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Kurka v. Iowa Cty., No. 09-2849

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By FindLaw Staff on December 16, 2010 5:46 PM

Dismissal for Failure to Serve Summons Affirmed

In Kurka v. Iowa Cty., No. 09-2849, an action alleging gender discrimination and retaliation against Iowa County, the court affirmed the dismissal of the action for failure to timely serve the summons, holding that 1) finding good cause based on the clerk's error alone, as plaintiff suggested, would improperly shift the burden to effect service from plaintiff to the clerk and undermine the purpose of Fed. R. Civ. P. 4(m); and 2) plaintiff was not diligent following discovery of the error and was not forthright with the court about other matters.

As the court wrote:  "Becky S. Kurka appeals the district court's denial of her motion to extend time to effect service of summons pursuant to Fed.R.Civ.P. 4(m), and the grant of Iowa County, Iowa, and the Iowa County Sheriff's Department's (collectively, the County) motion to dismiss. Kurka contends an extension was warranted because the Clerk of the United States District Court for the Northern District of Iowa failed to issue a summons as directed by Local Rule 5.2g.2.2 The district court found Kurka did not demonstrate "good cause" to warrant a mandatory extension or "excusable neglect" to warrant a discretionary extension. We affirm."

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