The Delaware CCLD: a motion supported by a brief may not exceed 500 words

Delaware's Complex Commercial Litigation Division handles the Superior Court's largest commercial cases, and it runs on its own rules. Three of them change everyday practice.

A motion accompanied by a brief may not exceed 500 words. The argument goes in the brief; the motion is a request.

Opposition is due in seven days, and a reply in five.

A discovery motion needs a certification that Delaware counsel actually spoke — "a reasonable effort" here "must include oral communication that involves Delaware counsel for any moving party and Delaware counsel for any opposing party."

Which cases qualify

Del. Super. Ct. Civ. R. 141(b):

Any case that includes a claim asserted by any party (direct or declaratory judgment) with an amount in controversy of $1 Million or more (designated in the pleadings for either jury or non-jury trials), or involves an exclusive choice of court agreement or a judgment resulting from an exclusive choice of court agreement, or is so designated by the President Judge, qualifies for assignment to the CCLD.

Rule 141(c) excludes several categories outright:

The last two matter. A forum clause in a consumer or employment contract does not pull the case into the CCLD.

Getting in, and objecting

Rule 141(d) puts identification in the parties' hands:

Identification of a qualifying case will be made by any party by stating the letters CCLD for the Civil Case Code and Complex Commercial Litigation for the Civil Case Type on the Case Information Statement. A party opposing identification of a case as a qualifying case will do so by motion filed before the Rule 16 scheduling conference, or at such other time as the assigned Panel Judge may direct. The filing of such a motion shall not affect the time for filing any pleading, motion, or required response under the Court's rules.

The deadline is an event, not a day count — before the Rule 16 conference. And the warning in the last sentence is worth heeding: contesting the designation buys no time on anything else.

If the Panel Judge finds the case does not qualify, the Prothonotary reassigns it to the appropriate case type.

Rule 141(e): unless a CCLD rule expressly provides otherwise, "the Superior Court Civil Rules shall continue to apply."

Motions: 500 words, or 3,000

Rule 145(b) splits by whether you are filing a brief.

(1) Any written motion the movant will be supporting with an opening brief may not exceed 500 words. The opening brief must be filed with the motion. Briefs may only be filed with motions under Rules 12, 41, and 56 of the Superior Court Civil Rules. Briefing on such motions shall be governed by Superior Court Civil Rule 146.

(2) Any written motion the movant will not be supporting with an opening brief may not exceed 3,000 words. The opposition to the motion may not exceed 3,000 words. The reply may not exceed 2,000 words. No other submissions containing argument may be filed unless the Court permits.

Two constraints follow that are easy to trip over.

Briefs are allowed only on three motions. Rules 12, 41 and 56 — dismissal, dismissal of actions, and summary judgment. Any other motion travels on the 3,000-word track with no brief at all.

The opening brief is filed with the motion. There is no filing the motion first and briefing later.

Rule 145(b)(3) excludes the caption, title, signature block and any sealing markings from the word count.

Rule 145(a) requires a written motion, opposition or reply to "contain numbered paragraphs" and says it "should attach a form of order providing for the relief sought."

The seven-day default

Rule 145(c):

Default Schedule. Unless otherwise agreed on by the parties in writing or ordered by the Court, any opposition to a written motion must be filed within seven days of the motion, and any reply must be filed within five days of the opposition.

Seven days, then five. Both are defaults, and both yield to written agreement of the parties or a court order — which is a notable contrast with Rule 107(c), where a brief schedule cannot be extended by consent at all. See Delaware briefs.

Briefing on dispositive motions

Rule 146(a) adopts the ordinary rule wholesale: "Superior Court Civil Rule 107 shall apply to all briefs filed in CCLD." So the 8,000-word limit, the Times New Roman 14-point requirement, the certificate of compliance and the required contents all carry over.

Rule 146(b) replaces only the schedule:

"With all supporting authority" is a real requirement — authority held back for the reply is not contemplated.

Both periods are defaults, displaced by written agreement or order.

