Delaware procedural guides

Plain-English guides to the Delaware Superior Court Rules of Civil Procedure, each one tied to the rules it relies on. Every rule named in a guide has its own page with the official text.

• Responding to a Delaware complaint: 20 days, and watch for an affidavit demandDelaware Superior Court Rule 12(a) gives 20 days after service of process to serve an answer — and where the plaintiff has noted the complaint under Rule 3(b), an ordinary answer will not do.
• Setting aside a Delaware default judgment: Rule 60(b) sets no deadline of its ownDelaware Rule 55(c) sends a default judgment to Rule 60(b), and Rule 60(b) states no time limit on its face — unlike Rule 59, which fixes 10 days and 5.
• The Delaware motion to dismiss: seven defenses, ten days if you lose, and six deadlines that are not twenty daysDelaware Rule 12(b) lists seven defenses that may be raised by motion, gives 10 days to answer after a denial, and sets separate deadlines for certiorari, ditch returns, mechanics' liens, appeals, attachment and capias.
• Delaware summary judgment: cross motions are treated as a stipulation to decide the caseDelaware Rule 56(h) treats cross motions for summary judgment as the equivalent of a stipulation for decision on the merits unless a party argues a material fact is in issue.
• The Delaware motion to compel: the Prothonotary will not accept it without a certification of dates and time spentDelaware Rule 37(e) requires a certification detailing dates, time spent and method of communication before a discovery motion can be filed, and imposes a $100 minimum fee on an attorney who fails to appear.
• Delaware execution: a default judgment can be stayed six months, if the security is posted within twenty daysDelaware Rule 69(c) lets a defendant buy a six-month stay of execution on certain default judgments by posting Prothonotary-approved security within 20 days, superseding any writ already issued.
• Delaware judgment by confession: two chances to appear, and the creditor has to prove you waived your rightsDelaware Rule 58.1 requires certified-mail notice and a motion day before a confessed judgment is entered, and a second notice and motion day before the first writ of execution issues.
• Delaware discovery deadlines: thirty days, forty-five if you are the defendant, and an unstated objection is waivedDelaware gives 30 days to answer interrogatories, document requests and admissions — 45 days for a defendant measured from service of the complaint — and waives any objection ground not stated.
• Amending a Delaware pleading: one free amendment, and you must show plainly what changedDelaware Rule 15(a) allows one amendment as of course before a responsive pleading, and Rule 15(aa) requires the amended pleading to indicate plainly how it differs from the one it replaces.
• Delaware dismissal for want of prosecution: six quiet months, then thirty days' notice, then it is goneDelaware Rule 41(e) requires the Prothonotary to send a want-of-prosecution notice after six months of inactivity, and the action is dismissed as of course if nothing is done within 30 days.
• Delaware mandatory non-binding arbitration: twenty days to pick an arbitrator, or you lose the trackDelaware Rule 16.1 sends elected civil cases to non-binding arbitration capped at $50,000, requires an arbitrator within 20 days of the close of pleadings, and shifts costs against a party who demands a trial de novo and does no better.
• Delaware depositions: your lawyer cannot talk to you about your testimony during a breakDelaware Rule 30(d)(1) bars a deponent's attorney from conferring about the substance of testimony during the deposition, including recesses shorter than five calendar days.
• Delaware reargument: five days from the opinion, and the clock runs from a different event than every other motionDelaware Rule 59(e) gives five days to move for reargument, measured from the filing of the Court's opinion or decision rather than from entry of judgment.
• Delaware jury demand: you get six jurors unless you ask for twelveDelaware Rule 38(d) deems a party to have consented to a jury of 6 unless the demand specifies 12, and Rule 38(b) sets the demand deadline at 10 days after the last pleading on the issue.
• Quashing a Delaware subpoena: fourteen days to object in writing, and no motion needed to stop productionDelaware Rule 45(c)(2)(B) lets a subpoenaed non-party stop document production with a written objection within 14 days, shifting the burden to the issuing party to move to compel.
• Delaware Rule 11 sanctions: twenty-one days to withdraw before the motion can even be filedDelaware Rule 11(c)(1)(A) bars filing a sanctions motion unless the challenged paper is not withdrawn within 21 days of service, and holds a law firm jointly responsible for its lawyers.
