
prognosis for the condition alleged subject to the limitations in
paragraph “c”.
d.
If a plaintiff fails to sign a waiver within the prescribed time period,
the court may order disclosure or compliance. The failure of a party
to comply with the court's order may be grounds for dismissal of the
action or any other relief authorized under the rules of civil
procedure.
e.
Any physician or surgeon, physician assistant, advanced registered
nurse practitioner, mental health professional who provides records,
provides information during consultation, or otherwise responds in
good faith to a request pursuant to paragraph “a” will be immune
with respect to all civil or criminal penalties, claims, or actions of
any kind with respect to the statute.
f.
Any physician or surgeon, physician assistant, advanced registered
nurse practitioner, or mental health professional who provides
records or consults with the counsel for the adverse party is entitled
91
to charge a reasonable fee for production of the records, diagnostic
imaging, and consultation. Any party seeking consultation is
responsible for payment of all charges. The fee for copies of any
records must be based upon actual cost of production.
g.
Defendant's counsel must provide a written notice to plaintiff’s
counsel in a manner consistent with the Iowa Rules of Civil
Procedure providing for notice of deposition at least ten days prior
to any meeting with plaintiff’s physician or surgeon, physician
assistant, advanced registered nurse practitioner, or mental health
professional. Plaintiff's counsel has the right to be present at all
such meetings, or participate in telephonic communication with the
physician or surgeon, physician assistant, advanced registered nurse
practitioner, or mental health professional and counsel for the
defendant. Plaintiff’s counsel may seek a protective order
structuring all communication by making application to the court at
any time.
h.
If an adverse party desires the oral deposition, either discovery or
evidentiary, of a physician or surgeon, physician assistant, advanced
registered nurse practitioner, or mental health professional to which
the prohibition would otherwise apply or the stenographer or
confidential clerk of a physician or surgeon, physician assistant,
advanced registered nurse practitioner, or mental health professional
or desires to call a physician or surgeon, physician assistant,
advanced registered nurse practitioner, or mental health professional
to which the prohibition would otherwise apply or the stenographer
or confidential clerk of a physician or surgeon, physician assistant,
advanced registered nurse practitioner, or mental health professional
as a witness at the trial of the action, the adverse party must file an
application with the court for permission to do so. The court upon
hearing, which cannot be ex parte, must grant permission unless the
court finds that the evidence sought does not relate to the condition
alleged and must fix a reasonable fee to be paid to the physician or
surgeon, physician assistant, advanced registered nurse practitioner,
or mental health professional by the party taking the deposition or
calling the witness.
12.
A party may discover the existence and content of any insurance policy which covers
the event being litigated. However, information concerning the insurance agreement
is not by reason of disclosure admissible in evidence at trial. Iowa R. Civ . P.
1.503(2).
13.
A litigant may discover relevant documents and tangible things which are prepared in
anticipation of litigation or for trial only upon a showing of substantial need and that
the party is not able "without undue hardship to obtain the substantial equivalent of
the materials by other means." If production is ordered, the mental impressions,
conclusions, opinions or legal theories must be protected against disclosure. Iowa R.
Civ. P. 1.503(3).
92
a.
The standard for the "anticipation of litigation" requirement of Iowa R. Civ.
P. 1.503(3), is "whether, in light of the nature of the documents and the
factual situation in the particular case, the document can be fairly said to
have been prepared or obtained because of the prospect of litigation."
Asmead v. Harris, 3367 N.W.2d 197(Iowa 1983).
b.
It determining whether the required showing has been made, the party
requesting discovery must make an independent discovery effort to obtain
equivalent information. See Squealer Feeds v. Pickering, 530 N.W.2d 678
(Iowa 1995).
c.
A party or a nonparty may obtain a statement concerning the action
previously made by the requesting party or person. Statement includes a
written statement or one contemporaneously recorded by stenographic or
other means.
d.
Iowa R. Civ. P. 1.503(3) which codifies the "work product" privilege of
Hickman v. Taylor. Although the work product of the lawyer is protected by
a qualified immunity or privilege, and is only discoverable upon a showing
of "necessity or justification," the lawyer's mental impressions or opinions
are nearly absolutely immune from discovery, and can be discovered only in
very rare and extraordinary circumstances. See Shook v. City of Davenport,
497 NW2d 883 (Iowa 1993).
Like the attorney-client privilege, the work product privilege may be waived
by the voluntary disclosure of the content of a privileged communication as
to all other communications on the same subject. However, disclosure of the
general subject matter of certain documents in another case was held not to
amount to a waiver of the work product privilege. See Exotica Botanicals,
Inc. v. E.I. Du Pont de Nemours & Co., 612 N.W.2d 801 (Iowa 2000).
14.
Under Iowa R. Civ. P. 1.509(2), interrogatories may seek the names of witnesses
another party expects to call to testify at trial.
15.
Discovery of experts turns on whether or not the expert is expected to be called as a
witness at trial.
a.
By interrogatories, a party may require another party to state the
name and address of its trial experts, the subject matters of the
expert's testimony, the expert's qualifications, mental impressions
and opinions and the facts known to the expert which relate to or
form the basis for the expert's mental impressions and opinions.
Iowa R. Civ. P. 1.508(1). Interrogatories asking for qualifications,
mental impressions and opinions, and facts known must be
separately prepared and signed by the expert. Experts may also be
deposed by the parties, and the parties may obtain discovery of
documents and tangible things (such as reports and date
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compilations) prepared by or for the expert in anticipation of the
expert's trial and deposition testimony. Iowa R. Civ. P. 1.508(1)(b).
b.
Under the Iowa rules, discovery is the same for an expert who is not
expected to testify at trial if the expert's work forms a basis of the
opinions of an expert who is expected to testify at trial; otherwise,
the identity of such experts and their work is only available "upon a
showing of exceptional circumstances under which it is
impracticable for the party seeking discovery to obtain facts and
opinions on the same subject by other means."
c.
The expert's direct trial testimony must be consistent with the
information developed on discovery, to the extent that such matters
were developed in discovery. Iowa R. Civ. P. 1.508(4).
d.
The costs and fees of the expert in responding to discovery are to be
paid generally by the party seeking discovery. Iowa R. Civ. P.
1.508(6).
e.
In comparative fault cases involving professional liability, Iowa
Code § 668.11 requires that expert witnesses be designated by the
plaintiff within 180 days after the defendant's answer, and by the
defendant within 90 days of plaintiff's certification. If a party fails
to disclose an expert within the time required or does not make the
expert available for discovery, the expert "shall be prohibited from
testifying in the action unless leave for the expert's testimony is
given by the court for good cause shown." The trial court has broad
discretion in such a situation and will not be reversed in the absence
of abuse of discretion.
f.
Where an expert is not designated, as required by the rule, summary
judgment may be appropriate to dispose of a case where it is of such
a nature that expert testimony is required to establish a critical
element of the case, such as in a medical malpractice case. Thus,
where the plaintiffs sued the state for alleged medical malpractice in
connection with the University Hospital and the plaintiffs then
failed to designate an expert, as required by the statute, thus losing
the right to introduce expert evidence, the trial court properly
entered summary judgment in favor of the state. The state
submitted the affidavit of an expert that the hospital had not acted
negligently, and thus remained no disputed fact issue for trial. See
Donovan v. State, 445 N.W.2d 763 (Iowa 1989)(trial court's refusal
to allow expert to testify upheld on appeal). In Cox v. Jones, 470
N.W.2d 23 (Iowa 1991), a medical malpractice case, the plaintiffs
failed to designate their expert until over a year after the statutory
deadline. The district court sustained the defendants' motion to
strike the designation and then granted summary judgment on the
basis that the plaintiffs could not establish liability without an
expert. The court of appeals reversed but the supreme court vacated
94
the court of appeals decision, affirming the summary judgment
dismissing the case. The purpose of the certification deadline
requirement is to provide an element of certainty in professional
liability cases, avoiding speculation about the identity of experts.
The supreme court also rejected the argument that a treating
physician need not be designated as an expert under Iowa Code §
688.11. Unless designated as an expert, a treating physician may
not testify as to opinions and conclusions. The court concluded that
claims of lack of informed consent, failure to provide adequate
follow-up care and abandonment of a patient are beyond the
common knowledge of laypersons and thus require expert
testimony. Without an expert, summary judgment in such cases
may be appropriate.
g.
A party who fails to designate experts as required by § 668.11 has
the option of voluntarily dismissing the action and commencing a
new action, to avoid the consequences of having failed to designate.
Venard v. Winter, 524 NW2d 163 (Iowa 1994)(under Iowa R. Civ.
P. 1.943 party has absolute right to dismiss action at any time up
until ten days before trial is scheduled to begin).
h.
Treating physicians may be treated differently from experts retained
expressly for litigation. In Day v. McIlrath, 469 N.W.2d 676 (Iowa
1991), the defendant sought through interrogatories the identity of
plaintiffs' experts who would be called at trial as well as the subject
matter of the experts' testimony. The plaintiffs objected to
providing the information for a treating physician, claiming that the
physician's mental impressions and opinions were not "acquired or
developed in anticipation of litigation or for trial" as required under
Iowa R. Civ. P. 1.508. The supreme court agreed with the plaintiffs,
reversing the trial court, concluding that a treating physician
ordinarily learns facts and forms impression and opinions before
being retained as an expert and often before there is any litigation.
Thus the discovery procedures of Iowa R. Civ. P. 1.508 may not
apply to treating physicians, at least until the treating physician
"assumes a role in litigation analogous to the role of the retained
expert," at which time supplemental discovery could become
obligatory.
See also Morris-Rosdail v. Schechinger, 576 N.W.2d 609 (Iowa
App. 1998)(testimony of treating physician may not be discoverable
until physician assumes role in litigation analogous to that of
retained expert which generally occurs when physician begins to
focus less on medical questions associated with treating patient and
more on legal questions which arise in context of lawsuit)(district
court abused discretion in excluding testimony of experts).
The paramount criterion is whether this evidence, irrespective of
whether technically expert opinion testimony, relates to facts and
95
opinions arrived at by a physician in treating a patient or whether it
represents expert opinion testimony formulated for purposes of
issues in pending or anticipated litigation. See Hansen v. Central
Iowa Hospital Corp., 686 N.W.2d 476 (Iowa 2004).
i.
Under Iowa R. Civ. P. 1.704, a deposition may be used for any
purpose "so far as admissible under the rules of evidence," if it was
taken of an expert witness specially retained for the case or if the
deponent was a health care practitioner offering opinions or facts
concerning a party's physical or mental condition. Presumably, the
expert's testimony would be admissible as an admission by a partyopponent under Iowa R. Evid. 5.801(d)(2) where it is offered
"against" the party retaining the expert. Thus, the defendant may be
able to use the deposition of the plaintiff's expert. However, the
rules would not permit the plaintiff to offer the deposition of his or
her own expert, since in that situation, the deposition would not be
offered "against" the party, and would not satisfy the admission
exception of Iowa R. Evid. 801(d)(2). Some other basis for
admissibility would be necessary. Iowa R. Civ. P. 1.704(4),
allowing use of the expert's deposition, does not require any
showing of the expert's unavailability for trial.
j.
Under the Iowa rules, a party has a duty to supplement discovery as
to experts, and the court may impose sanctions for failure to comply
with the duty to supplement, which includes excluding the
testimony of an expert. Kicker v. Muiry, 437 N.W.2d 1 (Iowa App.
1988). The court has the discretion under the rules to limit or
exclude expert testimony as a sanction for failure to comply with the
duty to supplement. An appellate court will not disturb the district
court's decision in the absence of abuse of discretion. In one case
the supreme court upheld a district court decision to allow the
plaintiff to call an expert witness at trial when the expert was not
named until one week before trial and seven months after the courtimposed deadline for designating experts. In allowing the expert to
testify, however, the district court stated that it would require the
plaintiff to make the expert available to the defendant before he
testified and would allow the defendant the time needed to talk to
the expert and to locate and call a rebuttal witness. See Preferred
Marketing Associates Co. v. Hawkeye National Life Ins. Co., 452
N.W.2d 389 (Iowa 1990).
k.
Under some circumstances, a litigant may have the right to compel
an unwilling expert to give an opinion on matters outside the
expert's personal knowledge. In Mason v. Robinson, 340 N.W.2d
236(Iowa 1983), the supreme court held that the right to compulsory
discovery for discovery purposes is the same as it would be for trial
purposes, i.e., there is no distinction between compelling the
unwilling expert to testify in the pretrial discovery context or at trial.
The court took the middle ground "between total excuse and
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unlimited compulsion of expert opinions from a stranger to the
litigation." Thus "generally an expert witness, absent some other
connection with the litigation, is free to decide whether or not he
wishes to provide opinion testimony for a party." Under some
circumstances, however, the court noted, the expert may be
compelled to testify if "the compelling party should affirmatively
demonstrate some compelling necessity for an expert's testimony
that overcomes the expert's and the public's need for protection.
Additionally, an adequate plan of compensation must be presented.
Finally an expert only can be compelled to give previously formed
opinions and can not be required to engage in any out-of-court
preparation."
16.
A party or a person from whom discovery is being sought or any person affected
thereby may get a protective order under Iowa R. Civ. P. 1.504. For good cause
shown, the court where the action is pending (and additionally where the deposition
is being taken in the case of depositions) may make any order which justice requires
"to protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense."
A party need not provide discovery of electronically stored information from sources
that the party identifies as not reasonably accessible because of undue burden or cost.
On motion to compel discovery or for a protective order, the party from whom
discovery is sought must show that the information is not reasonably accessible
because of undue burden or cost. If that showing is made, the court may nonetheless
order discovery from such sources if the requesting party shows good cause,
considering the limitations of Iowa R. Civ. P. 1.504(1)(b). The court may specify
conditions for the discovery. Iowa R. Civ. P. 1.504(2).
