Civil Procedure (Delaware)

Question 1

Justice of the Peace Courts: General Subject Matter Jurisdiction - Dollar Amount for Civil Jurisdiction

Answer 1

JP court has subject matter jurisdiction over claims for money damages where the amount in controversy is NOT GREATER THAN $25,000

Question 2

Justice of the Peace Courts: Civil Appeals

Answer 2

Civil appeals from J.P. Court are to the Court of Common Pleas (CCP), de novo.

Question 3

Court of Common Pleas Jurisdiction

Answer 3

CCP is a STATUTORY court with limited jurisdiction.

Question 4

Court of Common Pleas Jurisdiction: Civil Jurisdiction

Answer 4

The CCP has jurisdiction over civil claims when the amount in controversy DOES NOT EXCEED $75,000.

Question 5

Court of Common Pleas Jurisdiction: Appeals

Answer 5

Appeals, civil or criminal, go to the Superior Court

Question 6

Alderman’s Court Jurisdiction

Answer 6

Alderman’s Court has jurisdiction over violation of TOWN ORDINANCES and TRAFFIC OFFENSES.

Question 7

Superior Court: Jurisdiction

Answer 7

Near general jurisdiction for all claims, including LEGAL REMEDIES seeking more than $75,000.

Question 8

Superior Court: Civil Actions - Amount in Controversy

Answer 8

The Superior Court has exclusive jurisdiction over all civil actions wherein the amount in controversy EXCEEDS $75,000

Question 9

Superior Court: Remedial Writs - Writ of Prohibition

Answer 9

A court issues a writ of prohibition to a lower court to STOP IT from taking action outside its jurisdiction

Question 10

Superior Court: Remedial Writs - Writ of Mandamus

Answer 10

A court issues a writ of mandamus to COMPEL action of a public authority to.

Question 11

Superior Court: Proceedings for Condemnation

Answer 11

Condemnation is the procedure for taking private real or personal property under the power of EMINENT DOMAIN.

Question 12

Superior Court: Medical Malpractice

Answer 12

ANY medical malpractice claim, regardless of amount in controversy, must com into the Superior Court.

Question 13

Superior Court: Venue

Answer 13

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.

Question 14

Equitable Clean Up Doctrine - Mixed Remedies (Legal and Equitable)

Answer 14

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.

Question 15

Right to Trial By Jury in Civil Cases (Superior v. Chancery)

Answer 15

Plaintiff has right to trial by jury in SUPERIOR COURT, but not Chancery Court.

Question 16

Superior Court: Commencement of Case

Answer 16

All civil complaints are commenced by: (i) e-filing a complaint, (ii) praecipe (provides address for service), and (iii) a Case Information Statement (“CIS”)

Question 17

Superior Court: Affidavit of Demand

Answer 17

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.

Question 18

Superior Court: Personal Injury Actions - What Must Plaintiff File With Complaint

Answer 18

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

Question 19

Superior Court: Service of Process

Answer 19

Sheriff serves process on defendant.

Question 20

Superior Court: Manner of Service of Process - Upon an Individual

Answer 20

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.

Question 21

Superior Court: Manner of Service of Process - Upon a Minor or Incompetent Person + Outside of Delaware

Answer 21

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.

Question 22

Superior Court: Manner of Service of Process - Corporation, Partnership, or Association + Exception

Answer 22

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.

Question 23

Superior Court: Manner of Service of Process - Governmental Organization

Answer 23

Deliver to Attorney General, Chief Deputy Attorney General, or State Solicitor

Question 24

Superior Court: Manner of Service of Process - Long Arm Statute (Resident Outside Delaware)

Answer 24

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.

Question 25

Superior Court: Time for Service of Process + Failure to Meet Time

Answer 25

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.

Question 26

Superior Court: Computation of Time - Day of the Act + Las Day of Period + 11 Days

Answer 26

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)

Question 27

Superior Court: Computation of Time - Extra Time for Service by Mail

Answer 27

When service is by mail, the party receiving the notice is provided 3 additional days to the prescribed period.

Question 28

Pleadings and Motions: Complaint Requirements

Answer 28

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.

Question 29

Pleadings and Motions: Defense's Response to the Complaint + Affirmative Defenses

Answer 29

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

Question 30

Pleadings and Motions: Special Matters - Fraud, Negligence, and Mistake

Answer 30

It is NECESSARY to specially plead fraud, negligence, and mistake with PARTICULARITY. (e.g.. who, what, where, when)

Question 31

Pleadings and Motions: Special Matters - Malice, Intent, or Knowledge

Answer 31

Malice, intent, or knowledge may be GENERALLY AVERRED without a statement of particular facts involved.

Question 32

Pleadings and Motions: Signing of Pleadings - Sanctions

Answer 32

(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.

Question 33

Pleadings and Motions: Answer/Defenses - How Long To Respond to a Complaint?

Answer 33

A party must respond to a complaint within 20 days of service.

Question 34

Pleadings and Motions: Answer/Defenses - Motion to (Dismiss Defenses (Rule 12b)

Answer 34

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.

Question 35

Pleadings and Motions: Answer/Defenses - Waiver of Rule 12b Defenses

Answer 35

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.

Question 36

Pleadings and Motions: Answer/Defenses - Subject Matter Jurisdiction

Answer 36

The court may consider and dismiss a case based on subject matter jurisdiction AT ANY TIME.

Question 37

Pleadings and Motions: Compulsory Counterclaims

Answer 37

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

Question 38

Pleadings and Motions: Permissive Counterclaim

Answer 38

Claims against the opposing party that DO NOT ARISE out of the same transaction or occurrence but MAY be asserted in the action.

