Civil Procedure (Delaware) Flashcards
Justice of the Peace Courts: General Subject Matter Jurisdiction - Dollar Amount for Civil Jurisdiction
JP court has subject matter jurisdiction over claims for money damages where the amount in controversy is NOT GREATER THAN $25,000
Justice of the Peace Courts: Civil Appeals
Civil appeals from J.P. Court are to the Court of Common Pleas (CCP), de novo.
Court of Common Pleas Jurisdiction
CCP is a STATUTORY court with limited jurisdiction.
Court of Common Pleas Jurisdiction: Civil Jurisdiction
The CCP has jurisdiction over civil claims when the amount in controversy DOES NOT EXCEED $75,000.
Court of Common Pleas Jurisdiction: Appeals
Appeals, civil or criminal, go to the Superior Court
Alderman’s Court Jurisdiction
Alderman’s Court has jurisdiction over violation of TOWN ORDINANCES and TRAFFIC OFFENSES.
Superior Court: Jurisdiction
Near general jurisdiction for all claims, including LEGAL REMEDIES seeking more than $75,000.
Superior Court: Civil Actions - Amount in Controversy
The Superior Court has exclusive jurisdiction over all civil actions wherein the amount in controversy EXCEEDS $75,000
Superior Court: Remedial Writs - Writ of Prohibition
A court issues a writ of prohibition to a lower court to STOP IT from taking action outside its jurisdiction
Superior Court: Remedial Writs - Writ of Mandamus
A court issues a writ of mandamus to COMPEL action of a public authority to.
Superior Court: Proceedings for Condemnation
Condemnation is the procedure for taking private real or personal property under the power of EMINENT DOMAIN.
Superior Court: Medical Malpractice
ANY medical malpractice claim, regardless of amount in controversy, must com into the Superior Court.
Superior Court: Venue
The jurisdiction of the court is STATEWIDE; however, if an action is filed in a county other than where the defendant resides, the plaintiff FORFEITS COSTS.
Equitable Clean Up Doctrine - Mixed Remedies (Legal and Equitable)
If a claim requests both legal and equitable relief, the COURT OF CHANCERY (not Superior Court) can hear both claims IF the claims are connected and the equitable claim is bona fide.
Right to Trial By Jury in Civil Cases (Superior v. Chancery)
Plaintiff has right to trial by jury in SUPERIOR COURT, but not Chancery Court.
Superior Court: Commencement of Case
All civil complaints are commenced by: (i) e-filing a complaint, (ii) praecipe (provides address for service), and (iii) a Case Information Statement (“CIS”)
Superior Court: Affidavit of Demand
In actions for recovery based on INSTRUMENTS OF WRITING (e.g., bills, notes, bonds, etc.), plaintiff may demand defendant respond by affidavit acknowledging the amount of money owed/in dispute.
Superior Court: Personal Injury Actions - What Must Plaintiff File With Complaint
In an action involving personal injuries, plaintiff must file:
1) Answers to SPECIFIC LIMITED INTERROGATORIES (Form 30 Interrogatories), and
2) Scanned COPIES OF DOCUMENTS related to specific damages
Superior Court: Service of Process
Sheriff serves process on defendant.
Superior Court: Manner of Service of Process - Upon an Individual
Deliver a copy of the summons, complaint, and affidavit to that individual personally or by leaving copies at the individual’s dwelling with a person of suitable age and discretion.
Superior Court: Manner of Service of Process - Upon a Minor or Incompetent Person + Outside of Delaware
Deliver copies to their GUARDIAN or an adult person with whom the infant resides.
If outside of Delaware, it must be the same was as an adult not within the state.
Superior Court: Manner of Service of Process - Corporation, Partnership, or Association + Exception
Deliver to REGISTERED AGENT in the state (officer, managing agent, general agent, or other agent authorized by law to accept service).
If no registered agent, MAIL to principal place of business OR service by publication.
Superior Court: Manner of Service of Process - Governmental Organization
Deliver to Attorney General, Chief Deputy Attorney General, or State Solicitor
Superior Court: Manner of Service of Process - Long Arm Statute (Resident Outside Delaware)
Deliver on an individual outside Delaware by:
1) Personal delivery,
2) Under the law of the state where service is to be made,
3) Mail with return receipt, or
4) as directed by the court.
