Delaware Civil Procedure

Phases of Litigation

1) Jurisdiction & complaint

2) Discovery & Motions

3) Trial & trial issues

4) Post-trial motions, judgment, and appeals

Subject Matter Jurisdiction of Lower DE Courts

Power of court to hear a certain case in DE.

Justice of the Peace Court (JP Court) of Delaware

Limited jurisdiction.

Hears small civil claims where amount in controversy does not exceed $25,000.

Exclusive jurisdiction over landlord-tenant disputes.

Some criminal matters.

Civil appeals go to the Court of Common Pleas which hears them de novo.

Court of Common Pleas (CP Court) of Delaware

Civil claims that do not exceed $75,000 amount in controversy.

The CP Court hears appeal claims from the JP Court de novo.

Concurrent jurisdiction (at times) with Justice of the Peace Court and Superior Court.

Plaintiff waives right to jury trial by filing with court of common pleas but other parties may demand juries and then it goes to Superior Court.

Appeals go to Superior Court.

No jury trials in Court of Common Pleas for Civil Cases.

Appeals to the Court of Common Pleas / Mirror Image Rule

-Appeals to the Court of Common Pleas are heard de novo.

-An appeal to this Court shall join the necessary parties and raise the same issues that were before the Court below.

-Upon motion of a party or sua sponte, the Court may add or dismiss parties or claims in accordance with the

Rules of the Court.

Superior Court of Delaware -- Subject Matter Jurisdiction

Court of law. Hears legal claims.

Exclusive jurisdiction when amount in controversy exceeds $75,000.

Cannot provide equitable remedies.

Standard of Review for Appeals to the Superior Court of Delaware

1) Issues of law are reviewed de novo, meaning that the decision of the lower court is given no deference.

2) Rulings on evidentiary matters and discovery rulings are reviewed on an abuse of discretion standard, which gives deference to the lower court’s rulings.

3) When the trial court acts as the fact-finder, the findings are reviewed on a clearly erroneous standard, another deferential standard.

Superior Court of Delaware -- Juries

Delaware constitutional right to jury trial.

Superior Court of Delaware -- Specific Jurisdiction

Remedial writs

writ of prohibition

writ of mandamus

condemnation proceedings

medical malpractice

Superior Court of Delaware -- Appellate Jurisdiction

All decisions from Court of Common Pleas

Juvenile delinquency decisions from Family Court

Appeals of adjudications from administrative agencies

writ of prohibition

a writ prohibiting government from doing something. must be brought in superior court.

writ of mandamus

a mandate to direct a government to do something. must be brought in superior court.

condemnation proceedings

government seeks to take property. must be brought in superior court.

Court of Chancery of Delaware

Court of equity with exclusive jurisdiction over corporate/business matters. Also hears Claim for Breach of Asset Purchase Agreement.

No right to jury in Chancery.

Claim for Breach of Asset Purchase Agreement

This is a breach of a contract claim, thus a law claim with money damages. It can be maintained in Superior Court but Chancery also has jurisdiction.

Alderman's Courts of Delaware

Town Violations & traffic offenses

Appeals are taken de novo if fine exceeds $100 or imprisonment exceeds one month.

Family Court of Delaware

Divorce, child and spousal support, child custody, paternity, & other family matters.

Equitable Claims that Must or Can go to Chancery

No legal damages (money)

Injunctions must go to chancery

Specific performance in contracts go to chancery because it's equitable. Such as paying a contract or closing on a contract.

Historical equity claims like breach of fiduciary duty must go to chancery.

Certain things, by statute, must go to Chancery such as business/corporate matters.

Equitable Cleanup Doctrine

Court of Chancery hears mixed equitable and legal claims so long as they are connected and equitable claim is a genuine equitable claim.

What happens with jurisdictional mistakes in claims?

Chancery will transfer improperly filed case to right court as per statute. Plaintiff will be given right to transfer.

jury Trials in Delaware

No jury trials in Court of Common Pleas for Civil Cases.

Constitutional right in Superior Court.

No right to jury in Chancery.

