Opposition Brief — Langfeldt v. Genesis Medical Center

F ) FILED

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MAY =5 2001

No. 00-1644

IN THE

Supreme Court of the Anited States

os

ALVIN F. LANGFELDT AND MARY LANGFELDT,

Petitioners,

Vv.

GENESIS MEDICAL CENTER,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF IOWA

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

CHARLES E. MILLER

Counsel of Record

LANE & WATERMAN

220 N. Main Street, Suite 600

Davenport, IA 52801

(563) 324-3246

Attorney for Respondent

Genesis Medical Center

Wright Appellate Services 0513

(215) 733-9870 @ (800) 507-9020 @ Fax (215) 733-9872

Bs nsnimcdoememaranens

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STATEMENT PURSUANT TO RULE 29.6

Genesis Medical Center is a wholly owned subsidiary of

Genesis Health System and there is no publicly held com-

pany owning 10% or more of the corporation's stock.

ii

TABLE OF CONTENTS

Page

Statement Pursuant to Rule 29. ...ccsccccccssccsecssoccsccsosesoosseosooces i

Table of Content ............:.csscsssssssesereeessenersenesssnsennnssnnsnnnsnes il

Table of Authorities............scsccsssssessessesssersressesnnsnesnsnnansenens ili

Staternent of the Case...........cssscsssecessrsessressesssersennnessaseneess l

Reasons for Denying the WIit..........ssssssessesssenenenensnsnsnenes 3

I. Constitutional Arguments were neither Raised nor

Argued Below .........:sssssssssssssssssnssnensnsensnsnnensnsessnsneners 4

Il. This Case does not Involve any Federal Questions

Requiring Review from this Coutt...........sssssssssssssees 6

Conclusion. ...........cssssccesscessssscscssssserseesscsseesscesnenssensennssnssneess 9

ili

TABLE OF AUTHORITIES

Cases:

Adams v. Robertson, 520 U.S. 83, 117 S.Ct. 1028,

137 L.Ed.2d 203 (1997) ....-secescssessserersrensnesensensesesnenenenes 5

Alvarez v. Meadow Lane Mall Limited Partnership, 560

N.W.2d 588 (Lowa 1997)......-csssssssrererenssenenensnsnennee 2,7,8

Bean v. Midwest Battery & Metal, Inc., 449 N.W.2d 353

(Towa 1989) ....-sesssssssessesssessessneennsenssensssnssnnsenssqnsronsssnnsens 7

Becker v. Becker, 603 N.W.2d 627 (Iowa 1999) ..ccccccccccccsees 7

Cardinale v. Louisiana, 394 U.S. 437, 89 S.Ct. 1161, 22

L.Ed.2d 398 (1969) .....ceceeeeereserennens a iaimaeniinmelll 5

Dennis v. Christianson, 482 N.W.2d 448 (lowa 1992) ........ 7

Henry v. Shober, 566 N.W.2d 190 (lowa 1997) ....--.see00+ 7,8

McCormick v. Meyer, 582 N.W.2d 141 (lowa 1998) ........0- 7

Mokhtarian v. GTE Midwest, Inc., 578 N.W.2d 666

(Towa 1998) .....ssssscssessssssssesseensssnssneensnssssnnennsennenneeess 7,8

Monks v. New Jersey, 398 U.S. 71, 90 S.Ct. 1563, 26

L.Ed.2d 54 (1970) ...ecesesssrceescsesssesssnsessescnensnssnsssssncesesenes 5

Roberts v. Underwood, 270 N.E.2d 547 (Ill. App. Ct.

U.S. for Use and Benefit of DeLoss v. Kenner Gen

Contractors, Inc., 764 F.2d 707 (9th Cir. BES) scccerceses 6

iv

Webb v. Webb, 451 U.S. 493, 101 S. Ct. 1889, 68

Rea SNE COA Dicnicciciicacinssilbnihaiciileliniasiiiiasndigadiiaaiadiiinin 5

Statutes:

Fe en Se EE eisiiniiaasticsincapiiandesainaniaiacaiidaininddaaiiataaiaaiing 5

Rules:

PD Fs Gs ceric etesshcicnsnnisasiniiciininitsladiaceiiiiidiaal 6

BO TE, GU, Fs Ge iitesicctsisncsesinnititiicsisiaiiitatioapaltipliiiteans passim

DU. COU, Tis TG scciseninnsisctiiniierenniclaniitichciiapececiiiasisasinttieliaait nasa 4