Superior Court: Time for Service of Process + Failure to Meet Time
Plaintiff has 120 days to make service of process
Party may show GOOD CAUSE to why service has not been made in 120 days, if not shown then action shall be dismissed.
Superior Court: Computation of Time - Day of the Act + Las Day of Period + 11 Days
The day of the act is NOT included
The last day of the period IS included, UNLESS it is a Saturday, Sunday, or other legal holiday.
When the prescribed period of time is LESS than 11 days, intermediate Saturdays, Sundays, and holidays DO NOT COUNT (but are if more than 11 days)
Superior Court: Computation of Time - Extra Time for Service by Mail
When service is by mail, the party receiving the notice is provided 3 additional days to the prescribed period.
Pleadings and Motions: Complaint Requirements
The complaint requires:
1) A SHORT AND PLAIN STATEMENT of the claim showing the person pleading is entitled to the relief sought, and
2) a DEMAND for relief.
Pleadings and Motions: Defense’s Response to the Complaint + Affirmative Defenses
Defendant must ADMIT OR DENY each averment in the complaint, or state that the party is WITHOUT SUFFICIENT KNOWLEDGE to form belief as to truth of the averment.
Affirmative defenses must be set forth in the answer
Pleadings and Motions: Special Matters - Fraud, Negligence, and Mistake
It is NECESSARY to specially plead fraud, negligence, and mistake with PARTICULARITY. (e.g.. who, what, where, when)
Pleadings and Motions: Special Matters - Malice, Intent, or Knowledge
Malice, intent, or knowledge may be GENERALLY AVERRED without a statement of particular facts involved.
Pleadings and Motions: Signing of Pleadings - Sanctions
(Rule 11) The signature of an attorney or party proceeding pro se certifies that: (i) the pleading, motion, or other paper has been SIGNED, (ii) to the best of their information, it is WELL GROUNDED in fact warranted by existing law, and (iii) there is no effort to DELAY OR HARASS.
Pleadings and Motions: Answer/Defenses - How Long To Respond to a Complaint?
A party must respond to a complaint within 20 days of service.
Pleadings and Motions: Answer/Defenses - Motion to (Dismiss Defenses (Rule 12b)
The following may be filed by motion to dismiss:
1) Lack of Personal Jurisdiction
2) Lack of Subject Matter Jurisdiction
3) Improper Venue
4) Improper Service or Process
5) Improver Process
6) Failure to State a Claim for Which Relief Can Be Granted, and
7) Failure to Join a Party Under Rule 19.
Pleadings and Motions: Answer/Defenses - Waiver of Rule 12b Defenses
The following defenses are considered waived if they are not claimed by the party in the party’s pre-answer motion or in the answer or pleading:
1) Lack of Personal Jurisdiction
2) Improper Venue
3) Improper Process
4) Improper Service of Process.
Pleadings and Motions: Answer/Defenses - Subject Matter Jurisdiction
The court may consider and dismiss a case based on subject matter jurisdiction AT ANY TIME.
Pleadings and Motions: Compulsory Counterclaims
A compulsory counterclaim is any claim that the pleading party has against any opposing party that arises out of the SAME TRANSACTION OR OCCURENCE and does not require the presence of a third party
Pleadings and Motions: Permissive Counterclaim
Claims against the opposing party that DO NOT ARISE out of the same transaction or occurrence but MAY be asserted in the action.
Pleadings and Motions: Third Party Practice (Claims for Indemnification and Contribution)
A defending party may bring in a third party who MAY BE LIABLE for all or part of the plaintiff’s claim
Amendment of Pleadings: Timing (Plaintiff v. Defendant) + After of Right
Plaintiff may amend her complaint once as a matter of right BEFORE THE DEFENDANT ANSWERS.
Defendant may amend her answer within 20 DAYS of when the answer was filed.
After the of right period, the court will allow amendment unless the other side will be prejudiced.
Amendment of Pleadings: Relation Back
An amendment to pleading “relates back” to the date of the original pleading when:
1) same transaction or occurrence as the original pleading,
2) Within 120 days from filing, and
3) the party to be brought in by amendment has NOTICE of the action and KNEW OR SHOULD HAVE KNOWN that but for a mistake the action would have been brought against them.