The responding party must identify by category or type the sources of information
containing potentially responsive information that the party is not producing so that
the requesting party can evaluate the burdens and costs of providing discovery.
Identifying the information as not reasonably accessible does not relieve the
producing party from the obligation of preserving the information.
The discovery rules take into account that the discovery and production of computer
data may present problems because of the magnitude of the information and the form
in which it exists. If the parties cannot agree on the issue of whether information is
reasonably accessible, and a motion to compel discovery or a protective order is
sought, the party resisting discovery has the burden of demonstrating an undue
burden or cost. The court may nonetheless order the discovery of information not
reasonably accessible considering the limitations in Iowa R. Civ. P. 1.504(1)(b):
(1) The discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that is more convenient, less burdensome,
or less expensive.
(2) The party seeking discovery has had ample opportunity by discovery in
the action to obtain the information sought.
(3) The burden or expense of the proposed discovery outweighs its likely
97
benefit, taking into account the needs of the case, the amount in controversy,
limitations on the parties’ resources, and the importance of the issues at stake
in the litigation, and the importance of the proposed discovery in resolving
the issues.
The good-cause inquiry and the considerations of Iowa R. Civ. P. 1.504(1)(b) are
coupled with the authority to set conditions on discovery. If the motion for a
protective order is denied in whole or in part, the court may, on such terms and
conditions as are just, order that any party or person provide or permit discovery.
Conditions may include limits on the amount, type, or sources of information
required to be produced, and payment of costs of obtaining information not
reasonably accessible. The provisions of Iowa R. Civ. P. 1.517(1)(d) apply to the
award of expenses incurred in relation to the motion. Iowa R. Civ. P. 1.504(3).
17.
The protective order may direct that discovery not be had; that discovery be made
only under certain conditions; that discovery be had by a different technique than that
attempted to be used; that inquiry be limited to certain matters; that only certain
individuals be present; that certain matter not be disclosed or disclosed only in a
certain way; that parties file certain information simultaneously to be opened as
directed by the court.
18.
A litigant does not have an absolute right to disseminate information obtained
through discovery, and thus a protective order may properly restrict the dissemination
of such information without offending the First Amendment. Seattle Times Co. v.
Rhinehart, 467 U.S. 20 (1974).
19.
Subject to the court's control, methods of discovery may be used in any sequence and
the fact that a party is conducting discovery shall not operate to delay any other
party's discovery. Iowa R. Civ. P. 1.505.
20.
Under Iowa R. Civ. P. 1.503(4), a party who has responded to a discovery request has
a duty to supplement or amend the response to include information thereafter
acquired as follows:
•
There is a duty to supplement with respect to any question addressed to:
- - The identity and location of persons having knowledge of discoverable
matters;
- - The identity of each person expected to be called as a witness at trial;
- - Any matter that bears materially upon a claim or defense asserted by a
party to the action.
•
There is a duty to amend a prior response if the party obtains information
upon the basis of which:
- - The party knows that the response was incorrect when made;
- - The party knows that the response though correct when is no longer true
and the circumstances are such that a failure to amend the response is in
substance a knowing concealment.
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•
There is a duty to supplement as to experts as provided in Iowa R. Civ. P.
1.508(3).
•
There is a duty to supplement if ordered by the court or agreed by the parties
or if there is a new request for supplementation of prior responses.
21.
Where there is a duty to supplement and the party fails to supplement the response,
the court has the inherent power to enforce discovery rules and to impose sanctions.
White v. Citizens Nat. Bank of Boone, 262 N.W.2d 812(Iowa 1978)(failure to
supplement architect's estimate of damages precluded party from offering evidence of
higher damages at trial). See also Whitley v. C.R. Pharmacy Service, Inc., 2012 WL
2479588 (Iowa 2012)(duty to supplement interrogatory answer applies even if
answer is partial and interrogatory is also objected to).
22.
Iowa R. Civ. P. 1.507 provides for a discovery conference which may be held at any
time after commencement of an action. The conference must be held if requested by
a party by motion if the motion includes a statement of the issues as they then appear,
a proposed plan and schedule of discovery, any limitations proposed to be placed on
discovery and a statement showing that the attorney making the motion has made a
reasonable effort to reach agreement with opposing attorneys on the matters set forth
in the motion. Notice of the motion must be served on all parties, who may serve
objections or make additions to the matter set forth within ten days after service of
the motion. If any party proposed a discovery plan, the other parties and attorneys
are under a duty to participate in good faith in framing such a plan. After the
discovery conference, the court enters an order tentatively identifying issues for
discovery, setting any limitations on discovery and determining such other matters as
are necessary for the proper management of discovery in the case. The discovery
conference may be combined with the pretrial conference.
The Iowa rules do not require a discovery conference. However, one of the subjects
of a discovery conference if ordered by the court or requested by a party is any issue
relating to the discovery and preservation of electronically stored information,
including the form in which it should be produced. Iowa R. Civ. P. 1.507(1)(d). This
is an opportunity to consider the issue of claims of privilege or work product
protection and whether to enter into an agreement or stipulation as to how such
claims will be handled to minimize the risk of waive of privilege or work-product
protection. For example, the parties may agree that if privileged or protected
information is inadvertently produced, the producing party may assert the privilege or
protection and obtain return of the materials without waiver. Such agreements can be
incorporated into a pretrial order to avoid delay and excessive cost in discovery.
Discussion of the issues may also allow the parties to develop a discovery plan that
takes into account the parties’ information systems and the capabilities of their
computer systems.
23.
Iowa R. Civ. P. 1.506 gives litigants the opportunity to agree upon modifications to
the procedures governing discovery or to limitations upon discovery.
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24.
Discovery documents are served on the other parties but are not filed unless the court
so orders.
B. Depositions on Oral Examination.
1.
Iowa R. Civ. P. 1.701 provides for the taking of a deposition on an oral examination.
This is the taking of sworn testimony from an individual, including a party to the
action, by examination and cross-examination by attorneys representing the parties to
the action. Depositions by telephone are authorized.
2.
The notice to a party-deponent may be accompanied by a request for the production
of documents and tangible things at the taking of the deposition. Non-party
deponents may also be required to attend a deposition and to produce documents and
things at the deposition pursuant to a subpoena.
3.
Oral depositions are authorized in Iowa or outside the state at a place within one
hundred miles from the nearest Iowa point. However, on notice and hearing, the
court may order a deposition orally taken at any other specified place "if the issue is
sufficiently important and the testimony cannot reasonably be obtained on written
interrogatories." Iowa R. Civ. P. 1.701.
4.
Depositions can be taken outside the state in which the action is proceeding.
Enforcement of the taking of the deposition can occur if the state law in which the
deposition is being taken so provides. Iowa Code § 622.84 provides:
When, by the laws of this or any other state or country,
testimony may be taken in the form of depositions to be
used in any of the courts thereof, the person authorized to
take such depositions may issue subpoenas for witnesses
which must be served by the same officers and returned in
the same manner as is required in district court, and
obedience thereto may be enforced in the same way and to
the same extent, or he may report the matter to the district
court who may enforce obedience as though the action was
pending in said court.
5.
"If the deponent is a party or...agent of a party which is not a natural person, the
deponent shall be required to submit to examination in the county where the action is
pending, unless otherwise ordered by court..." Iowa R. Civ. P. 1.701.
6.
A party may name a legal organization as a deponent and indicate the area to be
inquired into. The organization shall then designate a person who will testify for the
organization. The persons so designated shall testify as to matters known or
reasonably available to the organization.
7.
Depositions cannot be taken in a small claim action unless leave of court is obtained.
Iowa R. Civ. P. 1.702.
100
8.
The use of depositions is controlled by Iowa R. Civ. P. 1.704. The deposition can be
used for impeachment purposes for any witness. If the deponent was an adverse
party at the time of the deposition, the deposition can be used for any purpose. The
deposition may also be used for any purpose if the offerer is unable to subpoena the
witness at trial or the deponent is dead or unable to testify because of illness, age,
infirmity or imprisonment. Under Iowa R. Civ. P. 1.704(4), a deposition also may be
used for any purpose "so far as admissible under the rules of evidence," if it was
taken of an expert witness specially retained for the case or if the deponent was a
health care practitioner offering opinions or facts concerning a party's physical or
mental condition.
9.
In Cook v. State, 431 N.W.2d 800 (Iowa 1988), the plaintiff offered the deposition of
his expert, taken by the State prior to trial. The State objected that the deposition was
hearsay. The State argued that the deposition could not be admitted unless the
plaintiff showed under Iowa R. Evid. 804(b)(1) that the witness was unavailable to
testify in person. The witness was living in California at the time of trial. The
supreme court concluded that Iowa R. Civ. P. 1.704(3) "was intended to create its
own exception to the hearsay rule" in civil cases. All that is required is that the
witness is out of state. The reference in the rule to admissibility under the rules of
evidence "refers only to the other applicable rules of evidence but does not refer to an
overall hearsay objection to the entire deposition."
C. Depositions on Written Interrogatories.
1.
Depositions on written interrogatories are similar to depositions on oral examination
except that the attorneys are not present for the examination. Questions are prepared
by the attorneys in the litigation and these are sent to the person taking the deposition.
The questions are then asked orally of the deponent with the answer to a question
recorded before the next question is asked. Iowa R. Civ. P. 1.701.
2.
The party wishing to take the deposition on written interrogatories first serves
interrogatories on all other parties not in default. Cross-interrogatories are then
served; then redirect interrogatories and recross interrogatories.
3.
The adverse party may elect to appear for the taking of the deposition rather than
using written interrogatories. The party taking the deposition "may also waive the
original written interrogatories and examine the deponent orally." Iowa R. Civ. P.
1.710 (c).
4.
After it is taken, the deposition on written interrogatories is treated the same as one
on oral examination as far as certification and return is concerned.
D. Interrogatories.
1.
Any party may serve (but not file) written interrogatories to be answered by another
party or by the officer or agent of a party under the Iowa rules.
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Copies of interrogatories are served upon another party. The answers are required to
be served (but not filed) upon all adverse parties within thirty days after they are
served.
2.
Each interrogatory is to be answered separately and fully in writing under oath,
unless it is objected to, in which event the reasons for objection shall be stated in lieu
of an answer. Iowa R. Civ. P. 1.509(1).
3.
In answering the interrogatories, the party must set out the interrogatory immediately
preceding the answer. A failure to comply with this requirement is deemed a failure
to answer and subject to sanctions.
4.
The answers are to be signed by the person making them.
5.
The interrogated party is normally given 30 days in which to answer or object, except
that a defendant "may file answers or objections within sixty days after service of the
original notice upon that defendant."
6.
The interrogatories can relate to any matter within the scope of inquiry as limited in
Iowa R. Civ. P. 1.503. The broad limitations are relevancy and not privileged.
7.
The answers to the interrogatories may be used "to the extent permitted by the rules
of evidence."
8.
An interrogatory may deal with an opinion or contention, but the court may order that
such an interrogatory need not be answered until after designated discovery has been
completed or until a pretrial conference or other later time.
9.
When an answer to an interrogatory can be obtained from business records, including
electronically stored information, and it would be equally difficult for the two parties
to derive the information, it is a sufficient answer to the interrogatory to specify the
records from which the answer may be derived and to give the interrogating party
reasonable opportunity to examine the records and make copies. Iowa R. Civ. P.
1.509(3).
The rule makes it clear that a party may produce computer data in response to an
interrogatory, although doing so may require giving the requesting party access to
sensitive information or even to the computer system itself to be able to interpret the
data produced.
Substituting access to documents or electronically stored information for an answer is
allowed only if “the burden of deriving or ascertaining the answer is substantially the
same for the party serving the interrogatory as for the party served.” The specification
must be in sufficient detail to permit the party serving the interrogatory “to locate and
identify as readily as can the party served, the records from which the answer may be
ascertained.” This may require the responding party to provide technical support,
information on application software, or other assistance.
102
10.
Under the Iowa rules, a party may not serve more than 30 interrogatories upon any
other party without the agreement of the party or by leave of court. Iowa R. Civ. P.
1.509(1).
E. Physical or Mental Examination.
1.
Iowa R. Civ. P. 1.515 provides that when the mental or physical condition (including
the blood group) of a party or of a person in the custody or under the legal control of
a party is in controversy, the court...may order the party to submit to a physical or
mental examination...or to produce for examination the person in the party’s custody
or legal control. The order may be made only on motion for good cause shown and
upon notice to the person to be examined and to all parties.
2.
The party against whom the order for an examination runs may request a copy of the
report of the physician making the examination from the party causing the
examination.
3.
After the party causing the examination has delivered a copy of the report, the party
may request from the party against whom the order is made a like report of any
examination, previously or thereafter made, of the same condition, unless, in the case
of a report of examination of a person not a party, the party shows an inability to
obtain it. If the party refuses, sanctions are available.
4.
Iowa R. Civ. P. 1.516(2) provides that by requesting and obtaining a report of the
examination so ordered or by taking the deposition of the examiner, the party
examined waives any privilege the party may have in that action or any other
involving the same controversy, regarding the testimony of every other person who
has examined or may thereafter examine the party in respect of the same mental or
physical condition.
5.
The rules do not preclude discovery of a physician's report or the taking of the
physician's deposition in accordance with the provisions of any other rule or statute.
6.
Iowa Code § 622.10 provides for a waiver of a doctor-patient privilege "in a civil
action to recover damages for personal injuries or wrongful death in which the
condition of the person in whose favor such prohibition is made is an element or
factor of the claim or defense of such person or of any party claiming through or
under such person."
7.
If a party wishes to take the deposition of a doctor in this situation, the party can
apply to the court for permission which shall be granted "unless the court finds that
the evidence sought does not relate to the condition alleged."
8.
