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STATE Q&A Commencing an Action: Delaware by William M. Lafferty, Matthew R. Clark, and John Ditomo, Morris, Nichols, Arsht & Tunnell LLP, with Practical Law Litigation Status: Law stated as of 13 Jan 2021 | Jurisdiction: Delaware, United States This document is published by Practical Law and can be found at: us.practicallaw.tr.com/w-004-8306 Request a free trial and demonstration at: us.practicallaw.tr.com/about/freetrial A Q&A guide to commencing an action in Delaware. This Q&A addresses the requirements for drafting and filing initiating papers, serving process, and amending the complaint. Answers to questions can be compared across a number of jurisdictions (see Commencing an Action: State Q&A Tool). As of January 4, 2021, the Delaware Judiciary has extended until February 3, 2021, the Judicial Emergency in response to the ongoing COVID-19 outbreak and continues to issue orders affecting court operations and procedures. As this may change, please refer to the Delaware Judiciary Response to COVID-19 website for the most recent orders and information. Overview of Commencing an Action • The Delaware Court of Chancery (10 Del. C. §§ 301 to 375). 1. What are the applicable rules for • The Delaware Superior Court (10 Del. C. §§ 501 to 568). commencing an action? • The Delaware Family Court (10 Del. C. §§ 901 to 1077). • The Delaware Court of Common Pleas (10 Del. Delaware Rules of Court C. §§ 1301 to 1330). Each Delaware trial court has its own rules regarding civil • The Delaware Justice of the Peace Court (10 Del. procedure in that court, which are: C. §§ 9201 to 9803). • The Delaware Court of Chancery Rules (Del. Ct. Ch. R. 3, The Delaware Code contains other provisions relating to Del. Ct. Ch. R. 4, and Del. Ct. Ch. R. 5). commencing an action, including service of process on: • The Delaware Superior Court Civil Rules of Civil • Partnerships and limited partnerships (6 Del. C. Procedure (Del. Super. Ct. Civ. R. 3, 4, and 5). §§ 15-112, 15-113, and 17-105). • The Delaware Family Court Civil Rules (Fam. Ct. Civ. R. • Partners (6 Del. C. §§ 15-114, 17-109). 3, 4, and 5). • Limited liability companies and their managers (6 Del. • The Delaware Court of Common Pleas Civil Rules (Del. C. §§ 18-105, 18-109). Ct. Com. Pl. Civ. R. 3, Del. Ct. Com. Pl. Civ. R. 4, and Del. • Non-profit associations (6 Del. C. § 1913). Ct. Com. Pl. Civ. R. 5). • Corporations (8 Del. C. § 321). • The Delaware Justice of the Peace Court Civil Rules (J.P. Ct. Civ. R. 3, 4, and 5). • Entities remaining after corporations have merged (8 Del. C. §§ 252, 256, 263, and 264). Delaware Code The Delaware Code title 10, Chapter 31 contains provisions The Delaware Code contains provisions regarding the for service of process and the commencement of actions. organization, jurisdiction, and procedure for the following courts: © 2021 Thomson Reuters. All rights reserved. Use of Practical Law websites and services is subject to the Terms of Use (static.legalsolutions.thomsonreuters.com/static/agreement/westlaw-additional-terms.pdf) and Privacy Policy (a.next.westlaw.com/Privacy). Commencing an Action: Delaware Other Sources Family Court Other sources of applicable procedural law include: Monetary Thresholds • The Delaware State Constitution. The Family Court has exclusive jurisdiction over virtually • Administrative orders and directives. all family and juvenile matters. There is no monetary threshold. (10 Del. C. §§ 921 to 931; 16 Del. C. § 4795(d); • Electronic filing rules. 21 Del. C. § 704(a).) • For the Delaware Superior Court: Territorial Limits – civil case management plans; and The Family Court has statewide jurisdiction (10 Del. – judicial officers’ preferences. C. §§ 921 to 931). 2. Generally, in which trial level court must Court of Common Pleas an action be commenced? Please address: • Monetary thresholds for trial level courts. Monetary Thresholds • Territorial limits for trial level courts. The Court of Common Pleas has jurisdiction of all civil actions where the amount in controversy does not exceed In Delaware, if the jurisdictional requirements are $75,000, excluding interest. However, the court does not satisfied, a party may commence an action in: have jurisdiction over matters in equity and certain matters relating to children and domestic relations. The Court • The Court of Chancery (see Court of Chancery). of Common Pleas has concurrent jurisdiction with the • The Superior Court (see Superior Court). Superior Court. (Del. Const. art. IV, § 7; 10 Del. C. § 1322.) • The Family Court (see Family Court). Territorial Limits • The Court of Common Pleas (see Court of Common The Court of Common Pleas has statewide jurisdiction. Pleas). Process may be issued out of each county and into each • The Justice of the Peace Court (see Justice of the Peace county. (10 Del. C. § 1321.) Court). Justice of the Peace Court Court of Chancery Monetary Thresholds Monetary Thresholds The Justice of the