Delaware Summary Proceedings for Commercial Disputes: no jury, no punitive damages, and no summary judgment

Delaware offers commercial parties a fast track they have to agree to in advance, and the price of speed is paid in three currencies at once.

Rule 124(b): "Neither punitive damages nor a jury trial shall be available under these Rules."

Rule 128, in its entirety: "There shall be no motions for summary judgment in Summary Proceedings."

What you get instead is a case that reaches trial roughly six months after the last answer, on a discovery budget fixed by rule.

Getting in

Rule 124(b):

Any matter within the subject matter jurisdiction of the Superior Court, excluding claims asserting personal, physical or mental injury, wherein the amount in controversy exceeds one hundred thousand dollars as to at least one party, exclusive of interest and costs shall be subject to expedited proceedings under these Rules when the parties (at least one of which is a Delaware citizen, corporation or other business entity) have consented, by written agreement or stipulation. Neither punitive damages nor a jury trial shall be available under these Rules.

Consent is usually given long before the dispute, in a contract clause. That is the point at which the jury right and punitive damages are given up — not at filing.

Rule 124(c) allows the Court, at its discretion and "to the extent judicial resources are available", to take a case under $100,000, on written motion to the President Judge or a designee.

Rule 124(d): the ordinary Superior Court civil rules still apply "To the extent they are not inconsistent with Rules 124 through 131."

Starting one

Rule 125(a)(3) requires the complaint to advertise itself:

The complaint must state prominently on the first page that Summary Proceedings are requested. The complaint also must contain a statement of the amount in controversy exclusive of interest and costs, a statement that one of the parties is a Delaware citizen, corporation or other business entity, and a statement that the defendant has agreed to submit to the Court's jurisdiction for Summary Proceedings. A copy of the portion of the document evidencing the agreement to submit to jurisdiction shall be attached to the complaint.

Service is by next-day delivery under Rule 125(a)(2) — to a person named in the agreement to receive notice, or failing that to each defendant's principal place of business or residence. The plaintiff supplies the Prothonotary with pre-addressed prepaid envelopes, and evidence of receipt is filed.

Responding

Rule 126 compresses the ordinary timetable and closes off some options.

Two structural points.

A motion to dismiss comes with its brief. They are served together, so there is no separate briefing order to wait for.

Cross-claims, permissive counterclaims and third-party claims are not permitted absent agreement of all parties. Only compulsory counterclaims come as of right. That is a significant narrowing, and it is easy to overlook when planning a defense.

Any answer or reply to a counterclaim must be accompanied by "a list of persons consulted, or relied upon, in connection with preparation of the answer or reply."

Discovery is rationed

Rule 127 replaces the ordinary discovery rules with fixed allowances.

Counting sub-parts separately is the provision that bites. Ten interrogatories means ten questions, not ten numbered paragraphs.

Rule 127(a) front-loads disclosure before any of that:

Seven days is very short, and the plaintiff's obligation is the broadest of the three — it includes the people consulted in preparing the complaint.

Rule 127(f) imposes a duty to "supplement promptly". Rule 127(g) allows discovery disputes to be sent to a Master at the expense of the parties, at the Court's option.

No summary judgment

Rule 128 is one sentence, and it changes the shape of the whole case:

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

The dispositive motion that ends most commercial cases is simply unavailable. A defendant with a strong documentary defense either wins on a Rule 126 motion to dismiss, or tries the case.

That makes the motion to dismiss unusually important here, and it is why Rule 126 gives it a full briefing schedule with page limits — see the Delaware motion to dismiss for the underlying Rule 12 grounds.

Trial on the papers, if you both want it

Rule 129 offers a route with no live testimony, available if the parties notify the Court within seven days after the close of discovery that they have agreed to forego witnesses.

Briefs "must cite to the applicable portions of the record". Affidavits may be used, but "all affiants must be identified prior to the close of discovery and must, at the option of any other party, be produced for deposition within two weeks from the date discovery would otherwise close." The Court then "shall make factual findings based upon the record presented."

So an affidavit is available, but naming the affiant late forfeits it, and the other side can convert them into a deponent.

Rule 130(a): where that route is taken, trial "shall consist of oral argument, or submission on briefs if oral argument is waived", held within one week of the close of briefing.

Trial with witnesses

Rule 130(b) sets the live-testimony track.

The pre-trial order must include each party's claims or defenses in summary, witness and exhibit lists with objections, a description of other evidentiary disputes, and statements of undisputed facts and disputed issues of fact.

Rule 130(c) requires decision within 30 days of the final brief, or of argument where argument occurs.

Changing the rules

Rule 131:

These Rules, other than Rules 129 and 130, may be modified by agreement of all parties with the approval of the Court.

Almost everything here is adjustable by agreement — the discovery allowances, the response periods, the page limits. Rules 129 and 130 are not. The trial machinery is fixed.

Where this connects

For the larger commercial track, see the Delaware Complex Commercial Litigation Division — $1 million or more, with its own motion and briefing rules.

The mandatory arbitration track under Rule 16.1 is a different animal again: elective, capped at $50,000, and non-binding. See Delaware mandatory non-binding arbitration.

For the ordinary discovery rules these allowances displace, see Delaware discovery deadlines and Delaware depositions.

How Delaware compares

A short checklist

1. Check the contract. Consent to this track is usually given in the agreement, long before suit.
2. Understand what consent gave up — the jury, punitive damages, and summary judgment.
3. If you are the plaintiff, prepare the seven-day disclosure now. It includes everyone consulted in preparing the complaint.
4. Count interrogatories and admissions by sub-part. Ten means ten questions.
5. Diary 60 days from the last answer for your first deposition notice, and 120 for completion.
6. Do not plan a summary judgment motion. The motion to dismiss is the only dispositive route.
7. Identify any affiant before discovery closes, or the affidavit cannot be used under Rule 129.
8. Remember cross-claims and third-party claims need everyone's agreement.
9. If a rule does not suit the case, propose a modification — anything but Rules 129 and 130.

Where these rules live

• Del. Super. Ct. Civ. R. 124 — Scope of rules
• Del. Super. Ct. Civ. R. 125 — Commencement of action
• Del. Super. Ct. Civ. R. 126 — Responses to the complaint
• Del. Super. Ct. Civ. R. 127 — Depositions and discovery
• Del. Super. Ct. Civ. R. 128 — Summary judgment
• Del. Super. Ct. Civ. R. 129 — Optional briefing procedure
• Del. Super. Ct. Civ. R. 130 — Trial
• Del. Super. Ct. Civ. R. 131 — Application to Court for modification of Rules

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