The rules require that the physical or mental condition be in controversy and that
good cause for the examination be shown. The good cause requirement involves
balancing the need for the examination against possible risks. If the court orders an
examination and the party refuses to submit, the court may impose sanctions.
McQuillen v. City of Sioux City, 306 N.W.2d 789(Iowa 1981)(refusal to submit to
physical examination, held, no abuse of discretion in dismissing action). See also
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McMurrin v. Royal Fork Restaurant Corp., 728 N.W.2d 853 (Iowa App. 2007)(in
action by plaintiff against defendant restaurant contending that it was negligent in
hiding from view stack of booster seat over which plaintiff tripped and fell, district
court abused its discretion in denying request for physical examination of plaintiff to
determine nature and extent of her peripheral vision which was in controversy where
examination was not intrusive and would be performed by plaintiff’s own physician).
F. Production of Documents, Electronically Stored Information and Things.
1.
The procedure for production of documents, electronically stored information, and
things is governed by Iowa R. Civ. P. 1.512(2). The procedure was governed by Iowa
R. Civ. P. 1.513 until the rule was stricken in 2008.
Any party may serve on any other party a request:
a. To produce and permit the party making the request, or someone acting on
that party’s behalf, to inspect, copy, test, or sample any designated
documents or electronically stored information—including writings,
drawings, graphs, charts, photographs, sound recordings, images, and other
data or data compilations stored in any medium from which information can
be obtained—translated, if necessary, by the respondent into reasonably
usable form.
b. To inspect, copy, test, or sample any designated tangible things which
constitute or contain matters within the scope of Iowa R. Civ. P. 1.503 and
which are in the possession, custody or control of the party upon whom the
request is served.
c. To permit, except as otherwise provided by statute, entry upon designated
land or other property in the possession or control of the party upon whom
the request is served for the purpose of inspection and measuring, surveying,
photographing, testing, or sampling the property or any designated object or
operation thereon, within the scope of Iowa R. Civ. P. 1.503.
2.
The rule makes it clear that computer data is subject to production. A requesting
party need not specifically request computer data since “document” now includes
electronically stored information. The rule covers information “stored in any
medium” to encompass future changes and developments in technology. The rule
allows a party to test or sample materials sought in addition to inspecting and copying
them which may be important for electronically stored information.
3.
The request may, without leave of court, be served upon the plaintiff after
commencement of the action and upon any other party with or after service of the
original notice upon that party. The request must set forth the items to be inspected
either by individual item or by category, and describe each item and category with
reasonable particularity. The request must specify a reasonable time, place, and
manner of making the inspection and performing the related acts. Iowa R. Civ. P.
1.512(2)(a).
4.
The request may specify the form in which electronically stored information is to be
produced. When computer data is requested, the producing party may also be
104
required to produce a program to access the data.
5.
The party upon whom the request is served must serve a written response within 30
days after the service of the request, except that a defendant may serve a response
within 60 days after service of the original notice upon that defendant. The court
may allow a shorter or longer time. The response must state, with respect to each
item or category, that inspection and related activities will be permitted as requested,
unless the request is objected to, including an objection to the requested form for
producing electronically stored information, stating the reasons for the objection. If
objection is made to part of an item or category, that part must be specified. Iowa R.
Civ. P. 1.512(2)(b).
6.
If objection is made to the requested form for producing electronically stored
information—or if no form was specified in the request—the responding party must
state in advance of production the form it intends to use. Iowa R. Civ. P. 1.512(2)(b).
7.
The party submitting the request may move for an order under Iowa R. Civ. P. 1.517
with respect to any objection to or other failure to respond to the request or any part
thereof, of any failure to permit inspection as requested. Iowa R. Civ. P. 1.512(2)(c).
8.
Unless the parties otherwise agree, or the court otherwise orders, a party who
produces documents for inspection must produce them “as they are kept in the usual
course of business or should organize and label them to correspond with the
categories in the request.” Iowa R. Civ. P. 1.512(2)(d). The rule is intended to
prevent the producing party from attempting to bury the information in the
documents that are produced.
9.
If a request does not specify the form for producing electronically stored information,
the responding party must produce the information “in a form in which it is ordinarily
maintained or in a form that is reasonably usable.” Iowa R. Civ. P. 1.512(2)(d).
10.
A party need not produce the same electronically stored information is more than one
form. Iowa R. Civ. P. 1.512(2)(d).
G. Inspection of Land and Other Property.
Iowa R. Civ. P. 1.512 provides for the inspection of tangible things which are in the
possession, custody or control, of the party upon whom the request is served. Entry onto land
may be requested for the purpose of inspecting and measuring, surveying, photographing,
testing and sampling.
H. Requests for Admissions.
1.
One party may serve upon any other party a written request for the admission of any
matter which is relevant and not privileged which is set forth in the request. The
request may relate to statements or opinions of fact including the genuineness of any
document. Iowa R. Civ. P. 1.510.
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2.
The matter is admitted unless the party receiving the request serves upon the
requesting party an answer or objection within thirty days. If objection is made to the
request for admission, the reasons must be stated.
3.
The answer must specifically deny the matter or set forth in detail the reasons why
the answering party cannot truthfully admit or deny the matter.
4.
A party cannot rely on lack of information as ground for refusing to admit or deny
unless the party makes reasonable inquiry to obtain the information.
5.
If the court determines than an objection is not justified, it will order an answer be
served. The rules provide that if the court determines that an answer does not comply
with the requirements of this rule, it may order either than the matter is admitted or
that an amended answer be served.
6.
Any matter admitted under this rule is conclusively established in the action unless
the court allows withdrawal or amendment of the admission.
7.
Only the party making the admission is bound by it. Any other party, including the
party requesting the admission, is free to prove facts in addition to or contrary to the
admission. Poulson v. Russell, 300 N.W.2d 289(Iowa 1981).
8.
Although Iowa R. Civ. P. 1.510 refers to a "request for admission for purposes of the
pending action only," Iowa R. Civ. P. 1.511 provides for an effect for the admission
beyond the pending action. Any admission made by a party under Iowa R. Civ. P.
1.510 may be used only as an evidentiary admission in any other proceeding.
I. Subpoenas.
1.
Iowa R. Civ. P. 1.1701(1)(a) requires that every subpoena must:
(1) state the court from which it issued;
(2) state the title of the action and its docket number;
(3) command each person to whom it is directed to do the following at a specified
time and place: attend and testify; produce designated documents, electronically
stored information, or tangible things in that person's possession, custody, or control;
or permit the inspection of premises; and
(4) set out the text of rules 1.1701(4) and 1.701(5).
2.
A subpoena commanding attendance at a deposition also must state the method for
recording the testimony. Iowa R. Civ. P. 1.1701(1)(b).
3.
A command to produce documents, electronically stored information, or tangible
things or to permit the inspection of premises may be included in a subpoena
commanding attendance at a deposition, hearing, or trial, or may be set out in a
separate subpoena. A subpoena may specify the form or forms in which electronically
stored information is to be produced. Iowa R. Civ. P. 1.1701(1)(c).
4.
A command in a subpoena to produce documents, electronically stored information,
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or tangible things requires the responding party to permit inspection, copying, testing,
or sampling of the materials. Iowa R. Civ. P. 1.1701(1)(d).
5.
Subpoena forms can be found in Rule 1.1901, Form 13, 14 and 15.
6.
Rule 1.1701(2) requires that the clerk must issue a subpoena, signed but otherwise in
blank, to a party who requests it. That party must complete it before service. A
request may be made either orally or in writing. An attorney licensed or otherwise
authorized to practice law in Iowa also may issue and sign a subpoena as an officer of
the court. Any person who is at least 18 years old and not a party may serve a
subpoena. Serving a subpoena requires delivering a copy to the named person and, if
the subpoena requires that person's attendance and, if demanded, tendering the fees
for one day's attendance and their traveling fees to and from the court. If the
subpoena commands the production of documents, electronically stored information,
or tangible things or the inspection of premises before trial, then before it is served, a
notice must be served on each party. Iowa R. Civ. P. 1.1701(3)(a).
Under Rule 1.1701(3)(b), a subpoena may be served at any place:
(1)
(2)
within the State of Iowa;
that the court authorizes on motion and for good cause, if a statute so
provides.
7.
Proving service, when necessary, requires filing with the issuing court a statement
showing the date and manner of service and the names of persons served. The server
must certify the statement in accordance with Iowa Code § 622.1. Iowa R. Civ. P.
1.1701(3)(c).
8.
A party or attorney responsible for issuing and serving a subpoena must take
reasonable steps to avoid imposing undue burden or expense on a person subject to
the subpoena. The issuing court must enforce this duty and impose an appropriate
sanction, which may include lost earnings and reasonable attorney's fees, on a party
or attorney who fails to comply. Iowa R. Civ. P. 1.1701(4)(a).
9.
A person commanded to produce documents, electronically stored information, or
tangible things, or to permit the inspection of premises, need not appear in person at
the place of production or inspection unless also commanded to appear for a
deposition, hearing, or trial. Iowa R. Civ. P. 1.1701(4)(b)(1).
10.
Under Rule 1.1701(4)(b)(2), a person commanded to produce documents or tangible
things or to permit inspection may serve on the party or attorney designated in the
subpoena a written objection to inspecting, copying, testing or sampling any or all of
the materials or to inspecting the premises, or to producing electronically stored
information in the form or forms requested. The objection must be served before the
earlier of the time specified for compliance or 14 days after the subpoena is served. If
an objection is made, the following rules apply:
1.
At any time, on notice to the commanded person, the serving party may
move the issuing court for an order compelling production or inspection.
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2.
These acts may be required only as directed in the order, and the order must
protect a person who is neither a party nor a party's officer from significant
expense resulting from compliance.
Any party shall be permitted to attend at the same time and place and for the same
purposes specified in the subpoena. No prior notice of intent to attend is required.
Iowa R. Civ. P. 1.1701(4)(c).
11.
Rule 1.1701(4)(d)(1) provides that on timely motion, the issuing court must quash or
modify a subpoena that:
1.
2.
3.
4.
fails to allow a reasonable time to comply;
requires a person who is neither a party nor a party's officer to travel more
than 50 miles from where that person resides, is employed, or regularly
transacts business in person, except that a person may be ordered to attend
trial anywhere within the state in which the person is served with a
subpoena;
requires disclosure of privileged or other protected matter, if no exception or
waiver applies; or
subjects a person to undue burden.
To protect a person subject to or affected by a subpoena, the issuing court may, on
motion, quash or modify the subpoena if it requires:
1.
2.
3.
disclosing a trade secret or other confidential research, development, or
commercial information; or
disclosing an unretained expert's opinion or information that does not
describe specific occurrences in dispute and results from the expert's study
that was not requested by a party.
a person who is neither a party nor a party's officer to incur substantial
expense to travel more than 50 miles to attend trial.
Iowa R. Civ. P. 1.1701(4)(d)(2).
In the circumstances described in Rule 1.1701(4)(d)(2), the court may, instead of
quashing or modifying a subpoena, order appearance or production under specified
conditions if the serving party:
1.
2.
shows a substantial need for the testimony or material that cannot be
otherwise met without undue hardship; and
ensures that the subpoenaed person will be reasonably compensated.
Iowa R. Civ. P. 1.1701(4)(d)(3).
12.
Rule 1.1701(5)(a) provides that these procedures apply to producing documents or
electronically stored information:
(1)
Documents. A person responding to a subpoena to produce documents must
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produce them as they are kept in the ordinary course of business or must
organize and label them to correspond to the categories in the demand.
(2)
Form for producing electronically stored information not specified. If a
subpoena does not specify a form for producing electronically stored
information, the person responding must produce it in a form or forms in
which it is ordinarily maintained or in a reasonably usable form or forms.
(3)
Electronically stored information produced in only one form. The person
responding need not produce the same electronically stored information in
more than one form.
(4)
Inaccessible electronically stored information. The person responding need
not provide discovery of electronically stored information from sources that
the person identifies as not reasonably accessible because of undue burden or
cost. On motion to compel discovery or for a protective order, the person
responding must show that the information is not reasonably accessible
because of undue burden or cost. If that showing is made, the court may
nonetheless order discovery from such sources if the requesting party shows
good cause, considering the limitations of rule 1.504(1)(b). The court may
specify conditions for the discovery.
A person withholding subpoenaed information under a claim that it is privileged or
subject to protection as trial-preparation material must:
1.
2.
expressly make the claim; and
describe the nature of the withheld documents, communications, or
tangible things in a manner that, without revealing information itself
privileged or protected, will enable the parties to assess the claim.
Iowa R. Civ. P. 1.1701(5)(b)(1).
If information produced in response to a subpoena is subject to a claim of privilege or
of protection as trial-preparation material, the person making the claim may notify
any party that received the information of the claim and the basis for it. After being
notified, a party must promptly return, sequester, or destroy the specified information
and any copies it has; must not use or disclose the information until the claim is
resolved; must take reasonable steps to retrieve the information if the party disclosed
it before being notified; and may promptly present the information to the court under
seal for a determination of the claim. The person who produced the information must
preserve the information until the claim is resolved. Iowa R. Civ. P. 1.1701(5)(b)(1).
13.
When a party on whose behalf a subpoena under Rule 1.1701(1) has been issued
thereby creates or obtains copies of designated electronically stored information,
books, papers, documents or tangible things, that party must make available a
duplicate of such copies at the request of any other party, who shall be responsible for
payment of the reasonable cost of making the copies. Iowa R. Civ. P. 1.1701(6).
14.
The issuing court may hold in contempt a person who, having been served and if
necessary been provided fees and traveling expenses allowed by law, fails without
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adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused
if the subpoena purports to require the nonparty to attend or produce at a place
outside the limits of rule 1.1701(4)(d)(1)(2).
15.
In 2012, the Iowa Supreme Court approved a new rule, Rule 1.1702,
Uniform Interstate Depositions and Discovery, which is intended to
streamline existing procedure and make it more convenient for parties to a
civil action pending in a state other than Iowa to subpoena evidence in Iowa.