Peace Court has concurrent civil The Court of Chancery is a court of equity. There is no jurisdiction with the Court of Common Pleas and the monetary threshold for civil actions. (10 Del. C. § 341.) Superior Court over the following civil cases where the demand, damage claimed, or value of property does not Territorial Limits exceed $25,000: The Court of Chancery has statewide jurisdiction. • Common law contract actions. • Common law tort actions for: Superior Court – damage, destruction or taking of personal property, Monetary Thresholds including replevin; As the court of general jurisdiction, there is generally – injury to real property; and no monetary threshold for commencing an action in the – trespass on land. Superior Court. • Actions for penalty or forfeiture incurred under any Territorial Limits statute, bylaw, or ordinance. The Superior Court has statewide jurisdiction. (Del. Const. art. IV, § 7; 10 Del. C. §§ 1322 and 9301.) © 2021 Thomson Reuters. All rights reserved. Use of Practical Law websites and services is subject to the Terms of Use 2 Practical Law (static.legalsolutions.thomsonreuters.com/static/agreement/westlaw-additional-terms.pdf) and Privacy Policy (a.next.westlaw.com/Privacy). Commencing an Action: Delaware The $25,000 limit does not apply to monetary claims, Family Court counter-claims, and cross-claims in an action: In the Family Court, a party commences an action by • For summary possession (25 Del. C. §§ 5701-5719). preparing and filing a verified petition, complaint, or statement of claim (Fam. Ct. Civ. R. 3(a)). The petition, • Arising from or relating to a commercial lease (25 Del. complaint, or statement must be notarized (Fam. Ct. Civ. C. §§ 6101-6310). R. 3(b)). (10 Del. C. § 9301.) Certain types of proceedings have more specific rules as to The Justice of the Peace Court does not specify a monetary the pleadings required, including: threshold over the following claims: • Child dependency, neglect, or abuse proceedings (Fam. • Certain landlord-tenant actions, including: Ct. Civ. R. 224). – summary possession actions; • Child support proceedings (Fam. Ct. Civ. R. 301). – tenant receivership petitions; and Court of Common Pleas – distress for rent actions. In the Court of Common Pleas, a party commences an (10 Del. C. § 9301; 25 Del. C. §§ 5701, 5901, and 6301.) action by preparing and filing: • Truancy actions (10 Del. C. § 9301(5); 14 Del. C. § 2733). • A complaint, petition, or statement of claim. For an amicable action, the parties may file an agreement Territorial Limits specifying the matters agreed on. (Del. Ct. Com. Pl. Civ. R. 3(a).) The Justice of the Peace Court has statewide jurisdiction (10 Del. C. § 9206). • A praecipe (Del. Ct. Com. Pl. Civ. R. 3(a)). • A case information statement (Del. Admin. Dir. No. 3. What documents must be prepared to 2009-6 (Del. Ct. Com. Pl. Oct. 1, 2009)). commence an action? Are there official • A certificate of value (Del. Admin. Dir. No. 2009-6 (Del. forms for the initiating papers? Ct. Com. Pl. Oct. 1, 2009)). Documents Justice of the Peace Court In the Justice of the Peace Court, a party commences an Court of Chancery action by preparing and filing: In the Delaware Court of Chancery, a party commences an • A complaint (J.P. Ct. Civ. R. 3(a)). action by preparing and filing: • A praecipe (J.P. Ct. Civ. R. 3(a)). • A verified complaint (Del. Ct. Ch. R. 3). • A notarized certificate of representation if the plaintiff • A notarized verification from each plaintiff (Del. Ct. Ch. is a corporation, partnership, or other entity that is not R. 3(aa)). represented by an attorney (Civil Form 50). • A supplemental information sheet (Del. Ct. Ch. R. 3(a)(2)). Official Forms Superior Court Official forms can be found on the Delaware Judiciary’s In the Superior Court, a party commences an action by website, including: preparing and filing: • A Court of Chancery supplemental information form. • A complaint, petition, or statement of claim. • A sample Superior Court praecipe. • An order requesting a writ or other legal document • A Superior Court civil case information statement. (a praecipe). • A court of Common Pleas case information statement. • A case information statement. (Del. Super. Ct. Civ. R. 3(a).) © 2021 Thomson Reuters. All rights reserved. Use of Practical Law websites and services is subject to the Terms of Use 3 Practical Law (static.legalsolutions.thomsonreuters.com/static/agreement/westlaw-additional-terms.pdf) and Privacy Policy (a.next.westlaw.com/Privacy). Commencing an Action: Delaware • A Justice of the Peace Court: Initiating papers that are not required to be filed electronically must be filed with the clerk of court. The – complaint (Civil Form 1); and judge may allow a party to file papers with the judge, – notarized certificate of representation Civil( Form 50). who notes the filing date on the papers and transmits the papers to the office of the clerk of court.
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