• A Delaware Rule 35 examination: asking for the report waives your privilegeDelaware Rule 35(b)(2) provides that requesting the examiner's report, or deposing the examiner, waives privilege as to every other person who has examined you for the same condition.
• Delaware class actions: only one kind of class gets notice and an opt-outDelaware Rule 23(c)(2) requires individual notice and a right of exclusion only in (b)(3) classes; classes certified under (b)(1) or (b)(2) bind every member the Court identifies.
• Delaware briefs: 8,000 words, and consent will not buy you an extensionDelaware Rule 107 caps an opening or answering brief at 8,000 words and a reply at 5,500, and refuses extensions of a briefing schedule even where all parties consent, absent a good-cause order.
• Appealing a Delaware board decision to the Superior Court: fifteen days if no statute says otherwiseDelaware Rule 72(b) sets a 15-day default for a notice of appeal from a commission, board or lower court to the Superior Court where no statute prescribes a time.
• Delaware Summary Proceedings for Commercial Disputes: no jury, no punitive damages, and no summary judgmentDelaware Rules 124-131 create a consent-based expedited commercial track with no jury trial, no punitive damages, ten interrogatories, four depositions, and no summary judgment motions at all.
• The Delaware CCLD: a motion supported by a brief may not exceed 500 wordsDelaware's Complex Commercial Litigation Division takes cases of $1 million or more and imposes its own limits — 500-word motions where a brief is filed, a seven-day opposition, and a certification requiring Delaware counsel to speak.
• Delaware requests for admission: silence admits, and an admission is conclusiveDelaware Rule 36 admits a matter automatically if no answer or objection is served in 30 days, and Rule 36(b) makes an admission conclusively established unless the Court permits withdrawal.
• Delaware business mediation: a judge mediates, and the petition never reaches the public docketDelaware Rules 135 and 136 let business parties petition the Superior Court for confidential mediation before a judge, with the petition kept off the public docketing system.
• Delaware business arbitration: a sitting judge is the arbitrator, and the award becomes a judgmentDelaware Rules 137-139 let consenting business parties arbitrate before a Superior Court judge or commissioner, off the public docket, with the final award entered as an enforceable judgment.
• Delaware counterclaims and third-party claims: ten days to bring in a third party without leaveDelaware Rule 14(a) lets a defendant serve a third-party complaint without leave if filed within 10 days of the original answer, and Rule 13(a) makes a related claim compulsory.
• Delaware joinder and intervention: a joined party who objects to venue gets dismissedDelaware Rule 19(a) requires dismissal of a joined party whose presence would make venue improper if that party objects, and Rule 19(c) requires a pleading to name anyone who should have been joined.
• Substitution after a death in Delaware: ninety days from the suggestion of death, or the claim is dismissedDelaware Rule 25(a) dismisses an action as to a deceased party unless a motion for substitution is made within 90 days after the death is suggested upon the record.
• Delaware judgment as a matter of law: make the motion before the case goes to the jury, or lose the right to renew itDelaware Rule 50(a)(2) allows a motion for judgment as a matter of law at any time before submission to the jury, and Rule 50(b) permits renewal only within 10 days after entry of judgment.
• Delaware costs: ten days to apply, and a deposition transcript is only taxable if it went into evidenceDelaware Rule 54(d) requires a prevailing party to apply for costs within 10 days of final judgment, and Rules 54(f)-(h) make deposition transcript, witness and expert fees taxable only if the deposition was introduced into evidence.
• Delaware pleading: negligence must be pleaded with particularity, and you may not sue under a pseudonymDelaware Rule 9(b) requires the circumstances constituting negligence — not just fraud and mistake — to be stated with particularity, and Rule 10(e) bars filing under a pseudonym without Court approval.
• Delaware pro hac vice: an annual fee that renews itself, and Delaware counsel must attend everythingDelaware Rule 90.1 requires a motion by Delaware counsel for pro hac vice admission, an annual assessment renewed each January 1, and attendance by Delaware counsel at all proceedings.
• Delaware court records: missing the Prothonotary's notice of judgment does not extend your time to appealDelaware Rule 77(d) requires the Prothonotary to mail notice of every judgment, but provides that lack of that notice does not affect the time to appeal or authorize relief for missing it.

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