STATEMENT OF THE CASE

Petitioners’ Statement of the Case omits and misstates

certain facts that are relevant to this Court’s determination

whether to issue a Writ of Certiorari. Petitioners are correct

that the initial lawsuit against Respondent was dismissed

without prejudice. However, Petitioners fail to mention that

Respondent was not served with Original Notice of that suit

until 117 days after the Petition was filed. Respondent sub-

sequently moved to dismiss the initial lawsuit on the basis of

untimely service pursuant to Iowa Rule of Civil Procedure

49. The District Court denied this first motion.

Petitioners also correctly point out that in a letter to Peti-

tioners’ counsel, dated January 29, 1999, Respondent’s

counsel did acknowledge receipt of the second Petition.

However, Petitioners fail to mention that in that same letter,

Respondent’s counsel stated that “{uJntil [he is] informed by

Genesis that they have been served, obviously [he] will not

be filing an answer.”

Petitioners state the Respondent did not raise Iowa Rule

of Civil Procedure 49(f), and its service requirements, until

after mediation efforts regarding the second Petition were

unsuccessful. This is quite simply wrong. Petitioners were

put on notice of the service requirements of Rule 49(f) by

Respondent’s motion in the initial lawsuit and counsel’s let-

ter of January 29, 1999.

2

Petitioners further state that Rule 49(f) “directs the court

to ‘direct an alternate time or manner of service.””' How-

ever, Petitioners’ statement is wrong and their argument is

misguided. Under Rule 49(f), the District Court’s authority

to direct an alternate time or manner of service is discretion-

ary unless the failure to serve is deemed “presumptively abu-

sive.” Petitioners never attempted to effectuate service until

140 days after filing the second Petition; therefore, the Dis-

trict Court and the Iowa Court of Appeals properly con-

cluded the Petitioners’ failure to serve was presumptively

abusive. Once the delay in service was deemed presump-

tively abusive, dismissal of the action was required unless

Petitioners established adequate justification for the delay.

See Alvarez v. Meadow Lane Mall Limited Partnership, 560

N.W.2d 588, 590 (Iowa 1997). Petitioners failed to demon-

strate such adequate justification. Therefore, once the delay

was deemed “presumptively abusive,” any discretion al-

lowed the District Court under Rule 49(f) ceased to exist.

Respondent never waived timely service of process and

the Petitioners never sought to serve Respondent or sought

an extension of this time period to complete service. Peti-

tioners failed to establish adequate justification for their fail-

ure to timely effectuate service of process. Therefore, the

' Ironically, Petitioners argued to the lowa Supreme Court that the

District Court’s authority to direct an alternate time or manner of

service was discretionary, not mandatory as they seem to argue

now. See Application for Further Review, p. 6 (“Additionally, the

District Court, had within it’s discretion to direct an alternate time

or manner of service pursuant to Iowa Rule of Civil Procedure

49(f).”).

3

District Court properly granted Respondent’s Motion to

Dismiss because Petitioners “failed to show good cause for

their failure to serve defendant in this action as required by

amended Rule 49(f).” The Iowa Court of Appeals properly

affirmed the dismissal and the lowa Supreme Court properly

declined further review.

REASONS FOR DENYING THE WRIT

Petitioners apparently argue that due process and equal

protection rights under the Fourteenth Amendment of the

U.S. Constitution require the issuance of a Writ of Certiorari.

However, no constitutional issues, including due process and

equal protection rights under the Fourteenth Amendment,

were ever raised or argued in the Iowa District Court for

Scott County, the Iowa Court of Appeals or the Iowa Su-

preme Court. Therefore, Petitioners’ arguments have not

been preserved for review and the Petition for Writ of Cer-

tiorari should be denied.

Notwithstanding Petitioners’ failure to raise any constitu-

tional arguments below, Petitioners have failed to raise any

federal qu-stions requiring review by this Court. Iowa Rule

of Civil Procedure 49(f) is not in any manner unconstitu-

tional. Petitioners were not denied access to the Iowa courts

as they were allowed to file their action not once but twice.

It was Petitioners’ failure to adhere to the rules of the court

that resulted in dismissal; not an arbitrary or capricious ap-

plication of the rules as Petitioners argue.