Venue -- Delaware

Delaware Superior Court is a statewide court. If you file in an office other than where you reside, plaintiff forfeits costs but no other consequence.

Complaints Are E-Filed and Include:

Praecipe -- Directs service of process agent. It's a summons.

Case Information Statement -- purely administrative with no effect but includes relevant information

Affidavit of Demand

Demand to acknowledge validity and obligations of document

Affidavit of Response / Defense

response to demand

Personal Injury in Delaware

No detailed initial disclosures needed.

Plaintiff required disclosures include:

1) Answers to form 30 interrogatories (witnesses, doctors, insurance information)

2) rule 3 documents (medical records, lost wage information, documents to support damages)

Service of Process in Delaware

Default rule is sheriff serves process.

Party may ask for special process server if:

1) sheriff tried and failed once

2) necessary after 10 pm or on a holiday or weekend

3) some other exigent reason that sheriff can't do it

Serving Individuals in Delaware

Actual delivery to defendant

Deliver to person of suitable age at defendant's usual abode ("suitable age" is subjective and can vary, it is not synonymous with adulthood)

When suing a minor or incompetent, serve the guardian.

Serving Corporation

Serve the registered agent if they are a Delaware corporation

Corporate officer residing in Delaware if no registered agent

If no registered agent or Delaware corporate officer, serve corporate officer traveling through DE

If all else fails, serve Secretary of State who forwards to their place of business and service by publication is authorized.

Service by publication in DE and their state.

In DE, service of process doesn't necessarily mean personal jurisdiction.

Serving Government in Delaware

Serve CEO and AG or chief deputy or state solicitor

If serving federal government serve local USAO and head of agency

Serving Under Long Arm Statute of Delaware

1) Personal delivery

2) Law of state where service is made

3) Mail requiring return receipt

4) As directed by court so long as the method is reasonably calculate to provide notice

Long Arm Statute of Delaware -- Personal Jurisdiction

Transact business in Delaware

Tort in Delaware

Related to supply of services/things in DE

Own real property in Delaware

Acting as an insurer or surety

If you cause tortious injury in Delaware from an act outside of Delaware only if you regular engage in business or other activity in Delaware or derive substantial business from things consumed here.

Delaware does not have general personal jurisdiction of businesses registered to do business.

Time to Make Service in Delaware

120 days. If you can't, you must prove to court you tried and get a new summons with additional time. Must ask in 120 day window.

Service of non summons stuff is just deliveries and much less formal.

Counting Days in Delaware with Service

Day of act or event is not counted.

Last day is counted. Last day (Day 30 of 30) is when it is due. if weekend do next business day.

If prescribed period is less than 11 days don't count weekends and holidays. If more, count them.

If you need more time just ask for extension before time expires with cause. If take longer, show excusable neglect.

If service is by mail, add three days.

Pleadings

Document by which party sets forth claims and defenses.

Capacity does not have to be plead at all.

Initial Pleading / Complaint

Plaintiff asserts claim here and begins action.

Capacity does not have to be plead at all.

Elements of the Initial Pleading/Complaint

Federal rules have three elements but Delaware has two.

1) Short and plain statement of claim showing that the pleader is entitled to relief.

2) Demand for Relief

The third element for federal rules is statement of subject matter jurisdiction (SMJ) which is unnecessary for Delaware.

Response

All pleadings that assert claims must be met with a response from the defendant.

They can respond with a:

1) Pre-answer motion

2) Respond to the merits

Response -- Answer

Admit, deny, or state insufficient knowledge but failure to deny is an admission.

Defendant may also assert affirmative defenses but they have the burden of proof. They are waived if omitted.

Mnemonic device for Affirmative Defenses

ADD

Pleadings with Particularity

1) Fraud

2) Mistake

3) Negligence (only in DE, not federal)

Particularity includes where, who, what, and when.

Pleading Damages

Unliquidated damages are okay to plead generally.

Special damages (such as medical damages) must be specific.

Court Records are Public Unless

Party filing asks for it to be sealed and you must demonstrate good cause.