The Act sets forth an efficient and inexpensive procedure for litigants to
depose out of state individuals and for the production of discoverable
materials that may be located out of state. Uniform procedures have become
necessary as the amount of litigation involving individuals and documents
located outside of the trial state has increased. Previously, a party had to first
obtain a commission from the other state court. The new rule is based upon
the Uniform Interstate Depositions and Discovery Act. The rule imposes a
$50 filing fee when a party submits a foreign subpoena to a clerk of court for
issuing a signed but otherwise blank subpoena and for bringing to the court a
motion for protective order or to enforce, quash, or modify a subpoena
issued under the new rule. The rule permits an attorney to issue a subpoena
without an Iowa court file being opened or a docket number assigned.
J. Sanctions.
1.
Iowa R. Civ. P. 1.517 provides for sanctions which may be imposed upon an
individual or party who refuses to cooperate in the various discovery procedures.
Before sanctions may be imposed for failure to comply with a court order, the party
must be afforded the opportunity for a hearing. Schwarzenbach v. Schwarzenbach,
446 N.W.2d 475 (Iowa 1989).
2.
A party may move for an order compelling discovery. The order may run against (a) a
party to the litigation who has refused to cooperate in any discovery process or (b)
any deponent who has refused to submit to the taking of a deposition or refused to
answer a question propounded.
3.
A motion to compel based upon a failure of a party to provide information in
response to a discovery request must attempt to “articulate how the withheld
communications would have altered the outcome on any of” the moving
party’s claims. Jones v. University of Iowa, 2013 WL 4483528 (Iowa 2013).
4.
The application for an order must be made to the court where the action is pending
or, in the case of a deposition, to the court in the district where the deposition is being
taken. Where the deponent is not a party, the application must be to the court where
the deposition is being taken.
5.
If the deponent fails to be sworn or to answer a question after being directed to do so
by the court in the district in which the deposition is being taken, the failure may be
considered a contempt of that court.
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6.
If a party, agent of the party, or designated person fails to obey an order to provide or
permit discovery, the court may make such orders as are just.
7.
Sanctions include contempt, exclusion of evidence or witness, striking pleadings,
dismissal and costs. Under the rule, it was held that striking an answer and entry of a
default judgment was an appropriate discovery sanction for a party’s willful
noncompliance with the district court’s discovery orders. Fenton v. Webb, 705
N.W.2d 323 (Iowa 2005).
8.
Under Iowa R. Civ. P. 1.517(5) no motion to impose sanctions may be considered by
the court unless the motion alleges that a good faith effort has been made to resolve
the dispute which is the subject of the motion.
9.
Under the sanction provisions, parties may be precluded from calling expert
witnesses at trial for failure to comply with a discovery order, Wernimont v.
International Harvester Corp., 309 N.W.2d 137 (Iowa App. 1981); or an action may
be dismissed for failure to comply with an order for a physical examination,
McQuillen V. City of Sioux City, 306 N.W.2d 789(Iowa 1981).
However, the court has held that it is not appropriate under the sanction provisions to
strike a jury demand. R.E. Morris Investment, Inc., v. Lind, 304 N.W.2d 189(Iowa
1981); and a sanction may not directly impinge upon a constitutional right.
Exclusion of evidence is the most severe sanction available and is justified only when
prejudice would result. Other sanctions, such as continuation of the trial or limitation
of testimony, should be considered. Klein v. Chicago Central & Pacific Railroad
Co., 596 N.W.2d 58 (Iowa 1999).
10.
An order granting a motion to compel must include a statement that a failure to
comply with the order may result in the imposition of sanctions. A copy of the order
is to be sent by the clerk to counsel and to the party whose conduct, individually or
by counsel, necessitated the motion.
11.
Absent exceptional circumstances, a court may not impose sanctions under the rules
on a party for failing to provide electronically stored information lost as a result of the
“routine, good-faith operation of an electronic information system.” Iowa R. Civ. P.
1.517(6).
The rule is intended to refer to the routine alteration or overwriting of data and in
good faith. However, once litigation is commenced or there is a reason to anticipate
litigation, there may be an obligation to prevent such routine alteration or overwriting
to preserve the computer data. Failing to do so may not constitute “good-faith”
operation. The existence of and compliance with a record retention policy may be
relevant to the issue, while lack of such a policy or failure to follow the policy may be
considered as evidence of bad faith.
Sanctions for spoliation of evidence include dismissal of the action, entry of a default
judgment, or an adverse inference instruction.
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12.
The following four factors are to be considered when determining a monetary
sanction:
•
•
•
•
The reasonableness of the opposing party's attorney's fees;
the minimum to deter;
the ability to pay; and
factors related to the severity of the violation.
Barnhill v. Iowa District Court, 765 N.W.2d 267 (Iowa 2009)($25,000 sanction was
warranted in light of number of meritless claims asserted, expense and time necessary
to dispose of them, and most importantly, amount necessary to deter such conduct in
future.
District courts are encouraged to consider the following American Bar Association
factors as they relate to the issues identified in the four-factor test when determining
an appropriate monetary sanction:
a. the good faith or bad faith of the offender;
b. the degree of willfulness, vindictiveness, negligence or frivolousness involved in
the offense;
c. the knowledge, experience and expertise of the offender;
d. any prior history of sanctionable conduct on the part of the offender;
e. the reasonableness and necessity of the out-of-pocket expenses incurred by the
offended person as a result of the misconduct;
f. the nature and extent of prejudice, apart from out-of-pocket expenses, suffered by
the offended person as a result of the misconduct;
g. the relative culpability of client and counsel, and the impact on their privileged
relationship of an inquiry into that area;
h. the risk of chilling the specific type of litigation involved;
i. the impact of the sanction on the offender, including the offender's ability to pay a
monetary sanction;
j. the impact of the sanction on the offended party, including the offended person's
need for compensation;
k. the relative magnitude of sanction necessary to achieve the goal or goals of the
sanction;
l. burdens on the court system attributable to the misconduct, including consumption
of judicial time and incurrence of juror fees and other court costs;
m. the degree to which the offended person attempted to mitigate any prejudice
suffered by him or her;
n. the degree to which the offended person's own behavior caused the expenses for
which recovery is sought;
o. the extent to which the offender persisted in advancing a position while on notice
that the position was not well grounded in fact or warranted by existing law or a good
faith argument for the extension, modification or reversal of existing law; and
p. the time of, and circumstances surrounding, any voluntary withdrawal of a
pleading, motion or other paper.
Barnhill v. Iowa District Court, 765 N.W.2d 267 (Iowa 2009).
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13.
Generally, noncompliance with discovery is not tolerated. However, the sanction to
result from noncompliance rests with the sound discretion of the trial court. While the
sanction for the failure to supplement discovery can include exclusion of the
evidence at trial, the trial court can also deny a request to exclude evidence. The
factors used to consider sanctions include:
1. the parties' reasons for not providing the challenged evidence during discovery;
2. the importance of the evidence;
3. the time needed for the other side to prepare to meet the evidence; and
4. the propriety of granting a continuance.
Thus, in considering sanctions, a continuance can be used as a tool to minimize or
eliminate prejudice that can be visited on a party when discovery is withheld. A
continuance can give the complaining party an opportunity to overcome the surprise
and prepare an effective response to the new evidence. Generally, a continuance is
considered to be the “traditionally appropriate remedy” for a claim of surprise at trial.
See generally Whitley v. C.R. Pharmacy Service, Inc., 2012 WL 2479588 (Iowa
2012)(duty to supplement interrogatory answer applies even if answer is partial and
interrogatory is also objected to)(district court did not abuse its discretion when it
made its decision to grant continuance and deny request to exclude the evidence).
K. Perpetuation of Testimony.
1.
A deposition under Iowa R. Civ. P. 1.722 can be used to perpetuate evidence for
possible use in an action which is not yet pending.
2.
The person who wishes to perpetuate evidence must file an application to take a
deposition to perpetuate testimony entitled in the name of the applicant and supported
by affidavit.
3.
The application must show that the applicant expects to be a party in an action in
some Iowa court which the party is presently unable to bring or have brought; the
subject matter of the action and the party's interest; the proposed testimony as to why
the party wants it perpetuated; the expected adverse parties and addresses if known,
and, the name and address of each deponent and the substance of the testimony.
4.
The application must be filed in the court where the prospective action might be
brought.
5.
Notice must be served upon each person named in the petition as an expected adverse
party.
6.
A guardian ad litem may be named to protect the interest of a person under disability
or one not personally served with notice. Iowa R. Civ. P. 1.724 provides that "unless
an attorney has been so appointed the deposition shall not be admissible against such
party in any subsequent action."
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7.
Under the rules, if the court is satisfied that the petition is not for the purpose of
discovery, and that its allowance may prevent future delay or failure of justice, and
the applicant is unable to bring the contemplated action or cause it to be brought, the
court shall order the testimony perpetuated, designating the deponents, the subject
matter of their examination, when, where and before whom their deposition shall be
taken, and whether orally or on written interrogatories.
8.
The deposition so taken can be used in any action involving any "expected adverse
party" who was served as provided in the rules, or the party's privies or successors in
interest if the deponent is dead or mentally ill or the deponent's attendance cannot be
obtained. Iowa R. Civ. P. 1.727.
9.
Perpetuation of testimony is also provided pending an appeal in case of further
proceedings in the trial court.
L. Duty to Preserve Evidence; Spoliation of Evidence
1.
It is generally recognized that there is a duty to preserve evidence once a lawsuit is
filed and probably as soon as when a party realizes there is a reasonable likelihood of
a lawsuit.
2.
Iowa does not recognize an independent action to negligent or intentional destruction
of evidence—“spoliation of evidence.”
3.
Iowa remedies for spoliation of evidence include discovery sanctions, barring
duplicate evidence where fraud or intentional destruction is indicated and instructing
on an unfavorable inference to be drawn from the fact that evidence was destroyed.
3.
Lynch v. Saddler, 656 N.W.2d 104 (Iowa 2003):
Evidence of spoliation may allow an inference that “a party who destroys a document
with knowledge that it is relevant to litigation is likely to have been threatened by the
document.” Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001) (citing
Beil v. Lakewood Eng'g & Mfg. Co., 15 F.3d 546, 552 (6th Cir.1994)). Such
inference may only be drawn when the destruction of relevant evidence was
intentional, as opposed to merely negligent or the evidence was destroyed as the
result of routine procedure. Id. At 719.
4.
In order to justify a spoliation inference there must be substantial evidence that (1)
the evidence was “in existence”; (2) the evidence was “in the possession of or
under control of the party” charged with its destruction; (3) the evidence “would
have been admissible at trial”; and (4) “the party responsible for its destruction
did so intentionally.” See State v. Hartsfield, 681 N.W.2d 626 (Iowa 2004).
XII. DISMISSAL; TRIAL MOTIONS; POST-TRIAL MOTIONS.
A. Dismissal.
1.
Voluntary.
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A plaintiff may dismiss the petition, without order of court, any time before the trial
has begun. Iowa R. Civ. P. 1.943. Iowa R. Civ. P. 1.909 provides for a late settlement
fee of $500 if notice of settlement is given later than two full working days before a
civil action is scheduled to be tried to a jury or is reached for jury trial, whichever is
later, or the case is settled during trial. The fee is assessed as court costs. The late
settlement fee cannot be waived by the court.
2.
a.
After the commencement of the trial the party may dismiss the action only
with the court's permission. The court may impose terms or conditions.
Consent of a counterclaimant is required unless the counterclaim would
remain for independent adjudication. Iowa R. Civ. P. 1.943.
b.
A voluntary dismissal is without prejudice unless otherwise stated.
c.
Iowa has the two-dismissal rule which means that if a plaintiff voluntarily
dismisses an action twice, the second dismissal has the effect of an
adjudication on the merits "unless otherwise ordered by the court, in the
interest of justice." Iowa R. Civ. P. 1.943.
d.
A voluntary dismissal of the claim against the employee will not preclude an
action by the plaintiff based on respondeat superior against the employer
unless that was the intent of the party dismissing. See Dickens v. Associates
Anesthesiologists, P.C., 709 N.W.2d 122 (Iowa 2006).
Involuntary Dismissal.
a.
Iowa R. Civ. P. 1.944 provides for dismissal of actions once the petition has
been on file for more than one year prior to July 1 for want of prosecution.
Dismissal under this rule is without prejudice. A case so dismissed may be
reinstated if application is made therefor within six months after dismissal
upon a showing that dismissal was the result of oversight, mistake or other
reasonable cause. A prerequisite to either mandatory or discretionary
reinstatement is a showing by the plaintiff of "reasonable diligence in
preparing and pursuing the case for trial." Sladek v. G & M Midwest Floor
Cleaning, Inc., 403 N.W.2d 774, 778 (Iowa 1987).
b.
Iowa R. Civ. P. 1.945 provides: "A party may move for dismissal of any
action or claim against the party or for any appropriate order of court, if the
party asserting it fails to comply with these rules or any order of court."
c.
All dismissals, not voluntary dismissals under Iowa R. Civ. P. 1.942 or not
for want of jurisdiction or improper venue, operate as adjudications on the
merits unless they specify otherwise. Iowa R. Civ. P. 1.946. A dismissal for
lack of jurisdiction is not an adjudication on the merits under Iowa R. Civ. P.
1.946, and is therefore without prejudice. Hammond v. Florida Financing
Corp., 695 N.W.2d 1 (Iowa 2005).
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d.
Dismissal of an action as a sanction for failing to cooperate in discovery is
provided in Iowa R. Civ. P. 1.517(2)(b)(3).
B. Trial Motions.
1.
Severance and Consolidation.
The trial court has almost unrestricted power to order consolidation of separate
actions or the severance of claims or issues for separate trial. Iowa R. Civ. P. 1.913
and 1.914.