Discovery motions need a phone call

Rule 144 rewrites the certification requirement for the CCLD, and adds a definition:

No motion shall be filed pursuant to Rule 26(c), 26(d) or 37 of the Superior Court Civil Rules, and no such motion shall be accepted by the Prothonotary, unless such motion shall be accompanied by a certification of counsel for the moving party that a reasonable effort has been made to reach agreement with the opposing party on the matters set forth in the motion, detailing the dates, time spent, and method of communication in attempting to reach agreement, provided that the certification shall not be required for motions filed pursuant to Rule 37(d) of the Superior Court Civil Rules. Unless otherwise ordered, failure to so certify may result in dismissal of the motion. For purposes of this Rule, "a reasonable effort" must include oral communication that involves Delaware counsel for any moving party and Delaware counsel for any opposing party.

The oral-communication requirement is the CCLD's own addition, and it names Delaware counsel specifically — not out-of-state counsel admitted pro hac vice. In a case run largely by lawyers from elsewhere, that means the Delaware attorneys on each side must actually speak before a discovery motion can be filed.

The general Superior Court version of this certification, without the oral requirement, is covered in the Delaware motion to compel.

Filing under seal

Rule 142 replaces Rule 5(g) for CCLD actions and sets a structured confidentiality regime.

It starts from openness: "Court proceedings are matters of public record", hearings are open unless the Court orders otherwise, and filed documents "must be available to the public, except as provided in this rule."

Access may be limited only where a filing contains Confidential Information, which the rule defines with four cumulative elements:

It "includes" trade secrets, sensitive personal information such as medical records, and personally identifying information such as social security numbers, complete financial account numbers, dates of birth and the names of minor children.

Rule 142(d) sets when to use a confidential filing, and the second limb is broader than the first:

Making the filing "certifies compliance with this rule".

Rule 142(c)(2) prescribes a cover page containing only the caption, the title, and a warning directing an unauthorized reader to read no further and contact the filer by name, firm, address and telephone number — plus a line stating the date a public version will be filed, where one is required. Every page except voluminous exhibits carries a footer marking it a Confidential Filing.

Rule 142(a)(4) draws an important boundary: the rule "does not apply to materials exchanged during discovery that do not become Filed Documents", though the Court may enter protective orders for those. And 142(a)(5) allows the Court to review material in chambers without exposing it to public access.

Where this connects

For the smaller consent-based commercial track — over $100,000, no jury, no punitive damages and no summary judgment — see Delaware Summary Proceedings for Commercial Disputes.

Rule 143 supplies CCLD's own amendment rule, closely tracking Rule 15 but adding that an amended pleading "has no effect on another party's counterclaims, crossclaims, or third-party claims, which are preserved and do not need to be re-filed", and that failing to amend in response to a Rule 12(b)(6) motion in time makes a dismissal with prejudice as to the named party unless the Court orders otherwise for good cause. Compare amending a Delaware pleading.

For the dispositive motions that carry briefs here, see the Delaware motion to dismiss and Delaware summary judgment.

How the three commercial tracks compare

A short checklist

1. Check the exclusions before designating. Personal injury, foreclosure, mechanics' liens, condemnation, and consumer or employment forum clauses are all out.
2. Object before the Rule 16 conference if you dispute the designation — and keep meeting every other deadline meanwhile.
3. Keep a brief-supported motion under 500 words and file the brief with it.
4. Check whether a brief is even permitted. Only Rules 12, 41 and 56 motions carry one.
5. Diary seven days for opposition and five for reply unless you have agreed otherwise in writing.
6. Before any discovery motion, have Delaware counsel speak to Delaware counsel — and record the date, time spent and method.
7. File confidentially if you think the other side would claim confidentiality, not only if you would.
8. Use the prescribed cover page and footer, and diary the public-version date.

Where these rules live

• Del. Super. Ct. Civ. R. 141 — Scope of Complex Commercial Division Rules
• Del. Super. Ct. Civ. R. 142 — Public access to documents filed with the Court in CCLD actions
• Del. Super. Ct. Civ. R. 143 — Amended and supplemental pleadings in CCLD
• Del. Super. Ct. Civ. R. 144 — Additional procedures for filing discovery motions in CCLD
• Del. Super. Ct. Civ. R. 145 — CCLD motions
• Del. Super. Ct. Civ. R. 146 — CCLD briefs
• Del. Super. Ct. Civ. R. 107 — Briefs

This page explains what the rules say. It isn't legal advice.