Rule 128.Summary judgment

Part XV: Rules Governing Actions Subject to Summary Proceedings for Commercial Disputes · Last amended April 1, 1994 · Last verified July 28, 2026

In one sentenceRule 128 eliminates summary judgment motions from Delaware's Summary Proceedings for Commercial Disputes, a deliberate departure from ordinary Superior Court practice under Rule 56 that steers disputed cases toward the abbreviated trial and briefing procedures Part XV sets out instead.

Full Text of Rule 128

Text size

There shall be no motions for summary judgment in Summary Proceedings.

Amendment History

Added, effective Apr. 1, 1994.

Plain-English Summary

Rule 128 is one sentence: there shall be no motions for summary judgment in Summary Proceedings. Where an ordinary Superior Court case can end early on a Rule 56 motion, a Summary Proceeding can't. That's a design choice, not an oversight — the point of Part XV is to move a commercial case to a decision fast, and a summary judgment motion, with its own round of briefing and record-building, cuts against that goal.

In place of summary judgment, Part XV gives the parties two other ways to end the case without a live trial: a motion to dismiss under Rule 126(c), decided on a compressed briefing schedule, and the optional briefing procedure under Rule 129, available once discovery closes if both sides agree to forgo witnesses at trial. Either route lets the Court decide the case on the papers — just not through the summary judgment vehicle itself.

Frequently Asked Questions

Can I file a motion for summary judgment in a Delaware Summary Proceeding?

No. Rule 128 bars summary judgment motions in Summary Proceedings entirely.

Does that mean a Summary Proceeding always goes to trial?

Not necessarily. A motion to dismiss under Rule 126(c) can end the case early, and Rule 129's optional briefing procedure lets the parties submit the case on briefs and a supporting record instead of live testimony.

Why does Rule 128 exclude summary judgment when ordinary civil cases allow it?

Part XV is built for speed. Summary judgment motions carry their own briefing and evidentiary process, which runs against the compressed schedule Rules 124 through 131 set for Summary Proceedings.

Is Rule 128's bar different from how Rule 56 works in a regular Superior Court case?

Yes. Rule 56 allows summary judgment in ordinary civil actions; Rule 128 removes that option specifically for cases proceeding under the Summary Proceedings rules.

Source & verification. Rule text is reproduced verbatim from the Delaware Rules of Civil Procedure for the Superior Court, adopted by the Superior Court of the State of Delaware. Last verified July 28, 2026. · Official source

Also known as: no summary judgment delaware commercial disputesrule 128 delawaresummary proceedings summary judgment bardelaware business court motion practice