Pretrial Conferences: Initial Conference
Court may discuss matters such as timing of discovery, motions, etc.
Pretrial Conferences
Witnesses, evidence, etc.
Mandatory Non-Binding Arbitration Requirements
Plaintiff may elect to have this if the case is for MONETARY DAMAGES of LESS THAN $50,000
Parties: Settlements by Minors
The Court will review all settlements by minors
Parties: Class Action - Appointing Lead Counsel
There is no rule in Delaware that the court appoint lead counsel (unlike Federal rule)
Parties: Compulsory Joinder Rule
A party within the jurisdiction of the court may be required to join as an indispensable party if:
1) In the person’s absence, COMPLETE RELIEF CANNOT BE ACCORDED, or
2) the person claims an INTEREST IN THE SUBJECT of the action such that their absence would impair their ability to protect such interest or result in a substantial risk of inconsistent liability
Parties: Permissive Joinder Rule
A party MAY join as plaintiffs or defendants in action arising out of the same TRANSACTION OR OCCURENCE provided there is a COMMON QUESTION OF LAW OR FACT.
Parties: Requirements for Class Actions + Delaware Additional Requirements
One or more persons may sue or be sued on behalf of a class where:
1) The class is so NUMEROUS that joinder of all members is impractical,
2) There are COMMON QUESTIONS
3) The claims and defenses of the representatives are TYPICAL of the claims or defenses of the class, and
4) The representatives will FAIRLY AND ADEQUATELY protect the interest of the class
In addition, Delaware requires a showing of the following:
1) separate actions create RISK OF INCONSISTENT JUDGMENTS,
2) the party opposing the class has ACTED OR REFUSED TO ACT appropriately for all, or
3) Common questions of law or fact PREDOMINATE over individual issues and a class action is superior to other available methods.
Discovery: Scope + Proportionality Factors
Parties may obtain any non-privileged matter that is relevant to any party’s claim or defense AND is proportionate to the needs of the case.
The following factors determine proportionality:
1) unreasonably cumulative or duplicative or is obtainable from a LESS BURDENSOME OR EXPENSIVE SOURCE
2) if the party seeking it has had AMPLE OPPORTUNITY to obtain the information sought, or
3) Expense outweighs the benefits.
Discovery: Insurance
Parties may obtain discovery of the existence and contents of insurance, although it USUALLY is not admissible at trial.
Discovery: Work Product
Work product of lawyers PREPARED IN ANTICIPATION OF LITIGATION has a qualified immunity, meaning it can only be discovered if the party seeking it shows it has a SUBSTANTIAL NEED of the materials and the party is UNABLE WITHOUT UNDUE HARDSHIP to get the materials through other means.
Discovery: Party’s Own Statement
A party may obtain, without the required showing, a written or recorded statement concerning the lawsuit previously made by that party
Discovery: Testifying Experts
Discovery of facts known and opinions held by experts WHO WILL TESTIFY is discoverable THROUGH INTERROGATORIES requiring the other party: (i) to identify each person that party intends to call as a witness and 2) state the subject matter and substance of the facts to which the expert is expected to testify
Discovery: Non-Testifying Experts
Discovery of facts known or opinions held by experts not testifying can only be acquired in EXCEPTION CIRCUMSTANCES or if a report of an examining doctor
Discovery: Supplementing Prior Responses + New Witnesses
Only supplemented if later found INCORRECT (NOT incomplete, like federal)
New witnesses will have to be supplemented in the response
Depositions: Conferring During Breaks
The attorney of the deponent and deponent MAY NOT CONFER once the deposition occurs, UNLESS he questions whether something is privileged.
Interrogatories: Limit
Under Delaware, there IS NO LIMIT of interrogatories
Physical or Mental Exams: Mental or Physical Condition in Controversy
When the mental or physical condition of a party in the custody or control of a party is in controversy, the court MAY ORDER the party to submit to a physical or mental examination MADE ON MOTION FOR GOOD CAUSE
Failure to Make Discovery
A party may apply to the court for an order compelling discovery, if granted, the court may require the deponent to pay expenses of opposing the motion
Failure to Preserve Evidence
If relevant evidence is not preserved, a party may be sanctioned. The court will determine that evidence as harmful to the party.