The Iowa supreme court has observed that the consolidation rule is modeled after
Federal Rule of Civil Procedure 42(a). Thus, federal cases applying that rule provide
guidance. The rule is a procedural device designed to promote judicial economy, and
consolidation cannot effect a merger of the actions or the defenses of the separate
parties. While cases may be consolidated for trial, the cases generally preserve their
separate identity. The consolidation rule embraces the modern trend to combine in
one litigation all actions arising out of one transaction, and the rule should be
liberally construed to achieve that end. Johnson v. Des Moines Metropolitan
Wastewater Reclamation Authority, 2012 WL 758208 (Iowa 2012).
2.
Motion to Dismiss after Plaintiff Rests.
Under Iowa R. Civ. P. 1.945 a defendant may move for dismissal because the
plaintiff has shown no right to relief. There is a danger in an equity case if this
motion is made and granted. On appeal, the appellate court may find that the
plaintiff has made a showing that the plaintiff is entitled to relief. If so, the appellate
court, will reverse and remand to the district court for the entry of a decree. O'Keefe
v. O'Keefe, 162 N.W.2d 477 (1968).
3.
Motion to Withdraw Issue from Jury.
If a party feels that no evidence has been submitted by the other party to support an
issue in the pleading, the proper motion would be one to withdraw the issue from the
consideration of the jury. If the court finds that no evidence has been submitted on
the issue, the motion should be granted.
4.
Motion for Directed Verdict.
A motion for a directed verdict is a condition precedent to a motion for a judgment
notwithstanding the verdict made after the verdict is rendered.
a.
A motion for a directed verdict seeks a peremptory determination of the
conclusiveness of the proof in the movant's favor or the want of any evidence
adverse to the party.
b.
The moving party is declaring that as a matter of law he or she is entitled to a
verdict in his or her favor.
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c.
A motion for a directed verdict is normally made at the conclusion of the
introduction of evidence.
The supreme court has observed that Iowa R. Civ. P. 1.1003(2), the motion
for judgment n.o.v. rule, contemplates that the motion for directed verdict
will be made at the close of all the evidence. Thus, “in most cases it will be
prudent not to consider a motion for directed verdict until all evidence has
been presented” and it would be “exalting form over substance to require
such motion to be made at the close of plaintiff’s case and again at the close
of all evidence.” 6 Thus, a motion for directed verdict need not be made at
the close of plaintiff’s case in order to preserve error. Royal Indemnity
Company v. Factory Mutual Ins. Co., 786 N.W.2D 839 (Iowa 2010).
e.
5.
Error committed by a trial court in overruling a motion for directed verdict
made at the close of a plaintiff’s case-in-chief can be cured by introducing
additional evidence to support submission of the issue to the jury prior to the
close of all the evidence in the case. When a party has failed to introduce
sufficient evidence at trial on an element of a claim as revealed by a motion
for directed verdict made by an opposing party at the close of the evidence,
the district court has discretion to grant a motion by a party to reopen its case
to supply the missing evidence. A request to reopen the case will be granted
when necessary for the due administration of justice. This rule recognizes a
trial is about the search for truth and justice. “Nonprejudicial errors,
oversights, or incorrect assumptions by the court or counsel during the trial
process should not interfere with that mission.” See AG Partners, L.L.C. v.
Canadian National/Illinois Central Railroad, 726 N.W.2d 711 (Iowa 2007).
Mistrial Motion.
When a party believes that prejudice has occurred during the course of the trial that
cannot be corrected by instruction from the court, a motion for mistrial is appropriate.
a.
The prejudicial matter should be brought to the attention of the court
immediately, and the failure to timely move for a mistrial may constitute a
waiver of the objection. The purpose for requiring a timely motion is to give
the court the opportunity to correct the error and instruct the jury, if the
prejudice can be cured in that fashion.
b.
The trial court has considerable discretion in ruling on the mistrial motion,
and because the trial court had the best opportunity to observe the alleged
prejudicial conduct, the supreme court has said that the trial court is in the
best position to rule on the matter. Thus, the trial court's exercise of
discretion in refusing to grant a mistrial will generally be upheld.
c.
Mistrial motions are often made as the result of comments made during
closing argument to the jury. It has been held that to be timely, the motion
must be made at the close of argument but before submission to the jury.
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d.
A reference during the trial to liability insurance coverage is a common
mistrial situation. The supreme court has said that such references will not
be grounds for a mistrial unless the insurance issue was intentionally injected
into the trial. See Davis v. L & W Construction Company, 176 N.W.2d 223
(Iowa 1970).
C. Posttrial Motions.
1.
Judgment Notwithstanding the Verdict (Judgment n.o.v.).
a.
A motion for a judgment notwithstanding the verdict can be granted only if
the moving party made a timely motion for a directed verdict. "The purpose
of the [motion] is to give the trial court an opportunity to correct its error in
failing to sustain a motion for directed verdict." Friedman v. Colonial Oil
Co., 236 Iowa 140, 145, 18 N.W.2d 196(1945).
b.
A judgment n.o.v. can be granted, under Iowa R. Civ. P. 1.1003 if the
pleadings of the opposing party omit to aver some material fact or facts
necessary to constitute a complete cause of action or defense and the motion
clearly specifies such failure or omission.
c.
In addition the motion for a judgment n.o.v. can be granted if the movant
was entitled to have a verdict directed for him or her at the close of all the
evidence, and moved therefore, and the jury did not return such verdict, the
court may then either grant a new trial or enter judgment as though it had
directed a verdict for the movant.
d.
e.
2.
In ruling on the motion for a judgment n.o.v. the court "shall treat issues
actually tried by express or implied consent of the parties but not embraced
in the pleadings, as though they had been pleaded." Iowa R. Civ. P. 1.1009.
After ruling on the motion considering the issues actually tried, "Either party
may then amend to conform the party’s pleadings to such issues and the
evidence upon them; but failure to so amend shall not affect the result of the
trial." Iowa R. Civ. P. 1.1009.
Motion for a New Trial.
Iowa R. Civ. P. 1.1004 provides for a new trial on motion for such matters as
irregularity in the proceedings; abuse of discretion which prevented the movant from
having a fair trial; misconduct of the jury or prevailing party; accident or surprise
which ordinary prudence could not have guarded against; excessive or inadequate
damages appearing to have been influenced by passion or prejudice; error in fixing
the amount of the recovery, whether too large or too small, in an action upon contract
or for injury to or detention of property; that the verdict, report or decision is not
sustained by sufficient evidence, or is contrary to law; material evidence, newly
discovered, which could not with reasonable diligence have been discovered and
produced at the trial; errors of law occurring in the proceedings, or mistakes of fact
by the court.
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Although Rule 1.1004, Iowa Rules of Civil Procedure, provides for motions for a
new trial, the Iowa supreme court has emphasized that district courts have inherent
authority to grant new trials. See Loehr v. Mettille, 2011 WL 5110248 (Iowa 2011).
The district court is not prohibited from granting a new trial in every case where the
ground for new trial was not raised at the first available opportunity during trial.
Although a party loses its right to a new trial if it neglects timely error preservation,
this does not necessarily bar the district court from exercising its discretion to grant a
new trial if a ground set forth in Rule 1.1004 has been met. 9.10 The supreme court
has emphasized that the trial court is not bound by the record in the same way that the
appellate courts are, and therefore, it is not invariably an abuse of discretion for a trial
judge to grant a motion for new trial based on a matter that could have been raised
earlier, but was not. Loehr v. Mettille, 2011 WL 5110248 (Iowa 2011).
A new trial is the appropriate remedy for improper argument. However, before a new
trial will be granted, it must appear prejudice resulted or a different result could have
been probable but for such misconduct. Misconduct in argument may be so flagrantly
improper and evidently prejudicial that it may be ground for a new trial even though
objection was not made at the time of the argument. See Whitley v. C.R. Pharmacy
Service, Inc., 801 N.W.2d 33 (Iowa App. 2011).
3.
Motion to Amend or Enlarge Findings and Conclusions.
On motion joined with or filed within the time allowed for a motion for new trial, the
findings and conclusions may be enlarged or amended and the judgment or decree
modified accordingly or a different judgment or decree substituted. Iowa R. Civ. P.
1.904(2).
The filing of an untimely or improper Iowa R. Civ. P. 1.904(2) motion can create a
“trap for the unwary litigant who desires to appeal.” In re Marriage of Okland, 699
N.W.2d 260 (Iowa 2005). Thus, the supreme court has noted several significant
principles from its decisions that guide the operation of the rule pertaining to the
extension of time to file a notice of appeal from a judgment or decree when a Iowa R.
Civ. P. 1.904(2) motion is filed:
•
•
•
An untimely or improper motion cannot extend the time for appeal. An Iowa
R. Civ. P. 1.904(2) motion can be improper when it is successive or
repetitive of a prior Iowa R. Civ. P. 1.904(2) motion or when it is not
available to a party under Iowa R. Civ. P. 1.904(2).
An Iowa R. Civ. P. 1.904(2) motion filed by a party following a denial of the
party’s prior Iowa R. Civ. P. 1.904(2) motion is improper and cannot extend
the time for appeal if the judgment remained unchanged following the first
motion.
An Iowa R. Civ. P. 1.904(2) motion filed after a new judgment or decree has
been entered by the court in response to a prior Iowa R. Civ. P. 1.904(2)
motion is permitted under the rule and extends the time for appeal.
The court emphasized that the rule is not limited to the original judgment; when the
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trial court grants a Iowa R. Civ. P. 1.904(2) motion resulting in a new judgment or
decree, a proper Iowa R. Civ. P. 1.904(2) motion tolls the time to appeal. The court
has said:
The rule applies to give each party a bite at the apple to request a change or
modification of an adverse judgment. This is the fairest was for the rule to
work, and the number of times a party can seek reconsideration will not be
endless, but will be controlled by the court in the number of times it changes
the judgment or decree.
The supreme court made the following observation about the uses for a Rule
1.904(2) motion:
The rule can be used by a party, with an appeal in mind, as a tool for
preservation of error. Similarly, it can be used to better enable a
party to attack ‘specific adverse findings or rulings in the event of
an appeal’ by requesting additional findings and conclusions.
Additionally, it can be used, with no appeal in mind, to obtain a
ruling on an issue that the court may have overlooked in making its
judgment or decree.
Id. at 266 (internal citations omitted). Thus, when the district court
fails to make specific findings, a rule 1.904(2) motion is an
appropriate mechanism to preserve error. Lamasters v. State, 821
N.W.2d 856, 863 (Iowa 2012). Moreover, if the movant asks the
court to examine facts it suspects the court overlooked and requests
an expansion of the judgment in view of that evidence, then the
motion is proper. City of Waterloo v. Black Hawk Mut. Ins. Ass'n,
608 N.W.2d 442, 444 (Iowa 2000).
When using a rule 1.904(2) motion to preserve error, it is
proper for the motion to address “purely legal issue[s]” presented to
the district court prior to its ruling but not decided by it. Lamasters,
821 N.W.2d at 863, 864 n. 2 (“[If] the district court failed to make
sufficiently specific findings and conclusions, then the [party] must
file a rule 1.904(2) motion to preserve [the error].”); accord Meier
v. Senecaut, 641 N.W.2d 532, 538–39 (Iowa 2002). Nevertheless, a
rule 1.904(2) motion is improper where the motion only seeks
additional review of “a question of law with no underlying issue of
fact.” In re Marriage of Okland, 699 N.W.2d at 265 n. 2 (emphasis
added). Additionally, if the posttrial motion amounts “ ‘to no more
than a rehash of legal issues raised and decided adversely’ “ to the
movant, the motion is not appropriate. Explore Info. Servs. v. Iowa
Ct. Info. Sys., 636 N.W.2d 50, 57 (Iowa 2001) (quoting Bellach v.
IMT Ins. Co., 573 N.W.2d 903, 905 (Iowa 1998)). Thus, a rule
1.904(2) motion is not proper if it is used merely to obtain
reconsideration of the district court's decision.
See Sierra Club Iowa Chapter v. Iowa Dept. of Transp., 2013 WL 2450143 (Iowa
2013).
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4.
Time for Posttrial Motions.
a.
The time for filing a motion for judgment notwithstanding the verdict, for
new trial, for bills of exception, or to enlarge or amend findings and
conclusions is governed by Iowa R. Civ. P. 1.1007. Such motions must be
filed within ten days after the verdict, report or decision is filed, or the jury is
discharged, as the case may be, unless the court extends the time for filing.
An order extending the time must be in writing and filed to be effective.
Lutz v. Iowa Swine Exports Corporation, 300 N.W.2d 109(Iowa 1981). The
court may extend the time for an additional 30 days. Schmitt v. Clayton
County, 284 N.W.2d 186(Iowa 1979).
b.
The significance of the timely filing of posttrial motions is that they extend
the time for filing the notice of appeal until 30 days after the entry of the
ruling on the posttrial motion.
c.
The appellate courts strictly enforce the time in which a party has to file
posttrial motions. The appellate courts also have a rule that, after the
expiration of time for the filing of posttrial motions, the court will not allow
an amendment to a posttrial motion if that amendment raises a new ground
that is not germane to the original timely filed motion. Also, a timely filed
motion by an opponent does not toll the time for the filing of a posttrial
motion for the other party. See Estes v. Progressive Classic Ins. Co., 2012
WL 246086 (Iowa 2012), citing cases.
XIII. RES JUDICATA\PRECLUSION.
A. Res Judicata, In General.
1.
Issue preclusion or collateral estoppel is part of the larger doctrine of res judicata. On
the one hand, the doctrine supports the idea that retrial of a matter that has been fully
and fairly litigated is undesirable harassment, while on the other hand, the interest in
rendering decisions on the merits supports allowing courts to reexamine issues
previously decided. In analyzing the application of the doctrine, the degree of
similarity between the prior action and the action in which the doctrine is asserted is
critical and requires focusing on three aspects of the two proceedings:
•
•
•
The adjudicating bodies in both actions;
The nature of the issues involved in both; and
The parties involved in both.