Question 39

Pleadings and Motions: Third Party Practice (Claims for Indemnification and Contribution)

Answer 39

A defending party may bring in a third party who MAY BE LIABLE for all or part of the plaintiff's claim

Question 40

Amendment of Pleadings: Timing (Plaintiff v. Defendant) + After of Right

Answer 40

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.

Question 41

Amendment of Pleadings: Relation Back

Answer 41

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.

Question 42

Pretrial Conferences: Initial Conference

Answer 42

Court may discuss matters such as timing of discovery, motions, etc.

Question 43

Pretrial Conferences

Answer 43

Witnesses, evidence, etc.

Question 44

Mandatory Non-Binding Arbitration Requirements

Answer 44

Plaintiff may elect to have this if the case is for MONETARY DAMAGES of LESS THAN $50,000

Question 45

Parties: Settlements by Minors

Answer 45

The Court will review all settlements by minors

Question 46

Parties: Class Action - Appointing Lead Counsel

Answer 46

There is no rule in Delaware that the court appoint lead counsel (unlike Federal rule)

Question 47

Parties: Compulsory Joinder Rule

Answer 47

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

Question 48

Parties: Permissive Joinder Rule

Answer 48

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.

Question 49

Parties: Requirements for Class Actions + Delaware Additional Requirements

Answer 49

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.

Question 50

Discovery: Scope + Proportionality Factors

Answer 50

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.

Question 51

Discovery: Insurance

Answer 51

Parties may obtain discovery of the existence and contents of insurance, although it USUALLY is not admissible at trial.

Question 52

Discovery: Work Product

Answer 52

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.

Question 53

Discovery: Party's Own Statement

Answer 53

A party may obtain, without the required showing, a written or recorded statement concerning the lawsuit previously made by that party

Question 54

Discovery: Testifying Experts

Answer 54

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

Question 55

Discovery: Non-Testifying Experts

Answer 55

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

Question 56

Discovery: Supplementing Prior Responses + New Witnesses

Answer 56

Only supplemented if later found INCORRECT (NOT incomplete, like federal) New witnesses will have to be supplemented in the response

Question 57

Depositions: Conferring During Breaks

Answer 57

The attorney of the deponent and deponent MAY NOT CONFER once the deposition occurs, UNLESS he questions whether something is privileged.

Question 58

Interrogatories: Limit

Answer 58

Under Delaware, there IS NO LIMIT of interrogatories

Question 59

Physical or Mental Exams: Mental or Physical Condition in Controversy

Answer 59

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

Question 60

Failure to Make Discovery

Answer 60

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

Question 61

Failure to Preserve Evidence

Answer 61

If relevant evidence is not preserved, a party may be sanctioned. The court will determine that evidence as harmful to the party.

Question 62

Trial: Demand of Jury Trial + Waiver

Answer 62

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.

Question 63

Trial: Unanimous Jury Verdict + Exception

Answer 63

A jury's verdict MUST BE UNANIMOUS, unless the parties STIPULATE a less than unanimous verdict will suffice

Question 64

Trial: Dismissal of Action - Voluntary

Answer 64

An action may be dismissed voluntarily without leave of court prior to the service of an answer or motion for summary judgment.

Question 65

Trial: Dismissal of Action - Involuntary

Answer 65

The court may order an action dismissed SUA SPONTE for failure of a party to diligently prosecute the action (typically 6 months of inactivity)

Question 66

Trial: Consolidation

Answer 66

Where actions involve a common question of law or fact, the court may order a joint hearing or trail of any of them together.

Question 67

Subpoenas

Answer 67

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

Question 68

Jurors: Voir Dire

Answer 68

Court examines the jurors, NOT ATTORNEYS, but attorneys may request in writing the court to ask additional questions.

Question 69

Jurors: Number of Peremptory Challenges

Answer 69

Each party is entitled to 3 peremptory challenges, so long as it is race and gender neutral

Question 70

Trial Motions: Judgment as a Matter of Law

Answer 70

There is NO LEGALLY SUFFICEINT EVIDENTIARY BASIS for a reasonable jury to find for that party

Question 71

Trial Motions: Renewal of Motion for Judgment After Trial

Answer 71

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.

Question 72

Trial Motions: Summary Judgment + Timing

Answer 72

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.

Question 73

New Trials: Evidence Concerns

Answer 73

The court must decide whether the jury verdict is AGAINST the great weight of the evidence (i.e., SHOCK THE CONSCIENCE OF THE COURT)

Question 74

New Trials: Remittitur v. Additur

Answer 74

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.

Question 75

New Trials: Timing of New Trial Motion

Answer 75

A motion for new trial must be served NO LATER THAN 10 DAYS after the entry of judgment

Question 76

New Trials: Relief from Judgment +Timing

Answer 76

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

Question 77

New Trials: Default Judgment

Answer 77

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.

Question 78

Admission Pro Hac Vice

Answer 78

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

Question 79

Appeals: Final Judgment v. Interlocutory + Timing

Answer 79

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.

Question 80

Standard of Reviews

Answer 80

Issues of law are reviewed DE NOVO Evidentiary/discovery issues are reviewed for ABUSE OF DISCRETION (failure to exercise sound and reasonable discretion)

Question 81

Pro Se: Corporations

Answer 81

One may not represent his own corporation pro se in litigation

Question 82

Timing for Response to Discovery

Answer 82

The later of: (i) 30 days AFTER SERVICE OF DISCOVERY, or (ii) 45 days AFTER SERVICE OF COMPLAINT

Question 83

Motion for Protective Order (Rule 26)

Answer 83

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.

Question 84

Motion for Reargument (Rule 59)

Answer 84

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.