Delaware's Rule 11

Rule of accountability similar to federal that when you sign a pleading or any document of the court, you are attesting that you have conducted a reasonable investigation that it is well-grounded in fact and law, and it is not being done for an improper purpose.

Rule 11 and Attorney's Fees

Attorneys fees are awarded in cases where a party's conduct so exceeds the boundaries of professionalism and competence that it would be unfair to require the other party to bear its own fees in connection with the litigation.

For example, if one party's claim is so lacking in foundation or support as to be arbitrary, the court may award attorney's fees to the prevailing party.

Time to Respond

Defendant has 20 days to respond.

If the pre-answer motion is denied, defendant has ten days to file an answer.

Pre-Answer Motion to Dismiss (12b defenses)

Lack of subject matter jurisdiction -- if another DE court has it, plaintiff may elect to have it transferred and dismissed in court that lacks jurisdiction

Lack of personal jurisdiction -- waived if not put in first response

Improper venue -- waived if not put in first response

Defects in process or service -- waived if not put in first response

Failure to state claim

Failure to join indispensable party

Test for Failure to State a Claim

Even if anything is true, does not give rise to claim.

If the parties attach additional material, like factual materials, documents, affidavits, court can convert motion to dismiss to motion for summary judgment.

Motion for Judgment on the Pleadings

If defendant's answer does not deny key facts or admits them, plaintiff can say court should rule in favor automatically.

If complaint is not dismissed pursuant to pre-answer motion...

The defendant must file an answer.

Counterclaims -- Delaware

Compulsory -- any claim that the pleading party has against any opposing party arising out of the same transaction or occurrence that must be asserted

Permissive -- all other counterclaims that don't arise from thr same transaction or occurrence

Crossclaims -- Delaware

Any claims against a co-party. Permitted only if it arises from the same transaction or occurrence.

Third Party Claims -- Delaware

Indemnity or contribution claims.

Defending party may assert a claim against a new third-party defendant, if the claim asserts that the third-party defendant is liable to the original defendant for all or part of the liability to the plaintiff.

In Delaware you must file it within ten days of filing your answer. You can file it later with leave of court.

Federal court time limit is 14 days.

Amending Pleadings -- Delaware

Plaintiff may amend of right once before the defendant answers with no court permission.

Defendant may amend their answer of right within 20 days of the original answer's filing.

After this period you must obtain court permission or consent of opposing parties. Court will ask "will prejudice be caused by virtue of the amendment?" and this is a high bar.

Earlier in litigation, less likely to find prejudice.

Relation Back -- Delaware

When you want to amend claim after statute of limitations. Standards are the same as federal.

Does the amended claim arise from the same set of operative facts? If yes, then they may relate back their amendment.

Initial Conference -- Delaware

Timing of discovery.

Court can mandate attendance.

After conference, court issues a case management order.

Case Management Order / Case Scheduling Order

Sets deadlines for amending pleadings, take discovery, file motions (especially summary judgment), and likely set trial date.

This order is mandatory for the court but the court does not need to make this a formal conference.

Pretrial Conference

Prepare for trial.

Summarize facts and issues for trial.

Determine exhibits and witnesses.

Includes jury instructions.

Alternative Dispute Resolutions (ADR)

ADR types: 1) arbitration 2) mediation 3) neutral case assessment

Arbitration

Arbitrator hears evidence and issues opinion.

Mandatory arbitration is non-binding unless parties stipulate.

Mediation

Neutral person tries to assist parties to reach agreement to settle case.

Neutral Case Assessment

A neutral person analyzes case and gives an opinion on how it'll likely go.

Mandatory ADR

Under rule 16, court can order mandatory ADR. Parties select what they want and default is mediation.

Mandatory arbitration is non-binding unless parties stipulate.

Mandatory Non-Binding Arbitration

Money damages less than $50,000.

Plaintiff elects but defendant can decline.

Discovery prior is just initial disclosures required for personal injuries, and plaintiff has a right to subpoena medical records and lost wage data from their employer.

Must occur within 120 days since last pleadings. If no resolution, trial.