See Knierim v. First State Bank, 488 N.W.2d 454, 458 (Iowa App. 1992).
2.
Under the “law of the case” doctrine, an appellate decision is controlling on both the
trial court and any further appeals in the same case. The appellate court decision is
final as to the questions decided and the trial court is obligated to follow that
decision. The issues decided by the appellate court cannot be reheard, reconsidered or
relitigated in the trial court. See generally Spiker v. Spiker, 708 N.W.2d 347 (Iowa
2006).
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In Cawthorn v. Catholic Health Initiatives Iowa Corp., 2011 WL 6003983 (Iowa
2007), the supreme court, considering a law of the case argument, observed:
However, the law of the case doctrine applies only to issues that were raised
and reached in the first appeal. See Bahl v. City of Asbury, 725 N.W.2d 317,
321 (Iowa 2006) (indicating that a “ ‘question not passed on is not included’
under the doctrine” (quoting In re Lone Tree Cmty. Sch. Dist., 159 N.W.2d
522, 526 (Iowa 1968))); Mass v. Mesic, 258 Iowa 1301, 1306, 142 N.W.2d
389, 392–93 (1966) (holding that the law of the case doctrine applies “only
to those questions that were properly before [the appellate court] for
consideration and passed on” and that “[a] question not passed on” may be
raised in later proceedings); State v. Di Paglia, 248 Iowa 97, 100, 78 N.W.2d
472, 473 (1956) (holding that where the constitutionality of a statute had
been determined in a prior appeal, the law of the case barred the defendant
from continuing to argue that the statute was unconstitutional, even on new
grounds).
3.
Judicial estoppel is a flexible, commonsense doctrine that prohibits a party
who has successfully and unequivocally asserted a position in one
proceeding from asserting an inconsistent position in a subsequent
proceeding and is designed to protect the integrity of the judicial process.
Although intent to mislead the court is not a mandatory requirement, it may
be considered in the application of the doctrine. However, a fundamental
feature of the doctrine is that successful assertion of the inconsistent position
in a prior action, since without judicial acceptance of the inconsistent
position, there would be no risk of inconsistent, misleading results, which is
the basis of application of the doctrine. Judicial acceptance occurs when the
previous, inconsistent assertion was material to the holding in the first
proceeding. When the inconsistent facts are not material to the disposition of
the successive proceedings, the facts do not pose a risk of producing
inconsistent or misleading results. Because judicial estoppel is intended to
protect the integrity of the fact-finding process by administrative agencies
and courts, it may properly be raised by courts, even on appeal, on their own
motion. Tyson Foods, Inc. v. Hedlund, 740 N.W.2d 192 (Iowa 2007).
4.
Defenses of res judicata, issue preclusion and claim preclusion are
affirmative defenses that may be asserted in a pleading or raised through a
motion for summary judgment where the necessary supporting
documentation can be submitted for consideration by the court in ruling on
the motion. See Turner v. Iowa State Bank & Trust Company of Fairfield,
Iowa, 743 N.W.2d 1 (Iowa 2007).
B. Bar and Merger; Claim Preclusion.
1.
Normally, if a litigant has brought an action on a group of facts and has either
recovered or lost, he or she will not be allowed to maintain a second action based on
the same facts. The claim is said to be barred by or merged with the judgment.
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A party is also not entitled to bring a second action simply by alleging s new theory
of recovery for the same wrong. An action between the same parties involving the
same claim that has been adjudicated by the court is final as to all issues that could
have been presented to the court. Woods v. Young, 732 N.W.2d 39 (Iowa 2007).
2.
Section 19 of the Restatement (2d), Judgments provides that, "A valid and personal
judgment rendered in favor of the defendant bars another action on the same claim."
a.
When a valid and final judgment rendered in an action extinguishes the
plaintiff's claim pursuant to the rules of merger or bar (see Sections 18, 19),
the claim extinguished includes all rights of the plaintiff to remedies against
the defendant with respect to all or any part of the transaction, or series of
connected transaction, out of which the action arose.
b.
What factual grouping constitutes a "transaction," and what groupings
constitute a "series," are to be determined pragmatically, giving weight to
such considerations as whether the facts are related in time, space, origin, or
motivation, whether they form a convenient trial unit, and whether their
treatment as a unit conforms to the parties' expectations or business
understanding or usage.
3.
The general rule of claim preclusion provides that a valid and final judgment on a
claim precludes a second action on that claim or any part of it. The rule applies not
only as to every matter which was offered and received to sustain or defeat the claim
or demand, but also as to any other admissible matter which could have been offered
for that purpose. Thus, claim preclusion may foreclose litigation of matters that have
never been litigated. It does not apply, however, unless the party against whom
preclusion is asserted, had a full and fair opportunity to litigate the claim in the first
action. A second claim is likely to be barred by claim preclusion where the acts
complained of, and when the recovery demanded are the same or where the same
evidence will support both actions. A plaintiff is not entitled to a second day in court
by alleging a new ground of recovery for the same wrong. Arnevik v. University of
Minnesota Board of Regents, 642 N.W.2d 315 (Iowa 2002).
4.
When considering a defense of claim preclusion, the court will look at three factors:
•
•
•
The parties in the first and second action were the same;
The claim in the second suit could have been fully and fairly adjudicated in the
prior case; and
There was a final judgment on the merits in the first action.
Arnevik v. University of Minnesota Board of Regents, 642 N.W.2d 315 (Iowa
2002)(claim for indemnification against defendant based on contract was precluded
by earlier action for indemnification based on respondeat superior against same
defendant).
Claim preclusion was held not to apply to an appeal from a property tax classification
in one year where the classification had also been appealed the prior year. The same
cause of action was not involved in both lawsuits: the taxes of separate tax years do
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not grow out of the same transaction. Colvin v. Story County Board of Review, 653
N.W.2d 345 (Iowa 2002). Issue preclusion was also held not to be applicable.
Although the doctrine of issue preclusion does not bar relitigation of an unfavorable
ruling in the following tax year, there is a rebuttable presumption that the condition
and use of the property in a subsequent year has remained the same.
5.
Unlike issue preclusion, which requires that an issue have been actually litigation,
claim preclusion applies not only as to every matter which was offered and received
to sustain the claim or demand, as well as any other admissible matter which could
have been offered for that purpose, and may, therefore preclude litigation of matters
that have never been litigated. Spiker v. Spiker, 708 N.W.2d 347 (Iowa 2006).
The Iowa supreme court has said that to determine whether the claim in the second
suit could have been fully and fairly adjudicated in the prior case, that is, whether
both suits involve the same cause of action, the court must examine: “(1) the
protected right, (2) the alleged wrong, and (3) the relevant evidence.” 5.10
However, the court must “carefully distinguish between two cases involving the same
cause of action—where claim preclusion bars initiation of the second suit—and two
cases involving related causes of action-where claim preclusion does not bar
initiation of the second suit.” The court has observed that the Restatement (Second)
of Judgments, § 24, comment b explains that a single cause of action:
. . . connotes a natural grouping or common nucleus of operative facts.
Among the factors relevant to a determination whether the facts are so
woven together as to constitute a single claim are their relatedness in time,
space, origin, or motivation, and whether, taken together, they form a
convenient unit for trial purposes. Though no single factor is determinative,
the relevance of trial convenience makes it appropriate to ask how far the
witnesses or proofs in the second action would tend to overlap the witnesses
or proofs relevant to the first. If there is a substantial overlap, the second
action should ordinarily be held precluded. But the opposite does not hold
true; even when there is not a substantial overlap, the second action may be
precluded if it stems from the same transaction or series.
Pavone v. Kirke, 2011 WL 6129356 (Iowa 2011).
6.
Although the general rule is that a valid and final personal judgment rendered in
favor of a defendant is a bar to another action by the plaintiff on the same claim, an
exception to the general rule exists where the judgment is a dismissal for lack of
jurisdiction. For example, a dismissal under Iowa R. Civ. P. 1.302(5) for failure to
serve the original notice in a timely manner is not a dismissal on the merits. In a
medical malpractice action against an anesthesiologist professional corporation and
its employees, the district court dismissed the action against the employees “with
prejudice” after the plaintiffs failed to serve them with an original notice within
ninety days after filing the petition. The district court then granted the employer
summary judgment on the grounds that the dismissal precluded litigation on the
claims against the employer. The court of appeals affirmed. However, the supreme
court vacated the court of appeals decision and reversed the district court and
remanded the case for further proceedings. Although a judgment in favor of a
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defendant is a bar to another action by the plaintiff on the same claim, the court noted
the exception to the general rule when the judgment is a dismissal for lack of
jurisdiction. An action filed and dismissed for failure to serve the original notice in a
timely manner under Iowa R. Civ. P. 1.302(5), which is a dismissal for lack of
jurisdiction, is not a dismissal on the merits and is not res judicata. Thus, the
dismissal of the employees did not preclude the litigation of the plaintiffs’ claims
against the employer. Dickens v. Associates Anesthesiologists, P.C., 709 N.W.2d 122
(Iowa 2006).
In Spiker v. Spiker, 708 N.W.2d 347 (Iowa 2006), the critical question was whether a
visitation order is a “final” judgment for purposes of claim preclusion. The supreme
court held that it was not. The specific issue was whether a custodial parent could
modify a grandparent visitation order on the ground that the applicable provision of
the grandparent visitation statute upon which the order was based was subsequently
found unconstitutional. The district court held that it was subject to modification and
thus not “final” and the supreme court agreed. The grandparents had filed a petition
for visitation under Iowa Code § 598.35 (2001), and, following a hearing, the district
court granted the petition. The children’s mother, the custodial parent, did not appeal
the 2001 order. In 2003, the supreme court held that grandparent visitation statute
unconstitutional in In re Marriage of Howard. In re Marriage of Howard, 661
N.W.2d 183 (Iowa 2003). In 2004, in response to the grandparents’ request that the
mother be held in contempt for refusing to allow visitation, the mother claimed that
the visitation statute was unconstitutional. The district court first modified the
visitation allow for additional visitation by the grandparents, but later granted the
mother’s request to vacate the order and the grandparents appealed. The question on
appeal was whether In re Marriage of Howard allowed the mother to modify a
grandparent visitation order from which she did not appeal. The grandparents argued
that she was barred from challenging the constitutionality of the visitation order
under the doctrine of res judicata because she did not appeal from the 2001 order.
Unlike issue preclusion, which requires that an issue have been actually litigation,
claim preclusion applies not only as to every matter which was offered and received
to sustain the claim or demand, as well as any other admissible matter which could
have been offered for that purpose, and may, therefore preclude litigation of matters
that have never been litigated. The court concluded that the first two elements of the
claim preclusion test—that the parties in the first and second action were the same,
and that the claim in the second suit could have been fully and fairly litigated in the
prior case— were met. The issue was whether the third element—a final judgment on
the merits in the first action—had been met. That issue, according to the court, in the
context of a custody or visitation proceeding, was whether the issues in the two
actions are materially different because of events which have occurred in the interim,
i.e., whether circumstances have changed sufficiently to warrant modifying the
decree. The only change the mother alleged was the court’s holding of the visitation
statute unconstitutional. As a general matter, the court noted, a change in the law
between the first and second actions does not prevent the application of res judicata,
but the general rule is subject to an exception where the dispute involves “matters of
special sensitivity,” such as continuing enforcement of rights a statute no longer
gives. In other words, the district court should have the power to modify the visitation
order because its enforcement would violate the mother’s constitutional right to direct
the upbringing of her children, rather than a mere statutory right of the grandparents
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which the statute no longer gives. The fact that the statute upon which the visitation
order was based had been held unconstitutional was a “substantial change in
circumstances” that related to the welfare of the children and thus res judicata did not
bar the mother’s petition to modify the order and it also justified terminating the
visitation order.
C. Collateral Estoppel; Issue Preclusion.
1.
Section 27 of the Restatement (2d), Judgments states the general rule of issue
preclusion: When an issue of fact or law is actually litigated and determined by a
valid and final judgment, and the determination is essential to the judgment, the
determination is conclusive in a subsequent action between the parties, when on the
same or a different claim.
2.
The requirement that the issue in the prior action have been “necessary and essential”
to the resulting judgment was the subject of a case in which the district court ruled
that collateral estoppel would apply to 352 findings of fact arising from prior federal
antitrust litigation. Comes v. Microsoft Corp., 709 N.W.2d 114 (Iowa 2006). The
plaintiffs brought an action against a software manufacturer for violating the Iowa
Competition Law, Iowa Code § § 553.4, -.5. The plaintiffs asked the district court to
apply the doctrine of offensive use of collateral estoppel to preclude the defendant
from relitigating those factual findings made in the prior federal litigation. The
district court gave preclusive effect to 336 of the factual findings. On appeal, the
defendant claimed that the district court misapplied the “necessary and essential”
requirement. The supreme court agreed, reversing the district court and remanding
the case for further proceedings. The court noted that it applies the necessary and
essential requirement narrowly and only precludes “those facts vital or crucial to the
previous judgment, or those properly characterized as ultimate facts without which
the previous judgment would lack support.” The district court misapplied the
requirement when it determined that 352 of the 412 findings of fact in the federal
litigation were necessary and essential because the findings “provided a proper
foundation” or “proper basis” for individual elements of the federal claim. Many of
the findings of fact were “subsidiary facts” rather than fact crucial or vital to the
ultimate issue. Furthermore, before a court applies collateral estoppel offensively, it
must consider whether treating an issue or fact as conclusively determined will
complicate the determination of other issues in the subsequent action or prejudice the
interests of the defending party. The district court did not properly consider the
potential prejudice in such a large list of subsidiary facts. The court remanded the
case to the district court. The court also approved language in comment j to the
Restatement (2d), Judgments § 27 which adopts an analysis where the court must
determine whether the issue was actually recognized by the parties as “important”
and by the trier of fact as “necessary” to the first judgment. The “important and
necessary” analysis, the court said, protects the parties from the dangers of
innocuous, subsidiary facts because it only precludes such facts as were “truly
disputed in the first proceeding.” In adopting the analysis, the court said:
Rather than pigeonholing facts as evidentiary or ultimate, courts
must determine whether the issue was actually recognized by the
parties as important and by the adjudicator as necessary to the first
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judgment. Under this analysis, collateral estoppel will only adhere to
those factual findings necessary and essential to the prior judgment,
rather than findings of every minute fact contested by the parties in
the previous trial.
