Setting aside a Delaware default judgment: Rule 60(b) sets no deadline of its own

Nearly every Rule 60(b) in the country carries a sentence fixing when the motion must be brought. It sits directly after the last ground: the motion must be made within a reasonable time, and on the first three grounds not more than a year after judgment.

Delaware's does not. The rule runs from ground (6) straight to "A motion under this subdivision does not affect the finality of a judgment or suspend its operation", with nothing in between.

That is worth stating precisely, because the useful reading is narrow. The rule sets no deadline on its face. It does not follow that a motion can be brought whenever you like — Delaware courts supply timing requirements from decided cases, which this site does not cover. What the rule text settles is only that the number is not in the rule.

Where a default judgment goes

Del. Super. Ct. Civ. R. 55(c):

Setting aside default judgment. The Court may set aside a judgment by default in accordance with Rule 60(b).

One sentence, and it routes everything to Rule 60(b). There is no separate good-cause standard for defaults in Delaware, and no separate provision for setting aside an entry of default — because, as responding to a Delaware complaint explains, Rule 55(a) is simply marked "Omitted" and there is no entry-of-default step to set aside.

The six grounds

Rule 60(b):

Mistake; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon such terms as are just, the Court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

Two points on the wording.

Ground (3) is expressly indifferent to the intrinsic/extrinsic distinction — "whether heretofore denominated intrinsic or extrinsic". Some jurisdictions still sort fraud into categories that decide whether relief is available. Delaware's text closes that off.

Ground (2) is defined by reference to Rule 59(b) — evidence that could not have been discovered "in time to move for a new trial". Rule 59(b) fixes that at 10 days, so ground (2) turns on whether diligence would have surfaced the evidence inside that window.

What the motion does not do

The subdivision continues:

A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This Rule does not limit the power of a Court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to grant any relief provided by statute, or to set aside a judgment for fraud upon the Court, or to deal with judgments by confession as provided by law. Writs of coram nobis, coram vobis, and audita querela are abolished, and the procedure for obtaining relief from judgments shall be by motion as prescribed in these Rules or by an independent action.

Filing does not stop collection. The judgment stays final and stays operative while your motion is pending. If you need enforcement paused, that is a separate application — see enforcing a Delaware money judgment, where Rule 62(b) allows a discretionary stay pending a Rule 60 motion and Rule 69(c) offers a six-month stay bought with security.

Four routes survive alongside the motion: an independent action, relief provided by statute, setting aside for fraud upon the Court, and the separate machinery for judgments by confession.

Three old writs are abolished — coram nobis, coram vobis and audita querela. Relief comes by motion or by independent action, and nothing else.

The deadlines Delaware does fix

The absence of a number in Rule 60(b) is easier to read against the rule that is full of them.

Rule 59:

Rule 59(d) is the whole provision: "A motion to alter or amend the judgment shall be served and filed not later than 10 days after entry of the judgment."

And Rule 59(e) runs from a different event than all the others — the filing of the opinion or decision, not entry of judgment — with only five days, and an answer due five days after that.

So a Delaware litigant unhappy with a judgment faces a fast, hard set of clocks under Rule 59, and a rule under 60(b) that states none. Where a Rule 59 route is open on the facts, its deadline is the one that governs the choice.

Clerical mistakes are separate

Rule 60(a):

Clerical mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the Court at any time of its own initiative or on the motion of any party and after such notice, if any, as the Court orders.

At any time, on the Court's own initiative or on anyone's motion. A wrong figure carried into the judgment from the papers, or a misnamed party, is a 60(a) correction rather than a 60(b) motion.

If you had appeared, you were owed notice

Where the default judgment was entered by the Court rather than the Prothonotary, Rule 55(b)(2) attaches a notice requirement:

If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application.

Three days, and only for a party who has appeared. A defendant who never appeared gets no notice of the application under this rule.

The same subdivision protects two classes absolutely: "no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a guardian, trustee or other representative."

It also lets the Court, where it needs to "take an account or to determine the amount of damages or to establish the truth of any averment by evidence", conduct hearings or order references — and requires it to "accord a right of trial by jury to the parties when and as required by any statute."

Where the judgment was entered by the Prothonotary on a sum certain instead, the document to examine is the sworn statement of amount due. That is covered in responding to a Delaware complaint.

How Delaware compares

A short checklist

1. Do not read the missing deadline as no deadline. The rule states none; timing still has to be justified.
2. Check Rule 59 first. If a new-trial or alter-or-amend route fits, it closes in 10 days, and reargument in 5 from the opinion.
3. Pick your ground deliberately. Ground (4) — void judgment — does not depend on excuse, and ground (3) does not depend on the kind of fraud.
4. File a stay application alongside the motion. Rule 60(b) expressly does not suspend the judgment.
5. If a Rule 69(c) stay is available, the security is due within 20 days of the judgment.
6. If you had appeared, check for the 3 days' written notice of the application for judgment.
7. For a wrong number or name, use Rule 60(a) — available at any time.

Where these rules live

• Del. Super. Ct. Civ. R. 55 — Default judgments
• Del. Super. Ct. Civ. R. 60 — Relief from judgment or order
• Del. Super. Ct. Civ. R. 59 — New trials and rearguments
• Del. Super. Ct. Civ. R. 62 — Stays by trial court and on appeal

This page explains what the rules say. It isn't legal advice. Rule 60(b) states no deadline, but Delaware courts apply timing requirements drawn from decided cases, which this site doesn't cover.