United States Court of Appeals

For the Eighth Circuit

___________________________

No. 21-3134

___________________________

Robert Morrow, Executor of the estate of James Meyer; Linda Meyer, Surviving

Spouse of James Meyer

lllllllllllllllllllllPlaintiffs - Appellants

v.

United States of America

lllllllllllllllllllllDefendant - Appellee

 ____________

Appeal from United States District Court 

for the Northern District of Iowa - Eastern

 ____________

 Submitted: May 12, 2022

Filed: August 30, 2022

____________

Before SMITH, Chief Judge, COLLOTON and SHEPHERD, Circuit Judges. 

____________

SMITH, Chief Judge.

Linda Meyer, wife of decedent James Meyer, and Robert Morrow, executor of

the estate of James Meyer, brought suit under the Federal Tort Claims Act (FTCA).
The district court1

 granted summary judgment to the government, dismissing the suit

with prejudice. We affirm.

I. Background

In November 2017, Mr. Meyer sought treatment at the Iowa City Veterans

Affairs Medical Center (VAMC) emergency department to address cramps under his

ribs and forearms. A chest x-ray revealed a “possible malignancy”: a mass of “4.9 cm

[diameter of] oval density in the left upper lung.” R. Doc. 1, at 2 (all caps omitted).

In October 2018, Mr. Meyer went to the VAMC primary care clinic complaining of

shortness of breath. Additional imaging was ordered and revealed that the mass had

grown to 13.9 cm in diameter. Mr. Meyer was told that he had lung cancer. In

February 2019, Mr. Meyer died of lung cancer.

Robert Morrow and Mrs. Meyer (collectively, plaintiffs), on behalf of Mr.

Meyer’s estate, filed a lawsuit against the federal government under the FTCA for

alleged medical negligence on the part of the VAMC staff. The plaintiffs filed their

complaint on January 22, 2021. The government filed its answer on April 8, 2021.

The plaintiffs failed to serve the government with a certificate-of-merit affidavit for

claims alleging medical malpractice as required by Iowa Code § 147.140. Iowa law

requires plaintiffs to serve the opposing party with a certificate of merit, an affidavit

signed by an expert witness stating the appropriate standard of care and its alleged

breach, within 60 days after the government files its answer. Iowa Code

§ 147.140(1)(a). In this case, the deadline for serving the certificate elapsed on June

7, 2021. 

1The Honorable Mark A. Roberts, United States Magistrate Judge for the

Northern District of Iowa, to whom the case was referred for final disposition by

consent of the parties pursuant to 28 U.S.C. § 636(c). 

-2-
The government filed a motion for summary judgment on June 23, 2021,

arguing that the plaintiffs’ failure to timely provide it with a certificate of merit

required that their claim be dismissed. That same day, the plaintiffs filed an untimely

notice of service of the certificate of merit. 

Two days later, on June 25, 2021, the plaintiffs filed a motion for voluntary

dismissal without prejudice under Federal Rule of Civil Procedure 41(a)(2). The

motion requested that the court (1) grant their motion to dismiss without prejudice

and (2) allow them the opportunity to refile their complaint within the six-month

statute of limitations. The government opposed the plaintiffs’ motion for voluntary

dismissal without prejudice and asked the district court to deny the plaintiffs’ motion,

grant its pending motion for summary judgment, and dismiss the plaintiffs’ complaint

with prejudice. The district court granted all of the government’s requests. This

appeal followed. 

II. Discussion

On appeal, the plaintiffs argue that the district court (1) erred in denying their

motion for voluntary dismissal and (2) erred in granting summary judgment to the

government. 

A. Motion for Voluntary Dismissal Without Prejudice

We review a district court’s decision of whether “to allow a plaintiff to dismiss

a case voluntarily” for abuse of discretion. Crawford v. F. Hoffman-La Roche Ltd.,

267 F.3d 760, 763 (8th Cir. 2001). 

The plaintiffs argue that, because the purpose of the Iowa certificate

requirement is “to show that the plaintiff’s claim at least has colorable merit,” the

interests of justice require that, whenever possible, cases should be decided on their

merits. Appellants’ Br. at 11–12. According to the plaintiffs, “voluntary dismissal

under Rule 41(a)(2) would serve the interests of justice without subjecting the

-3-
defendant to undue prejudice.” Id. at 8. They argue that, if allowed to voluntarily

dismiss without prejudice, they would then be able to refile their case nunc pro tunc

and that the government would only be slightly inconvenienced. 