3.
A summary judgment may constitute a final judgment on the merits for purposes of
res judicata claim preclusion. In Peppmeier v. Murphy, 708 N.W.2d 57 (Iowa 2005)
a medical malpractice action against a physician and the physician’s employer, the
issue on appeal was whether summary judgment in favor of the agent barred the
plaintiff’s claim against the principle when the claim was that the principle was liable
for the agent’s action on the basis of respondeat superior. The court held that the
summary judgment in the case in favor of the physician-agent constituted a final
judgment on the merits for purposes of res judicata and that because the plaintiff’s
claim against the principle-employer was that of vicarious liability regarding the
agent’s action, the summary judgment in favor of the agent was res judicata in favor
of the principle.
4.
Issue preclusion requires that the issue have been “actually litigated” in the first
proceeding. Thus where a liability issued had been admitted in the first proceeding, it
was error to hold that party was precluded from contesting liability in the subsequent
proceeding. Tyson Foods, Inc. v. Hedlund, 740 N.W.2d 192 (Iowa 2007).
An issue is “raised and litigated” when submitted for determination through a motion
to dismiss for failure to state a claim, a motion for judgment on the pleadings, a
motion for summary judgment, a motion for directed verdict, or their equivalents, as
well as a judgment entered on a verdict. See Soults Farms, Inc. v. Schafer, 797
N.W.2d 92 (Iowa 2011).
5.
Traditionally, the concept of collateral estoppel/issue preclusion has been articulated
in terms of litigation of an issue between the same parties. Once an issue has been so
litigated, the matter could not be relitigated between those parties.
6.
The proponent of issue preclusion has the burden of proof. The determination of the
issue is left to the discretion of the court. Where the same judge presided over the
prior case, the judge’s determination is entitled to great weight. See Lyons v.
Andersen, 123 F. Supp.2d 485 (N.D. Iowa 2000).
7.
Similarity of issue is not sufficient; the issue must be “precisely the same.” See Estate
of Leonard, 656 N.W.2d 132 (Iowa 2003)(party relying on issue preclusion failed to
show that issues in first proceeding were identical to issues in second proceeding).
An illustration of the “same issue” is where the question at issue is one of the legal
effect of a document identical in all relevant respects to another document which
effect was adjudicated in a prior action. Soults Farms, Inc. v. Schafer, 797 N.W.2d
92 (Iowa 2011).
8.
The Iowa supreme court has recognized that issue preclusion may be utilized either
offensively or defensively.
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9.
a.
"Defensive use" means that a stranger to the judgment, ordinarily the
defendant in the second action, relies upon a former judgment as
conclusively establishing in that party’s favor an issue which the party must
prove as an element the party’s defense.
b.
"Offensive use" means that a stranger to a judgment, ordinarily the plaintiff
in the second action, relies upon a former judgment as conclusively
establishing in the party’s favor an issue which the party must prove as an
essential element of the party’s claim.
In Hunter v. City of Des Moines, 300 N.W.2d 121(Iowa 1981), the supreme court
adopted The Restatement (2d), Judgments provisions with respect to the offensive
use of issue preclusion: A party precluded from relitigating an issue with an
opposing party, ... is also precluded from doing so with another person unless the
party lacked full and fair opportunity to litigate the issue in the first action or unless
other circumstances justify affording the party an opportunity to relitigate the issue.
a.
The circumstances to which consideration should be given include
those enumerated in § 68.1 and also whether:
- Treating the issue as conclusively determined would be
incompatible with an applicable scheme of administering the
remedies in the actions involved;
- The forum is the second action affords the party against whom
preclusion is asserted procedural opportunities in the presentation
and determination of the issue that were not available in the first
action and that might likely result in the issue's being differently
determined;
- The person seeking to invoke favorable preclusion, or to avoid
unfavorable preclusion, could have effected joinder in the first
action between the party and the party’s present adversary;
- The determination relied on as preclusive was itself inconsistent
with another determination of the same issue;
- The prior determination may have been affected by relationships
among the parties to the first action that are not present in the
subsequent action, or was based in a compromise verdict or finding;
- Treating the issue as conclusively determined may complicate
determination of issues in the subsequent action or prejudice the
interests of another party thereto;
- Other circumstances make it appropriate that the party be
permitted to relitigate the issue.
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b.
Another Restatement section establishes exceptions to the general
rule. Although an issue is actually litigated and determined by a
valid and final judgment, and the determination is essential to the
judgment, relitigation of the issue in a subsequent action between
the parties is not precluded in the following circumstances:
- The party against whom preclusion is sought could not, as a matter
of law, have obtained review of the judgment by an appellate court
in the initial action; or
- The issue is one of law and (i) the two actions involve claims that
are substantially unrelated, or (ii) a new determination is warranted
in order to take account of an intervening change in the applicable
legal context or otherwise to avoid inequitable administration of the
laws; or
- A new determination of the issue is warranted by differences in the
quality of extensiveness of the procedure followed in the two courts
or by factors relating to the allocation of jurisdiction between them;
or
- The party against whom preclusion is sought had a significantly
heavier burden of persuasion with respect to the issue in the initial
action than in the subsequent action; the burden has shifted to the
party’s adversary; or the adversary has a significantly heavier
burden than the adversary had in the first action; or
- There is a clear and convincing need for a new determination of
the issue(i) because of the potential adverse impact of the
determination on the public interest or the interests of persons not
themselves parties in the initial action, (ii) because it was not
sufficiently foreseeable at the time of the initial action that the issue
would arise in the context of a subsequent action, or (iii) because the
party sought to be concluded, as a result of the conduct of the
party’s adversary or other special circumstances, did not have an
adequate opportunity or incentive to obtain a full and fair
adjudication in the initial action.
The court concluded in Hunter that "the absence of mutuality will no longer
invariably bar the offensive application of issue preclusion; issue preclusion may be
applied offensively where mutuality is lacking if it is determined that the party sought
to be precluded was afforded a full and fair opportunity to litigate the issue in the
action relied upon and that no other circumstances justify affording him an
opportunity to relitigate that issue."
10.
Another example of the offensive use of collateral estoppel was where the plaintiffs
brought an action against a software manufacturer for violating the Iowa Competition
Law, Iowa Code § § 553.4, -.5. The plaintiffs asked the district court to preclude the
defendant from relitigating 352 factual findings made in prior federal antitrust
129
litigation. The district court gave preclusive effect to 336 of the factual findings. On
appeal, the defendant claimed that the district court misapplied the “necessary and
essential” requirement. The supreme court agreed, reversing the district court and
remanding the case for further proceedings. Comes v. Microsoft Corp., 709 N.W.2d
114 (Iowa 2006). The court held that the district court had misapplied the
“necessary and essential” requirement for applying collateral estoppel. Furthermore,
before a court applies collateral estoppel offensively, it must consider whether
treating an issue or fact as conclusively determined will complicate the determination
of other issues in the subsequent action or prejudice the interests of the defending
party. The district court did not properly consider such potential prejudice to the
defendant in the case. The court remanded the case to the district court.
11.
There is an exception to issue preclusion where the party against whom preclusion is
sought had a significantly heavier burden of persuasion with respect to the issue in
the initial action than in the subsequent action; the burden has shifted to the
adversary; or the adversary has a significantly heavier burden that the adversary had
in the first action. For example, in an action by an employee against the employer’s
worker’s compensation insurer, alleging bad faith for the insurer’s refusal to pay
benefits, the employee argued that the elements of bad faith requiring him to
establish the absence of a reasonable basis for denying benefits was established as a
matter of law when the industrial commissioner awarded penalty benefits as a part of
its decision to award workers’ compensation benefits. Thus, the employee argued, the
insurer should be precluded from relitigating that issue in the subsequent bad faith
civil action. The court held that issue preclusion was not appropriate because the
burden shifted between the two parties. In the workers’ compensation proceeding, the
burden was on the insurer. In the civil action, the employee had the burden. In light
of the different burdens of proof between the two different penalty mechanisms and
the two different stages of the dispute, issue preclusion was inapplicable. See
McIlravy v. North River Ins. Co., 653 N.W.2d 323 (Iowa 2002), citing Restatement
(2d), Judgments § 28(4).
“Other circumstances” that will protect a defendant from the offensive use of
issue preclusion apply when the prior proceeding was unreliable because of legal
procedure or changed legal circumstances. Restatement (2d), Judgments § 28
provides the following exceptions:
•
•
•
•
•
The prior judgment was not susceptible to appellate review;
Intervening change in the applicable law;
Differences in quality, extensiveness, or jurisdiction of the two courts;
The party whom preclusion is sought had a significantly heavier burden
or persuasion in the former action; and
The latter action was not sufficiently foreseeable at the time of the initial
action, or the party did not have proper incentive to obtain a full and fair
adjudication in the initial action.
See Soults Farms, Inc. v. Schafer, 797 N.W.2d 92 (Iowa 2011).
12.
An issue adjudicated in small claims proceedings does not have a preclusive effect in
a subsequent case within the regular jurisdiction of the district court, because of the
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difference between regular district court proceedings and small claims proceedings.
Village Supply Co., Inc. v. Iowa Fund, Inc., 312 N.W.2d 551(Iowa 1981).
The adjudication of a small claim can have a preclusive effect within the regular
jurisdiction of the district court for claim preclusion purposes, however. See Khan v.
Heritage Property Management, 584 N.W.2d 725 (Iowa App. 1998).
13.
Issue preclusion does not apply to preclude relitigation of an issue in a subsequent
civil proceeding where the defendant was acquitted in the former criminal case. In
State v. One Certain Conveyance, Etc., 315 N.W.2d 675 (Iowa 1982).
14.
A guilty plea accepted by the trial court under the Iowa Rules of Criminal Procedure,
or in accordance with State v. Sisco, and Brainard v. State, which require that the
court find a factual basis exists for the plea, satisfies the requirement that an issue be
"raised and litigated" in the prior action, and thus such a plea precludes the
relitigation of the "essential elements" of a crime in a subsequent civil action. Ideal
Mutual Ins. Co. v. Winker, 319 N.W.2d 289 (Iowa 1982). Where the plea is not
entered in accordance with the Iowa Rules of Criminal Procedure or Sisco-Brainard,
Book v. Datema, 256, 1330, 131 N.W.2d 470 (1964), applies and the guilty plea
constitutes only an admission but has no preclusion effect.
Moreover, it is not necessary that the factual basis be established by the admissions of
the defendant, nor is the defendant's motivation in entering the plea of any
consequence —all that is necessary is a valid plea. AID Insurance Co. Mutual v.
Chrest, 336 N.W.2d 453 (Iowa 1983).
An Alford plea preceding a deferred judgment on a felony has a preclusive effect in a
subsequent civil action against the defendant. Because the same judicial finding of a
factual basis for the charge is required when the district court enters a deferred
judgment after the Alford plea, the victim of a crime may invoke the doctrine of issue
preclusion in a civil action based on the defendant's Alford plea regardless of whether
the defendant successfully complies with the conditions for the deferred judgment on
the criminal charge. Employers Mut. Cas. Co. v. Van Haaften, 2012 WL 1964894
(Iowa 2012).
15.
A criminal conviction may have a preclusive effect in a subsequent civil action
arising out of the conduct that lead to the criminal charge. In Dettmann v.
Kruckenberg, 613 N.W.2d 238 (Iowa 2000), an action was brought by the executor
for the death of his wife, who died when the vehicle she was driving was struck by
defendant Michael Kruckenberg, an intoxicated driver. The owner of the vehicle, the
driver’s father, and Aaron Jones, a friend of Michael’s, were also named as
defendants. Michael was convicted of vehicular homicide. At trial, Michael sought to
prove that Jones was driving the vehicle at the time of the accident. Jones filed a
motion to exclude the evidence he and not Michael was the driver on the ground the
criminal conviction precluded Michael from relitigating the identity of the driver. The
trial court granted the motion. Following an adverse verdict and judgment, Michael
argued on appeal that the trial court erred in finding that he was precluded from
relitigating the identity issue. The supreme court affirmed.
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The court noted that traditionally, courts have held that a conviction is not admissible
in a civil action to prove issues determined in the criminal prosecution, although the
trend is that the conviction has a preclusive effect if the defendant had the incentive
and opportunity to litigate the issue in the criminal proceeding. The court concluded
that “in appropriate cases a criminal case conviction may be preclusive in a later civil
suit as to those issues that were previously litigated in the criminal proceeding.” On
the facts of the case, the court also concluded that the trial court properly decided that
the requirements of issue preclusion were satisfied. First, the jury found Michael
guilty beyond a reasonable doubt to the charge of vehicular homicide and implicit in
that finding was that Michael was driving at the time of the accident. Second, the
conviction was only used in the civil action for its preclusive effect on the identity
issue that had been raised and litigated in the criminal proceeding. Also, Michael had
a full and fair opportunity and incentive to litigate the driver-identity issue in the
criminal case.
However, the amount of restitution ordered by a court in a criminal case does not
preclude the victim from relitigating in a later civil case the amount of damages the
victim sustained as a result of the defendant’s criminal conduct. Teggatz v. Ringleb,
610 N.W.2d 527 (Iowa 2000).
16.
