2014 Basic Skills Course Presented by the Iowa Bar Review School and The Iowa State Bar Association.
Monday September 22, 2014
Civil Procedure 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
1 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 2 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 3 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
4 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.
• 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.
4. 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) 5 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. 6 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 7 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.
8 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.
9 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.
10 1. 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. 2. 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: 11
(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 12 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 landlord- tenant 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;
13 • 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.
• 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.
3. 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: in- rem, 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 out- of-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 Off- Shore 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:
• Personal notice; • Mailed notice; • Published notice if property is attached at the same time; • Published notice alone if a better technique is not available.
24. 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 re- attempt service.
25. 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).
III. 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 eight- month 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)."
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.
3. 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 two- step 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-of- negligent-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 two- year 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).
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.
8. 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. 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.
IV. 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 pre- answer 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:
• 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.
3. 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.
4. Iowa R. Civ. P. 1.402(2) requires that:
53 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.
5. 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.
6. 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 reasonable inquiry has been conducted into the facts supporting the document and into the law; and • The document is not interposed for improper purposes.
a. 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.
61 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....
64 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 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).
7. 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.
8. 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 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).
13. 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).
14. 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:
• 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.
15. 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.
71 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. Massey- Ferguson, 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. 72
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 injury- in-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. 73
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.
74 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.
76 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 third- party 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.
77 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. 78
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. 79
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 80 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. 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.
7. 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.
81 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.
82 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.
83 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 84 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, 85 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.
86 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. 87
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) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(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
93 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 party- opponent 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 court- imposed 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 96 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. 98
• 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.
99 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.
101 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 103 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.
105 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, 106 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) within the State of Iowa; (2) 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. 107
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. fails to allow a reasonable time to comply; 2. 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; 3. requires disclosure of privileged or other protected matter, if no exception or waiver applies; or 4. 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. disclosing a trade secret or other confidential research, development, or commercial information; or 2. 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. 3. 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. shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and 2. 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 108 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. expressly make the claim; and 2. 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 109 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.
110 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.
111
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). 112
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."
113 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. 114
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.
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).
2. 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).
115 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.
116 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. 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).
5. 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.
117 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. 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.
e. 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.
2. 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. 118
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 119 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).
120 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). 121
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.
122 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 123 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 124 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 125 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 126 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.
127 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.
9. 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.
128 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 130 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.
131 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 132 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.
133
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 cross- examination, 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.
Top 10 Things You Need to Know about Civil Practice & Procedure in 2014
Barry A. Lindahl, Esq. [email protected] Top 10
10. The most important website is not YouTube.com: It’s http://www.iowacourts.gov 9. If the senior partner tells you to file a new lawsuit make sure you file it in the right court! 8. Just when you thought you understood the discovery rules, big changes are coming soon! Top 10
7. Look out for statute of limitations! 6. Before you start a lawsuit make sure you know how to do it! 5. Don’t invest in any paper product stock. We are going all electronic. 4. When it comes to pleadings “less is more.” Iowa is a notice pleading jurisdiction. Top 10
3. Can you say Thompson v. Kaczinski?
2. If you are going to take a default, be civil about it!
1. In discovery “document” does not mean document. It means everything but the kitchen sink! No. 10
The most important website is not YouTube.com: It’s http://www.iowacourts.gov No. 9 If the senior partner tells you to file a new lawsuit make sure you file it in the right court! Proper Forum
• Subject matter jurisdiction
• Venue
• Personal Jurisdiction Business Specialty Court
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 certain types of cases. Business Specialty Court 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. Business Specialty Court 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 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. Business Specialty Court vii. Involve commercial real property disputes other than residential landlord-tenant 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. Expedited Civil Actions
Proposed new rule allowing for streamlined and expedited civil actions for cases involving $75,000 or less in money damages.
Effective January 1,2015 Expedited Civil Actions
• 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. Expedited Civil Actions
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. Expedited Civil Actions
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. Expedited Civil Actions
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 Civil Actions
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. Expedited Civil Actions
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. Expedited Civil Actions
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. Expedited Civil Actions
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. Expedited Civil Actions
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. No. 8
Just when you thought you understood the discovery rules, big changes are coming soon! Amended Discovery Rules
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.
Effective January 1, 2015
Scope: These rule changes apply to all civil actions, including those under the expedited civil action track. Amended 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). Amended Discovery Rules
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. Amended Discovery Rules
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 Amended Discovery Rules
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. Amended Discovery Rules
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. Amended Discovery Rules
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. Amended Discovery Rules
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. Amended Discovery Rules
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. No. 7 Look out for statute of limitations! Statute of Limitations
• What is the appropriate statute of limitations?