The plaintiffs do not contest that the certificate filing was, in fact, untimely

under Iowa law. Their argument is that no prejudice resulted from the tardiness of the

filing because the government’s actions prior to the complaint’s dismissal motion

essentially acknowledged the existence of merit in the claim. The district court

recognized the early stage of the litigation but concluded that the plaintiffs’ reasons

for seeking voluntary dismissal did not justify granting the relief. According to the

court: 

Although this case is in its infancy because no discovery beyond initial

disclosures has occurred, this factor does not outweigh the ultimate

conclusion that Plaintiffs’ underlying reason for filing their Motion to

Dismiss is to correct a procedural defect their untimely provision of a

certificate of merit created and to avoid an unfavorable ruling from this

court. Federal Rule of Civil Procedure 41(a)(2) and the accompanying

case law forbid voluntary dismissal under these circumstances.

Accordingly, Plaintiff[s’] Motion to Dismiss is denied.

R. Doc. 25, at 6. 

“Rule 41(a)(2) implicitly permits the district court to dismiss an action with

prejudice in response to a plaintiff’s motion for dismissal without prejudice.” Graham

v. Mentor Worldwide LLC, 998 F.3d 800, 805 (8th Cir. 2021) (quoting Jaramillo v.

Burkhart, 59 F.3d 78, 79 (8th Cir. 1995)). In this case, the district court not only

denied the plaintiffs’ motion for voluntary dismissal without prejudice but also

dismissed the plaintiffs’ complaint with prejudice, which it could do. See id.

-4-
“Because [the Plaintiffs] moved for voluntary dismissal after [the government]

filed its answer, the action could be dismissed ‘only by court order, on terms the court

considers proper.”’ Id. (quoting Fed. R. Civ. P. 41(a)(1)(A)(i), (a)(2)). The district

court did not abuse its discretion by denying the plaintiffs’ motion for voluntary

dismissal without prejudice. 

B. Motion for Summary Judgment

We review de novo a district court’s grant of summary judgment. Thomas v.

Heartland Emp. Servs. LLC, 797 F.3d 527, 529 (8th Cir. 2015). “Summary judgment

is proper if there is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law.” Revels v. Vincenz, 382 F.3d 870, 874 (8th

Cir. 2004). 

[A] genuine issue of material fact exists if: (1) there is a dispute of fact;

(2) the disputed fact is material to the outcome of the case; and (3) the

dispute is genuine, that is, a reasonable jury could return a verdict for

either party. The moving party has the burden of proving that these

requirements have been met.

RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995). 

The district court, in its summary-judgment order, noted that “[a]lthough this

is a federal case, ‘the substantive law of the state’ governs the [g]overnment’s FTCA

liability.” R. Doc. 25, at 7 (quoting Shanner v. United States, 998 F.3d 822, 824 (8th

Cir. 2021)). The court went on to “find[]that the requirements of Iowa Code Section

147.140 are substantive and enforceable, as here, in the FTCA context.” Id.

Iowa Code § 147.140(1)(a), in relevant part, states:

In any action for personal injury or wrongful death against a health care

provider based upon the alleged negligence in the practice of that

-5-
profession or occupation or in patient care, which includes a cause of

action for which expert testimony is necessary to establish a prima facie

case, the plaintiff shall, prior to the commencement of discovery in the

case and within sixty days of the defendant’s answer, serve upon the

defendant a certificate of merit affidavit signed by an expert witness

with respect to the issue of standard of care and an alleged breach of the

standard of care. The expert witness must meet the qualifying standards

of section 147.139.

Both parties point to McHugh v. Smith, 966 N.W.2d 285 (Iowa Ct. App. 2021),

for support. However, McHugh provides meaningful support only for the

government’s position. As the McHugh court noted, “[A]s the remedy for a plaintiff’s

failure to ‘substantially comply’ with the certification-of-merit-affidavit requirement,

upon a defendant’s motion, the court must dismiss ‘with prejudice . . . each cause of

action as to which expert witness testimony is necessary to establish a prima facie

case.’” Id. at 288 (second alteration in original) (quoting Iowa Code § 147.140(6)). 

The plaintiffs argue that their filing of unverified medical records with the

complaint substantially complied with the requirement to file an expert witness

affidavit on the question of the standard of care within the prescribed deadline. The

district court concluded, relying on McHugh, that the records do not substantially

comply. We agree. 

The plaintiffs also request that this court read a “good-cause” provision into

§ 147.140 that would be applicable even after the statute’s 60-day deadline. We

decline to read the statute in that manner. The extension provided in the statute

requires action by the plaintiff before the 60-day deadline. Iowa Code § 147.140(4).

It is undisputed that the plaintiffs failed to serve the government with a

certificate of merit within 60 days of the government filing its answer. Because “[t]he

statute permits dismissal upon defendant’s motion alleging plaintiff’s inaction,” we

-6-
refuse to “read in a requirement for defendants to show they were prejudiced by the

delay.” McHugh, 966 N.W.2d at 291. The district court did not err in granting

summary judgment to the government and in dismissing the plaintiffs’ complaint with

prejudice.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

______________________________

-7-