The doctrine of issue preclusion applies to jurisdictional issues. Bascom v. Jos.
Schlitz Brewing Co., 395 N.W.2d 879 (Iowa 1986) (issue preclusion on minimum
contacts issue precluded relitigation in subsequent action).
17.
A final adjudicatory decision of an administrative agency under the Iowa
Administrative Procedure Act has the same effect as if it were a court judgment, for
purposes of res judicata. City of Des Moines v. Iowa Civil Rights Commission, 343
N.W.2d 836 (Iowa 1984). The adjudication has preclusive effect. Gardner v.
Hartford Ins. Accident & Indemnity Co., 659 N.W.2d (Iowa 2003)(contested case
settlement in workers compensation proceeding). See also Polk County Secondary
Roads v. Iowa Civil Rights Commission, 468 N.W.2d 811 (Iowa 1991).
An employee’s agreement to the settlement of her workers compensation claim was
held to preclude her from bringing a subsequent bad faith action against the
employer’s workers compensation insurer. The approval of the settlement included
the determination by the industrial commissioner that there was a good faith dispute
as to the employee’s disability and constituted a finding that the employee’s claim
was “fairly debatable.” The employee was precluded in the bad faith action from
arguing that the insurer knew or had reason to know that its denial of her claim was
without a reasonable basis, an essential element of the bad faith claim. Gardner v.
Hartford Ins. Accident & Indemnity Co., 659 N.W.2d (Iowa 2003).
18.
In City of Johnston v. Christenson, 718 N.W.2d 290 (Iowa 2006), the decision of a
board of adjustment was held to have precluded the city from relitigating in a
declaratory judgment action issues which were decided by the board. The supreme
court cited Restatement (2d), Judgments § 83 which provides in part as follows:
2. An adjudicative determination by an administrative
tribunal is conclusive under the rules of res judicata only insofar as
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the proceeding resulting in the determination entailed the essential
elements of adjudication, including:
a. Adequate notice to persons who are to be bound by the
adjudication . . .;
b. The right on behalf of a party to present evidence and
legal argument in support of the party’s contentions and fair
opportunity to rebut evidence and argument by opposing parties;
c. A formulation of issues of law and fact in terms of the
application of rules with respect to specified parties concerning a
specific transaction, situation, or status, or a specified series thereof;
d. A rule of finality, specifying a point in the proceeding
when presentations are terminated and a final decision is rendered;
and
e. Such other procedural elements as may be necessary to
constitute the proceeding a sufficient means of conclusively
determining the matter in question, having regard for the magnitude
and complexity of the matter in question, the urgency with which
the matter must be resolved, and the opportunity of the parties to
obtain evidence and formulate legal contentions.
19.
Restatement (2d), Judgments § 16 provides:
A judgment based on an earlier judgment is not nullified automatically by
reasons of the setting aside, or reversal on appeal, or other nullification of
that earlier judgment; but the later judgment may be set aside, in appropriate
proceedings, with provision for any suitable restitution of benefits receive
under it.
Comment c to § 16 states that when an appeal from the second judgment is
pending when the first judgment is reversed, the court should then normally
set aside the later judgment.
Fennelly v. A-1 Machine & Tool Co. (Fennelly I), 728 N.W.2d 181 (Iowa
2007), was an action by a county treasurer to collect delinquent property
taxes from a company for several tax years. The district court granted
summary judgment to the company on all the claims and dismissed the case.
The treasurer filed a second action for some of the same tax years. In the
second action, A-1 moved for summary based on issue preclusion judgment
from the judgment in Fennelly I and the district court granted the summary
judgment. On appeal, however, the Iowa supreme court reversed the district
court in Fennelly I. On appeal in the second action, the supreme court held
that the reversal of the judgment in Fennelly I necessitated reversing the
judgment in the second action. The supreme court held that the judgment
based on the judgment subsequently reversed should also be reversed, citing
Restatement (2d), Judgments § 16.
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SPECIAL NOTE ON PROPOSED AMENDMENTS TO DISCOVERY RULES AND PROPOSED
EXPEDITED CIVIL ACTION RULE
By order dated November 1, 2013, the Iowa supreme court requested public comment on proposed
amendments to the discovery provisions in the Iowa Rules of Civil Procedure and (2) a proposed new rule
allowing for streamlined and expedited civil actions for cases involving $75,000 or less in money damages.
The Order notes that the proposals are an outgrowth of the work of the Iowa Civil Justice Reform Task
Force, which produced a report in early 2012 that recommended changes to discovery processes as well as
consideration of a separate track for civil cases falling below a threshold dollar value.
The Order summarized the proposed changes as follows:
Proposed Amendments to Iowa Discovery Rules
Initial disclosures: Shortly after commencement of litigation, parties would have to make simultaneous
initial disclosures of certain formation and documents. These would be analogous to some extent to the
disclosures required in federal court by Federal Rule of Civil Procedure 26(a)(l). Additional disclosures,
however, would be required in certain categories of cases. Disclosures would have to be supplemented as
needed. Failure to supplement without good cause would result in exclusion of the supplemental information.
Expert disclosures: In lieu of the existing expert interrogatories (see Iowa R. Civ. P. l.508(1)(a)),
parties would be required to provide expert reports for experts specially retained for litigation. These reports
would be similar to the expert reports required in federal court by Federal Rule of Civil Procedure 26(a)(2).
Discovery of draft expert reports and communications between the expert and the attorney for the party
retaining the expert would be prohibited in most cases.
Certification of personal efforts: In most cases, before bringing a discovery motion, the movant would
have to certify that he or she in good faith personally spoke with or attempted to speak with other affected
parties in an effort to resolve the dispute without court action. The certification would have to identify the date
and time of the personal conference and any attempts to confer.
Responses subject to objections: If a party responds to an interrogatory or request for production with
an objection but also provides information or documents, the response would have to make clear the extent to
which the requested information or documents are being provided, and the party would remain under an
ongoing duty to supplement any response to that extent.
Pattern discovery requests: The rules would expressly allow for pattern interrogatories and pattern
requests for production, to be approved at a later date by the supreme court. Any pattern interrogatory, and its
subparts, would count as only one interrogatory.
Limits on objections and instructions not to answer during depositions: The rule regarding conduct of
depositions would be amended to provide that objections must be stated concisely in a nonargumentative and
nonsuggestive manner, and deponents may be instructed not to answer only when necessary to preserve a
privilege, to enforce a limitation ordered by the court, or to present a motion to terminate or limit the
examination.
Scope: These rule changes would apply to all civil actions, including those under the expedited civil
action track discussed below.
Proposed Expedited Civil Action Rule
The proposed rule governing expedited civil actions includes the following components:
Case eligibility: The sole relief sought must be a money judgment. All claims brought by or against
any party (other than counterclaims) must total $75,000 or less. The $75,000 limit includes everything but
134
costs and post-filing interest. The plaintiff would decide whether to opt in. Once in, the plaintiff would be
bound by the $75,000 limit. If circumstances change substantially, however, or if a compulsory counterclaim is
filed in excess of $75,000, the court may remove a case from the expedited civil action docket. Parties may also
stipulate to have any civil case handled as an expedited civil action.
Limits on discovery and experts: No more than ten interrogatories, ten requests for production, and ten
requests for admission could be served (except for requests to admit the genuineness of documents). Each
party may be deposed, and each side may depose up to two nonparties'. No more than one expert per side
could be used except by agreement of the parties or for good cause shown.
Limits on summary judgment motions: Only one summary judgment motion may be filed per party,
and only the following grounds are permitted: (1) to collect on a liquidated debt; (2) to assert an immunity; (3)
failure to comply with an expert witness disclosure deadline; and (4) to assert an affirmative defense.
Expedited and streamlined trial: Trial would be scheduled to occur within one year of filing. Trial
would be to a panel of six jurors, with three peremptory strikes available per side during jury selection. After
three hours of deliberation, a 5-1 verdict would be permissible. One set of joint jury instructions must be
submitted before trial, with alternative instructions in any area of disagreement. Each side would be subject to
an overall six hour time limit for jury selection, opening statements, presentation of evidence by direct or crossexamination, and closing arguments. The goal is for the trial to be completed in two days. There would be no
court-ordered alternative dispute resolution unless the parties agree.
Permitted for bench trials: The expedited civil action procedure would accommodate trials to the court.
In that event, the court could render a verdict based on the same jury instructions and verdict forms that would
be used in a jury trial, without the need for preparing findings of fact and conclusions of law.
Some modification of the hearsay rule: Certain records could be admitted, subject to prior notice, without
testimony or a declaration from a custodian. In addition, in lieu of testimony from a treating health care
professional, a completed health care provider statement could be used. This statement would conform to a
standard form that asks about injuries the plaintiff sustained, treatment necessitated by those injuries,
restrictions or limitations on the plaintiff as a result of those injuries, and similar matters.
ELECTRONIC FILING IN THE APPELLATE COURTS.
The rules in division XII of Chapter 16 of the Iowa Court Rules govern the filing of all
documents in all appeals to the Iowa Appellate Courts commenced on or after initiation of electronic filing in
the appellate courts. Iowa Rule 16.1201.
135
AMENDMENTS TO DISCOVERY RULES AND PROPOSED EXPEDITED CIVIL
ACTION RULE
Effective January 1, 2015
The Iowa supreme court has adopted amendments to the discovery provisions in the Iowa
Rules of Civil Procedure and (2) a new rule allowing for streamlined and expedited civil actions
for cases involving $75,000 or less in money damages.
The amendments are an outgrowth of the work of the Iowa Civil Justice Reform Task
Force, which produced a report in early 2012 that recommended changes to discovery processes
as well as consideration of a separate track for civil cases falling below a threshold dollar value.
Proposed Amendments to Iowa Discovery Rules
Initial disclosures: Shortly after commencement of litigation, parties must make
simultaneous initial disclosures of certain information and documents. These are analogous to
some extent to the disclosures required in federal court by Federal Rule of Civil Procedure
26(a)(l). Additional disclosures, however, are required in certain categories of cases. Disclosures
must be supplemented as needed. Failure to supplement without good cause will result in
exclusion of the supplemental information.
Expert disclosures: In lieu of the existing expert interrogatories (see Iowa R. Civ. P.
l.508(1)(a)), parties must provide expert reports for experts specially retained for litigation.
These reports are similar to the expert reports required in federal court by Federal Rule of Civil
Procedure 26(a)(2). Discovery of draft expert reports and communications between the expert
and the attorney for the party retaining the expert are prohibited in most cases.
Certification of personal efforts: In most cases, before bringing a discovery motion, the
movant must certify that he or she in good faith personally spoke with or attempted to speak with
other affected parties in an effort to resolve the dispute without court action. The certification
must identify the date and time of the personal conference and any attempts to confer.
Responses subject to objections: If a party responds to an interrogatory or request for
production with an objection but also provides information or documents, the response must
make clear the extent to which the requested information or documents are being provided, and
the party will remain under an ongoing duty to supplement any response to that extent.
Pattern discovery requests: The rules expressly allow for pattern interrogatories and
pattern requests for production, to be approved at a later date by the supreme court. Any pattern
interrogatory, and its subparts, will count as only one interrogatory.
Limits on objections and instructions not to answer during depositions: The rule
regarding conduct of depositions is amended to provide that objections must be stated concisely
in a nonargumentative and nonsuggestive manner, and deponents may be instructed not to
answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court,
or to present a motion to terminate or limit the examination.
Scope: These rule changes apply to all civil actions, including those under the expedited
civil action track discussed below.
Proposed Expedited Civil Action Rule
Case eligibility: The sole relief sought must be a money judgment. All claims brought by
or against any party (other than counterclaims) must total $75,000 or less. The $75,000 limit
includes everything but costs and post-filing interest. The plaintiff must decide whether to opt in.
Once in, the plaintiff is bound by the $75,000 limit. If circumstances change substantially,
however, or if a compulsory counterclaim is filed in excess of $75,000, the court may remove a
case from the expedited civil action docket. Parties may also stipulate to have any civil case
handled as an expedited civil action.
Limits on discovery and experts: No more than ten interrogatories, ten requests for production,
and ten requests for admission may be served (except for requests to admit the genuineness of
documents). Each party may be deposed, and each side may depose up to two nonparties'. No
more than one expert per side may be used except by agreement of the parties or for good cause
shown.
Limits on summary judgment motions: Only one summary judgment motion may be filed
per party, and only the following grounds are permitted: (1) to collect on a liquidated debt; (2) to
assert an immunity; (3) failure to comply with an expert witness disclosure deadline; and (4) to
assert an affirmative defense.
Expedited and streamlined trial: Trial will be scheduled to occur within one year of filing.
Trial will be to a panel of six jurors, with three peremptory strikes available per side during jury
selection. After three hours of deliberation, a 5-1 verdict is permissible. One set of joint jury
instructions must be submitted before trial, with alternative instructions in any area of
disagreement. Each side is subject to an overall six hour time limit for jury selection, opening
statements, presentation of evidence by direct or cross-examination, and closing arguments. The
goal is for the trial to be completed in two days. There will be no court-ordered alternative
dispute resolution unless the parties agree.
Permitted for bench trials: The expedited civil action procedure accommodates trials to
the court. In that event, the court will render a verdict based on the same jury instructions and
verdict forms that would be used in a jury trial, without the need for preparing findings of fact
and conclusions of law.
Some modification of the hearsay rule: Certain records may be admitted, subject to prior notice,
without testimony or a declaration from a custodian. In addition, in lieu of testimony from a
treating health care professional, a completed health care provider statement may be used. This
statement must conform to a standard form that asks about injuries the plaintiff sustained,
treatment necessitated by those injuries, restrictions or limitations on the plaintiff as a result of
those injuries, and similar matters.