Naming of Proper Parties

Action must be brought by real party with the interest. No surrogates.

If plaintiff dies, for example, new plaintiff must make suggestion of death within 90 days through motion to substitute.

All settlement claims brought by minors in Delaware must...

Be approved by the Superior Court. This typically concerns personal injury actions.

They do this to make sure it's fair to the minor (not their guardian).

If settlement of minor is $25,000 or less, deposited in a uniform gift to minor's account (custodian account) at a bank. Used by guardian.

If settlement of minor is above $25,000, no access until minor reaches majority as funds will be placed in an annuity.

Funds might be divided so the $25,000 goes into the uniform gift to minor's account.

Class Actions -- Delaware

Similar to federal system but court does not appoint class counsel or lead plaintiff.

Court must still find that counsel will fairly and adequately represent class through common law standards.

Discovery Rules -- Delaware

No meet and confer requirement.

No required disclosures (except with expedited discovery in personal injury complaints)

No rules for electronic discovery.

Less formal expert witness rules.

Duty to supplement is different.

Scope of Discovery -- Delaware

Discovery must not be privileged. It must be relevant and proportional.

Relevancy is a low bar in discovery.

Discovery may include information about insurance agreements that show defendant liability, but it's not required like it is in federal.

Work Product Doctrine -- Delaware

Codified by rule 26. Qualified immunity. Applies same both way.

Work product doctrine is not the same as attorney/client privilege. The latter is for communications between counsel and client and is absolute.

Attorney's mental impressions are always 100% protected.

Work product doctrine is not absolute and can be overcome if

1) demonstrate substantial need for the material

2) inability to obtain without undue hardship through other means

Responding to Discovery Request for Protected Work Product or Privilege Material

Party must produce privilege log and work product log describing withheld material. Must describe in specificity so the other party can challenge.

Expert Report Disclosure -- Delaware

Expert report disclosure is not required, but can be obtained through asking.

Here is our expert witness, background, facts for what she'll say, and opinion. But no reports.

If expert relies on communication with counsel to inform her opinion, that communication is discoverable as the basis for forming her opinion. Such as "assume the following facts."

Other communications with expert and counsel not discoverable.

Duty to Supplement -- Delaware

Written discovery responses in federal rules are supplemented if incorrect or incomplete. In Delaware, duty to supplement only if fact is incorrect.

In federal, you have a duty to supplement if incorrect. In DE you don't have to constantly update oppositional side.

Must update when you have new witnesses.

You must update prior response when failing to do so would be knowing concealment.

Court may order or parties may agree to update prior responses.

Motion for Protective Order -- Delaware

Limiting discovery because it is unfair or costly, duplicative, or unduly burdensome.

Deposition -- Delaware (Discovery Device)

Similar to Federal. During break in deposition, deponent and attorney cannot confer (unless question about privilege).

Once deposition starts, deponent and attorney cannot confer. However they can if there is a question about if something is privilege, and attorney cannot say not to answer unless it concerns privilege or reveals work product. Or if it's very embarrassing or harassment.

Interrogatories -- Delaware (Discovery Device)

Written questions to parties

Answer is under oath in writing

In Delaware, no limit (unless court orders otherwise

30 days to respond (45 days after service of process if served with or right after service)

Production of Documents -- Delaware (Discovery Device)

Same as federal rules.

Electronically produced information should be produced as requested or in the requested format (unless unduly burdensome and you say that). If no specified form, produce how it's normally maintained.

Request for Court to Order Physical/Mental Examination -- Delaware (Discovery Device)

Only of a party and only via court order.

Available with good cause and actual controversy of condition.

Examined party is entitled to get report.

Request for Admission -- Delaware (Discovery Device)

A request for admission (sometimes also called a request to admit) is a set of statements sent from one litigant to an adversary, for the purpose of having the adversary admit or deny the statements or allegations therein.

Similar to federal rules.

Subpoena -- Delaware (Discovery Device)

Allow you to get information from non-parties to the action.

Prothonotary has form subpoenas. Upon request of a party, will give the form and then the party fills it out and serves on the non-party for information.