When Petitioners filed their action, Iowa Rule of Civil

Procedure 49(f) clearly required timely service of process

upon Respondent and a failure to effectuate timely service,

without “good cause,” clearly mandated dismissal of the ac-

4

tion. Iowa courts had proper jurisdiction over this case and

properly dismissed the action based upon Iowa Rule of Civil

Procedure 49(f), a rule that exists in substance in most, if not

all, jurisdictions of this country, including federal courts, and

well-settled Iowa case law. Thus, the Petition for Writ of

Certiorari should be denied.

I. CONSTITUTIONAL ARGUMENTS WERE

NEITHER RAISED NOR ARGUED BELOW

Petitioners apparently argue that due process and equal

protection rights under the Fourteenth Amendment of the

U.S. Constitution require the issuance of a Writ of Certiorari.

Supreme Court Rule 14 requires a Petition for Writ of Cer-

tiorari which seeks review of a state-court judgment to con-

tain cites to the portions of the record where federal

questions were raised.’ Petitioners have failed to cite to any

? Rule 14(g)(i) requires the Fetition for Writ of Certiorari contain

the following if review of a state court judgment is sought:

... Specification of the stage in the proceedings,

both in the court of first instance and in the ap-

pellate courts, when the federal questions sought

to be reviewed were raised; the method or manner

of raising them and the way in which they were

passed on by those courts; and pertinent quota-

tions of specific portions of the record or sum-

mary thereof, with specific reference to the places

in the record where the matter appears (e.g., court

opinion, ruling on exception, portion of court’s

charge and exception thereto, assignment of er-

ror), so as to show that the federal question was

timely and properly raised and that this Court has

jurisdiction to review the judgment on a writ of

5

portion of the record or rulings below where federal, or con-

stitutional, questions were raised. This is because no con-

stitutional issues, including due process and equal protection

rights under the Fourteenth Amendment, were ever raised or

argued in the lowa District Court for Scott County, the lowa

Court of Appeals or the lowa Supreme Court.

With very rare exceptions, in reviewing state court judg-

ments under 28 U.S.C §1257, this Court will not consider a

petitioner’s federal claim unless it was either addressed by,

or properly presented to, the state court that rendered the de-

cision. See Adams v. Robertson, 520 U.S. 83, 117 S.Ct.

1028, 1029, 137 L.Ed.2d 203 (1997); Webb v. Webb, 451

U.S. 493, 101 S.Ct. 1889, 68 L.Ed.2d 392, 400

(1981)(“Because petitioner failed to raise her federal claim in

the state proceedings and the Georgia Supreme Court failed

to rule on a federal issue, we conclude that we are without

jurisdiction in this case. Accordingly, the suit is dismissed

for want of jurisdiction.”); Monks v. New Jersey, 398 U.S.

71, 71, 90 S.Ct. 1563, 26 L.Ed.2d 54 (1970)(“The further

claim advanced by petitioner’s appointed counsel in this

Court... has been raised for the first time upon this writ and

the state courts have had no opportunity to pass upon it. Ac-

cordingly we conclude that the writ of certiorari should be

dismissed as improvidently granted....”); Cardinale v. Lou-

isiana, 394 U.S. 437, 439, 89 S.Ct. 1161, 22 L.Ed.2d 398

(1969) (“In view of the petitioner’s admitted failure to raise

the issue he presents here in any way below, the failure of

certiorari. When the portions of the record relied

on under this subparagraph are voluminous, they

shall be included in the appendix referred to in

subparagraph 1(i).

6

the state court to pass on this issue, the desirability of giving

the State the first opportunity to apply its statute on an ade-

quate record..., the writ is dismissed for want of jurisdic-

tion.”). The issues raised in the Petition for Writ of

Certiorari were never raised, argued or addressed below by

either the parties or the Iowa courts. The Petition should be

denied accordingly.