• When did the cause of action accrue?
• Tolling provisions? Statute of Limitations
What is the appropriate statute?
“the appropriate statute of limitations is to be ascertained by characterizing the actual nature of the action”
General v. specific statutes Statute of Limitations
When did the cause of action accrue?
• Time of injury or damage • Discovery of cause of action • Continuous treatment rule • Contractual provisions Statute of Limitations
Tolling provisions
• Minors and mentally ill persons have one year from and after the termination of the disability • While the defendant is a nonresident of the state • Commencement of lawsuit No. 6 Before you start a lawsuit make sure you know how to do it! Commencement of Actions
• Cover sheet • Petition • Original Notice • Directions for service Commencement of Action
• Original Notice
Official forms depending on nature of service i.e. personal service, publication, single-act statute Commencement of Action
Iowa R. Civ. P. 1.302(5)
• 90 days after filing to serve • Good cause for extension of time • Justification for delay No. 5 Don’t invest in any paper product stock.
We are going all electronic. Electronic Data Management System Electronic Data Management System Requires electronic filing and service
https://www.iowacourts.state.ia.us/EFile/ eFile Documents Links: Chapter 16 Rules Chapter 16 Rules General Commentary eFiling User Guides and Training Documentation eFiling Approved Forms List Of System Sealed Documents Appeals
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 No. 4 When it comes to pleadings “less is more.” Iowa is a notice pleading jurisdiction Pleadings
Counsel's signature to a motion, pleading or other papers is a certification under Iowa R. Civ. P. 1.413(1) that: • 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 Pleadings: Petition
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. Pleadings: Petition
“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). Pleadings: Petition
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. Pleadings: Petition
Demand for jury trial • Not later than ten days after the last pleading directed to the issue or issues • 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; if it is filed with the petition, it must be served with the petition and original notice. No. 3
Can you say Thompson v. Kaczinski? Thompson v. Kaczinski (2009)
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 Thompson v. Kaczinski (2009)
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 No. 2
If you are going to take a default, be civil about it! Default
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 • Does any act which permits entry of default under any rule or statute. Default
Application for entry of default
Certificate that written notice of intention to file for entry of default was given after the default occurred and at least ten days prior to the filing of the application
Copy of the notice must be attached to the application Default
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 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, copy of the notice must be sent by ordinary mail to the attorney No. 1 In discovery “document” does not mean document.
It means everything but the kitchen sink! Discovery
Scope of discovery
• Not privileged • Relevant to the subject matter involved in the pending action Discovery: Relevant
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” Discovery: Privilege
• Statutory privileges • Work product: “Anticipation of litigation" "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" • Attorney work product Discovery: ESI
Iowa R. Civ. P. 1.152
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 Discovery
Unless 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 Discovery: Privilege
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 parties to assess the applicability of the privilege or protection Discovery: Privilege
Privilege log
• Date when the documents were prepared • Person who prepared the documents • Person to whom the documents were provided • Summary of the contents of the documents • Privilege being asserted • How the privilege applies to the documents Discovery: Privilege
• Agreement that inadvertent disclosure will not be considered a waiver of privileges • Rule 5.502. Attorney-Client Privilege and Work Product; Limitations on Waiver – the disclosure is inadvertent; – the holder of the privilege or protection took reasonable steps to prevent disclosure; and – the holder promptly took reasonable steps to rectify the error, Discovery: ESI
Any party may serve on any other party a request: 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 Discovery: ESI
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 Discovery: ESI
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. Discovery: ESI
Subject 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 Discovery: ESI
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 required to produce a program to access the data. No. 1
Keep track of your cases to avoid involuntary dismissal! Involuntary Dismissal
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 • 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 No. 1 Once you are aware of a reasonable likelihood of a claim, you have a duty to preserve evidence. Duty to Preserve Evidence: “Spoliation of Evidence” Remedies for intentional destruction of evidence • Discovery sanctions • Barring duplicate evidence where fraud or intentional destruction is indicated • Instructing on an unfavorable inference to be drawn from the fact that evidence was destroyed Duty to Preserve Evidence: “Spoliation of Evidence”
Once lawsuit if filed or there is a reasonable likelihood of litigation
Litigation Hold Appeal?
What is the proper form of review?
• Appeal • Certiorari • Discretionary review