Trial: Demand of Jury Trial + Waiver
A party must demand a jury trial for 12 jurors, otherwise 6 will be given.
If no jury trial is timely demanded, it will be considered waived.
Trial: Unanimous Jury Verdict + Exception
A jury’s verdict MUST BE UNANIMOUS, unless the parties STIPULATE a less than unanimous verdict will suffice
Trial: Dismissal of Action - Voluntary
An action may be dismissed voluntarily without leave of court prior to the service of an answer or motion for summary judgment.
Trial: Dismissal of Action - Involuntary
The court may order an action dismissed SUA SPONTE for failure of a party to diligently prosecute the action (typically 6 months of inactivity)
Trial: Consolidation
Where actions involve a common question of law or fact, the court may order a joint hearing or trail of any of them together.
Subpoenas
Subpoenas command a nonparty to attend a deposition or hearing and give testimony or to produce and permit inspection.
The prothonotary gives forms to parties who complete them with name of court and county from which issued and other relevant information such as the title of action and its case number
Jurors: Voir Dire
Court examines the jurors, NOT ATTORNEYS, but attorneys may request in writing the court to ask additional questions.
Jurors: Number of Peremptory Challenges
Each party is entitled to 3 peremptory challenges, so long as it is race and gender neutral
Trial Motions: Judgment as a Matter of Law
There is NO LEGALLY SUFFICEINT EVIDENTIARY BASIS for a reasonable jury to find for that party
Trial Motions: Renewal of Motion for Judgment After Trial
After a motion of judgment as a matter of law has been made, such a motion MAY BE RENEWED by service and filing NO LATER THAN 10 DAYS after judgment.
Trial Motions: Summary Judgment + Timing
A party must demonstrate there is NO GENUINE ISSUE OF MATERIAL FACT and the moving party is entitled to a judgment as a matter of law.
A party may move for summary judgment at any time after the expiration of 20 days from the commencement of the action.
New Trials: Evidence Concerns
The court must decide whether the jury verdict is AGAINST the great weight of the evidence (i.e., SHOCK THE CONSCIENCE OF THE COURT)
New Trials: Remittitur v. Additur
Remittitur - After a verdict for damages that the court believes are too high, the court may give the winning party the option to reduce damages or have a new trial
Additur - After a verdict of damages where the court finds them to be too low, it may offer the losing party to increase damages or have a new trial.
New Trials: Timing of New Trial Motion
A motion for new trial must be served NO LATER THAN 10 DAYS after the entry of judgment
New Trials: Relief from Judgment +Timing
The following are grounds to relief from judgment:
1) Clerical mistakes,
2) Surprise,
3) Newly discovered evidence,
4) Fraud
There is no time limit, but it must occur within a REASONABLE TIME
New Trials: Default Judgment
When defendant fails to answer, plaintiff may obtain a default judgment.
Procedure is same as federal, prothonotary may enter if: (i) case is for a sum certain and (ii) defendant has not appeared.
Admission Pro Hac Vice
A non-Delaware attorney may be admitted pro have vice upon a written motion by a Delaware attorney, who is responsible for following Delaware rules and regulations
Appeals: Final Judgment v. Interlocutory + Timing
Generally, appeals can only occur on final order, made within 30 days of final order.
Interlocutory - An appeal can be heard to determine SUBSTANTIAL ISSUES and establish legal rights.
Standard of Reviews
Issues of law are reviewed DE NOVO
Evidentiary/discovery issues are reviewed for ABUSE OF DISCRETION (failure to exercise sound and reasonable discretion)
Pro Se: Corporations
One may not represent his own corporation pro se in litigation
Timing for Response to Discovery
The later of: (i) 30 days AFTER SERVICE OF DISCOVERY, or (ii) 45 days AFTER SERVICE OF COMPLAINT
Motion for Protective Order (Rule 26)
A party may file a motion for protective order if he believes discovery will subject him to annoyance, embarrassment, oppression, or undue burden or expense.
Motion for Reargument (Rule 59)
Within 5 DAYS of the decision, a party may move for a motion for reargument if the party can demonstrate the court OVERLOOKED CONTROLLING PRECEDENT or FUNDAMENTALLY MISAPPREHENDED THE LAW OR FACTS.
