Delaware pleading: negligence must be pleaded with particularity, and you may not sue under a pseudonym

Delaware's special pleading rule contains one word the federal rule does not, and it changes how a large share of cases must be pleaded.

Rule 9(b):

Fraud, negligence, mistake, condition of mind. In all averments of fraud, negligence or mistake, the circumstances constituting fraud, negligence or mistake shall be stated with particularity. Malice, intent, knowledge and other condition of mind of a person may be averred generally.

Negligence. The federal rule reserves particularity for fraud and mistake; Delaware adds the most common tort in civil litigation to the list.

So a Delaware negligence complaint that alleges the defendant "negligently" caused the harm, without setting out the circumstances, has not met the rule on its face.

The second sentence preserves the usual relief for state of mind: "Malice, intent, knowledge and other condition of mind of a person may be averred generally."

Damages: no number in the pleading

Rule 9(g):

Damages. A pleading, whether a complaint, counterclaim, cross-claim or a third-party claim, which prays for unliquidated money damages, shall demand damages generally without specifying the amount, except when items of special damage are claimed, they shall be specifically stated. Upon service of a written request by another party, the party serving such pleading shall, within 10 days after service thereof, serve on the requesting party a written statement of the amount of damages claimed; such statement shall not be filed except on order of the Court.

This is a genuine prohibition, not a convention. A Delaware complaint should not carry an ad damnum figure for unliquidated damages.

The disclosure route replaces it: any party may request the number in writing, and it must be served in ten days — but it stays off the docket unless the Court orders otherwise.

Note the interaction with Rule 54(e), which lets the Court tax unnecessary bond expense against a party whose claimed amount is "exorbitant", regardless of outcome. See Delaware costs and offers of judgment.

The other special matters

Rule 9 removes the need to plead several things affirmatively, and fixes how to challenge them.

Rule 9(a) — capacity. It is unnecessary to allege a party's capacity, authority to sue in a representative capacity, or the legal existence of an organized association. To raise the issue, a party "shall do so by specific negative averment, supported by affidavit when required by Rule 8(dd), which negative averment shall include such supporting particulars as are peculiarly within the pleader's knowledge."

So the burden of specificity sits with the challenger, not the pleader.

Rule 9(c) — conditions precedent. It is enough to "aver generally that all conditions precedent have been performed or have occurred". But "A denial of performance or occurrence shall be made specifically and with particularity" — again, the specificity is on the party denying.

Rule 9(d) — official documents and acts. It suffices to aver that the document was issued or the act done "in compliance with law".

Rule 9(e) — judgments. A judgment or decision of a domestic or foreign court, tribunal, board or officer may be averred "without setting forth matter showing jurisdiction to render it."

Rule 9(f) — time and place. "For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter." Dates and locations are not treated as background; they can be tested on a motion.

No pseudonyms without permission

Rule 10(e):

No complaint may be filed under a pseudonym without prior Court approval or unless accompanied by a motion seeking approval. A petition or motion seeking approval to proceed by pseudonym must be accompanied by an affidavit stating specific facts explaining why anonymity of the party is necessary and facts sufficient to overcome the presumption of public access to the identities of litigants. Such petition or motion may be filed under seal.

The presumption runs toward disclosure of "the identities of litigants", and the affidavit must carry specific facts — not a characterization of the subject matter.

The form of a pleading

Rule 10(a) requires a caption with the Court's name, the title of the action, the file number and a Rule 7(a) designation. The complaint names all parties; other pleadings may name the first party on each side "with an appropriate indication of other parties."

Rule 10(b) governs structure:

All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.

Rule 10(c) allows adoption by reference "in a different part of the same pleading or in another pleading or in any motion", and provides that "A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes."

That last clause matters on a motion to dismiss. An instrument attached to the complaint is part of it, so relying on it does not draw in "matters outside the pleading" and does not convert the motion into one for summary judgment. See the Delaware motion to dismiss.

Rule 10(d) requires papers to be "plainly written or printed and backed", and provides that if "materially defaced by erasures or interlineations" they "shall not be received by the Prothonotary without a Judge's order."

Where this connects

Every pleading also carries the Rule 11 certification — including that factual contentions have evidentiary support "or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery". Where Rule 9(b) demands particularity and the facts are not yet in hand, that identification is the honest route. See Delaware Rule 11 sanctions.

To fix a pleading, see amending a Delaware pleading, where Rule 15(aa) requires the amended pleading to show plainly what changed — and where the free amendment survives a pending Rule 12 motion.

On the CCLD track, failing to amend in response to a Rule 12(b)(6) motion in time makes the dismissal with prejudice as to the named party. See the Delaware Complex Commercial Litigation Division.

How Delaware compares

A short checklist

1. Plead the circumstances of negligence with particularity — Delaware puts it alongside fraud and mistake.
2. Do not state an amount for unliquidated damages. Plead them generally.
3. State special damages specifically, which is the exception.
4. If you want the number, request it in writing — ten days, and it does not get filed.
5. Number your paragraphs and keep each to one set of circumstances.
6. Separate counts by transaction or occurrence, and each non-denial defense.
7. Attach key instruments. They become part of the pleading for all purposes.
8. If anonymity is needed, file the motion with the complaint, supported by an affidavit of specific facts.
9. To challenge capacity or a condition precedent, be specific. The rule puts the particularity on you.

Where these rules live

• Del. Super. Ct. Civ. R. 9 — Pleading special matters
• Del. Super. Ct. Civ. R. 10 — Form of pleadings
• Del. Super. Ct. Civ. R. 11 — Signing of pleadings, motions, and other papers
• Del. Super. Ct. Civ. R. 15 — Amended and supplemental pleadings

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