If non-party gets it and thinks it's overly burdensome, may move to squash. But if they ignore, subject to contempt of court.

Generally, courts give more protection to third parties than parties in the action.

Sanctions for Discovery Noncompliance -- Delaware

Parties can move the court to intervene in discovery disputes.

No response means you can go to court right away to get the person to compel. Inadequate response means you confer first.

Parties can be sanctioned for failure to preserve evidence that could have been discoverable. Can include inference that it would've been harmful.

Jury Trial -- Delaware

Delaware constitution provides a right to jury in Superior Court.

It must be demanded. In the complaint as plaintiff or answer as defendant.

You must demand twelve jurors or you will get six by default.

May be demanded 10 days after a pleading directed to a jury-triable issue.

Must be in writing, and if not demanded then waived.

Jury must be unanimous like Federal. If parties stipulate, then you can have less than unanimous jury.

Voluntary Dismissal -- Delaware

Plaintiff can dismiss any time before defendant answers or motions for summary judgment. If defendant answers or motions, then plaintiff can only voluntarily dismiss with leave of court or agreement of all parties.

Involuntary Dismissal -- Delaware

30 day notice to take action:

-If the party responds, case proceeds.

-If no response, court may dismiss

Court clerk may issue 15 day notice to show cause why case should not be dismissed:

-Failure to diligently prosecute

-Failure to comply with the rules

-Inactivity (six months) without any proceedings or filings

Consolidation -- Delaware

Cases can be consolidated if they involve common questions of law or fact.

Court can consolidate cases on its own or in response to a motion.

Voir Dire -- Delaware

Voir dire in Delaware of prospective jurors in DE courts is not conducted by counsel.

Discretion of Jury Verdict

Delaware Superior Court has discretion of jury verdict and may require the jury to give special verdict with interrogatories and answer specific questions.

In Delaware, trial judge has discretion to give jury instructions before or after closing arguments.

Directed Verdicts or Motions for Judgment of Matter of Law -- Delaware

All the evidence suggests no factual dispute even if pleadings do, so one party now wins.

Time Limit for Post-Trial Motions -- Delaware

Delaware is 10 days while federal is 28 days.

Motion may be renewed after a jury enters a verdict that lacks evidentiary support.

Judgment -- Delaware

Can be entered at multiple stages.

Summary Judgment -- Delaware

No genuine issue of material fact and moving party is entitled to judgment as a matter of law.

If a court grants completely in favor of one party, it's a final order that can be appealed. If denied or partially granted, it's an interlocutory order that is not immediately appealable.

Time Limit for Summary Judgment -- Delaware

20 days after action commenced but typically brought near the end of discovery.

Declaratory Judgments -- Delaware

In Superior Court, if there are certain predicate factual issues that must be decided before court can declare rights, it can be tried to a jury.

In Chancery, no right to a jury so it goes to court.

Can only be maintained if they present a real controversy.

Motion for a New Trial -- Delaware

If you lose a jury verdict, Delaware rules governing say you need insufficient evidence or errors during trial.

Insufficient evidence is only proven through a jury decision that should shock the conscience of the court.

Additur -- Delaware

Additur is available in Delaware but not in federal.

It is when you tell defense to agree to higher damages or new trial.

Motion for Reargument -- Delaware

Ask the court to revisit ruling.

Within five days of decision.

Demonstrate factual or legal error in previous decision.

Relief from Judgment -- Delaware

Mistake, excusable neglect, or newly discovered evidence that would be a new result.

No time limit for relief from judgment in Delaware but you can't be unreasonable.

Default Judgment -- Delaware

If the defendant fails to answer a complaint, the plaintiff may obtain this via motion.

Prothonotary may enter it if:

1) sum certain

2) defendant has not appeared at all

If not fixed amount or defendant has appeared, judge is the only one who can enter.

Offers of Judgment -- Delaware

Defendant agrees to pay a specific amount before trial.

If plaintiff agrees, judgment is entered.

If the case proceeds and defendant does better than what was offered, plaintiff is responsible for costs incurred after the offer was made.