Crompton Resistance to MotionIN THE IOWA DISTRICT COURT IN AND FOR DUBUQUE COUNTY
CROMPTON CORPORATION and
THE ASPERMONT COMPANY,
VS.
Plaintiffs,
CITY OF DUBUQUE,
Defendant.
Civil No. 01311 EQCV 092534
RESISTANCE TO MOTION
TO DISMISS
COMES NOW Crompton Corporation and The Aspermont Company, Plaintiffs, and
hereby states resistance to Defendant's, City of Dubuque, Motion to Dismiss as follows:
1. Defendant argues that Iowa Code §6B.18 provides that a party may, within 30
days from the date of the mailing of the notice of appraisement of damages, appeal to the District
Court from the award of the Compensation Commission by giving written notice that the appeal
has been taken to the adverse party, orthe adverse party's agent or attorney, lienholders and the
Sheriff. That is incorrect. Iowa Code §6B.18 provides that any interested party may appeal to
the District Court. Pla'mtiffhas done so in a timely manner. Iowa Code §6B.18 then does go on
to provide that the Appellant shall give written notice that the appeal has been taken to the
adverse party, or the adverse party's agent, etc. That too, the Plaintiff has done, both by ordinary
mail on the date of the filing of the appeal, and by servicing a copy of the notice of appeal by
personal service together w/th the Petition filed by Pla'mtiff, also in a timely manner, under the
provisions of §6B.22.
2. Defendant next argues that Iowa Code §6B.19 requires that the notice of appeal
shall b~ served in the same manner as the original notice. Piaintiffhas done that.
3. Defendant sites to Hanington v. City of Keokuk, 141 N.W:2d 633 (Iowa 1966).
However, the condemnation law in effect at that time, Iowa Code 8472.18 and §472.19 provided
that any party interested may, within 30 days after the assessment for damages, appeal therefrom
to the District Court by giving the adverse party.., written notice. The current Iowa Code
§6B.18 contains no such directive that the appeal process is in fact initiated by giving the other
party notice, but rather by appealing to the District Court. In Harrington, the Court ruled that
beca~tse the iiotice was not p~isonally served on the defendants Within 30 days of the dzite~oi'the
endorsement by the sheriff, the appeal must fail. However, at the time of Harrin~ton, the Iowa
Rule of Civil Procedure 48 provided that a civil action is commenced by serving the defendant
within an original notice, and Iowa Rule of Civil Procedure 53(b) provided that the petition is on
file when the notice is served. Since that time the wording in Iowa Code §6B.18 has changed so
as to not provide that the appeal is taken by giving notice to the remaining parties, and the roles '
of civil procedure have changed, specifically including Iowa Rule of Civil Procedure 48(a),
which now provides that for all purposes a civil action is commenced by filing a petition with the
court. That the Plaintiffhas done. I.R.C.P. 48 further provides that after the filing, the original
notice must be personally served upon the remaining parties within 90 days, afier which the court
may on its own initiative or UPon motion dismiss the action. Here, Plaintiffs have in fact filed a
petition, serve the original notice by personal service, and have in all ways complied with the
requirements of the Code and Rules.
WHEREFORE, Plaintiff respectfully prays that the Court deny the City of Dubuque's
motion to dismiss.
ACKLEY KOPECKY & K1NGERY LLP
4056 Glass Road NE
Cedar Rapids, IA 52402
Phone: (319) 393-9090
Fax: (319) 393-9012
ATTORNEYS FOR PLAINTIFF
2
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing instrument was served upon all parties to the
above cause, to each of the attorneys of record herein, at the respective addresses Set forth below
on August 17, 2001.
American Trust & Savings Bank
Ninth & Main Streets
Dubuque, IA 52001
The Aspermont Company
c/o Michael Stapleton
141 Pine Drive
East Dubuque, IA 51025
American Grain and Related Industries
c/o Hallie Still-Carls
700 Walnut, Suite 1600
Des Moines, IA 50309
The Brewery
P.O. Box 444
Menomonee Falls, WI 53052-0444
Dallas County Brewing Company, Inc.
301 S. l0th Street
Adel, IA 50003
Dubuque Brewing and Bottling Co.
500 East Fourth Street
Dubuque, IA 52001
City of Dubuque
c/o City Clerk
City Hall
50 W. 13t~ Street
Dubuque, IA 52001
Barry Lindahl
Corporation Counsel
196 Dubuque Building
700 Locust Street
Dubuque, IA 52001
Dubuque County Board of Supervisors
c/o Jim Waller, Chairman
Dubuque County Courthouse
720 Central Avenue
Dubuque, IA 52001
Dubuque County Sheriff
c/o Leo Kennedy
8th & Central Avenue
Dubuque, IA 52001
Durrant Engineers, Inc.
942 Cycare Plaza
Dubuque, IA 52001
Joseph Huber Brewing Company, Inc.
P.O. Box 277
Monroe, WI 53566
Fred Einstein d/b/a 21st Century Brands
c/o Bruce Willey
3519 Center Point Road NE, Suite 200
Cedar Rapids, IA 52402
Glenshaw Glass Company
Hillsboro Glass Company
1101 William Flynn. Highway
Glenshaw, PA 15116
The Plastic Center, Inc.
d/b/a The Fischer Companies
290 Main Street
R.E. Lewis Refrigeration, Inc.
P.O. Box 92
Creston, IA 50801
3
B.E.S.T. Electric, Inc.
962 Main Street
Dubuque, IA 52001
Specialized Concrete Systems Co.
3314 Hwy 6 Trail
Homestead, IA 52236-8500
SDI/Screenprint Design
378 West 300 South
Salt Lake City, UT 84101
Signature:~--~'AO-~r~c-~--x_ ~ 0Q 7
By: US Mail~.~v ('~)-;ac-simile__
Fed. Express Hand Delivered
Overnight Courier Other
4