II. THIS CASE DOES NOT INVOLVE ANY

FEDERAL QUESTIONS REQUIRING

REVIEW FROM THIS COURT

Notwithstanding Petitioners’ failure to raise any constitu-

tional arguments below, Petitioners have failed to raise any

federal questions requiring review by this Court. Iowa Rule

of Civil Procedure 49(f) is not in any manner unconstitu-

tional. Most, if not all, jurisdictions in this country have a

procedural rule similar, if not identical, to lowa Rule of Civil

Procedure 49(f). This includes the federal court system as

Federal Rule of Civil Procedure 4(m) mandates dismissal for

the failure to serve within 120 days unless “good cause” is

demonstrated. See Fed. R. Civ. P. 4(m). Procedural rules

which require service within a specified time have withstood

constitutional challenge. See, e.g., U.S. for Use and Benefit

of DeLoss v. Kenner Gen. Contractors, Inc., 764 F.2d 707,

708 n.2 (9th Cir. 1985)(“Rule 44)[now 4(m)] plainly meets

the traditional rational basis test for judging an equal protec-

tion claim.”; citation omitted); Roberts v. Underwood, 270

N.E.2d 547, 550 (Ill. App. Ct. 1971)(“Plaintiffs also contend

that the dismissal of their complaint violated their due proc-

ess and equal protection rights under the Fourteenth

Amendment of the United States Constitution. However,

7

plaintiffs cite no authority for this argument and we believe

it is without merit.”; citation omitted).

Petitioners argue that they were denied access to the

courts. However, Petitioners were allowed to file their ac-

tion not once but twice. It was Petitioners’ failure to adhere

to the rules of the court that resulted in dismissal, not any

arbitrary application of the rules.

It is also argued that review is necessary because there “‘is

a conflict between the states in applying procedural rules

similar to Rule 49(f).” However, the application of proce-

dural rules by other states, including Illinois, is irrelevant.

Petitioners filed suit in Iowa. Iowa was the proper jurisdic-

tion. Petitioners were bound by the Iowa Rules of Civil Pro-

cedure, not procedural rules found in other states.

Petitioners further argue that an alleged conflict in apply-

ing procedural rules results in uncertainty.in the administra-

tion of justice. At the time Petitioners filed their action, the

Iowa case law was clear that a failure to timely effectuate

service, without adequate justification, would result in dis-

missal. See Becker v. Becker, 603 N.W.2d 627, 628 (Iowa

1999); McCormick v. Meyer, 582 N.W.2d 141, 145 (lowa

1998)(reversing the district court’s denial of motion to dis-

miss); Mokhtarian v. GTE Midwest, Inc., 578 N.W.2d 666,

670 (Iowa 1998); Henry v. Shober, 566 N.W.2d 190, 193

(Iowa 1997); Alvarez, 560 N.W.2d at 591; Dennis v. Chris-

tianson, 482 N.W.2d 448, 451 (Iowa 1992); Bean v. Midwest

Battery & Metal, Inc., 449 N.W.2d 353, 356 (Iowa 1989);

Turnbull v. Horan, 522 N.W.2d 860, 861 (Iowa Ct. App.

1994)(holding that the 126 day delay in service was pre-

sumptively abusive). Petitioners cannot now argue, in good

8

faith, that the consequences for failing to adhere to the re-

quirements of Rule 49(f) were somehow uncertain.

Furthermore, Petitioners’ “forum shopping” argument is

irrelevant and a red herring. Petitioners filed suit in the only

courts with proper jurisdiction; the Iowa state courts. There-

fore, as stated earlier, they were bound by the Iowa Rules of

Civil Procedure, including Rule 49(f). Speculation regarding

possible adjudication in other states, including Illinois, is ir-

relevant as only Iowa, and not Illinois, had jurisdiction over

this case.

Finally, Petitioners argue that the Iowa courts arbitrarily

and capriciously dismissed their action. This is simply

wrong. The Iowa courts relied on a long-standing rule of

civil procedure and well-settled case law in dismissing Peti-

tioners’ action. See Iowa R. Civ. P. 49(f); Mokhtarian, 578

N.W.2d at 670; Henry, 566 N.W.2d at 193; Alvarez, 560

N.W.2d at 591; Turnbull, 522 N.W.2d at 861.

9

CONCLUSION

For all of the foregoing reasons, Respondent respectfully

requests that this Honorable Court deny the Petition for Writ

of Certiorari.

Respectfully submitted,

CHARLES E. MILLER

Counsel of Record

LANE & WATERMAN

220 N. Main Street, Suite 600

Davenport, lowa 52801-1987

Phone: (563) 324-3246

Attorney for Respondent

Genesis Medical Center